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Pipeline Productions, Inc. v. The Madison Companies, LLC

United States District Court, D. Kansas

March 14, 2019

PIPELINE PRODUCTIONS, INC., BACKWOOD ENTERPRISES, LLC, OK PRODUCTIONS, INC., and BRETT MOSIMAN, Plaintiffs,
v.
THE MADISON COMPANIES, LLC, and HORSEPOWER ENTERTAINMENT, LLC, Defendants.

          MEMORANDUM AND ORDER

          K. GARY SEBELIUS, U.S. MAGISTRATE JUDGE

         This matter comes before the court upon plaintiffs' Motion to Compel Suzanne Land Documents and Other Improperly Withheld Documents on Defendants' Privilege Logs, and Memorandum in Support (ECF No. 302) and Plaintiffs' Motion for Leave to File a Supplement to their Reply in Support of their Motion to Compel Suzanne Land Documents (ECF No. 371). Plaintiffs are seeking all documents referencing, sent to, and sent from a consultant for the defendants. Defendants assert that the documents are protected either by attorney-client privilege or work-product privilege or both.[1] For the reasons stated below, plaintiffs' motions are denied, and the parties are directed to further meet and confer on the issue of privilege.

         I. Factual Background and Procedural History

         This action arises from a failed country music concert in Arkansas, the Thunder on the Mountain music festival. Plaintiffs allege that they entered into a joint venture with the defendants to own and produce the music festival. Plaintiffs contend that defendants reneged on the agreement, which forced plaintiffs to cancel the festival. Defendants assert counterclaims against plaintiffs, seeking declaratory judgments establishing the rights of the parties and recovery from the plaintiffs under the theories of breach of contract, promissory estoppel, and unjust enrichment.[2]

         From March 9 to July 6, 2018, defendants provided plaintiffs with five privilege logs, in which defendants claimed attorney-client privilege, work-product privilege, or both, shielded over 2, 000 documents from production.[3] The parties conferred multiple times in an attempt to resolve the privilege claims over documents involving Suzanne Land.[4] On September 28, plaintiffs filed an unopposed motion for extension of time to file a motion to compel.[5] In their motion, plaintiffs indicated defendants had withheld certain documents sent to or from Suzanne Land. Plaintiffs further noted that the motion “is limited to Land documents only.”[6] On October 1, 2018, the court granted plaintiffs' motion for an extension of time.[7] On October 29, 2018, plaintiffs filed this motion to compel.[8] In their motion, plaintiffs ask this court to compel production of “all documents to, from and including Suzanne Land highlighted on defendants' privilege logs from July 5 and 6, 2018.”[9]

         II. Scope of Motion to Compel

         Plaintiffs' motion seeks documents outside the scope permitted by the court's October 1, 2018 order. In the District of Kansas, a motion to compel discovery must be filed and served within 30 days of the service of any objection that is the subject of the motion, unless the court extends the time for filing such motion for good cause.[10] When the court granted plaintiffs' motion to extend the deadline to file a motion to compel, plaintiffs only sought documents “to or from one Suzanne Land.”[11] Despite plaintiffs' attempts to broaden this scope in the present motion, plaintiffs never sought and the court never granted leave to file a motion to compel any other documents listed in defendants' privilege logs. Thus, plaintiffs' motion is denied to the extent that it seeks documents that were not sent to or from Suzanne Land.

         Plaintiffs ask this court to compel defendants to produce documents to and from Suzanne Land highlighted on defendants' July 5 and July 6 privilege logs.[12] As plaintiffs have chosen to limit their motion to these two privilege logs, the court will not consider any documents found in any other privilege logs attached to plaintiffs' motion or addressed in plaintiffs' briefing.

         III. Discussion

         Defendants' privilege logs are deficient. The party seeking to assert a privilege has the burden of establishing that it applies.[13] 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.[14]

Parties make this showing by creating a privilege log, and judges 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 ...

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