SIMPSON v. CITY OF INDIANAPOLIS et al

Filing 72

ORDER denying Plaintiff's 63 Verified Motion to Compel Discovery. SEE ORDER. Signed by Magistrate Judge Tim A. Baker on 1/23/2015. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JOSEPH SIMPSON,

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Plaintiff,
vs.
CITY OF INDIANAPOLIS,
ANDREW MCKALIPS,
Defendants.

No. 1:13-cv-00791-RLY-TAB

ORDER ON PLAINTIFF’S VERIFIED MOTION TO COMPEL DISCOVERY
Pending before the Court is a motion to compel discovery of Defendant Indiana
Metropolitan Police Department’s staff emails and IMPD counsel Melissa Kramer’s emails to
her client. At the heart of this dispute is Legal Bulletin 11-000, a legal opinion drafted by
Kramer that Defendants turned over to Plaintiff’s counsel in an unrelated case. The parties have
hotly litigated the production of documents related to LB11-000, receiving two rulings from the
undersigned as well as a ruling from Chief Judge Young. The parties’ zeal on this issue is
understandable, given that documents Plaintiff seeks are those of Defendants’ former counsel.
For the reasons stated below, the Court denies Plaintiff’s motion to compel discovery. [Filing
No. 63.]
The record in this case adequately sets forth the underlying facts of this dispute, but the
Court notes the following facts pertinent to this entry:
(1) On June 6, 2014, the undersigned issued a ruling denying Defendants’ motion to
quash the deposition of Kramer and for a protective order, finding subject matter
waiver of Defendants’ attorney-client privilege relating to LB11-000. Pursuant to the
order, Plaintiff was entitled to depose Kramer on the subject matter of her LB11-000

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legal opinion and to review related documents, including communications between
Kramer and IMPD officials;
(2) As part of that order, the undersigned opined that “the requirement that Defendants
produce these documents is supported not only for the reasons outlined above but also
by the fact that Defendants failed to identify any such documents in a privilege log”
[Filing No. 48, at ECF p. 5];
(3) Defendants filed a Rule 72(a) objection to that order, and on August 12, 2014, Judge
Young sustained that objection, finding error in the scope of waiver and remanding
the issue back to the undersigned to determine whether subject matter waiver was
appropriate under the circumstances;
(4) Having found error on the issue of subject matter waiver, Judge Young did not
address Defendants’ failure to produce a privilege log;
(5) On October 20, 2014, the undersigned issued a supplemental order granting
Defendants’ motion to quash and for a protective order, finding that subject matter
waiver did not occur. Consequently, Defendants were not required to produce
privileged documents related to the subject matter of LB11-000, including
communications between Kramer and IMPD officials.
Plaintiff now seeks to compel production of Kramer’s emails related to LB11-000
because Defendants failed to produce a privilege log of such documents.1 Plaintiff highlights
that the Court’s original order found that Defendants’ failure to produce a privilege log meant
waiver of privilege for LB11-000 related documents. Defendants concede that they did not

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Plaintiff’s motion to compel also seeks production of IMPD staff emails, which Defendants
produced over the course of briefing. [Filing No. 69; Filing No. 70.] Thus, Plaintiff’s request
for production of IMPD staff emails in his motion to compel is moot.
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produce a privilege log in response to Plaintiff’s written discovery. However, Defendants filed a
privilege log in response to Plaintiff’s motion to compel.
Defendants assert that their failure to timely produce a privilege log should not result in
waiver because their discovery responses and subsequent filings with the Court clearly address in
detail the scope of the privilege they assert. Indeed, Defendants have consistently objected to the
production of Kramer’s correspondence with her client on the sole basis of the attorney-client
privilege. According to Defendants, the only additional information a privilege log would have
provided Plaintiff would have been the specific dates of each email Kramer sent to her client.
Defendants also assert that Plaintiff was not prejudiced by the fact that he did not receive a
privilege log identifying the exact dates of each of Kramer’s emails to her client. Thus,
Defendants submit that their attorney-client privilege should not be waived. [Filing No 65, at
ECF p. 5.] Plaintiff responds that Defendants asserted their privilege categorically, which
contradicts the requirement that privilege be asserted on a document-by-document basis under
Federal Rule of Civil Procedure 26(b)(5).
In its initial June 6 order, the undersigned found Defendants’ failure to produce a
privilege log to be a secondary reason for finding waiver and denying Defendants’ motion to
quash. [Filing No. 48, at ECF p. 5.] The primary reason for waiver was Defendants’ disclosure
of LB11-000 to Plaintiff and failure to promptly rectify that disclosure. [Filing No. 48.] While
failing to produce a privilege log was a justifiable reason to support a finding of waiver, the
Court is reluctant to find waiver on that basis alone. See Am. Nat’l Bank & Trust Co. of Chicago
v. Equitable Life Assurance Soc’y of U.S., 406 F.3d 867, 879 (7th Cir. 2005) (finding blanket
waiver inappropriate for a privilege log absent a bad faith finding); Muro v. Target Corp., 250
F.R.D. 350, 360 (N.D. Ill. 2007) (“Blanket waiver is not a favored remedy for technical
inadequacies in a privilege log.”).

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A privilege log serves an important purpose, providing opposing counsel and the Court
the ability to evaluate the applicability of an asserted privilege. However, failure to produce a
privilege log does not always demand a finding of waiver. See Sann v. Mastrian, No. 1:08-cv1182-JMS-TAB, 2010 WL 4923900 (S.D. Ind. 2010). Directing the focus solely on Defendants’
failure to timely produce a privilege log, the Court finds that under the circumstances of this case
waiver is not appropriate. The emails at issue are communications between IMPD counsel and
her client, which by their very nature are privileged—a fact acknowledged by the Court in its
October 20 supplemental order. [Filing No. 62.] See Jorling v. Anthem, Inc., No. 1:09-cv-0798TWP-TAB, 2011 WL 3759189, at * (S.D. Ind. Aug. 25, 2011) (noting that the attorney-client
privilege applies to communications between a client and his attorney that are intended to be
confidential for the purpose of obtaining or providing legal advice). Defendants’ court filings
clearly indicated that documents existed where Kramer communicated with IMPD officials on
the contents and legal opinions of LB11-000. [Filing No. 35-1, at ECF p. 3; Filing No. 55, at
ECF p. 3.] The privilege log Defendants filed with their response reflects that. [See Filing No.
70-1, at ECF p. 2-3.] Plaintiff knew Defendants’ contention that LB11-000 related documents
were protected under attorney-client privilege and also knew that those documents specifically
included communications between Kramer and IMPD officials. Thus, there is little prejudice to
Plaintiff in Defendants’ failure to produce a timely privilege log. As a result, the Court finds it
appropriate to excuse Defendants’ failure to produce a privilege log and subsequent untimely
filing of a privilege log. Plaintiff’s motion to compel [Filing No. 63] is denied.
Date: 1/23/2015

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
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Distribution:
R. Eric Sanders
CITY OF INDIANAPOLIS, CORPORATION COUNSEL
[e-mail]
Alexander Phillip Will
FROST BROWN TODD LLC
[e-mail]
Beth Ann Garrison
OFFICE OF CORPORATION COUNSEL
[e-mail]
Amanda J. Dinges
OFFICE OF CORPORATION COUNSEL
[e-mail]
Richard A. Waples
WAPLES & HANGER
[e-mail]

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