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Hall v. Life Care Centers of America, Inc.

United States District Court, D. Kansas

October 25, 2018

PAMELA HALL, Plaintiff,
v.
LIFE CARE CENTERS OF AMERICA, INC., et al., Defendant.

          MEMORANDUM & ORDER ON MOTION TO COMPEL

          HON. KENNETH G. GALE U.S. MAGISTRATE JUDGE

         Now before the Court is Plaintiff's Motion for Reconsideration (Doc. 117) of the Court's Order (Doc. 115) on her “Motion for an Order as to Defendant's Claims of ‘Privilege'” (Doc. 92). Having reviewed the submissions of the parties, Plaintiff's motion (Doc. 117) is GRANTED in part as more fully set forth below.

         BACKGROUND

         Plaintiff alleges she was subject to employment discrimination and retaliation in violation of the Family Medical and Leave Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. (Doc. 1.) Plaintiff contends she was forced to terminate her employment, while Defendants Life Care Centers of America (“Defendant LCCA” or “LCCA”) and Michelle Yosick (“Defendant Yosick” or “Yosick”) contend Plaintiff did so voluntarily.

         The underlying discovery motion concerns Plaintiff's First Document Requests, which were served on July 20, 2017. (Doc. 92, at 2.) Responses were served by Defendant LCCA on September 5, 2017, but no documents were produced. (Doc. 92-2.) In response to 15 of the requests, Defendant LCCA indicated that “privileged” documents would not be produced. No privilege log was provided, however. Certain documents were served on September 21, 2017, but no privilege log was included. Thereafter, Plaintiff's counsel requested a telephone conference with the Court on, which occurred on September 29, 2017. (Doc. 47, text entry; 9/29/17 text entry.) During the conference, Plaintiff raised the issue of Defendants' raising the privilege objections without providing a privilege log. (See Doc. 92-3.)

         On January 12, 2018, Plaintiff filed her “Motion to Enforce Discovery, ” relating to Defendant's responses to Plaintiff's First and Second Requests for Production. (Doc. 58.) Therein, Plaintiff contended that Defendant had “yet to file any responses or objections at all as to Plaintiff's First Requests for Production” and that no privilege log had been served. (Doc. 58, at 2.) Plaintiff specifically raised the privilege log issue as to drafts of the separation agreement she was presented by Defendant. (Id., at 8.)

         Thereafter, on February 2, 2018 (the same day Defendant's response to Plaintiff's Motion to Enforce Discovery was due),

Defendants served supplemental responses to several of Plaintiff's First Document Requests. (See Exhibit D). Specifically, as to seven of the previous responses served . . ., Defendants supplemented them but - as to each of them - it was still indicated that ‘privileged' documents would not be produced. The remaining eight responses, which previously had raised privilege, were not supplemented and the objections were not withdrawn. No Privilege Log was produced in connection with Defendants' supplemental responses served on February 2, 2018, even though Plaintiff's Motion for Enforcement again raised this as an issue and asked that the Court determine the privilege objections had been waived. (Doc. 58).

(Doc. 92, at 2.)

         Defendants ultimately served a privilege log on February 24, 2018, a week before the discovery deadline. (Doc. 92, at 2; Doc. 92-5.) The log lists ten items, but, according to Plaintiff,

fails to differentiate between who authored, received, or were carbon copied on the documents, fails to identify what type of documents or how many pages they are, there are no titles of the ‘Author'(s) listed and many of the people listed are unknown, there are multiple dates listed, and the ‘Description'(s) of the documents are too vague for Plaintiff or the Court to assess whether the documents are appropriately being withheld as privileged.

(Doc. 92, at 2-3.) Plaintiff's counsel emailed defense counsel about the alleged deficiencies of the privilege log on March 13, 2018, and April 4, 2018. (Doc. 92-1.) Defendant served a supplemental privilege log on April 4, 2018. (Doc. 92-6.) Plaintiff contends the supplemental log is also deficient. (Doc. 92, at 3.)

         According to Plaintiff, the log does not comply with the requirements of this District because

emails strings and attachments to emails are not listed separately, people listed are not described by title or whether they are employees of LCCA, all people listed are under a heading for ‘Author' even though it is clear all of them are not, there is no indication of who the documents were prepared for, who the recipients are, or who was carbon copied, and the ‘Description'(s) ...

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