Pandeosingh v. American Medical Response, Inc. et al

Filing 78

ORDER granting in part 31 Motion to Compel Production of Documents on Defendants' Privilege Logs by Magistrate Judge Kathleen M. Tafoya on 10/30/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–01792–PAB–KMT
SAVITRI PANDEOSINGH,
Plaintiff,
v.
AMERICAN MEDICAL RESPONSE, INC.,
GLOBAL MEDICAL RESPONSE, INC., and
EMERGENCY MEDICAL SERVICES CORP.,
Defendants.

ORDER

This matter is before the court on “Plaintiff’s Motion to Compel Production of
Documents on Defendants’ Privilege Logs” (“Mot.Priv.Log”) [Doc. No. 31], filed July 21,
2014. 1 “Defendants’ Response to Plaintiff’s Motion to Compel Production of Documents on
Defendants’ Privilege Logs” (“Resp.”) [Doc. No. 54] was filed on August 13, 2014, and
Plaintiff’s Reply [Doc. No. 60] was filed on August 19, 2014. The matter is ripe for review and
ruling.
Plaintiff urges the court to find that Defendants’ privilege claims with respect to
documents on two logs, one dated December 23, 2013 [Doc. No. 31-2 at 2-4] and another dated
February 28, 2014 [Doc. No. 31-2 at 5-6] should be waived and the documents produced to
Plaintiff. As grounds, Plaintiff claims the privilege logs are deficient because they (1) “provide
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This date references the re-filing of the motion in the District of Colorado.

insufficient detail and fail to address all elements of the attorney-client privilege,” and (2)
“erroneously claim privilege by merely indicating that an attorney was a party to a
communication [when] the communications are purely factual or appear to have been sent in the
normal course of business, and thus were not predominantly seeking legal advice, and so are not
privileged.” (Mot.Priv.Log at 1.) By way of response, Defendants assert only, “the privilege log
contains the required information and a sufficient description so that the entitlement to the
assertion of privilege can be sustained.” (Resp. at 2.) This court applauds brevity when
appropriate; however in this case Defendants’ skimpy conclusion is simply wrong.
Discovery procedures set forth in the Federal Rules of Civil Procedure seek to further the
interests of justice by minimizing surprise at trial and ensuring wide-ranging discovery of
information. S.E.C. v. Nacchio, No. 05–cv–00480–MSK–CBS, 2007 WL 219966, at *4 (D.
Colo. Jan. 25, 2007). To that end, Rule 26(b) permits discovery “regarding any nonprivileged
matter that is relevant to any party’s claim or defense” or discovery of any information that
“appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P.
26(b)(1) (emphasis added). The party resisting discovery on grounds of privilege or the work
product doctrine bears the burden of coming forward with facts that would sustain its claim.
Nacchio, 2007 WL 219966, at *4; Resolution Trust Corp. v. Heiserman, 151 F.R.D. 367, 373 (D.
Colo. 1993).
By excluding “privileged” information from the broad parameters of pretrial discovery,
Rule 26 attempts to strike a balance between conflicting interests. Privileges further the
administration of justice and “should not be set aside lightly.” See Horton v. United States, 204
F.R.D. 670, 672 (D. Colo. 2002); McNeil–PPC, Inc. v. Procter & Gamble Co., 138 F.R.D. 136,

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138 (D. Colo. 1991). However, privileges also have the effect of withholding relevant
information from the finder of fact, and for that reason should be narrowly construed. See
Montgomery v. Leftwich, Moore & Douglas, 161 F.R.D. 224, 225 (D.D.C. 1995). For the same
reason, the party withholding information on the basis of privilege must make a clear showing
that the asserted privilege applies and must establish all elements of the privilege. Nat’l Union
Fire Ins. Co. of Pittsburgh v. Midland Bancor, Inc., 159 F.R.D. 562, 567 (D. Kan. 1994); McCoo
v. Denny’s Inc., 192 F.R.D. 675, 683 (D. Kan. 2000) (the party invoking a privilege must
establish all elements of the doctrine through an evidentiary showing based on competent
evidence; “the burden cannot be discharged by mere conclusory or ipse dixit assertions.”);
Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995) (“a mere allegation that the
work product doctrine applies is insufficient”).
Where a party withholds otherwise relevant information by claiming it is privileged and
lists such documents on a privilege log, that party is required to “describe the nature of the
documents, communications, or tangible things not produced or disclose—and do so in a manner
that, without revealing information itself privileged or protected, will enable other parties to
assess the claim.” Fed. R. Civ. P. 26(b)(5). In this Circuit,
[a] party seeking to assert privilege must make a clear showing that it applies.
Failure to do so is not excused because the document is later shown to be one
which would have been privileged if a timely showing had been made . . . . The
applicability of the privilege turns on the adequacy and timeliness of the showing
as well as on the nature of the document.
Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir.1984). See also Atteberry v.
Longmont United Hosp., 221 F.R.D. 644, 649 (D. Colo. 2004). Senior District Judge John L.
Kane set forth the following categories of information necessary for a satisfactory privilege log:

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(1) the author or origin of the document;
(2) any documents or materials attached to the document;
(3) all recipients of the document, including addresses and persons or entities
receiving copies;
(4) the date of the origin of the document;
(5) and a description of the contents of the document in sufficient detail as to
reveal why it is subject to the asserted privilege.
Wildearth Guardians v. U.S. Forest Service, 713 F. Supp. 2d 1243, 1266-1267 (D. Colo.
2010). Privilege log entries may be deemed insufficient where they are missing “a
descriptive indication as to why the document fits the elements of the privilege—for
example, that it was not shared with a larger group and therefore not confidential.” Id.
Upon examining the two privilege logs produced by the Defendants in this case, they are,
across the board, insufficient. To cite only a few glaring examples, on the February 28, 2014
Privilege Log, entry number 4 describes an email authored by William Donahue, a Claim
Director of ACE USA to EMSC in-house counsel, Julie Mederos and Ronald Thackery, Senior
VP of EMSC and AMR. Defendants claim this document is subject to the attorney client
privilege based on the subject “Status of Pandeosingh.” There is no indication that the email
involved the rendering of legal advice or what is meant by “Status of Pandeosingh.” In order to
be covered by the attorney-client privilege, a communication between a lawyer and client must
relate to legal advice or strategy sought by the client. United States v. Johnston, 146 F.3d 785,
794 (10th Cir. 1998); In the Matter of Grand Jury Subpoena, 697 F.2d 277, 278 (10th Cir. 1983).
Just because an email is copied to in-house counsel does not render the document subject to
privilege. As another example, the first entry on the December 23, 2013 Privilege Log describes
an April 2, 2008 email from Mr. Thackery to EMSC in-house counsel Todd Zimmerman
described as “Update on accident.” This log entry suffers from the same infirmity. Information

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which is merely factual and is simply relayed to a client through an attorney is not a privileged
communication. Sequa Corp. v. Lititech, Inc., 807 F. Supp. 653, 660 (D. Colo. 1992)
It is clear that the two privilege logs at issue do not comply with the Federal Rules of
Civil Procedure. The attorney client privilege, however, is sacrosanct. The purpose of the
attorney-client privilege Ais to encourage full and frank communication between attorneys and
their clients and thereby promote broader public interests in the observance of law and
administration of justice.@ Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The attorneyclient privilege facilitates the client’s need for advice and the attorney’s need for complete
information in rendering that advice. In re Qwest Communications Int=l, Inc., 450 F.3d 1179,
1185 (10th Cir. 2006); Horton v. United States, 204 F.R.D. 670, 672 (D. Colo. 2002) (quoting In
re Bieter Co., 16 F.3d 929, 937-38 (8th Cir. 1994). Therefore, declaring a waiver of privilege as
an appropriate sanction for an inadequate log is too harsh. Defendants should be allowed to cure
the deficiency in their logs if possible and preserve the attorney-client privilege to the extent it is
truly applicable.
On the other hand, Plaintiffs went to considerable lengths to avoid court intervention with
respect to the inadequate logs. (See Mot.Priv.Log, Ex. 5, six-page, single-spaced letter to
counsel describing the privilege log deficiencies and requesting that Defendants amend the logs
to provide adequate information.) Plaintiff filed a detailed letter brief in the Eastern District of
New York outlining the deficiencies in Defendants’ logs. (Mot.Priv.Log, Ex. 2.) Plaintiff
prepared its own Privilege Log Deficiencies chart which is far more detailed than Defendants’
privilege logs. (Mot.Priv.Log, Ex. 3.) In spite of the burden which was clearly on Defendants to
justify its claims of privilege, Defendants apparently never attempted to fix their deficient logs

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and saw fit to respond to Plaintiff’s motion with a dismissive 3-page response. This attitude is at
odds with the Local Rules of this court which require that opposing attorneys make reasonable,
good-faith efforts to resolve disputed matters before bringing them to the court for ultimate
resolution. D.C.COLO.LCivR 7.1(a); Fed. R. Civ. P. 1, 37.
Therefore, in light of Defendants’ unreasonable and intractable position, the costs for
bringing this motion to the court should be borne by the Defendants.
It is ORDERED
“Plaintiff’s Motion to Compel Production of Documents on Defendants’ Privilege Logs”
[Doc. No. 31] is GRANTED IN PART.
1.

On or before November 7, 2014, Defendants shall file one Amended

Privilege Log listing all documents withheld from production in discovery on the basis of
privilege. The Amended Privilege Log shall contain detail sufficient to comply with this Order.
2.

Plaintiffs shall be awarded their reasonable costs and attorney’s fees

associated with bringing the instant motion before this court against the Defendants. On or
before November 17, 2014, Plaintiff shall file an itemized calculation of costs and attorney’s
fees associated with bringing this motion in the District of Colorado. Defendants may file
objections to the calculation of costs and fees on or before December 1, 2014.
Dated this 30th day of October, 2014.

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