Opinion
Civil Action Nos: 99-2026-CM
April 10, 2002
MEMORANDUM AND ORDER
A hearing was held on Plaintiff's Motion to Compel Production of Documents (doc. 143) before the undersigned Magistrate Judge on April 8, 2002. Plaintiff appeared in person and through counsel Robert K. Ball. All Defendants except Brian McHenry appeared through counsel Mark A. Jess. Defendant Brian McHenry did not appear.
At the hearing, the Court denied in significant part the Motion to Compel. An order memorializing that ruling will be issued at a later date. The Court also made several rulings regarding the claims of privilege asserted by Defendants TCI of Overland Park, Inc. ("TCI") and Tele-Communications, Inc. ("Tele-Communications"). This Order will expand on and memorialize those rulings.
As the Court noted at the hearing, there is some confusion as to which of the defendants the Motion to Compel is directed. The Court ruled that the Motion was properly directed to only two of the defendants — TCI and Tele-Communications (which Plaintiff's Motion mistakenly refers to as Telecommunications). The Court ruled that the Motion could not be directed to TCI Holdings, Inc., as that entity was dismissed from the case on February 2, 2001. See doc. 95. The Court's rulings herein therefore apply only to TCI and Tele-Communications.
I. Background Information
TCI and Tele-Communications have objected to several of the requests for production that are the subject of the Motion to Compel on the basis that the requests called for TCI and/or Tele-Communications to produce documents protected by the attorney-client privilege and/or work product doctrine. They have provided Plaintiff with a privilege log describing the documents they contend are privileged or protected work product. See Ex. K attached to doc. 144.
TCI and Tele-Communications have also asserted that certain documents relating to Plaintiff's worker's compensation claim, which initially were in the possession of GAB Robins (the third-party insurance administrator that handled Plaintiff's workers' compensation claim for TCI), are privileged and/or protected work product. TCI and Tele-Communications informed the Court at the hearing that their privilege log also lists these claimed privileged/protected documents.
Plaintiff served a subpoena duces tecum on GAB Robins to obtain these documents. Rather than turning over the claimed privileged documents to Plaintiff, GAB Robins transferred them to counsel for TCI and Tele-Communications. TCI and Tele-Communications in turn listed the documents in the privilege log that was submitted to Plaintiff. They did not, however, file a motion to quash the subpoena as it applied to the privileged documents.
Plaintiff argues that TCI and Tele-Communications' privilege log is insufficient and does not satisfy their burden to describe the nature of the documents so as to enable Plaintiff to assess the applicability of the asserted privileges or work product protection. Plaintiff contends that TCI and Tele-Communications have waived the asserted privileges and work product protection.
II. Analysis A. Rules Governing the Assertion of Privileges and Work Product Protection
Before addressing the sufficiency of Defendants' privilege log, the Court will set forth the rules regarding the assertion of privileges and work product protection. It is well established that the party asserting a privilege or work product protection has the burden of establishing that the privilege/protection applies. McCoo v. Denny's, Inc., 192 F.R.D. 675, 680 (D.Kan. 2000); Boyer v. Board of County Comm'rs, 162 F.R.D. 687, 688 (D.Kan. 1995). To carry that burden, the party must make a "clear showing" that the asserted privilege/protection applies. McCoo, 192 F.R.D. at 680. Under Fed.R.Civ.P. 26(b)(5), a party that withholds documents based on privilege or work product protection, must "make the claim expressly and . . . 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."
Based on Rule 26(b)(5), this Court has held that the party asserting the privilege/protection must "describe in detail" the documents or information sought to be protected and provide "precise reasons" for the objection to discovery. McCoo, 192 F.R.D. at 680 ; National Union Fire Ins. Co. v. Midland Bancor, Inc., 159 F.R.D. 562, 567 (D.Kan. 1994). The information provided must be sufficient to enable the court to determine whether each element of the asserted privilege or protection is satisfied. McCoo, 192 F.R.D. at 680; Jones v. Boeing Co., 163 F.R.D. 15, 17 (D.Kan. 1995). A "blanket claim" as to the applicability of the privilege/work product protection does not satisfy the burden of proof. McCoo, 192 F.R.D. at 680; Kelling v. Bridgestone/Firestone, Inc., 157 F.R.D. 496, 497 (D.Kan. 1994).
B. Defendants' Privilege Log Is Deficient
The Court does not find that Defendants' privilege log meets these standards. In particular, the log does not identify the specific privilege/protection being asserted. Under the heading "Privilege Asserted," the log merely states, for each document listed, "Attorney-Client and/or Work Product Privileges." (Emphasis added.) The privilege log is also deficient in that it fails to state the purpose for which each document was created. In addition, it fails to fully identify the authors and recipients of the documents so as to allow the Court to determine that the documents are in fact communications between the attorney and client (as required for the attorney-client privilege to apply) and/or that they were prepared by or for Defendants or their representatives (as required for the work product doctrine to apply). Because of these deficiencies, the Court is without sufficient information to determine whether each element of the asserted privilege/protection is satisfied.
Given TCI and Tele-Communications' failure to provide the required information, the Court could find waiver and grant Plaintiff's Motion to Compel as it applies to the claimed privileged/protected documents. The Court, however, will decline to do so. As the Court stated at the hearing, the Court will defer ruling on Plaintiff's Motion to Compel as it pertains to the claimed privileged/protected documents until such time as TCI and Tele-Communications have submitted an amended privilege log to Plaintiff.
C. Preparation of Amended Privilege Log and Briefing Schedule
In light of the above, the Court hereby directs TCI and Tele-Communications to prepare and submit to Plaintiff an amended privilege log. Said amended log shall be served on Plaintiff by April 30, 2002 . TCI and Tele-Communications shall file a certificate of service verifying that the amended privilege log was served on Plaintiff.
The amended privilege log shall contain "a detailed description of the materials in dispute and . . . specific and precise reasons for [their] claim of protection from disclosure." Simmons Foods, Inc. v. Willis, No. 97-4192-RDR , 2000 WL 204270, at *5 (D.Kan. Feb. 8, 2000) (quoting Snowden v. Connaught Lab., Inc., 137 F.R.D. 325, 334 (D.Kan. 1991); Cypress Media, Inc. v. City of Overland Park, 2000 WL 85362, at *13-14 (D.Kan. Jan. 28, 2000)). The amended log shall include at least the following information for each document withheld:
1. A description of the document ( e.g., correspondence, memorandum);
2. Date prepared;
3. Date of document (if different from # 2);
4. Identity of the person(s) who prepared the document, including information sufficient to allow the Court to determine whether the document is a communication from the client's attorney and/or whether it was prepared by or for TCI or Tele-Communications or by or for one of their representatives;
5. Identity of the person(s) for whom the document was prepared and to whom the document was directed (including all copies), including information sufficient to allow the Court to determine whether the document is a communication to the client;
6. Purpose of preparing the document;
7. Number of pages of the document;
8. Basis for withholding discovery of the document, i.e., the specific privilege or protection being asserted; and
9. Any other pertinent information necessary to establish the elements of each asserted privilege.
See Simmons Foods, 2000 WL 204270, at *5 (setting forth requirements for privilege log).
The amended privilege log shall include those claimed privileged/protected documents that GAB Robins turned over to counsel for TCI and Tele-Communications after Plaintiff served the subpoena duces tecum on GAB Robins. The log shall contain a notation to that effect for each such document.
By May 7, 2002 , counsel for the parties shall confer within the meaning of D. Kan. Rule 37.2 and attempt to resolve the parties' dispute regarding privilege issues. In the event the parties are able to resolve their dispute, Plaintiff shall so notify the Court. In the event the parties are unable to resolve their dispute, TCI and Tele-Communications shall, by May 14, 2002 , file a copy of their amended privilege log and provide to the Court (but not Plaintiff) copies of all documents listed in the amended privilege log for the Court's in camera inspection. By May 14, 2002, Plaintiff shall file a supplemental brief in support of his Motion to Compel with any arguments he wishes to make regarding the sufficiency of the amended privilege log and the asserted privileges/protection. TCI and Tele-Communications shall have until May 24, 2002 to respond to Plaintiff's supplemental brief. The Court will defer ruling on all privilege and work product protection issues until such briefing is complete and the Court has reviewed in camera the documents provided by TCI and Tele-Communications.
IT IS SO ORDERED.