JORLING v. ANTHEM, INC. et al
Filing
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ORDER denying Defts' 168 Motion for Reconsideration. Defts shall produce the documents on pages three and four of pltf's opening brief [Docket No. 117] within fourteen days (see Order). Signed by Magistrate Judge Tim A. Baker on 8/25/2011. (SWM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JEFFREY D. JORLING,
on behalf of himself and
all others similarly situated,
Plaintiff,
vs.
ANTHEM, INC., et al.,
Defendants.
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1:09-cv-0798-TWP-TAB
ORDER ON DEFENDANTS’ MOTION FOR RECONSIDERATION
I.
Introduction
Motions for reconsideration were not “designed to give a losing party a belated second
bite at the apple.” Fleming Co. v. Krist Oil Co., 324 F. Supp. 2d 933, 949 (W.D. Wis. 2004).
Defendants’ motion provides an example of such a belated bite. On April 8, 2011, Plaintiff
Jeffrey Jorling moved to compel Defendants to produce documents that he contended were not
subject to attorney-client privilege. [Docket No. 116.] Plaintiff argued that the privilege log was
inadequate, and after Defendants neglected Plaintiff’s argument by only responding with a one
sentence conclusory assertion in a footnote, this Court granted in part Plaintiff’s motion based on
the inadequacies in the privilege log. [Docket No. 154.] Defendants now request [Docket No.
168] that this Court reconsider in part its May 24, 2011, order finding waiver “for the entry
numbers listed on pages 3 and 4 of Plaintiff’s opening brief . . . .” [Docket No. 154.] For the
reasons below, Defendants’ motion for reconsideration [Docket No. 168] is denied.
II.
Discussion
A.
Reconsideration
“Motions for reconsideration serve a limited function: to correct manifest errors of law or
fact or to present newly discovered evidence.” Caisse Nationale de Credit Agricole v. CBI
Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). “Reconsideration is not an appropriate forum
for rehashing previously rejected arguments or arguing matters that could have been heard
during the pendency of the previous motion.” Id. For that reason, “belated factual or legal
attacks are viewed with great suspicion.” Id. Defendants’ motion for reconsideration is an
example of such a belated attack.
Plaintiff’s motion to compel argued that Defendants’ privilege log did not properly assert
attorney-client privilege. [Docket No. 117 at 3–4.] Defendants’ only response to this argument
was a single sentence in a footnote stating that “the log entry demonstrates that inside counsel,
outside counsel, or both participated in the communication and identifies what the
communications involved.” [Docket No. 131 at 12 n.3.] After this Court found certain
documents waived because of deficiencies in the privilege log [Docket No. 154], Defendants
filed this motion for reconsideration, arguing for the first time that waiver is only appropriate
when there is bad faith and a party fails to revise and supplement the deficient privilege log.
[Docket No. 168.] However, Defendants could have raised these arguments during the pendency
of the previous motion, but they neglected to do so.1 Because motions for reconsideration are
inappropriate vehicles for raising new legal theories, Defendants’ motion for reconsideration
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Defendants also could have offered a revised and supplemented privilege log in response
to Plaintiff’s motion to compel, but they also neglected to do so.
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[Docket No. 168] is denied. Nonetheless, Defendants’ newly asserted arguments do not require
a different result.
B.
Waiver
Federal Rule of Civil Procedure 26(b)(5) requires that a privilege log “describe the nature
of the documents, communications, or tangible things not produced or disclosed—and do so in a
manner that, without revealing information itself privilege or protected, will enable other parties
to assess the claim.” “The mere assertion of a privilege is not enough; instead, a party that seeks
to invoke the attorney-client privilege has the burden of establishing all of its essential
elements.” United States v. BDO Seidman, 337 F.3d 802, 811 (7th Cir. 2003).
Among the essential elements of attorney-client privilege is the requirement that the
communications between parties be related to legal advice. United States v. Evans, 113 F.3d
1457, 1461 (7th Cir. 1997). Plaintiff’s motion to compel [Docket No. 117 at 3–4] argued that
Defendants’ privilege log did not properly assert attorney-client privilege, and Defendants’ only
response was that “the log entry demonstrates that inside counsel, outside counsel, or both
participated in the communication and identifies what the communications involved.” [Docket
No. 131 at 12 n.3.] After reviewing Defendants’ privilege log, this Court determined that
Defendants failed to establish that certain documents were related to legal advice. [Docket No.
154 at 3.] As this court explained, “[a]lthough the entries [in Defendants’ privilege log] show
communications involving attorneys, they do not show that the communications were related to
legal advice.” [Id.] See Evans, 113 F.3d at 1461 (stating that communication with an attorney
and legal advice are two separate elements). Even though Defendants provided declarations
stating that Anthem’s counsel provided legal advice to Milliman [Docket No. 131, Ex. 1–2], this
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is nothing more than a blanket assertion of privilege.2 Merely asserting privilege is not enough;
“privilege must be made on a document-by-document basis.” Miller v. City of Plymouth, No.
2:09-cv-205-JVB-PRC, 2011 WL 1740154, at *4 (N.D. Ind. May 5, 2011).
Because legal advice is an essential element and Defendants failed to establish this
element for the documents listed on pages three and four of Plaintiff’s opening brief, this Court
was permitted to impose waiver for those documents. Id. (“[F]ailure to serve an adequate and
timely privilege log may result in a waiver of protection from discovery.); Flood v. Dominguez,
No. 2:08-cv-153-PPS-PRC, 2011 WL 578656, at *2 (N.D. Ind. Feb. 9, 2011) (“A party’s failure
to produce a requisite privilege log may result in the waiver of any privilege.”); Petrovic v. City
of Chi., No. 06-c-611, 2007 WL 2410336, *2 (N.D. Ill. Aug. 21, 2007) (“Generally, the result of
an inadequate privilege log is disclosure.”); Mold-Masters Ltd. v. Husky Injection Molding Sys.,
Ltd., No. 01-C-1576, 2001 WL 1558303, at *2 (N.D. Ill. Dec. 6, 2001) (“If the description falls
below this standard and fails to provide sufficient information for the court and the party seeking
disclosure to assess the applicability of the attorney-client privilege . . . , then disclosure of the
document is an appropriate sanction.”).
C.
The bad faith standard
Defendants argue for the first time that this Court should not have imposed waiver since
there was no showing of bad faith, willfulness, or fault. [Docket No. 168 at 11.] While
Defendants accurately state a rule of law, the context is inopposite. See Am. Nat’l Bank & Trust
2
The Court also notes that although Defendants attached declarations to their brief in
opposition to Plaintiff’s motion to compel [Docket No. 131, Ex. 1–2], they did not direct the
Court to those declarations for the purpose of this issue until they filed a motion for
reconsideration. [Compare Docket No. 131 at 12 n.3, with Docket No. 168 at 10.]
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Co. of Chi. v. Equitable Life Assurance Soc’y of the U.S., 406 F.3d 867, 878 (7th Cir. 2005). In
American National, because hundreds of documents were at issue, the Magistrate Judge adopted
a procedure where the party challenging a claim of attorney-client privilege would select twenty
documents from the privilege log for in camera review. Id. at 878–80. The Magistrate Judge
stated that if privilege was incorrectly asserted for more than twenty percent of the twenty
documents chosen, the Magistrate Judge would impose waiver for the remaining documents in
the privilege log. Id. After completing in camera review and determining that privilege was
improperly asserted for more than twenty percent of the documents examined, waiver was
imposed for the remaining documents in the privilege log. Id. The Seventh Circuit held that
while attorney-client privilege may not have been properly asserted for the arbitrary sample of
documents examined, absent a finding of bad faith, willfulness, or fault, the Magistrate Judge
was not entitled to impose blanket waiver for the remaining unexamined documents in the
privilege log. Id.; see also Muro, 250 F.R.D. at 360 (explaining that the Magistrate Judge in
American National “abused his discretion by finding that defects in a privilege log merited a
sanction of blanket waiver, absent a finding of bad faith.”).
Since American National, virtually every case in this circuit that has discussed or applied
the bad faith standard has done so only in conjunction with blanket waiver. See, e.g., Schleicher
v. Wendt, No. 1:02-cv-1332-WTL-TAB, 2010 WL 1948218, at *2 (S.D. Ind. May 14, 2010)
(“Although the Court may order disclosure of privileged documents as a sanction for failing to
provide a proper privilege log, courts are reluctant to find a blanket waiver of privilege because
of mere technical inadequacies.”); Muro, 250 F.R.D. at 360 (“[B]lanket waiver is not a favored
remedy for technical inadequacies in a privilege log.”); see also Welch v. Eli Lilly & Co., No.
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1:06-cv-0641-RLY-JMS, 2009 WL 700199, at *14 (S.D. Ind. Mar. 16, 2009); Naik v.
Boehringer-Ingelheim Pharm., Inc., No. 07-C-3500, 2008 WL 4866015, at *3 (N.D. Ill. June 19,
2008). Defendants do not cite any cases in which a court has extended American National to a
limited finding of waiver.
Accordingly, American National’s bad faith requirement for blanket waiver does not
apply to this Court’s limited finding of waiver. Unlike American National, this Court’s May 24,
2011, order did not involve in camera review, an arbitrary sample of documents, or blanket
waiver. Instead, waiver was based on the inadequate descriptions in Defendants’ privilege log
and was limited to the sections of the privilege log that the Court actually examined and found
inadequate. Hence, the Court only found waiver “for the entry numbers listed on pages 3 and 4
of Plaintiff’s opening brief . . . .” [Docket No. 154 at 4.] For these reasons, this Court declines
to extend American National to the limited finding of waiver in this case.
D.
Revising the privilege log
Defendants also argue for the first time that they should have been given the opportunity
to revise and supplement their privilege log before the Court imposed limited waiver. [Docket
No. 168 at 13.] Defendants cite several cases in support of this proposition [id. at 12] in which
the Court exercised its discretion to allow a party asserting privilege to revise and supplement a
deficient privilege log. See, e.g., Schleicher v. Wendt, No. 1:02-cv-1332-WTL-TAB, 2010 WL
1948218, at *2 (S.D. Ind. May 14, 2010).
However, courts typically permit a party to revise their privilege log because blanket
waiver is disfavored as a remedy for technical inadequacies. See Muro, 250 F.R.D. at 360. As
explained above, this Court did not impose blanket waiver. Instead, the Court’s May 24, 2011,
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order limited waiver to “the entry numbers listed on pages 3 and 4 of Plaintiff’s opening brief . . .
.” [Docket No. 154 at 4.] Additionally, when a party claims that some documents are related to
legal advice and does not make that claim for other documents in the same privilege log, as
Defendants did here, this is not a mere technical inadequacy, but a conscious decision to only
designate certain documents as pertaining to legal advice. As this Court noted in its May 24,
2011, order, “Defendants’ other entries show that they were capable of including such a
description.” [Id.]
Defendants’ belated attempt to explain this inconsistency is inadequate. Defendants
claim that they would only assert that a document was for the purpose of legal advice when an
attorney did not send or receive the document, and the documents found to be waived were ones
where an attorney sent or received the document. [Docket No. 168 at 2.] As explained above, a
communication with an attorney does not automatically mean that legal advice is implicated.
See, e.g., Wychocki v. Franciscan Sisters of Chi., No. 10-C-2954, 2011 WL 2446426, at *5 (N.D.
Ill. June 15, 2011) (explaining that financial or business advice from an attorney is not
protected). Communication with an attorney and legal advice are two separate elements, Evans,
113 F.3d at 1461, and it is the Defendants’ burden to establish all of the essential elements of
attorney-client privilege. Seidman, 337 F.3d at 811.
Defendants privilege log shows that they were capable of properly asserting privilege,
they chose not to do so for certain documents, and they also neglected the issue during the
pendency of Plaintiff’s motion to compel. A belated second bite at the apple is not appropriate.
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III.
Conclusion
For these reasons, Defendants’ motion for reconsideration [Docket No. 168] is denied.
Defendants shall produce the documents on pages three and four of Plaintiff’s opening brief
[Docket No. 117] within fourteen days.
Dated: 08/25/2011
_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
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Copies to:
Matthew Thomas Albaugh
BAKER & DANIELS - Indianapolis
matthew.albaugh@bakerd.com
Dennis Paul Barron
dennispbarron@aol.com
Michael F. Becker
THE BECKER LAW FIRM CO., L.P.A.
mbecker@beckerlawlpa.com
Peter R. Bisio
HOGAN LOVELLS US LLP
peter.bisio@hoganlovells.com
Todd S Collins
BERGER & MONTAGUE, P.C.
tcollins@bm.net
T. David Copley
KELLER ROHRBACK, L.L.P.
dcopley@kellerrohrback.com
Edward O'Donnell DeLaney
DELANEY & DELANEY LLC
ed@delaneylaw.net
Kathleen Ann DeLaney
DELANEY & DELANEY LLC
kathleen@delaneylaw.net
Thomas M. Fisher
INDIANA OFFICE OF THE ATTORNEY GENERAL
tom.fisher@atg.in.gov
Craig A. Hoover
HOGAN LOVELLS US LLP
cahoover@hhlaw.com
Peter R. Kahana
BERGER & MONTAGUE, P.C.
pkahana@bm.net
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Kevin M. Kimmerling
BAKER & DANIELS - Indianapolis
kevin.kimmerling@bakerd.com
Cari C. Laufenberg
KELLER ROHRBACK L.L.P.
claufenberg@kellerrohrback.com
Adam K. Levin
HOGAN LOVELLS US LLP
aklevin@hhlaw.com
Neil F Mara
BERGER & MONTAGUE, P.C.
nmara@bm.net
H. Laddie Montague Jr
BERGER & MONTAGUE P.C.
hlmontague@bm.net
Anne Kramer Ricchiuto
BAKER & DANIELS - Indianapolis
anne.ricchiuto@bakerd.com
Lynn L. Sarko
KELLER ROHRBACK, L.L.P.
lsarko@kellerrohrback.com
Christopher G. Scanlon
BAKER & DANIELS - Indianapolis
chris.scanlon@bakerd.com
Paul A. Wolfla
BAKER & DANIELS - Indianapolis
paul.wolfla@bakerd.com
Eric Hyman Zagrans
eric@zagrans.com
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