Summary
holding claims of privilege were waived by failing to timely produce a privilege log
Summary of this case from Employer's Reinsurance Corp. v. Clarendon Nat. Ins. Co.Opinion
Case No. 99-4186-RDR.
June 25, 2001.
ORDER
This matter is presently before the court upon defendant's motion to review the magistrate's order of January 11, 2001. In that order, the magistrate determined that the defendant had waived its attorney-client privilege by failing to comply with the requirements of Fed.R.Civ.P. 26(b)(5), and directed the defendant to produce certain in-house and outside counsel's litigation files. The defendant contends that the magistrate's order was clearly erroneous. The defendant seeks an order from this court excusing it from producing the litigation files of its in-house and outside counsel. In the alternative, the defendant requests that it be allowed twenty days to produce the privilege log detailing the protected documents so that the magistrate can review it. Having carefully considered the arguments of the parties, the court is now prepared to rule.
This is a premises liability action. Plaintiff claims that the defendant is at fault for personal injuries and damages she sustained as a result of a slip and fall in one of the defendant's stores. As part of a request for discovery, plaintiff sought the following: "Any and all personal notes, memorandum, diaries, personal journals, appointment books, reports, correspondence, notes and other documents which were prepared by defendant's agents or employees, or maintained by defendant which relate in any way to the claims in this lawsuit."
The defendant responded as follows: "Defendant objects to this request on the basis that it seeks information that is protected by attorney/client privilege and the attorney work product doctrine."
Plaintiff subsequently filed a motion to compel seeking,inter alia, documents responsive to the aforementioned request. On January 11, 2001, the magistrate found that the defendant had waived any privilege by not providing the privilege log required by Fed.R.Civ.P. 26(b)(5). The magistrate directed the defendant to produce the requested documents within eleven days of the date of that order.
As to nondispositive pretrial matters, the district court reviews the magistrate judge's order under a clearly erroneous or contrary to the law standard. 28 U.S.C. § 636(b)(1)(A);Continental Bank, N.A. v. Caton, 136 F.R.D. 691, 693 (Kan. 1991). "The clearly erroneous standard requires the district court to affirm the magistrate judge's order unless it has the definite and firm conviction from all the evidence that error has occurred." Id.
The Federal Rules of Civil Procedure require a detailed showing to withhold discovery on privilege grounds. See Fed.R.Civ.P. 26(b)(5) ("When a party withholds information . . . by claiming that it is privileged . . ., the party shall make the claim expressly and shall describe the nature of the documents, communications, or things . . . in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection."). The law is well settled that failure to produce a privilege log or production of an inadequate privilege log may be deemed waiver of the privilege. See, e.g., Dorf Stanton Communications, Inc. v. Molson Breweries, 100 F.3d 919, 923 (Fed. Cir. 1996), cert. denied, 520 U.S. 1275 (1997).
The court is not persuaded that the magistrate's decision was clearly erroneous. The magistrate determined in his discretion that waiver was an appropriate sanction here. We do not find that the magistrate abused his discretion. The court notes that the defendant has not offered any reason for its failure to produce the privilege log except that the requested documents were clearly privileged materials. The court does not find this excuse acceptable. As plainly indicated by Rule 26(b)(5), the question whether materials are privileged is for the court, not the defendant, to decide, and the court has a right to insist on being presented with sufficient information to make that decision. Waiver of the defendant's privilege was proper given the circumstances here. Accordingly, the defendant's motion for review shall be denied.
The court shall also deny defendant's alternative request to now produce a privilege log. Having waived immunity by failing to produce a privilege log, the defendant cannot now be allowed to resurrect their privileged status by simply complying with the rules.
IT IS THEREFORE ORDERED that defendant's motion to review the magistrate's order (Doc. # 68) be hereby denied. The magistrate's order of January 11, 2001 is hereby affirmed. The defendant shall produce the requested documents within ten days of the date of this order. Plaintiff's request for sanctions is denied.