United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTION TO COMPEL
KENNETH G. GALE U.S. MAGISTRATE JUDGE
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.
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.
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.)
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.)
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.)
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.)
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) ...