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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHEILA GIANELLI,

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No. 2:13-cv-1969 JAM CKD

Plaintiff,
v.

ORDER

HOME DEPOT INCORPORATED,
Defendant.

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Defendant’s motion to compel production of documents is pending before the court.

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Pursuant to the court’s order, plaintiff has submitted unredacted documents for in camera review

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and a privilege log. Upon review of the documents in support and opposition, upon hearing the

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arguments of counsel, in camera review of the documents in dispute, and good cause appearing

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therefor, THE COURT FINDS AS FOLLOWS:

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Plaintiff belatedly served responsive documents and did not create a privilege log until

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ordered by the court to do so. Although the court does not approve of the dilatory conduct of

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plaintiff’s counsel, in the circumstances of this case, the court declines to deem the delayed

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production of responsive documents to be a waiver of the attorney client privilege. See generally

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Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142,

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1149 (9th Cir. 2005) (although no per se waiver rule if privilege log not produced within thirty

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day time limit of Rule 34, court should consider degree to which objection or assertion of
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privilege allows evaluation by court and opposing side of asserted privilege, timeliness of

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objection, magnitude of document production and other particular circumstances that make

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responding to discovery unusually easy or hard). The redacted material has been properly

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withheld under the attorney client privilege. The motion to compel further production will

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therefore be denied. However, because plaintiff did not serve responses to the request for

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production of documents until after the motion to compel was filed, reasonable expenses will be

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awarded to defendant. See Fed. R. Civ. P. 37(a)(5)(A).

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Accordingly, IT IS HEREBY ORDERED that:

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1. The motion to compel further production of documents (ECF No. 12) is denied; and

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2. Reasonable expenses are awarded to defendant in the amount of $1,012.50, said

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amount to be payable by plaintiff’s counsel only.

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Dated: August 12, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 gianelli2.oah.icr

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