The Gainesville lawyers of Massey & Duffy almost had to file the following Motion to Compel. This was a very close call, but through our valiant efforts our lawyers were able to resolve the issue at the last second. This is another example of how our attorneys resolve issues in the best possible manner, without court intervention whenever possible. Congratulations are in order for our law firm, yet again!
MOTION TO COMPEL
Plaintiff files this Motion to Compel against Defendant, and states as follows:
Summary of Issues
The Defendant objected to four Requests to Produce. Defendant asserted objections alleging the attorney-client privilege for Request #18 (a request for documents between Defendant and a third party) and Request #78 (a request for documents relative to Plaintiff’s termination, such as business advice stating the reasons she should be terminated). Both objections are without merit, and to further hamper Plaintiff’s efforts to obtain the same, Defendant has not provided a privilege log regarding what it is withholding. Defendant asserted two other objections based on the work product privileges to Requests 30 and 48; however, Defendant at the same time stated that no documents exist “without waiving” said objection. A privilege log would expose whether any such documents actually exist, but Defendant failed to provide one and refuses to still provide one even with the provision of additional time.
Background and Good Faith Conferences
1. On February 28, 2014, Plaintiff served a Request to Produce on Defendant. Those requests as they pertain to this Motion are referenced infra in Section 4, along with Defendant’s objections based on both the work product and attorney-client privileges.
2. Beginning on April 12th through and including April 14th, Plaintiff (via email) requested Defendant’s privilege log as to those communications it asserted privilege.
3. Defendant refused to provide such a privilege log on April 14th, stating via email that no privilege log was necessary.
4. On April 14th, the undersigned called counsel for the Defendant and attempt to verbally convince him to provide a privilege log. The communication ended with Defendant’s counsel still refusing to provide one.
5. In yet an additional attempt to extract a privilege log, the undersigned on April 14th (and subsequent to the phone call referenced above), provided the Defendant with another email containing a citation to American College of Trial Lawyers U.S. Code of Pretrial Conduct and Code of Trial Conduct, Page 5(c) — with quoted language stating that the log was due with the response to the request to produce.
6. After the undersigned sent the citation to the American College of Trial Lawyers U.S. Code of Pretrial Conduct and Code of Trial Conduct, Page 5(c), the Defendant’s counsel on April 14th responded that it would now agree to provide a privilege log but stating: “There are many such items of correspondence thus this may take awhile to prepare.”
7. In response to the Defendant’s reluctant agreement to provide a privilege log in “awhile”, the undersigned emailed back saying that Plaintiff needed the Defendant’s timing as to when the privilege log would be provided. The undersigned made it clear that “2 weeks should be ample.” Defendant’s counsel did not respond to either the request for a time when the log will be produced or the 2 week grace period granted by the undersigned.
8. Over 2 weeks have passed since April 14th without Defendant providing a privilege log, a date when such a log will be provided, or any further details regarding its claimed privileges.
9. Via an after hours email on April 30th, Plaintiff’s counsel again requested the privilege log be produced by the end of the week (May 2nd). Defendant ignored the same.
MEMORANDUM OF LAW AND ANALYSIS
Paragraph 12 of the Court’s Scheduling and Mediation Order (Doc. 16) refers the parties to the American College of Trial Lawyers U.S. Code of Pretrial Conduct and Code of Trial Conduct (the “Code”). Page 5(c) of the Code (titled Document Requests) provides as follows:
(4) If any responsive documents are withheld, then at the time of production, the producing lawyer should give notice of that fact and should explain the reason for withholding them. The producing lawyer should timely
provide, in accordance with applicable rule, a log of all documents withheld,
including, for each document: (a) its date; (b) the author’s name; (c) a general
description; (d) the addressee, if any; (e) its current location; (f) the basis
for withholding it; and (g) any other information that may be required by applicable rules of procedure.
(e.s.). See also Fed.R.Civ.P. 26(b)(5) and Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 664 (S.D.Ind.1991) (requiring the log to list, for each separate document, the authors and their capacities, the recipients [including copy recipients] and their capacities, the subject matter of the document, the purpose for its production, and a detailed, specific explanation of why the document is privileged or immune from discovery).
1. Assertion of the Work Product Privilege and Attorney Client Privileges both require Privilege Logs
Defendant objected based on both the attorney client and work product privileges. Upon initially arguing that it was not required to provide a log, the Defendant claimed that such was not required for attorney-client communications. This is plainly incorrect, especially in this situation where the communications at issue are 1) to a third party and/or 2) about possible business advice.
The attorney-client privilege does not apply when the attorney is asked for business advice rather than for legal advice. United States v. Rowe, 96 F.3d 1294, 1297 (9th Cir.1996); In re Walsh, 623 F.2d 489, 494 (7th Cir.), cert denied 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980); Olender v. United States, 210 F.2d 795, 806 (9th Cir.1954); United States v. Loll ten, 507 F.Supp. 108, 112 (S.D.N.Y.1981). See also In re Grand Jury Investigation, 842 F.2d 1223 (11th Cir.1987) (information taxpayer gave to his attorney for purposes for preparing tax returns was not privileged); United States v. Davis, 636 F.2d 1028, 1044 (5th Cir., Unit A), cert denied 454 U.S. 862, 102 S.Ct. 320, 70 L.Ed.2d 162 (1981) (attorney who acts as his client’s business advisor is not acting in a legal capacity and information is not privileged).
Other issues may cause the privilege not to apply. For example, drafts, standing alone, are not “communications” and hence normally are not within the attorney-client privilege. See In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (describing drafts as “material that is outside the attorney-client privilege”).
2. Defendant has waived any claimed privileges by failing to provide a Privilege Log in a timely fashion.
The party resisting discovery bears the burden of proving “specific matters are indeed subject to privilege or protection.” Williams v. General Motors Corp., 147 F.R.D. 270, 273 (S.D. Ga. 1993); see United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir.1991) (“The party invoking the attorney-client privilege has the burden of proving that an attorney-client relationship existed and that the particular communications were confidential”); Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir.2003) (same); Hodges, Grant & Kaufmann v. United States Gov’t, Dep’t of the Treasury, Internal Revenue Serv., 768 F.2d 719, 721 (5th Cir.1985) (“The burden of establishing that a document is work product is on the party who asserts the claim”).
A party must do more than simply recite the terms “privilege” or “work product” to properly preserve an objection:
When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
Rule 26(b)(5), Fed. R. Civ. P. (emphasis supplied).
A party must assert and support a privilege by (1) raising the privilege in a timely objection that identifies with particularity what is being withheld, pursuant to what privilege; and (2) substantiating the privilege claim with evidence. See General Motors Corp. v. Conkle, 226 Ga. App. 34, 47, 486 S.E.2nd 180, 192 (1997) (“Stating a privilege claim and meeting the burden of showing by evidence that privilege applies are not the same”). “An unsupported claim of privilege does not meet the proponent’s burden of showing the privilege applies.” Tyson v. Old Dominion Freight Line, Inc., 270 Ga. App. 897, 899, 608 S.E.2d 266, 269 (2004); Freiermuth v. PPG Industries, Inc. 218 F.R.D. 694, 698 (N.D.Ala. 2003). Defendant has willfully failed to identify the facts or documents claimed to be “privileged” and support those claims with any evidence — as to both its claimed attorney-client communications and work product privileges.
3. Defendant’s Privilege Log is long overdue and the untimeliness of the same waives the privileges.
The Code at Page 5(c) provides that “If any responsive documents are withheld, then at the time of production, the producing lawyer should give notice of that fact and should explain the reason for withholding them. . . .” (e.s.). Other courts also require the privilege log to be provided at the time of production. See e.g., J. Karla R. Spaulding, Standing Order Regarding Privilege Logs Dated June 7, 2007 and available on the internet (“The privilege log shall be served simultaneously with the response to written discovery requests in which information or documents are withheld based on the assertion of a privilege or protection.”)
Therefore, it is clear that the Defendant did not provide a timely privilege log because none was provided in response to the Plaintiff’s requests. Failure to timely articulate and support privilege objections results in a waiver. As the 1993 Advisory Committee Notes to Rule 26 state:
A party must notify other parties if it is withholding materials otherwise subject to disclosure…pursuant to a discovery request because it is asserting a claim of privilege or work product protection. To withhold materials without such notice is contrary to the rule, subjects the party to sanctions under Rule 37(b)(2), and may be viewed as a waiver of the privilege or protection.
(e.s.). Indeed, “the number of cases that hold there is a waiver where a responding party fails to timely and specifically plead and prove a privilege are legion.” Ford Motor Co. v. Ross, 888 S.W.2d 879, 893 (Tex. Ct. App. 1994). See also TIG Ins. Corp. of Am. v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001), and cases cited therein.
Regardless of the fact that the privilege log is overdue, the undersigned granted an additional 2 weeks for Defendant to prepare and serve the requested privilege log. This 2 week time frame would even be at the outer limits for objecting to a Rule 45 subpoena. As reflected in Universal City Development Partners, LTD. v. Ride & Show Engineering, Inc., Case No. 6:04-cv-781-Orl-28JGG.(MD Florida 2005), two weeks even for subpoena purposes is normally more than sufficient time to provide a log:
Because the purpose of Rule 45(d)(2) is the same as Rule 26(b)(5), the Court adopts the test articulated by the 9th Circuit in Burlington Northern for assessing timeliness of a privilege log. Therefore, the Court uses the 14-day objection period as a default guideline and make a case-by-case determination, taking into account the following factors:. . . .
(e.s.). Defendant also did not produce the log within the additional 2 week period.
Courts have held that a failure to prepare a privilege log waives both attorney-client and work product privileges. TIG Ins. Corp. of America v. Johnson, 799 So.2d 339 (Fla. 4th DCA 2001) (holding that insurer’s failure to prepare privilege log identifying correspondence with attorney resulted in waiver of attorney-client and work product privileges); see also Dorf & Stanton Communications, Inc. v. Molson Breweries, 100 F.3d 919, 923 (Fed.Cir. 1996) (observing that a trial court’s finding of a waiver of privilege is reviewed under the abuse of discretion standard); Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240, 1242 (Fla. 5th DCA 2002) (holding that a litigant’s failure to file a privilege log waived its privilege claim, even though it had submitted a log in another case filed by the same plaintiff in another county). Thus, the Defendant has waived its unsupported assertions of privilege.
- Defendant’s unsupported assertions of privilege.
Defendant asserted the following general objections of privilege in response to Plaintiff’s Request to Produce. Such general objections, without more, are improper. See, e.g., Obiajulu v. City of Rochester, Dept. of Law, 166 F.R.D. 293, 295 (W.D.N.Y. 1996) (“The burden is on the party resisting discovery to clarify and explain precisely why its objections are proper given the broad and liberal construction of the discovery rules…”). The necessity to clarify and explain the general objections to attorney-client and work product is normally done via production of a time privilege log.
As can be seen from at least Request 18, at least some of the Defendant’s claimed privileges are completely without merit and are designed to withhold clearly discovery able information. Request to Produce 18 states as follows:
REQUEST 18: Please produce any and all emails between counsel for any of the Defendants regarding the Plaintiff.
RESPONSE: Objection-attorney-client privilege.
Notably, the above request does NOT request communications between Defendant and its counsel. It requests communications between the Defendant and Homestead Inc. Homestead Inc. was dropped as a party from this lawsuit because both the Defendant and Homestead Inc. were adamant that Homestead Inc. was not Plaintiff’s employer and had nothing to do with the decision to terminate her. Specifically, on March 24, 2014, counsel for the Defendant wrote :
Please let me know whether you have served Homestead, Inc. in this case. As I have told you I do not represent them in this case. They are a separate corporation from my client and have no ownership interest in nor is Tri County Nursing Home a “d/b/a” of that company. Frankly I do not believe they should be in this case as they were not your client’s employer.
How can Defendant claim attorney client privilege applies to communications between it and a third party (Homestead, Inc.) — a party allegedly having no part in this case? The Defendant’s assertion of an attorney-client privilege is entirely without merit because Defendant’s counsel does not and has never represented Homestead, Inc. Moreover, a privilege log would further expose the objection as without merit.
The other requests that are the subject to this Motion are also dubious. They are as follows:
REQUEST 30: All statements in your possession, custody or control taken from parties or witnesses concerning any issues in this case.
RESPONSE: Objection, work product. Without waiver of the objection, None.
This objection to Request 30 is mysterious in that Defendant both objected and stated that there were no such documents. Asserting objections to documents that do not exist is improper. See e.g. Greenleaf v. Amerada Hess Corp., 626 So. 2d 263, FN1 (Fla. 4th DCA 1993) (“After the trial court overruled the objections, the appellee then filed its response stating that there were no video tapes responsive to the request for production. Such actions constitute discovery abuses and improper delaying tactics.”); First Healthcare vs. Hamilton, 740 So.2d 1189 (Fla. 4th DCA 1999) (It is discovery abuse and improper delay tactics when party objects to RTP on grounds that material is protected from discovery, and then upon objection being overruled, files a response that materials do not exist). A privilege log would have clarified whether there are any such documents.
REQUEST 48: All documents, audio or video tape recordings, or other transcriptions constituting any statement made by any party, their agents or representatives, or third person pertaining to the allegations or issues in this lawsuit.
RESPONSE: Objection, work product. Without waiver of objections, None.
A privilege log is also necessary for Request 48 to determine the merits of this claimed objection. Again, this is a mysterious claim of work product privilege similar to Request 30.
As noted in the Northern District Case of Mann v. Island Resorts Development, Inc., Case No. 3:08-cv-297/RS/EMT, in response to discovery a “a responding party is given only two choices: to answer or to object.”. Id at page 5. The court continued as follows:
Objecting but answering subject to the objection is not one of the allowed choices. Second, although the practice is common, the only reported decision this court has found that directly addresses the question is Meese v. Eaton Mfg. Co., 35 F.R.D. 162, 166 (N.D. Ohio 1964), which held that “[w]henever an answer accompanies an objection, the objection is deemed waived, and the answer, if responsive, stands.” See also, Wright, Miller & Marcus, Federal Practice and Procedure: Civil § 2173: “A voluntary answer to an interrogatory is also a waiver of the objection.” Third, answering subject to an objection lacks any rational basis. There is either a sustainable objection to a question or request or there is not. What this response really says is that counsel does not know for sure whether the objection is sustainable, that it probably is not, but thinks it is wise to cover all bets anyway, just in case. In this court, however, no objections are “reserved” under the rules; they are either raised or they are waived.
(e.s.). The Mann court concluded by awarding sanctions pursuant to Rule 37(a)(5)(A) for the evasive conduct of the responding party.
Request 79, discussed below, is improper because it covers communications that include business advice. The request is as follows:
REQUEST 79: Any and all letters, emails, releases, or other communications related to Plaintiff’s end of employment with you.
RESPONSE: None other than attorney-client communications which are absolutely privileged to which there is an objection to production.
According to Defendant’s response to Plaintiff’s Request for Admission, “Homestead, Inc. made no recommendations regarding the lay-off other than to follow the advice of an attorney.” (e.s.).” Such information is therefore would be potentially discoverable based upon the circumstances. See, e.g., In re EchoStar Commc’ns Corp., 448 F.3d 1294, 1301 (Fed. Cir. 2006) (waiver when party asserts advice of counsel defense to a charge of willful patent infringement); Sedco Int’l, S.A. v. Cory, 683 F.2d 1201, 1206 (8th Cir. 1982) (explaining that a client may impliedly waive attorney-client privilege when a client testifies about portions of the communication, when a client places the attorney-client relationship directly at issue and when a client asserts reliance on an attorney’s advice as an element of a claim or defense); Chiron Corp. v. Genentech, Inc. 179 F. Supp. 2d 1182, 1186 (E.D. Cal. 2001) (waiver applied to both attorney-client and work-product material)
Here, the production of a privilege log would expose written recommendations an attorney made to terminate Plaintiff. Should that advice be business advise, then there would be no privilege. Advice to terminate Plaintiff constitutes business advice rather than legal advice and therefore such advice is not protected by the attorney client privilege. See Boca Investerings Partnership v. U.S., 31 F. Supp.2d 9 (D. D.C. 1998) (citing United States v. Rowe, 96 F.3d 1294, 1297 (9th Cir. 1996)); Marc Rich & Co., A.G. v. U.S., 731 F.2d 1032, 1036-37 (2nd Cir. 1984). Several cases have found that communication between counsel and the defendant employer relating to a plaintiff’s termination were not privileged. See Marten v. Yellow Freight System, Inc., No. CIV. A. 96-2013-GTV, 1998 WL 13244 (D. Kan. Jan. 6, 1998); Neuder v. Battelle Pacific Northwest Nat. Laboratory, 194 F.R.D. 289 (D. D.C. 2000); Leazure v. Apria Healthcare Inc., No. 1:09-cv-224, 2010 WL 3895727 (E.D. Tenn. Sept. 30, 2010).
Finally, even if the defense of “advice of an attorney” is not at issue, “the mere fact that in-house counsel is present at a meeting does not shield otherwise unprivileged communications from disclosure.” Neuder v. Battelle Pac. Nw Nat’l Lab., 194 F.R.D. 289, 293 (D.D.C. 2000); see also Curtis v. Alcoa, Inc., No. 3:06-cv-448, 2009 WL 838232, *2 (E.D. Tenn. March 27, 2009) (holding communications at meetings attended by attorneys not automatically privileged). Therefore, this information is discoverable regardless of whether a privilege log is produced. Moreover, the refusal to produce a privilege log as to these communications makes it difficult for Plaintiff to prove the asserted privileges are improper (although, of course, Defendant is the party whom has the actual burden to prove the asserted privileges are proper).
- Conclusion and Fee Request
Although Defendant initially refused to produce a privilege at all, the undersigned’s diligence resulted in an extension of two weeks for the Defendant to cure its noncompliance. However, even with such a grace period, the Defendant still has refused to produce a privilege log — even after continued prodding. Therefore, Defendant waived its claimed privileges and Plaintiff requests an Order compelling production of the withheld documents.
Additionally, Plaintiff requests here attorneys fees and costs for making the instant Motion and the previous efforts to convince Defendant to comply with its obligation to produce a privilege log. Factors which support an award of fees include the following:
Plaintiff’s counsel repeatedly wrote to Defendant demanding the log, including after Defendant’s counsel again refused (via phone) to produce one.
- Defendant, even after being given an additional 2 weeks to provide the belated log, did not.
- Defendant claimed, on the timing of its log, that it would be “awhile.” Although asked, Defendant never clarified what its time frame for production of the log was.
- Defendant also claimed that there was a significant amount of privileged documents, supporting its delay in producing the log. Specially, on April 14th, Defendant’s counsel claimed that: “There are many such items of correspondence thus this may take awhile to prepare.” However, Defendant also claims that “no documents have been withheld on grounds of work product privilege” and only objected to two requests based on the attorney-client privilege (Requests #18 and 79).
- Defendant asserted the work product privilege, while at the same time saying that there are no documents being withheld for that privilege.
- Defendant’s response to Request 18 is clearly improper, a fact even clear without the Defendant’s log. Homestead, Inc. is not the Defendant’s attorneys’ client. Defendant has stated many times that Homestead, Inc. was not Plaintiff’s employer, it should be dropped from this case, and it had nothing to do with Plaintiff’s termination.
- Defendant’s record in this short case has already been less than stellar. Specially, as recognized via the Court’s Order denying Defendant’s Motion to Dismiss (Doc. 11), the Court recognized that the Defendant’s argument was “without merit.” Defendant’s Motion to Dismiss (Doc. 9) was a delay tactic, and now its discovery answers that the notion that it will be “awhile” to prepare a log because there are so many documents to list is also a delay tactic.
- Plaintiff’s counsel again requested in writing the privilege log via email on April 30th by close of business May 2nd. Defendant did not respond.
Thus, fees ands costs, including those per Rule 37 and the Court’s inherent authority, should be assessed. Thus, Plaintiff respectfully requests that Defendant’s generally asserted privileges be waived and that it be compelled to produce the documents withheld.
Motion to Compel Almost Filed
Our Gainesville lawyers nearly had to file this motion to compel.
Michael Massey, Esq.