Saniefar v. Moore et al

Filing 142

ORDER REGARDING PRIVILEGE LOG signed by Magistrate Judge Barbara A. McAuliffe on 04/23/2019. IT IS HEREBY ORDERED as follows: Within thirty (30) days from the date of this Order, Defendants shall produce all non-privileged all law firm e-mails and r elated documents regarding Plaintiff's two underlying ADA lawsuits, along with a detailed privilege log for all such e-mails for which they claim attorney-client or work product protection. The privilege log must minimally contain the following information: (1) the nature of the document or communication; (2) the date of the document or communication; (3) its source; (4) the intended recipient; (5) each individual or entity that received it; (6) the purpose for which it was prepared; (7) th e nature of the privilege asserted; and (8) sufficient facts to allow the Court to assess whether the document or communication falls within the privilege. The Court sets a telephonic status conference regarding discovery on May 30, 2019, at 10:0 0 AM in Courtroom 8 (BAM) before the undersigned. The parties may appear at the conference with each party using the following dial-in number and access code: dial-in number 1-877-411-9748; access code 3190866. Failure to comply with this order may result in the imposition of sanctions, including evidentiary sanctions. (Gonzales, V)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

FATEMEH SANIEFAR,

12
13
14
15

Plaintiff,
v.

Case No. 1:17-cv-00823-LJO-BAM
ORDER REGARDING PRIVILEGE LOG
(Doc. No. 135)

RONALD D. MOORE, et al.,
Defendants.

16
17

Currently pending before the Court is Defendants’ request to produce a categorical privilege

18

log. The request originally was submitted to the Court through its informal discovery dispute

19

resolution procedure. However, following an informal conference with the parties on March 29,

20

2019, the Court determined that Defendants’ request was not amenable to informal resolution, and

21

set the matter for hearing on April 19, 2019. (Doc. No. 135.)

22

On April 12, 2019, Defendants filed their brief asserting that a document-by-document

23

privilege log is unduly burdensome for the requests at issue, which are limited to email

24

communications, and they should be permitted to submit a “categorical” privilege log for internal

25

law firm communications. (Doc. No. 137.)

26

contending that the nature of this action requires a detailed privilege log. (Doc. No. 138.)

Plaintiff also submitted a brief in opposition,

27

Having considered the briefs and record on file, the Court found the matter capable of

28

resolution without oral argument. Therefore, the hearing set for April 19, 2019, was vacated, and
1

1

the matter submitted on the papers pursuant to Local Rule 230(g). For the reasons discussed below,

2

Defendants’ request to submit a categorical privilege log shall be DENIED.

3

I.

Background

4

Plaintiff brings this action under the Racketeer Influenced and Corrupt Organizations Act

5

(“RICO”), 18 U.S.C. § 1961, against Defendants Ronald D. Moore, Tanya E. Moore, Kenneth

6

Randolph (“Randy”) Moore, Marejka Sacks, Elmer Leroy Falk, Zachary M. Best, Moore Law Firm,

7

Mission Law Firm, Geoshua Levinson, Rick D. Moore, West Coast CASp and ADA Services

8

(“West Coast CASp”), Ronny Loreto and Does 1-100. Plaintiff’s action stems from allegations

9

that Defendants are each part of a criminal enterprise that uses fraudulent Americans with

10

Disabilities Act (“ADA”) actions, predicated on false allegations of disability, injury and standing,

11

to collect quick settlements from California businesses and citizens. Plaintiff alleges that the

12

scheme is accomplished through predicate acts of mail fraud and wire fraud.1

13

On March 1, 2019, Plaintiff filed a motion to compel Defendants to provide supplemental

14

responses, documents and a privilege log in response to Plaintiff’s Request for Production of

15

Documents, Set One. (Doc. No. 119.)

16

On March 18, 2019, with the assistance of the parties’ letter briefs, the Court held an

17

informal discovery dispute conference to address issues raised by the motion to compel. As to the

18

production of documents, Plaintiff complained that Defendants had produced only a handful of

19

documents and had asserted attorney-client privilege or work product protection for the remainder

20

of the requested documents but had failed to produce a privilege log. Plaintiff also asserted that

21

any protection for attorney-client privilege or attorney-work product had been waived based on the

22

crime fraud exception, and Defendants should be ordered to produce the requested documents.

23

Defendants countered that Plaintiff had failed to establish or explain how the crime fraud exception

24

applied to any of the ADA cases for which Plaintiff sought the production of documents.

25

Defendants also claimed that Plaintiff's requests were overbroad, burdensome and harassing as they

26
27
28

1

To state a claim for mail and wire fraud, a plaintiff must establish, in addition to the other
elements of a RICO claim, “(1) a scheme or artifice devised with (2) the specific intent to defraud
and (3) use of the United States mail or interstate telephone wires in furtherance thereof.” Orr v.
Bank of Am., 285 F.3d 764, 782 (9th Cir. 2002).
2

1

sought production of all documents and communications ever exchanged between a law firm, its

2

clients and its staff regarding approximately 250 to 1,400 plus ADA lawsuits. Plaintiff clarified at

3

the conference that the initial requests had been narrowed to the 250 cases prosecuted by Ronald

4

Moore. After considering the parties’ arguments, the Court continued the hearing on the motion to

5

compel, and directed the parties to meet and confer on the following issues: (1) narrowing the

6

scope of Plaintiff's document requests; (2) Defendants’ possible rolling production of a privilege

7

log; (3) the terms of a protective order; (4) whether witnesses and evidence would be presented at

8

the hearing regarding the crime-fraud exception; and (5) preparation of a joint statement re

9

discovery disagreement. (Doc. No. 128.)

10

Following the conference, in an effort to limit the scope of the requests, Plaintiff provided

11

Defendants with a tentative list of proposed categories of documents related to two Moore v.

12

Saniefar matters filed by Ronald Moore against Plaintiff in 2014 and 2017 (“Saniefar ADA cases”).

13

(Doc. 138-2, Declaration of Moji Saniefar at ¶ 10 and Ex. C.)

14

Nevertheless, during the meet and confer process in advance of the hearing, the parties were

15

unable to resolve issues regarding the reduced scope of Plaintiff’s discovery requests and the scope

16

and form of Defendants’ privilege log. Therefore, on March 29, 2019, the Court held an informal

17

discovery dispute conference. At the conference, Plaintiff affirmed that the dispute before the Court

18

was limited to the privilege log for the two prior Saniefar ADA cases. Plaintiff asserted that a

19

privilege log for the Saniefar ADA cases was necessary to assist in preparation of any motion to

20

compel based on the crime-fraud exception. Defendants indicated that even as limited to the

21

Saniefar ADA cases, there were approximately 8,000 e-mail documents for which creating a

22

privilege log would be overburdensome. Because the issue of Defendants' privilege log was not

23

amenable to informal resolution based on the parties’ limited letter briefs and arguments, the Court

24

set the matter for hearing. In advance of the hearing, the Court directed Plaintiff to provide search

25

terms to narrow down the 8,000 e-mails. The Court also directed the parties to submit concise

26

briefs identifying the narrowed requests for production at issue, the search terms provided, the

27

resulting number of responsive documents, the scope and form of the privilege log contemplated

28

by Federal Rule of Civil Procedure 26(b)(5), and the burden, if any, of preparing a document-by3

1

document privilege log. Additionally, the Court vacated the hearing on the pending motion to

2

compel (Doc. No. 135.)

3

On April 12, 2019, the parties submitted their briefing. (Doc. Nos. 137, 138.) The parties

4

dispute the scope and form of the privilege log for law firm e-mails and related documents regarding

5

the two underlying ADA cases Defendants prosecuted against Plaintiff in 2014 and 2017.2

6

Defendants assert that creating “a ‘document-by-document’ privilege log for thousands upon

7

thousands of law firm e-mails and related documents” is overly burdensome. (Doc. No. 137 at 2.)

8

Defendants therefore contend that they should be permitted to submit a categorical privilege log.

9

In contrast, Plaintiff asserts that a document-by-document privilege log is required under Federal

10

Rule of Civil Procedure 26(b)(5) because of the nature of this RICO action, which concerns

11

fraudulent and racketeering conduct committed directly by the attorney defendants and their

12

accomplices in providing legal services.

13

A.

(Doc. No. 138 at 5.)

Defendants’ Position

14

As background, Defendants explain that in an effort to compromise, they recently provided

15

Plaintiff with a 425 item “document-by-document” privilege log with respect to “case file”

16

documents, and they also produced 20,000 pages of non-privileged documents. (Doc. No. 137 at

17

2.) However, Defendants report that there are approximately 7,500 other documents referred to as

18

“e-mails” (i.e., electronic communications, attachments or other documents) for which Defendants

19

claim that preparing a detailed privilege log would be unreasonable and overly burdensome.

20

Defendants also note that while Plaintiff provided proposed search terms to narrow the responsive

21

documents, those terms triggered 96% of the original documents. Defendants therefore believe

22

they should be permitted to create, for all internal law firm e-mails, a categorical privilege log

23

which identifies the number of documents withheld, the date ranges for the communications, and a

24

declaration indicating that the e-mails were exchanged between law firm employees in connection

25

the two underlying ADA actions. Defendants also are willing to provide a “document-by-

26

document” privilege log for “email” communications with any non-employees, including with the

27
28

2

Plaintiff has reserved her right to bring additional motions as to other requests that have
been outstanding since October 2018.
4

1

firm’s client Ronald Moore, third party investigators and experts. (Id. at 9.)

2

In proposing the categorical privilege log for all internal law firm e-mails, Defendants argue

3

that a “document-by-document” privilege log is overly burdensome and is not required by Federal

4

Rule of Civil Procedure 26(b)(5). Defendants also argue that Plaintiff has not established a

5

reasonable likelihood that the crime-fraud exception applies to allow for in camera review of any

6

privileged documents. Instead, Defendants claim that the request for a document-by-document

7

privilege log is an unfocused fishing expedition that Defendants should not be forced to finance.
Plaintiff’s Position

8

B.

9

Plaintiff concedes that Defendants have produced a privilege log for the 2,000 “case files.”3

10

However, Plaintiff points out that these files ultimately contained only 425 privileged documents,

11

not the 2,000 privileged documents as was previously claimed by Defendants to argue burden.

12

Plaintiff also points out that Defendants not only have failed to produce the non-privileged “case

13

files” (presumably, approximately 1,575 documents) as of April 12, but also failed to produce these

14

non-privileged documents four months ago in response to Plaintiff’s discovery requests.4

15

With regard to the approximately 7,500-8,000 “e-mails,” Plaintiff confirms submission of

16

search terms to narrow the scope and volume of privileged e-mails. However, when Defendants

17

were asked to disclose the number of privileged e-mails, they were unable to do so, claiming that

18

not all, but most of the e-mails would be privileged, and an exact amount would not be known until

19

the review was completed. (Doc. No. 138 at 4.) Plaintiff complains that although Defendants

20

received Plaintiff’s document requests in October 2018, they had not engaged in a meaningful

21

review of documents until after Plaintiff filed her motion to compel and the parties participated in

22

discovery conferences with the Court.

23

As to the scope of the privilege log, Plaintiff contends that the nature of this case requires a

24

detailed privilege log, not a categorical log. Plaintiff acknowledges that the bulk of documents

25

requested from Defendants will necessarily include privileged and work-product material because

26

3

27
28

Plaintiff variously refers to these documents as “client files” or “case files.” For ease of
understanding, the Court refers to these documents as “case files.”
4
If Defendants have not already done so, Defendants shall produce the non-privileged
documents from the “case files” within seven (7) days of the date of this Order.
5

1

the mail and wire fraud claims are directed at two law firms and its lawyers, investigators and legal

2

staff in the prosecution of fraudulent ADA claims. Plaintiff contends, however, that lawyers should

3

not be permitted to use the attorney-client privilege and work product doctrine to shield their

4

allegedly criminal conduct, noting that the crime-fraud exception allows for a waiver of such

5

protection. Plaintiff asserts that, as the proponent of the exception, she has no access to privileged

6

material, making the ability to review a detailed privilege log critical in order to challenge any

7

asserted privilege or protection.

8

II.

Legal Standard

9

Rule 26(b)(5) of the Federal Rules of Civil Procedure provides that when a party withholds

10

information otherwise discoverable under the rules by claiming that it is privileged or subject to

11

protection as trial preparation material, the party must: “(i) expressly make the claim; and (ii)

12

describe the nature of the documents, communications, or tangible things not produced or

13

disclosed—and do so in a manner that, without revealing information itself privileged or protected,

14

will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5).

15

Rule 26(b)(5) does not expressly require the production of a “document-by-document”

16

privilege log. See Patriot Rail Corp. v. Sierra Railroad Company, 2016 WL 1213015, at *1 (E.D.

17

Cal. Mar. 20, 2016). Rather, as the Advisory Committee commented:

18
19
20
21

The rule does not attempt to define for each case what information must be provided
when a party asserts a claim of privilege or work product protection. Details
concerning time, persons, general subject matter, etc., may be appropriate if only a
few items are withheld, but may be unduly burdensome when voluminous
documents are claimed to be privileged or protected, particularly if the items can
be described by categories.
Fed. R. Civ. P. 26, Advisory Committee Notes to 1993 Amendments. However, the Ninth Circuit

22
has recognized that one method of expressly claiming attorney-client privilege or work product
23
protection is a document-by-document privilege log. See In re Grand Jury Investigation, 974 F.2d
24
1068, 1071 (9th Cir.1992) (finding that one of the means to sufficiently establish the attorney-client
25

privilege is a privilege log identifying for each document the following information: “(a) the

26
attorney and client involved, (b) the nature of the document, (c) all persons or entities shown on the
27
document to have received or sent the document, (d) all persons or entities known to have been
28
6

1

furnished the document or informed of its substance, and (e) the date the document was generated,

2

prepared, or dated”). Blanket assertions of the attorney-client privilege are “extremely disfavored.”

3

Clarke v. Am. Commerce Nat. Bank, 974 F.2d 127, 129 (9th Cir. 1992). Rather, “[t]he privilege

4

must ordinarily be raised as to each record sought to allow the court to rule with specificity” Id.;

5

see also United States v. El Paso Co., 682 F.2d 530, 541–42 (5th Cir.1982) (attempt to invoke

6

privilege rejected, due in part to the failure to “particularize its assertion of the privilege” with

7

respect to each specific document), cert. denied, 466 U.S. 944, 104 S.Ct. 1927, 80 L.Ed.2d 473

8

(1984).

9

III.

Discussion

10

As indicated above, Defendants contend that creating a document-by-document privilege

11

log for internal law firm e-mails collected from individual law firm employees, including Tanya

12

Moore, Zachary Best, Marejka Sacks, Whitney Law, David Guthrie, Isaac Medrano, and Jessica

13

Mendoza, is “an extremely time-consuming process” and is “unreasonable and overly

14

burdensome.” (Doc. No. 137 at 9.) Defendants further contend that nothing in Rule 26(b)(5)

15

requires a line-by-line privilege log, particularly where it would be “unduly burdensome and

16

inappropriate.” (Id. at 7.)

17

Defendants have not established to the Court’s satisfaction that creating a document-by-

18

document privilege log would be unduly burdensome. Although Defendants have identified

19

approximately 7,500 responsive documents, they do not provide any information as to how many

20

of those documents are purportedly protected by the attorney-client privilege or work product

21

doctrine and would have to be included in a privilege log. Indeed, there is no assertion from

22

Defendants that all 7,500 of the documents are protected or that they have completed even a cursory

23

review of the documents to assess such privilege or protection.

24

Defendants have relied heavily on In re Imperial Corp. of Am. v. Shields, 174 F.R.D. 475

25

(S.D. Cal. 1997) (“Shields”) to suggest that the court should not require them to produce a

26

document-by-document privilege log and they instead should be allowed to create a categorical

27

privilege log. (Doc. No. 137 at 7-8.) The Court does not find Defendants’ reliance on Shields

28

persuasive. In Shields, the district court found that the creation of a document-by-document
7

1

privilege log of documents to be “unreasonable and overly burdensome” because the case involved

2

multiple parties (approximately 50) and law firms (approximately 20) and “hundreds of thousands,

3

if not millions, of documents.” Id. at 478-79. The burdensome nature of discovery in Shields is

4

not presented here, where the document requests have been narrowed in scope, potentially resulting

5

in only a few thousand documents subject to a claimed privilege, not the “hundreds of thousands”

6

or “millions” contemplated in Shields. Additionally, as Plaintiff points out, Shields did not involve

7

the same type or number of defendants or the same allegations of a RICO enterprise that included

8

law firm defendants charged with mail and wire fraud. Importantly, even the Shields court

9

recognized that a document-by-document privilege log “has been, undoubtedly will, and should

10

remain, the traditional format.” Id. at 478.

11

Defendants also have claimed that a categorical privilege log should be permitted because

12

Plaintiff has not established a reasonable likelihood that the crime-fraud exception applies in order

13

to allow for in camera review. (Doc. No. 137 at 4-5.) Defendants argument, suggesting that

14

Plaintiff should have presented evidence that the crime-fraud exception applies, misses the mark.

15

(Id. at 5 ) (“Yet, Plaintiff should not have filed this lawsuit unless she already had evidence that the

16

crime-fraud exception applies since it is allegedly a key component of her case.”). In United States

17

v. Zolin, 491 U.S. 554, 565 (1989), the Supreme Court held that in camera review of privileged

18

information may be used to establish whether the crime-fraud exception applies. The Court set forth

19

a two-step analysis for determining whether in camera review is appropriate. First, there must be a

20

showing of a factual basis adequate to support a good faith belief by a reasonable person that in

21

camera review may reveal evidence to establish that the crime-fraud exception applies. Id. at 572.

22

If this showing is made, then the district court has the discretion to conduct an in camera review.

23

Id. Contrary to Plaintiff’s suggestion, a prima facie showing of crime-fraud is not required before

24

an in camera inspection is appropriate. In re Grand Jury Investigation, 974 F.2d at 1073 (citations

25

omitted). Rather, as the Ninth Circuit has clarified, “Zolin requires only a factual showing sufficient

26

to support a reasonable, good-faith belief that review of the privileged documents ‘may reveal

27

evidence to establish the claim that the crime fraud exception applies.’” Id. (emphasis in original).

28

At this juncture, the absence of a privilege log—categorical or otherwise—renders it
8

1

impossible for Plaintiff to request that the Court conduct an in camera review of any documents

2

for which a privilege or protection is asserted. Moreover, courts and parties addressing the crime-

3

fraud exception generally have required a detailed privilege log to assist in review. See, e.g., Tri-

4

State Hosp. Supply Corp. v. United States, 226 F.R.D. 118, 134 (D.D.C. 2005) (to assess whether

5

the crime-fraud exception applied to documents submitted for in camera review, court required “a

6

reasonably detailed privilege log”); JPMorgan Chase Bank, N.A. v. Winget, 2017 U.S. Dist. LEXIS

7

103115, at *35 (E.D. Mich. Jul. 5, 2017) (noting privilege log containing sufficient detail beyond

8

conclusory allegations will help party “to determine whether the crime-fraud exception to any claim

9

of privilege applies”); Promed, Inc. v. Pavlas, 2012 U.S. Dist. LEXIS 167367, at *4-*5 (S.D. Ga.

10

Nov. 26, 2012) (court found it could not assess whether crime-fraud exception applied based on

11

“summary privilege log” and required party asserting privilege to submit a more detailed log,

12

setting forth the following information as to each responsive document or communication: (1) the

13

nature of the document or communication; (2) the date of the document or communication; (3) its

14

source; (4) the intended recipient; (5) each individual or entity that received it; (6) the purpose for

15

which it was prepared; (7) the nature of the privilege asserted; and (8) sufficient facts to allow the

16

Court to assess whether the document or communication falls within the privilege”).

17

After careful consideration, the Court finds that Defendants have not established that

18

creating a document-by-document privilege log would be unduly burdensome as to Plaintiff’s

19

narrowed request. A document-by-document privilege log is both appropriate and reasonable under

20

the facts presented with respect to the e-mails at issue.

21

III.

Conclusion and Order

22

For the reasons stated, IT IS HEREBY ORDERED as follows:

23

1.

Within thirty (30) days from the date of this Order, Defendants shall produce all

24

non-privileged all law firm e-mails and related documents regarding Plaintiff’s two underlying

25

ADA lawsuits, along with a detailed privilege log for all such e-mails for which they claim attorney-

26

client or work product protection.

27
28

2.

The privilege log must minimally contain the following information: (1) the nature

of the document or communication; (2) the date of the document or communication; (3) its source;
9

1

(4) the intended recipient; (5) each individual or entity that received it; (6) the purpose for which it

2

was prepared; (7) the nature of the privilege asserted; and (8) sufficient facts to allow the Court to

3

assess whether the document or communication falls within the privilege;

4

3.

The Court sets a telephonic status conference regarding discovery on May 30, 2019,

5

at 10:00 AM in Courtroom 8 (BAM) before the undersigned. The parties may appear at the

6

conference with each party using the following dial-in number and access code: dial-in number 1-

7

877-411-9748; access code 3190866; and

8
9

4.

Failure to comply with this order may result in the imposition of sanctions, including

evidentiary sanctions.

10
11
12
13

IT IS SO ORDERED.
Dated:

/s/ Barbara

April 23, 2019

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10