Opinion
03 Civ. 5560 (RMB) (HBP).
May 8, 2006
MEMORANDUM OPINION AND ORDER
By letter dated March 15, 2006, the Outside Directors seek to compel plaintiff to produce document retention notices. Plaintiff resisted the application on the ground of privilege, and the Outside Directors argue that any applicable privilege has been waived as a result of plaintiff's failure to list the documents on a timely served index of documents withheld on the ground of privilege. See generally FG Hemisphere Assocs., L.L.C. v. Republique du Congo, 01 Civ. 8700 (SAS) (HBP), 2005 WL 545218 at *6 (S.D.N.Y. Mar. 8, 2005).
The matter was discussed during the course of a conference call held on March 22, 2006, during which plaintiff advised that it would make an application nunc pro tunc to extend the time for the service of its index of privileged documents. Both sides subsequently submitted letter briefs addressing the issue and the matter is now ripe for resolution.
Local Civil Rule 26.2(c) provides that:
Where a claim of privilege is asserted in response to discovery or disclosure other than a deposition, and information is not provided on the basis of such assertion, the information set forth in paragraph (a) above [i. e., the index of documents withheld on the ground of privilege] shall be furnished in writing at the time of the response to such discovery or disclosure, unless otherwise ordered by the court.
Since Fed.R.Civ.P. 34(b) provides that a party receiving a request for the production of documents "shall serve a written request within 30 days after the service of the request," the index of documents withheld on the ground of privilege is ordinarily due 30 days after the document request, unless the court orders otherwise or the parties stipulate to a different schedule. Where a party fails to provide an index of withheld documents in a timely manner, any potentially applicable privilege is ordinarily waived. See, e. g., FG Hemisphere Assocs., L.L.C. v. Republique du Congo, supra, 2005 WL 545218 at *6; Bruker v. City of New York, 93 Civ. 3848 (MGC) (HBP), 2002 WL 484843 at *5 (S.D.N.Y. Mar. 29, 2002); A.I.A. Holdings, S.A. v. Lehman Bros., Inc., 97 Civ. 4978 (LMM) (HBP), 2000 WL 1538003 at *3 (S.D.N.Y. Oct. 17, 2000); Jackson v. Edwards, 99 Civ. 0982 (JSR) (HBP), 2000 WL 782947 at *2 (S.D.N.Y. June 16, 2000); Large v. Our Lady of Mercy Med. Ctr., 94 Civ. 5986 (JGK) (THK), 1998 WL 65995 at *4 (S.D.N.Y. Feb. 17, 1998); Hurst v. F.W. Woolworth Co., 95 Civ. 6584 (CSH), 1997 WL 61051 at *6 (S.D.N.Y. Feb. 11, 1997);PKFinans Int'l Corp. v. IBJ Schroeder Leasing Corp., 93 Civ. 5375 (SAS) (HBP), 1996 WL 525862 at *3-*4 (S.D.N.Y. Sept. 17, 1996); John Labatt Ltd. v. Molson Breweries, 93 Civ. 75004 (RPP), 94 Civ. 71540 (RPP), 1995 WL 23603 at *1 (S.D.N.Y. Jan. 20, 1995), appeal transferred sub nom., Dorf Stanton Communications, Inc. v. Molson Breweries, 56 F.3d 13 (2d Cir. 1995), aff'd, 100 F.3d 919 (Fed. Cir. 1996); Smith v. Conway Org., Inc., 154 F.R.D. 73, 76 (S.D.N.Y. 1994); Allstate Life Ins. Co. v. First Trust N.A., 92 Civ. 4865 (SWK), 1993 WL 138844 at *3 (S.D.N.Y. Apr. 27, 1993); Bank v. Mfrs. Hanover Trust Co., 89 Civ. 2946 (MJL), 1990 WL 155591 at *2 (S.D.N.Y. Oct. 9, 1990); Carte Blanche (Singapore) PTE., Ltd. v. Diners Club Int'l, Inc., 130 F.R.D. 28, 32 (S.D.N.Y. 1990); see also Sheikan v. Lenox Hill Hosp., 98 Civ. 6468 (WHP), 1999 WL 386714 at *3 (S.D.N.Y. June 11, 1999).
Although there is authority reaching a contrary result and limiting the remedy to the belated preparation of the index of withheld documents, I do not find those cases persuasive. "Limiting the remedy to the belated preparation of a privilege log effectively tells practitioners they can flout the Court's Rules and incur no sanction other than an Order directing compliance with the rules." PKFinans Int'l Corp. v. IBJ Schroder Leasing Corp., supra, 1996 WL 525862 at *4. See 2 Michael C. Silberberg Edward M. Spiro, Civil Practice in the Southern District of New York § 22:12 at 22-33 (2d ed. 2004) ("[T]he cases imposing waiver appear to express the better view of the appropriate remedy in the event a party fails to timely provide the privilege list.").
The document request seeking the document retention notices was served on or about August 5, 2005. Assumoing service by mail, the response and the index of documents withheld on the ground of privilege were due on September 7, 2005. The document retention notices were not, however, scheduled until March 15, 2006.
The untimely scheduling of the documents in issue does not, however, end the analysis. There are two document retention notices in issue, designated by plaintiff as "AC-CG-138956-138957" and "AC-PR-139680-139682" (the "CG Document" and the "PR Document," respectively). The CG Document was not created until December 7, 2005, approximately four months after the Outside Directors' First Document Request, and, thus, a threshold issue is whether the Outside Directors' First Document Requests even reaches the CG Document. Surprisingly, with the exception of an unpublished and uncitable decision of the United States Court of Appeals for the Sixth Circuit, I have been unable to find any precedents addressing whether documents created after the service of a Rule 34 response need be produced in response thereto. The applicability of the obligation to supplement discovery responses set forth in Fed.R.Civ.P. 26(e) (2) is unclear. Rule 26(e) (2) requires the party to supplement its response if it learns "that the response is in some material respect incomplete or incorrect and if the additional corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Subsequently created documents do not render a previously served document response incomplete as of the date of the response, and I submit that most practitioners expressly limit their responses to document requests to a specific, defined interval of time. Moreover, even if Rule 26(e) were interpreted to require the recipient of a document request to make continuing periodic reviews of its documents for newly created responsive documents, the Federal Rules of Civil Procedure and the Local Civil Rules are entirely silent as to how frequently updated document responses or productions must be made or how frequently and at what intervals supplemental indices of privileged documents must be served. Under any analysis, however, it would clearly be irrational to hold that a waiver of privilege results from a failure to list documents that do not exist at the time the index is due.
Thus, it is unclear whether the Outside Directors' First Request for Production of Documents even reaches the CG Document. Moreover, even if I assume that the request does reach the CG Document, neither the Federal Rules of Civil Procedure nor the Local Civil Rules set a clear deadline for the scheduling of newly-created, responsive, privileged documents. Since no clearly established deadline was violated with respect to plaintiff's scheduling of the CG Document, there is no basis for finding a waiver. In re DG Acquisition Corp., 213 B.R. 883, 888 (S.D.N.Y. 1997), aff'd, 151 F.3d 75 (2d Cir. 1998)
The PR Document stands on a slightly different footing. Plaintiff's index of privileged documents does not set forth the date of its creation, cryptically stating "N/A" in that column. If the PR Document was not created until after the due date of plaintiff's response to the Outside Directors' First Request for Production of Documents, it is subject to the same analysis as the CG Document. If, on the other hand, the PR Document was in existence as of the date on which plaintiff's response to the document request was due, any privilege has been waived unless the time for service of plaintiff's index is extended nunc pro tunc.
In support of its application for a nunc pro tunc extension of its deadline for serving an index of privileged documents, plaintiff argues that it was unaware of the PR Document, that the document was overlooked because of the volume of documents that have been produced and contends that its indices of withheld documents have been produced within a reasonable time.
To warrant a nunc pro tunc extension of time, Fed.R.Civ.P. 6(b)(2) requires a showing that the failure to act in a timely manner was the result of "excusable neglect."
Under Rule 6(b), where the specified period for the performance of an act has elapsed, a district court may enlarge the period and permit the tardy act where the omission is the "result of excusable neglect." . . . [T]here is no indication that anything other than the commonly accepted meaning of the phrase was intended by its drafters. It is not surprising, then, that in applying Rule 6(b), the Courts of Appeals have generally recognized that "excusable neglect" may extend to inadvertent delays. Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute "excusable" neglect, it is clear that "excusable neglect" under Rule 6(b) is a somewhat "elastic concept" and is not limited strictly to omissions caused by circumstances beyond the control of the movant.Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., P'ship, 507 U.S. 380, 391-92 (1993). In assessing whether neglect is excusable, courts should consider the prejudice to the non-delinquent party, the length of the delay and its impact on the judicial proceeding, the reason for the delay and whether it was within the delinquent party's control and whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd., P'ship, supra, 507 U.S. at 395.
In this case, the first two factors weigh against plaintiff, but only slightly, since the delay in scheduling the PR Document was only approximately six months long.
The third factor weighs more heavily against plaintiff. Plaintiff has offered no evidence concerning its efforts to schedule privileged documents in the thirty days after it received the Outside Directors' request. Its contention that it did not know about the PR Document is not compelling because any ignorance appears to be the product of plaintiff's unilateral inaction.
The final factor weighs slightly in favor of plaintiff. Although there is not a shred of evidence that it acted in bad faith, there is also no evidence that plaintiff even attempted to serve its index within the time period required by the rules. Plaintiff's failure to provide any information concerning what it was doing in the thirty days after it received the Outside Directors' document request may imply that it did nothing at all.
Considering all the relevant factors, I conclude that plaintiff has not shown excusable neglect for its failure to schedule the PR Document, and that unless the document was not in existence until after September 7, 2005, it should be produced.
Accordingly, for all the foregoing reasons, the Outside Directors' application to compel production of the CG Document is denied in all respects. Within ten (10) days of the date of this Order, plaintiff is directed to either produce the PR document or submit an affidavit from someone with first-hand knowledge attesting that it was not prepared until after September 7, 2005.
Plaintiff's letter dated March 29, 2006 attempts to justify plaintiff's conduct by comparing it to the conduct of Pricewaterhouse Coopers LLP ("PWC"). Although plaintiff is not seeking any relief concerning PWC, PWC has responded to plainitff's letter. Since I do not understand there to be any application concerning PWC, I express no opinion concerning whether PWC has served its index of privileged documents in a timely manner.
SO ORDERED