Opinion
No. CIV S-07-1015 LKK EFB.
May 30, 2008
ORDER
This case was before the undersigned on May 28, 2008, for hearing on defendant's motion to quash a subpoena served on third-party American International Specialty Lines Insurance Company ("AISLIC"). Brian Worthington appeared as plaintiff's counsel and Robert Davies appeared as defense counsel. For the reasons stated on the record at the hearing, defendant's motion to quash is denied without prejudice to renewal.
Although AISLIC is the entity upon which the subpoena was served, defendant Access Claims Administrators, Inc. ("Access") has moved to quash the subpoena. See Thomas v. Marina Assocs., 202 F.R.D. 433, 434 (E.D. Pa. 2001) (although a party generally does not have standing to quash a subpoena served on a third party, an exception is made, where "the party seeks to quash based on claims of privilege relating to the documents being sought."). Here, Access moves to quash the subpoena served on AISLIC based on various privileges relating to the documents sought. Foremost among the privileges asserted by Access is the so-called mediation privilege. See Fed.R.Civ.P. 45(c)(3) (motion to quash should be granted where subpoena requires disclosure of privileged information). In its motion, Access does not purport to assert the mediation privilege on behalf of AISLIC. Rather, Access asserts that all documents responsive to the subpoena — regardless of who created them or who currently possesses them — are protected by the mediation privilege. In essence, Access asserts the privilege both on its own behalf and on behalf of AISLIC.
The court foregoes a detailed discussion of the facts underlying this case, but notes that Access sued AISLIC in New York state court based on an insurance policy related to Access's potential liability in the present lawsuit. AISLIC and Access went to mediation, which resulted in a confidential, out-of-court settlement.
In the absence of a privilege log, the court cannot properly evaluate these assertions of privilege. See Fed.R.Civ.P. 45(d)(2) (requiring subpoenaed information withheld on the basis of privilege to be described in a manner sufficient for the opposing party — and the court — to assess the claim); see also Ceramic Corp. of Am. v. Inka Maritime Corp., 163 F.R.D. 584, 587 (C.D. Cal. 1995) (assertions of privilege must be supported by a description of the withheld documents sufficient to enable the demanding party to test the claim). Based on the submitted papers and the discussions at the hearing, it is clear that AISLIC and Access are working in concert to respond to the subpoena. Accordingly, the court orders AISLIC and Access to work in concert to produce the privilege log required under Fed.R.Civ.P. 45(d)(2). The log shall be produced to plaintiff within two weeks from the date of service of this order. Failure to provide the log may result in a finding that all privileges have been waived. See Ceramic Corp., 163 F.R.D. at 587. The parties shall continue the meet and confer efforts begun at the May 28, 2008, hearing.
SO ORDERED.