Summary
In Clark Constr. Grp., Inc. v. City of Memphis, No. 01-2780 B/An, 2005 U.S. Dist. LEXIS 5559, at *14-16 (Feb. 9, 2005 W.D. Tenn.), also cited by Coventry, the court refused to allow a corporation to produce a witness with only partial knowledge of its damages claim and supply the rest of the information through an expert witness.
Summary of this case from Premiertox 2.0, Inc. v. Coventry Health & Life Ins. Co.Opinion
No. 01-2780 B/An.
February 8, 2005
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO COMPEL
Before the Court is Defendants' Motion to Compel and Motion for Sanctions filed on August 12, 2004. United States District Judge Bernice B. Donald referred this matter to the Magistrate Judge for determination. For the reasons set forth below, the Motion is GRANTED in part and DENIED in part.
BACKGROUND
Plaintiff sued Defendants for damages arising out of the expansion and construction of the Memphis Cook Convention Center ("Convention Center"). In February 1999 Clark Construction Group, Inc. ("Clark" or "Plaintiff") entered into a contract with the City of Memphis to perform renovations to the Convention Center. Both before the contract was awarded and throughout the construction process, Clark contacted either the City or one of its authorized agents for clarification of the design plans provided by the City to Clark. Specifically, Clark submitted over 2,000 requests for additional information and clarification. Clark alleges that it was not informed of various design and building problems before it was awarded the contract for the project.
Four years after beginning construction, Clark completed the additions to the Convention Center. Clark then sued the City of Memphis and the Memphis Cook Convention Center Commission (collectively the "City") for breach of contract, for negligent misrepresentation, and for breach of the implied covenant of good faith and fair dealing. Clark's Complaint was filed on September 27, 2001. The City has counterclaimed for liquidated damages, resulting from Clark's delay in completing the project.
On March 25, 2002, the City served its First Request for Production of Documents to Clark. Specifically in this request, the City instructed Clark that "[i]f any documents are otherwise required to be produced by this request are withheld, Clark shall identify the document by stating its date, author, recipient, and the reasons for withholding." (Mem. in Supp. of Mot. to Compel for Sanctions, at 1). Clark served responses to the City's first request on May 14, 2002. In its response, Clark objected to various requests relying on the attorney-client privilege and the work product doctrine. Clark also produced a privilege log to the City, but the City argues this privilege log fails to meet the requirements of Fed.R.Civ.P. 26(b)(5).
Clark first produced a privilege log to the City that listed only the document's author, recipient, and date, but after the City notified Clark that this privilege log was insufficient, Clark produced another privilege log that included a brief summary of the document. For example, the privilege log lists that document 203 is a "Legal review of bid package." (Mot. to Compel for Sanctions, at 3). The City argues that Clark should be required to furnish additional information for each document. The City has asked the Court to require Clark to either supplement its privilege log or alternatively to produce all documents.
During the discovery process, Clark also produced various documents to the City concerning monthly project cost reports and subcontractor bid estimates. Within these documents, however, Clark redacted certain information and placed a "Blacked-Out Confidential Info" stamp on the pages with redacted text. Clark has made no attempt to clarify why this information has been redacted other than placing the stamp on each page. The City has asked the Court to require Clark to re-produce these documents without any redacted text.
On June 9, 2003, Clark served the City with its Rule 26 initial disclosures. As part of these disclosures, Clark listed a breakdown of its alleged damages calculation, which totaled $35,000,000.00. The City submitted its Rule 30(b)(6) deposition notice to Clark and asked that Clark produce a designee that could discuss the "precise basis for and calculation of Clark's damages claim." (Mem. in Supp. of Mot. to Compel for Sanctions, at 3). The City claims that Clark refused to designate a witness who is competent to testify as to the manner or basis of its calculation of damages.
Finally, in June 2004 the City deposed one of Clark's witnesses about the "pass-through" claims of Clark's subcontractors. The City learned that nearly $15 million of the pass-through claims have been settled, but the City notes that Clark has refused to produce any documents relating to the settlements. The City argues in its Motion that it would like Clark to produce all documents relating to these settlements.
In its Response, Clark argues that its privilege log meets the standards set forth in Fed.R.Civ.P. 26(b)(5). Clark believes it has provided a sufficient amount of information for each document to the City and should not be required to supplement its privilege log. Additionally, Clark argues that the redactions in various produced documents should be permitted because the redacted text either relates to legal fees or to information provided to Clark in trust by other firms. As such, Clark should not be required to produce copies of these documents without redacted text. As to the City's claim that Clark has not provided a 30(b)(6) witness in regard to damages, Clark argues that it produced one witness who covered the issues of damages in part. Clark also notes that it plans to hire a damages expert to testify about its damages claim. Clark finally notes in its Response that all documents concerning the settlement between Clark and its subcontractors have been provided to the City.
The City has requested that the Court to enter an order compelling Clark (1) to supplement its privilege log submitted in response to The City's First Request for Production of Documents, (2) alternatively to disclose all documents listed on the privilege log, (3) to provide non-redacted copies of all documents, (4) to designate a corporate representative for Clark's damages claim, and (5) to produce documents requested during the deposition of Clark's witnesses. The City also asks that the Court impose sanctions on Clark.
ANALYSIS I. Clark's Privilege Log
A court can enter an order compelling discovery when the opposing party fails to respond to discovery requests. See Fed.R.Civ.P. 37(a)(2). "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Fed.R.Civ.P. 26(b)(1). Relevancy, for purposes of Fed.R.Civ.P. 26(b)(1), means "appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1); see also Coleman v. Am. Red Cross, 23 F.3d 1091, 1097 (6th Cir. 1994). In this Circuit, the scope of discovery is extremely broad under the Federal Rules of Civil Procedure and "is . . . within the broad discretion of the trial court." Lewis v. ACB Business Servs. Inc., 135 F.3d 389, 402 (6th Cir. 1998). One district court has noted that "the party resisting discovery bears the burden of demonstrating that the requested discovery . . . does not come within the broad scope of relevance as defined under Fed.R.Civ.P. 26(b)(1). . . ." Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656-57 (D. Kan. 1999) (quoting Aramburu v. Boeing Co., No. 93-4064-SAC, 1994 WL 810246, at *1 (D. Kan. Sept. 22, 1994)).
In this matter, the City has requested that Clark be required to supplement its privilege log. Clark has currently produced a privilege log listing each document's author, recipient, date, and Clark provided a brief description of each individual document. The Federal Rules of Civil Procedure require a party to "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." Fed.R.Civ.P. 26(b)(5). The City contends that Clark has not met the requirements of Rule 26(b)(5).
The party raising a privilege has the burden of establishing the existence of the privilege. Fed.R.Civ.P. 26(b)(5). The objection must include sufficient information so that the Court and opposing counsel can assess the applicability of the privilege. Watts v. Federal Express Corp., No. 99-CV-701, 2001 WL 1661474, at *6 (W.D. Mich. Apr. 11, 2001); Meridan Diagonostics, Inc. v. Yi., No. C-1-00-540, 2001 WL 1842463, at *9-10 (S.D. Ohio Mar. 9, 2001) (holding that a privilege log is required to assess the applicability of the privilege). Overall, a party may not assert a blanket claim for a privilege, but instead the party must assert a privilege claim on a document by document basis. See Coltec Industries, Inc. v. Am. Motorists Ins. Co., 197 F.R.D. 368, 371 (N.D. Ill. 2000). "[E]ach document in a privilege log should contain details including: date, author and all recipients of the document, subject matter, and an explanation as to why the document should be privileged and not produced in discovery." Id. at 373. "[D]escribing a document as `legal advice' or `work product' is not the same as establishing that the documents are immune from discovery." Id. (emphasis in original).
The privilege log provided by Clark utilizes general categories of persons and entities without identifying anyone by name and position. In most cases, the summaries provided in Clark's privilege log are general and vague and provide little information that would aide the Court in determining if a privilege applies. For example, Clark notes in its privilege log that a document is "correspondence" or "meeting notes" or "a report containing legal information." As noted, it is Clark's burden to establish that a privilege exists, and Clark has failed to provide the Court with enough information to determine whether a claim of privilege is appropriate or not.
As such, the City's Motion to Compel Clark to supplement its privilege log is GRANTED. Clark is ordered to supplement its privilege log to include sufficient information for the Court and Defendants to determine if a claim of privilege is appropriate. The supplemental privilege log should contain date, the author's name and position, all recipients of the document, and an explanation as to why the document should be privileged and not produced in discovery. Clark shall provide its supplemental privilege log to the City within 15 days of entry of this Order.
II. Redacted Documents
Clark produced various documents to the City concerning monthly project cost reports and subcontractor bid estimates. Within these documents, however, Clark redacted certain information and placed a "Blacked-Out Confidential Info" stamp on the pages with redacted text. Clark redacted from certain documents information concerning (1) legal fees and (2) pricing information provided by suppliers who Clark did not use. The City has requested that the Court require Clark to re-produce these documents without any redacted text."Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . ." Fed.R.Civ.P. 26(b)(1). Relevant evidence is evidence that "appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). Moreover, the scope of discovery is extremely broad under the Federal Rules of Civil Procedure and "is . . . within the broad discretion of the trial court." Lewis v. ACB Business Servs. Inc., 135 F.3d 389, 402 (6th Cir. 1998). The Court, however, fails to see how legal fees are relevant at this time, unless Clark intends to include any and all attorney's fees incurred to a certain point, such as when this suit was filed, as a category for damages. If Clark is not going to include any legal fees as part of damages, then the Motion is DENIED. However, if any legal fees are being sought as part of damages, then Clark must disclose the fees.
As to the pricing information provided by suppliers who Clark did not use, the Court also fails to see the relevance of this information. Clark says these numbers are from suppliers who were not used; therefore, this information is not relevant to this action. As such, the Motion to Compel Clark to provide documents with pricing information by suppliers who Clark did not use is DENIED.
III. Rule 30(b)(6) Witnesses
Rule 30(b)(6) of the Federal Rules of Civil Procedure states as follows:
A party may in the party's notice and in a subpoena name as the deponent a public or private corporation . . . and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.
Fed.R.Civ.P. 30(b)(6). Thus, when such a deposition is sought, it is incumbent upon the organization to designate a person with knowledge of the topics to be discussed in that deposition. In re Air Crash Disaster at Detroit Metropolitan Airport on August 16, 1987, 130 F.R.D. 627, 631 (E.D. Mich. 1989).
In this matter the City requested that Clark produce a Rule 30(b)(6) designee that could discuss the precise basis for and calculation of Clark's damages claim. Clark agreed to produce one designee who could partially discuss the issue of damages, and Clark notified the City they would be calling a damages expert at trial to further testify as to the damages calculation. Such a procedure would appear to be appropriate; however, if Clark does not designate a Rule 30(b)(6) witness who can provide factual knowledge of its damages then, with the exception of an expert, Clark will not be allowed to offer testimony at trial by someone who purports to have such knowledge. Therefore, it is ordered that Clark must either designate a Rule 30(b)(6) witness with factual knowledge of its damages now, or Clark will be precluded from doing so at trial.
IV. Subcontractor Settlement Documents
After deposing one of Clark's witnesses about the "pass-through" claims of Clark's subcontractors, the City learned that nearly $15 million of the pass-through claims have been settled. In its Motion, the City states that Clark refused to produce any documents relating to the settlements, but Clark states it has now produced these documents to the City. As such, the Motion to Compel production of the settlement documents is DENIED as moot.Pursuant to the Order of Reference, any objections to this Order shall be made in writing within ten days after service of this Order and shall set forth with particularity those portions of the Order objected to and the reasons for those objections.