Opinion
Civil Action No. 3:95cv6-D-A
November 15, 1996
MEMORANDUM OPINION
By order dated September 19, 1996, United States Magistrate Judge S. Allan Alexander denied as untimely the defendant's motion for a protective order so that it would be relieved of the obligation to produce certain documents to the plaintiff in discovery. Maxey v. General Motors, Civil Action No. 3:95cv6-D-A (N.D. Miss. Sep. 19, 1996) (Alexander, M.J.) (Order Denying Motion for Protective Order). On September 27, 1996, the defendant filed an appeal of this order of the Magistrate Judge. The plaintiff responded to this filing on October 17, 1996, and also moved to strike the appeal or, in the alternative, to dismiss the appeal. After having considered the order of the Magistrate Judge and the submissions of the parties, the undersigned is of the opinion that the order is neither clearly erroneous nor contrary to law. The undersigned shall not modify or set aside Judge Alexander's order of September 19, 1996.
The crux of the defendant's original motion before the Magistrate Judge was that the documents which the plaintiff sought produced and the defendant sought protected were protected by the attorney-client and "self-critical analysis" privileges. The Magistrate Judge never reached the actual question of whether or not the documents were in fact protected by these privileges, however, but rather denied the motion for two particular reasons: 1) the motion itself was untimely; and 2) the claims of privilege asserted for these documents were untimely.
I. DISCUSSION
A. Appeal or Objection?
The plaintiff's first ground in opposition to this court's consideration of the matter at hand is the argument that there is no mechanism within the Federal Rules of Civil Procedure for the defendant to "appeal" the order of the Magistrate Judge to the undersigned. Rather, the only proper review of the Magistrate Judge's order by this court would be pursuant to Fed.R.Civ.P. 72(a) by the filing of "objections" to the order within ten days of its entry. Fed.R.Civ.P. 72(a). The plaintiff is correct that this court's review of the Magistrate Judge's order is pursuant to that rule, and this court will only modify or set aside that order if it is "clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a). That the defendant styled its pleading in this matter as an "appeal" is a mere semantical distinction, for it did otherwise properly and timely file its objections. This fact alone does not present sufficient reason for this court to strike the defendant's pleading or refuse consideration of it.
B. TIMELINESS OF THE MOTION
1. Generally
While the express language of Fed.R.Civ.P. 26 does not set limits within which a motion for protective order must be made, there is an implicit requirement that the motion be timely, or seasonable.See, e.g., Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 413 (M.D.N.C. 1991); Nestle Foods Corp. v. Aetna Cas. Sur. Co., 129 F.R.D. 483, 487 (D.N.J. 1990);. See also; WRIGHT MILLER, 8 FEDERAL PRACTICE AND PROCEDURE, § 2035 (2nd Ed. 1994). A motion for protective order is timely if made prior to the date set for the discovery. See,e.g., Wang v. Hsu, 919 F.2d 130, 131 (10th Cir. 1990); Brittain, 136 F.R.D. at 413; United States v. International Business Machines, 70 F.R.D. 700, 701 (S.D.N.Y. 1976) ("Such motions under Rule 26(c) must be served before the date set for production."); HON. DAVID HITTNER, FEDERAL CIVIL PROCEDURE BEFORE TRIAL, p. 11-35 ("A motion for protective order should be noticed at the earliest possible time and certainly before the discovery procedure is to occur."). In this case, the defendant's motion for a protective order was filed after its deadline to respond to the plaintiff's request for production of documents, and was therefore untimely as it was not made prior to the deadline for the discovery in question.
Further, the defendant can find no solace in pointing the finger back at the plaintiff for his failure to present the issue to the court via a Motion to Compel or for some type of conference with the court. A timely motion for a protective order by the party seeking relief from the obligation to comply with a discovery request is the best manner in which to have privileged documents shielded from the discovery process:
Defendant argues, that for written di2scovery, it is sufficient that it note its objections within the time permitted, and that it should not have to move for a protective order until after the plaintiffs move to compel the discovery. Nothing in Rule 26 © suggests that there should be such a dichotomy between oral depositions and written discovery. The procedure turns the normal state of obligations on its head. The party seeking the protective order, who has the burden of requesting and supporting it, should also be responsible for initiating the process. Permitting that party to merely note its objections and then sit back and wait for a motion to compel can only serve to prolong and exacerbate discovery disputesBrittian, 136 F.R.D. at 413 (emphasis added); but see Wright Miller, 8 Federal Practice and Procedure § 2035, p. 481 ("A party may not remain completely silent when it regards discovery as improper. If it desires not to . . . respond, it must object properly or seek a protective order . . ."). This court agrees with the court in Brittain, and the defendant should have brought this matter to the attention of the court before the time expired for his response to the plaintiff's request for production. As the defendant is the party seeking to protect the documents from disclosure in this case, it should not be allowed to sit back and force the plaintiff to take the initiative to file a Motion to Compel with this court.
The Magistrate Judge was not required to deny outright the defendant's motion as untimely, however. If the defendant can demonstrate good cause for its failure to timely file, a meritorious motion for protective order may nevertheless be granted. Brittian, 136 F.R.D. at 414; WRIGHT MILLER, 8 FEDERAL PRACTICE AND PROCEDURE § 2035, p. 478 ("[T]he courts still consider the timeliness of a motion and look to all of the circumstances in determining whether the motion is untimely."). While the Magistrate Judge had the discretion to deny the defendant's motion as untimely in this case, the defendant was entitled to the opportunity to demonstrate good cause in explanation of its failure to timely file. It is not clear from the Magistrate Judge's order that she employed this standard or considered in this particular context any proffered explanation of the defendant for its failure to timely file a motion for protective order. Were this the only justification for denying the defendant's motion as untimely, the undersigned would return this matter to the Magistrate Judge for a determination of the defendant's proffered "good cause" for its failure to timely file. As noted below, however, the Magistrate Judge had more than one sufficient reason to deny the motion.
2. Timeliness of the motion in light of the Uniform Plan
The Magistrate Judge did not, however, address the "timeliness" issue as it has thus far been discussed by this court. Rather, she determined that the motion was untimely with respect to a provision of this court's Uniform Plan for the implementation of the Civil Justice Reform Act of 1990. 28 U.S.C. § 471 et seq. Magistrate Judge Alexander noted that the defendant filed its motion for protective order with the court on August 26, 1996, two days before the expiration of the discovery deadline. When considering the time allowed for briefing under Local Rule 8(d), the Magistrate Judge reasoned, there was no practical way for the matter to be resolved prior to the expiration of the discovery deadline.See Uniform Civil Justice Expense and Delay Reduction Plan (hereinafter "Uniform Plan"), Section Four (II.)(A) ("All discovery motions must be filed so that they do not affect the discovery deadline."). The Magistrate Judge further stated in her order:
To exacerbate matters, defendant stated in its motion that it "desires to supplement this motion with the deposition testimony of Robert Sinke after that transcript is received . . . in order that this Court can fully understand the issues raised in this motion." Defendant then waited until September 6, 1996 — nine days after expiration of the discovery deadline — to serve its proposed "supplement." Aside from the fact that supplementation of this sort is not contemplated anywhere in the local rules that govern this court, defendant used its supplementation not only to produce the deposition of Mr. Sinke, but also to cite new cases and make new legal arguments not expressly included in its August 26, 1996 motion. Defendant will not be allowed to circumvent the discovery deadline in this fashion.Maxey, (Order Denying Motion for Protective Order, p. 2). The undersigned notes that the defendant itself acknowledges that the documents it seeks to protect would otherwise be responsive to a request for production of documents propounded by the plaintiff on July 24, 1996. Understandably, some time would have been required to make a good faith attempt at resolution of this matter prior to seeking a protective order from the court. Fed.R.Civ.P. 26(c). Nevertheless, the purpose of Section Four (II)(A) is to facilitate the expedient resolution of litigation by preventing unnecessary extensions of the discovery period. Having all discovery disputes before the court prior to the expiration of the discovery period enables this court to resolve those disputes quickly and hopefully permit the parties to conduct any "follow up" discovery which results from the disputed discovery within the pre-established discovery period.
From the facts that have been presented to this court, the defendant should have been aware of the need for a protective order in sufficient time for it to file its motion in compliance with both Fed.R.Civ.P. 26(c) as well as Section Four (II)(A) of the Uniform Plan. Therefore, the Magistrate Judge was well within her discretion to deny the defendant's motion as untimely on this basis. Here again, denial of an untimely motion is not an absolute rule. It has been this court's practice to allow the late movant to demonstrate "good cause" for its failure to timely file and to permit late filings when they are supported with such "good cause." As previously noted, the Magistrate Judge's order does not contain anything which indicates to this court that the Magistrate Judge sought explanation for the untimely filing or considered such a "good cause" exception.
C. TIMELINESS OF THE CLAIMS OF PRIVILEGE
Finally, the Magistrate Judge determined that the defendant had waived its assertion of privilege which served as the basis for its motion for a protective order:
Moreover, defendant did not make a claim of privilege in a timely manner. Defendant produced the documents in question for in camera review by the court. The documents appear to have been generated during late 1989 and early 1990, and there does not seem to be any dispute between the parties regarding the documents' relevancy to this lawsuit. Because the documents were in existence well in advance of the filing of this lawsuit, and the defendant does not claim that the documents came to light only recently, they should have been disclosed, or a claim of privilege made, as part of the defendant's pre-discovery disclosure of core information or a supplement thereto.
At the absolute latest, defendant should have made an effective claim of privilege in response to plaintiff's request for production of documents.Maxey, Civil Action No. 3:95cv6-D-A (N.D. Miss. Sep. 19, 1996) (Order Denying Motion for Protective Order, p. 3). The Magistrate Judge went on to explain that the defendant failed to comply with the requirements of Fed.R.Civ.P. 26(b)(5) when it responded to the plaintiff's request for production of the documents in question by merely stating "the information is protected from disclosure by the work product doctrine and the attorney-client and self-critical analysis privileges. When GM investigates the kind of allegations plaintiff describes in this request, it is either in response to, or in anticipation of, litigation."
The undersigned agrees with the Magistrate Judge that the defendant failed to adequately assert its claim of privilege in a timely manner. The Uniform Plan requires that such assertions of privilege must be made at the time of their initial disclosures to the opposing party, and the defendant should have at least supplemented its initial disclosures as the Uniform Plan requires. Uniform Plan, Section Four (I)(A)(7). As well, the defendant's response to the plaintiff's request for production for these documents was insufficient to meet its obligation under the Federal Rules of Civil Procedure. Fed.R.Civ.P. 26(b)(5) (stating party seeking protection of privilege "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 the information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection."). The generalized response of the defendant to the plaintiff's request for production was merely an assertion of the privilege itself, and does not explain the nature of the documents such that anyone could assess the applicability of the privilege claimed. The defendant argues that if this conclusion is correct, then the plaintiff's discovery responses were also deficient. That matter is not before the court, and is irrelevant in any event. The Magistrate Judge was well within her discretion in deeming the privilege waived in this case, particularly in light of the inadequate response provided to the request and to provide a description of the document in a supplementation to its initial disclosures. Fed.R.Civ.P. 26(b)(5). This court cannot say that the Magistrate Judge's decision in this matter is either clearly erroneous or contrary to law.
Pursuant to amendments to the Uniform Plan made effective July 1, 1996, Section Four (I)(A)(1)(b) requires that:
When a party withholds information 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 that 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. The privilege log should contain at least the following information: name of the document; description of the document; date; author(s); recipient(s); and nature of the privilege. To withhold materials without such notice subjects the withholding party to sanctions under Rule 37, FRCP, and may be viewed as a waiver of the privilege or protection.
While the defendant's initial disclosures in this case were served before this amendment became effective, this enactment governed the defendant's obligation to make supplemental disclosures after July 1, 1996.
III. CONCLUSION
The Magistrate Judge had a sufficient reason to deny the defendant's motion for a protective order, in that the defendant had waived the asserted privilege by failing to adequately present its claim of privilege. The Magistrate Judge also possessed the discretion to deny the defendant's motion as untimely for two different reasons, but there is nothing before the court that indicates that she entertained the defendant's proffer of "good cause" reason for the untimely filing. In any event, as the Magistrate Judge had a valid ground for the denial of the motion, this court shall not disturb the order. This court cannot say that the Magistrate Judge's order in this matter was either clearly erroneous or contrary to law.
A separate order in accordance with this opinion shall issue this day.
ORDER
Pursuant to a memorandum opinion issued this day, it is hereby ORDERED THAT:1) the plaintiff's motion to strike the defendant's appeal of the September 19, 1996 order of United States Magistrate Judge S. Allan Alexander is hereby DENIED;
2) the plaintiff's motion to dismiss the defendant's appeal of the September 19, 1996 order of United States Magistrate Judge S. Allan Alexander is hereby DENIED;
3) the defendant's objections to the Magistrate Judge's decision of September 19, 1996 are hereby OVERRULED; and
4) the decision of United States Magistrate Judge S. Allan Alexander dated September 19, 1996, denying the defendant's motion for a protective order is hereby AFFIRMED. This court shall not modify or set aside that order of the Magistrate Judge.
SO ORDERED.