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Portland Pipe Line Corp. v. City of South Portland

United States District Court, D. Maine

September 8, 2016

CITY OF SOUTH PORTLAND, et al., Defendants


          John H. Rich III United States Magistrate Judge.

         As directed during my September 1, 2016, teleconference with counsel, see ECF No. 74 at 2, the parties have provided letter briefs addressing (i) the timeliness of the defendants' request for the court's aid in resolving disputes stemming from a privilege log provided by the plaintiffs on August 2, 2016, with respect to electronically stored information (“ESI”), (ii) what disputes remain following any further good-faith attempts at resolution, and (iii) the merits of the remaining disputes.

         With the benefit of review of the parties' letter briefs, including attachments to the defendants' brief, and treating the disputes as the defendants' motion to compel the production of documents wrongly withheld by the plaintiffs on the ground of privilege, the motion is denied on the basis that the defendants did not engage in prompt, focused efforts to resolve or narrow their disputes or timely call them to the court's attention.[1]

         The defendants brought the instant disputes to the court's attention on August 30, 2016, four weeks after the production of the log at issue. On the same day that the log was produced, August 2, discovery closed, save for a limited extension until September 2, 2016, that I had granted (over objection by the plaintiffs) solely for the purpose of permitting the defendants to take certain depositions. See ECF No. 70 at 2. The parties' Local Rule 56(h) deadline to file notices of intent to file for summary judgment is tomorrow, September 9, 2016. See id.

         The defendants maintain that they diligently attempted to resolve the instant disputes, emailing letters to the plaintiffs on August 10 and 22, 2016, to which the plaintiffs, in letters emailed on August 15 and 24, 2016, offered no meaningful response, forcing recourse to the court. They assert that the plaintiffs' stonewalling during the parties' negotiations, as well as their late delivery of the ESI log on August 2, are the cause of any delays.

         The plaintiffs counter that the defendants pursued a dilatory and burdensome approach, raising no concern about the adequacy of a similar hard-copy document privilege log that the plaintiffs had produced on July 14, 2016, and failing to define the scope and nature of their complaints about the ESI privilege log sufficiently to enable a particularized response. They acknowledge that they, as the parties asserting the privilege, bear the burden of demonstrating that the documents at issue are privileged. However, they assert that the defendants, as the parties pressing discovery disputes, bore the burden of defining the scope of those disputes in such a manner as to permit the plaintiffs an adequate opportunity to respond and the court to rule.

         The plaintiffs have the better argument.[2]

         During a Local Rule 56(h) conference with counsel held on May 27, 2016, Judge Woodcock concluded that this case was not yet ready for summary judgment because discovery was ongoing. See ECF No. 55. However, he noted that “the Court is cognizant of the need for efficiency in discovery and for a speedy resolution of this case” and, therefore, urged “counsel to be expeditious.” Id.

         On June 9, 2016, in granting in part and denying in part a motion by the defendants to extend scheduling order deadlines by 60 days, I stated that they had not demonstrated good cause for a greater extension “to permit the resolution of expected discovery disputes . . ., particularly in view of this court's emphasis on the need for efficiency in discovery and for a speedy resolution of this case.” ECF No. 59. I reminded the parties to bring to the court's attention “immediately” any discovery dispute(s) that they had “been unable to resolve through prompt, good-faith efforts pursuant to Local Rule 26(b).” Id.

         The defendants' efforts at resolution of the instant disputes were not prompt. First, they raised no issue with the plaintiffs concerning the adequacy of a hard-copy privilege log produced on July 14 that contains the same categories of information as does the ESI log (record type, date, whether the document is redacted, a brief description of the subject matter, sender/author, recipient, person(s) copied, and type of privilege claimed).

         The defendants contend that they reasonably waited to raise concerns about the adequacy of the plaintiffs' log until they received the complete log, which they knew was forthcoming. They note that the plaintiffs did not produce the hard-copy log until a week after producing hard-copy documents and after the defendants had already designated their experts with the benefit of an intensive review of those documents. They add that, in any event, the relatively small hard-copy log contained only nine entries that could plausibly fit within the first of three categories they identify as problematic in the ESI log and similarly few entries for the other two categories. They assert that, as a result, they were unaware of the pervasiveness of the plaintiffs' questionable withholding of documents until receiving the sizable ESI log, which totals 132 pages and lists 3, 149 documents.

         Nonetheless, the hard-copy log served to place the defendants on notice of all three of the categories of flaws about which they now complain with respect to the ESI log. The defendants could and should have raised those issues with the plaintiffs prior to August 2, when the discovery deadline expired for all but limited purposes. The plaintiffs argue, and it stands to reason, that had the defendants raised any concern about the hard-copy privilege log when it was produced, the parties would have had time prior to the much more onerous task of preparation of the ESI log to confer and seek court intervention if necessary, possibly avoiding the instant disputes altogether.

         Second, once the defendants obtained the ESI log, they did not engage in prompt, focused efforts to attempt to narrow, if not resolve, their disputes despite the court's warnings concerning the need for expeditious handling of discovery disputes and the close of discovery for all purposes on September 2.

         The defendants did not contact the plaintiffs until August 10, approximately a week after receiving the ESI log. Even allowing that the lengthy log would have taken some time to review, the defendants did not discuss specific entries. Rather, they advised that, absent further detail, they suspected that the privilege was improperly claimed as to four categories of documents: (i) communications not involving an attorney, (ii) communications made by or received by third parties or disclosed to third parties, (iii) communications or attachments in which no sender or recipient was listed on the log, and (iv) documents with respect to which work product protection had been claimed. They cited caselaw for the proposition that, in the circumstances such as those, the attorney-client privilege either never attaches or is waived. They ...

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