Solis v. Seafood Peddler of San Rafael, Inc. et al

Filing 33

TENTATIVE RULING re 20 Motion to Compel Further Production of Documents. Signed by Judge Nathanael M. Cousins on 08/20/2012. (nclc2, COURT STAFF) (Filed on 8/20/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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HILDA L. SOLIS, Secretary of Labor,
United States Department of Labor,

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Plainitff,

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v.

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SEAFOOD PEDDLER OF SAN
RAFAEL, INC., dba SEAFOOD
PEDDLER; ALPHONSE SILVESTRI;
RICHARD MAYFIELD; FIDEL
CHACON,

Case No. 12-cv-0116 JW (NC)
TENTATIVE RULING RE:
SEAFOOD’S MOTION TO COMPEL
PRODUCTION OF DOCUMENTS
Re: Dkt. No. 20

Defendants.

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Defendant Seafood Peddler moves to compel the further production of documents

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responsive to Seafood’s first request for production of documents, including the FLSA

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Narrative that the Secretary inadvertently disclosed in responding to Seafood’s document

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request. Dkt. No. 20.

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This order provides the parties with a tentative ruling as to issues to be addressed
at the hearing on Seafood’s motion to compel:
(1) Waiver of Confidential Informant’s Privilege. The Secretary did not waive

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the confidential informant’s privilege by inadvertently producing the FLSA Narrative,

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DOL552-567, to Seafood’s counsel;

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(2) Delayed Production of Privilege Log. The Secretary did not waive all
asserted privileges by failing to provide a privilege log at the time she responded to
Case No. 12-cv-0116 JW (NC)
TENTATIVE RULING RE:
MOTION TO COMPEL

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Seafood’s document production request;
(3) Privilege Log. As to the privileges asserted by the Secretary, including the

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informant’s privilege, the deliberative process privilege, the attorney-client privilege, the

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work product doctrine, and the investigative files privilege, the Secretary’s index of

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documents withheld or redacted pursuant to a privilege or objection, Dkt. No. 28-6, is

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insufficient in its current form as it fails to describe the responsive material withheld; the

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identity and position of its author; the date it was written; the identity and position of all

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addressees and recipients, the material’s present location, and the specific reasons for its

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being withheld, including the privilege invoked and the grounds for withholding. See

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Fed. R. Civ. P. 26(b)(5)(A)(ii); see also Friends of Hope Valley v. Frederick Co., 268

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F.R.D. 643, 650-51 (E.D. Cal. 2010).

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Finally, Seafood’s reply asserts deficiencies in the Secretary’s privilege log that

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the Secretary has not had an opportunity to rebut. See Reply at 14-16. For example,

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Seafood contends that the work product privilege claimed as to “WH Letters to

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Employees” is waived as the documents have been shared with third parties. Id. at 15.

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The parties are therefore ordered to meet and confer in person in Courtroom A, 15th

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Floor, San Francisco at 9:00 a.m. on August 22, 2012 to discuss necessary amendments to

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be made to the Secretary’s privilege log and the need and timing for additional briefing

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regarding asserted privileges. The motion to compel hearing previously scheduled for

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9:00 a.m. will be held at 10:00 a.m. before Magistrate Judge Nathanael Cousins.

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IT IS SO ORDERED.

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DATED: August 20, 2012
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___________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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Case No. 12-cv-0116 JW (NC)
TENTATIVE RULING RE:
MOTION TO COMPEL

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