United States District Court, D. South Dakota, Southern Division
JUDITH MCALLISTER-LEWIS, INDIVIDUALLY, AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF ROBERT L. LEWIS, DECEASED; Plaintiff,
GOODYEAR DUNLOP TIRES NORTH AMERICA, LTD., AN OHIO LIMITED LIABILITY COMPANY; AND GOODYEAR TIRE & RUBBER COMPANY, AN OHIO CORPORATION; Defendants.
AMENDED ORDER (MOTION TO COMPEL, DOCKET 22)
VERONICA L. DUFFY, Magistrate Judge.
This matter is before the court on plaintiff's complaint alleging negligence and products liability theories against the defendants. Plaintiff asserts defendants caused the wrongful death of her husband, her own physical and emotional injuries, and the loss of consortium of her husband along with associated claims for compensatory and punitive damages. See Docket No. 1. The plaintiff moved to compel answers to interrogatories and responses to requests for production of documents. See Docket No. 22. The district court, the Honorable Lawrence L. Piersol, referred the motion to this magistrate judge for decision. In its earlier order, (Docket 31) the court granted in part and denied in part plaintiff's motion to compel, and ordered further briefing on the following issues: (A) whether further court intervention was required regarding the privilege log produced by the defendants and the sufficiency of their responses/objections which relied upon the attorney-client privilege; (B) whether further court intervention was required regarding the sufficiency of the defendants' responses/objections which relied upon the trade secret privilege and/or the necessity of the entry of a protective order; and (C) the defendants' duty to produce information in the possession of non-party GDTF in response to plaintiff's discovery requests. The parties have submitted further briefing and the court now supplements its earlier order.
A. Whether defendants have properly invoked attorney-client or work product privilege in response to request for production nos. 11, 24-26 and 39.
In response to the court's August 17, 1015 Order, Judith explains the defendants produced a privilege log on April 15, 2015 which purports to cover 207 pages of material gathered by a private investigator retained by their predecessor law firm. See Docket 33 at p. 1 and EX A attached. Judith does not dispute the sufficiency of the privilege log for the information gathered by the private investigator for the predecessor law firm. She does, however, dispute the sufficiency of some of the defendants' responses to requests for production for which defendants asserted either attorney-client or work product privilege, and for which no privilege log has been produced.
Specifically, Judith attached as EX C and EX E to her original brief (Docket 23) a copy of the defendants' responses to her request for production of documents. She asserts defendants' responses to request for production nos. 11, 24-26 and 39 are insufficient because they assert either attorney-client or work product doctrine, but still have not supported these claims with a privilege log.
FED. R. CIV. P. 26(b)(5) requires the objecting party to expressly make a claim of privilege and to describe the nature of the documents, communications, or things not produced in a manner that, without revealing information itself privileged or protected, will enable the other party to assess the applicability of the privilege or protection.' It also is true that failure to follow the Federal Rules of Civil Procedure may result in a waiver of the attorney-client and/or work product protection. 8 Charles Alan Wright, FEDERAL PRACTICE AND PROCEDURE § 2016. 1 at 228-29 (2d ed. 1994). Although this result is not mandated by the federal rules, the Advisory Committee contemplated the sanction: to withhold materials without providing notice as described by Rule 26(b)(5) 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.' FED. R. CIV. P. 26(b)(5) (advisory committee's note (1993).
Acknowledging the harshness of a waiver sanction, however, courts have reserved such a penalty for only those cases where the offending party committed unjustified delay in responding to discovery. Minor procedural violations, good faith attempts at compliance and other such mitigating circumstances bear against finding waiver.
Sprint Communications Co. v. Vonage Holdings Corp., 2007 WL 1347754 at * 2 (D. Kan., May 8, 2007). In Sprint, the court declined to find a waiver of the privilege because it found no evidence of unjustified delay in producing the privilege log. Id.
1. Request for Production No. 11
Judith's request for production of documents no. 11 requests "all documents from January 2000 to the present related to any tire failure analysis conducted on any D402 tire." The defendants objected to this request in part because "this request seeks information protected by the attorney-client privilege or work product doctrine." See Docket 23-3 at p. 9. To date, defendants have not provided a privilege log.
The court finds the defendants' failure to produce a privilege log at an earlier date does not amount to an unjustified delay. The content of the privilege log could not be assembled because of the parties' fundamental disagreement about the appropriate time frame and which D402 tires were relevant to this litigation. Until the court ruled on those issues, any attempt to assemble the privilege log in response to request for production no. 11 would have been a wasted effort. Now, however, it can be done.
Therefore, as to Judith's request for production no. 11, defendants shall, consistent with the parameters described in this and the court's August 17, 2015 Order, provide a privilege log which complies with FED. R. CIV. P. 26(b)(5) within fourteen (14) days of the entry of this order. Failure to do so ...