Gianelli v. Home Depot Incorporated

Filing 17

ORDER signed by Magistrate Judge Carolyn K. Delaney on 8/12/2014: The 12 Motion to Compel is DENIED; and reasonable expenses are awarded to defendant in the amount of $1,012.50, said amount to be payable by plaintiff's counsel only. (Owen, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHEILA GIANELLI, 12 13 14 15 No. 2:13-cv-1969 JAM CKD Plaintiff, v. ORDER HOME DEPOT INCORPORATED, Defendant. 16 17 Defendant’s motion to compel production of documents is pending before the court. 18 Pursuant to the court’s order, plaintiff has submitted unredacted documents for in camera review 19 and a privilege log. Upon review of the documents in support and opposition, upon hearing the 20 arguments of counsel, in camera review of the documents in dispute, and good cause appearing 21 therefor, THE COURT FINDS AS FOLLOWS: 22 Plaintiff belatedly served responsive documents and did not create a privilege log until 23 ordered by the court to do so. Although the court does not approve of the dilatory conduct of 24 plaintiff’s counsel, in the circumstances of this case, the court declines to deem the delayed 25 production of responsive documents to be a waiver of the attorney client privilege. See generally 26 Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142, 27 1149 (9th Cir. 2005) (although no per se waiver rule if privilege log not produced within thirty 28 day time limit of Rule 34, court should consider degree to which objection or assertion of 1 1 privilege allows evaluation by court and opposing side of asserted privilege, timeliness of 2 objection, magnitude of document production and other particular circumstances that make 3 responding to discovery unusually easy or hard). The redacted material has been properly 4 withheld under the attorney client privilege. The motion to compel further production will 5 therefore be denied. However, because plaintiff did not serve responses to the request for 6 production of documents until after the motion to compel was filed, reasonable expenses will be 7 awarded to defendant. See Fed. R. Civ. P. 37(a)(5)(A). 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The motion to compel further production of documents (ECF No. 12) is denied; and 10 2. Reasonable expenses are awarded to defendant in the amount of $1,012.50, said 11 amount to be payable by plaintiff’s counsel only. 12 Dated: August 12, 2014 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 13 14 15 4 gianelli2.oah.icr 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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