Opinion
Civil Action No. 02-3588, c/w 04-624 Section: "N" (4).
October 19, 2004
ORDER AND REASONS
Before the Court is the Plaintiff's Motion to Compel Discovery (doc. #197) seeking an order compelling the defendant, Zurich American Insurance Company ("Zurich") to produce certain documents requested in document requests propounded upon Zurich on June 24, 2004. During the hearing, the parties advanced several arguments. The only issue remaining is whether the claims Z-note file contents are discoverable as they pertain to the claim regarding the M/Y ULYSSES fire damage which occurred on July 2, 2002.
For the purposes of resolving this motion, the Court is of the opinion that a detailed recitation of the complete factual summary in this matter is unnecessary. For a complete factual history, see Record Doc. Number 154.
On June 24, 2004, Felham propounded a document request upon Zurich requesting that Zurich produce certain files and documents. Specifically, the document request stated:
Request for Production No. 1
Please produce all electronic files, paperless files, computer files, computer work station files, and/or Z-notes pertaining to the M/Y ULYSSES claim as a result of the July 2, 2002 fire.II. Legal Analysis
The instant motion regards Felham's claims that Zurich did not properly produce the requested materials and that the privilege log submitted by Zurich was not submitted in compliance with the procedures set forth in Federal Rule of Civil Procedure 26(b)(5). Felham further contends that the content of the information contained in the Z-notes is discoverable because it has asserted a bad faith claim, Zurich failed to timely respond to the request for production, and the list cannot be protected by either the attorney-client privilege or the work product doctrine because the Z-notes were created and maintained by Zurich without respect to any information or advice from its attorneys.
In its supplemental memorandum Zurich contends that while it agreed to produce responses to the request in one week, it had misplaced the request. Then, after getting Felham's counsel to resend the request, Zurich contends that its counsel's schedule was hectic. Zurich's claims personnel were on vacation such that the responses were further delayed by a few weeks. ( Brief in Support of Opposition to Motion to Compel (Rec. Doc. 273))
A. Timeliness of Privilege Objection
Felham contends that Zurich failed to timely respond to the Request for Production and, as such, its failure constitutes a waiver of any objections. Felham further argues that Zurich not only untimely submitted a privilege log, but that such log did not comply with Rule 26(b)(5) and that this failure amounts to a waiver of any privilege claims Zurich may have had.
Zurich concedes that it did not timely respond to the request due to neglect but, it contends that there is no Fifth Circuit case law on the issue of whether an inadvertently late response constitutes a waiver of privilege. Zurich does not provide an explanation for its failure to comply with the dictates of Rule 26(b)(5).
The timing and specificity of an objection are of the essence when it comes to asserting a privilege during discovery. Rule 34(b) of the Federal Rules of Civil Procedure requires the party upon whom a request for production of documents is made to respond to the request in writing within 30 days after being served. Rule 34(b) further requires that the response "shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for the objection shall be stated." FED. R. CIV. P. 34(b).
B. Proper Procedures in Stating a Privilege Objection
Rule 26(b)(5) states that, [w]hen 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. Fed.R.Civ.P. 26(b)(5). If the responding party fails to timely object or state the reason for the objection, he or she may be held to have waived any objections. See Marx v. Kelly, Hart Hallman, P.C., 929 F.2d 8, 12 (1st Cir. 1991). Therefore, the objecting party must be specific enough in its objections to support its privilege, but not too specific so as to divulge privileged information.
A party's slip, however, will not necessarily short-circuit his or her efforts to preserve the confidentiality of a privileged document. A party's failure to properly or timely object does not result in an automatic waiver. See Applied Systems, Inc. v. Northern Insurance Co. of New York, No. 97 C 1565, 1997 WL 639235, at *2 (N.D.Ill. Oct. 7, 1997). Rather, a waiver is a serious sanction to be imposed in cases of "unjustified delay, inexcusable conduct, bad faith or other flagrant violations." Id.
Cases where there have been "minor procedural violations, good faith attempts at complying, and some notice to the opposing party of the privilege objections; . . . [and] other cases involving non-flagrant discovery violations where the requested documents are plainly protected by a privilege" do not result in waiver of the privilege. Id. Thus, the circumstances surrounding the objections must be weighed in determining whether the documents are to be produced or kept outside of the scope of discovery.
It should be noted that in Bordnearo v. Union Carbide Cor., No. 93-3355, 1995 WL 234545, at * (E.D.La. April 20, 1995) (Duval, J); Burns v. Imagine Films Entertainment, Inc., 164 F.R.D. 589, 594 (W.D.N.Y. 1996) and Massachusetts School of Law at Andover, Inc. v. American Bar Ass'n, 914 F.Supp. 1172, 1178 (E.D.Pa. 1996) it was held that where the required log is not provided, all assertions of privilege have been deemed waived.
C. Analysis and Conclusion
The record shows that Felham propounded the subject discovery on June 24, 2004, and that on July 28, 2004, counsel for Felham inquired about the status of Zurich's responses. Zurich, after requesting a second copy and making assurances to Felham that responses were forthcoming on August 2, 2004, failed to provide the responses in accordance with its agreement. ( Brief in Support of Opposition to Motion to Compel Exhibit C) Some twenty-two days later, Zurich responded to the discovery and asserted objections to Request for Production No. 1 indicating that the information sought was subject to the attorney-client privilege and/or the attorney-client work product privilege.
Zurich concedes that it failed to timely assert privilege, but suggests that it was due to its oversight and not intentional obstruction. It further indicates that several of its client representatives were on vacations which further caused delay. Consequently, it contends that its failure to timely respond does not constitute a waiver.
The Court observes that the actual document submitted by Zurich to which it claims the information is privileged did not segregate out which entries were protected from disclosure as a result of the attorney-client or work product privilege. Second, it further simply contained entries which were redacted with out description as to its contents so as to allow Felham an opportunity to argue that the information contained on the Z-note print out were not entitled to protection by either the privilege or the work product doctrine.
Of the issues raised with respect to this motion, however, the most apparent is Zurich's failure to address the issue of whether the initial document it submitted as a "log" complied with Federal Rule of Civil Procedure 26(b)(5). The absence of a statement from Zurich regarding this issue coupled with its oversight in actually trying to respond and comply with the rules of procedure, suggests that its manner and timeliness of response constitutes inexcusable conduct.
Furthermore, even Zurich's log which was subsequently produced does not provide an adequate description of the entries Zurich contends are privileged. Each of the entries provided on the log which was finally produced simply says "attorney report," "client inquiry," "payment," and "attorney communication." Again Zurich failed to provide an adequate description of the subject's content without disclosing the privileged information. The Court further notes that Zurich did not raise relevancy as an issue as there is a bad faith claim pending by Felham.
Accordingly,
IT IS ORDERED ADJUDGED AND DECREED THAT Zurich's objection to produce the listing of Z-notes because the contents are protected by the Attorney-Client Privilege or Work Product Doctrine is OVERRULED AS THE PRIVILEGE HAS BEEN WAIVED. Zurich is to turn over an un-redacted version of the Z-notes no later than November 3, 2004.