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Crumpley v. Associated Wholesale Grocers, Inc.

United States District Court, D. Kansas

October 27, 2017

JACOB CRUMPLEY, Plaintiff,
v.
ASSOCIATED WHOLESALE GROCERS, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          GERALD L. RUSHFELT, U.S. MAGISTRATE JUDGE.

         The Court has before it two motions, each entitled Plaintiff's Motion to Compel (ECF 122 & 155). Each of them asks the Court to compel Defendant Clarence M. Kelley and Associates, Inc. (CMKA) to produce to Plaintiff documents which Defendant contends to be either privileged or work product. The Court also addresses Plaintiff's earlier request for sanctions.[1] (See ECF 141). For the following reasons, the Court denies both motions to compel, as well as the request for sanctions.

         I. Background

         Plaintiff filed a Motion to Compel (ECF 122), seeking twelve of the fourteen[2] emails listed in the privilege log, which CMKA had submitted in March (the “March Log”). Plaintiff contends that CMKA's privilege log fails to comply with the requirements in this District, and thus all twelve documents should be produced. In response to this motion, CMKA filed an amended privilege log (the “May Log”) in an attempt to rectify the deficiencies identified by Plaintiff. On June 15, 2017, the day before the then-deadline of discovery, CMKA sent to Plaintiff its latest amended privilege log (the “June Log”), which blossomed from two pages (addressing 14 documents) to fifty-seven pages (244 documents). The June Log includes the fourteen documents of the March and May Logs. In July Plaintiff filed another Motion to Compel (ECF 155) against CMKA. It seeks all of the approximately 244 documents listed in the June Log. Because the June Log encompasses all documents Plaintiff seeks to compel, the Court treats the motions together as a single motion to compel.

         II. Legal Standards

         The party seeking to assert a privilege has the burden of establishing that it applies.

         Federal Rule of Civil Procedure 26(b)(5)(A)(ii) provides:

“When a party withholds information otherwise discoverable by claiming that the information is privileged . . . the party must: (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged . . . will enable the parties to assess the claim.”[3]

         Parties make this showing by creating a privilege log, and courts in this District have repeatedly outlined the criteria a privilege log must contain:

1. A description of the document explaining whether the document is a memorandum, letter, e-mail, etc.;
2. The date upon which the document was prepared;
3. The date of the document (if different from # 2);
4. The identity of the person(s) who prepared the document;
5. The identity of the person(s) for whom the document was prepared, as well as the identities of those to whom the document and copies of the document were directed, “including an evidentiary showing based on competent evidence supporting any assertion that the document was created under the supervision of an attorney;”
6. The purpose of preparing the document, including an evidentiary showing, based on competent evidence, “supporting any assertion that the document was prepared in the course of adversarial litigation or in anticipation of a threat of adversarial litigation that was real and imminent;” a similar evidentiary showing that the subject of communications within the document relates to seeking or giving legal advice; and a showing, again based on ...

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