U.S. Securities and Exchange Commission v. Commonwealth Advisors, Inc. et al

Filing 194

RULING: Considered in light of this case's full record, including the Defendants' multiple chances to provide a privilege log sufficient to satisfy Rule 26(b)(5), the Second Ruling contains neither clear error nor a law's misapplicati on. In the absence of such a demonstration, no reconsideration of this Court's own order so finding is merited pursuant to well-established jurisprudence. Accordingly, this Court orders as follows: (1) The Motion to Amend is DENIED to the extent that it seeks reversal of this Court order affirming the Magistrate Judge's Second Ruling on the basis of the incorrect application of the controlling standard of review. (2) Nonetheless, as the SEC has already stated, (Doc. 175 at 2; see also Doc. 174 at 4), and as Defendants themselves request as a form of alternative relief, (Doc. 131 at 4), the Defendants are not now required to produce attorney-client documents produced since the initiation of this litigation. (3) On or before 11:59 a .m., on April 14, 2016, the Defendants must produce every document required by each and every order issued by this Court and the Magistrate Judge. (4) This production will not be stayed, subject to a convincing showing of extraordinary circumstances, in light of the conduct of these Defendants and the abundant case lawsupporting the waiver of their privilege. Signed by Judge John W. deGravelles on 4/6/2016. (BLR)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

UNITED STATES SECURITIES AND
EXCHANGE COMMISSION,
CIVIL ACTION
Plaintiff,
No. 3:12-00700-JWD-EWD
VERSUS

COMMONWEALTH ADVISORS, INC.,
and WALTER A. MORALES,

Defendants.

RULING ON DEFENDANTS’ MOTION TO AMEND ORDER

I.

INTRODUCTION
Before the Court is the Defendants’ Motion to Amend Order (“Motion to Amend”), (Doc.

141), filed by Commonwealth Advisors, Inc. (“Commonwealth”) and Mr. Walter A. Morales
(“Morales”) (collectively, “Defendants”). In counter, the United States Securities and Exchange
Commission (“SEC” or “Plaintiff”) has submitted the Memorandum of Law in Opposition to
Defendants’ Motion to Amend Order (“Opposition”), (Doc. 182.) To the contentions advanced
therein, Defendants have responded with the Reply Memorandum in Support of Motion to
Amend Order (“Reply”), (Doc. 188). Only the latest discovery-related controversy between the

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Defendants and Plaintiff (collectively, “Parties”),1 the Motion to Amend, asks that this Court’s
prior order of December 16, 2015, (“Relevant Order”), be corrected due to its ambiguity and
reversed in full due to this Court’s application of an incorrect standard of review. In essence, this
request implicates the standards for both a ruling’s reconsideration and for a district court’s
review of a magistrate judge’s non-dispositive order, as stated in and implied into the Federal
Rules of Civil Procedure2 and effectively argues for the same result that the Defendants first
sought in February 2, 2015, (Doc. 86): a judicial order preventing the release of certain
documents, ones classified as “privileged” or as “work product” by Defendants pursuant to Rule
263 and as falling outside the waiver of that privilege effectuated by Defendants’ assertion of the
advice-of-counsel defense, despite an order so mandating that was issued by the assigned United
States Magistrate Judge (“MJ”).
Briefly put, this Court disagrees with the Defendants’ construction of law and
understanding of their own duties. Once before, the now-retired MJ4 found that the Defendants

1

Discovery has become the preeminent battleground in modern litigation, perhaps eclipsing the
rare trial. See, e.g., Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996); Francis
E. McGovern & E. Allan Lind, The Discovery Survey, 51 LAW & CONTEMP. PROBS. 41, 41
(1988) (“Formal discovery under the Federal Rules of Civil Procedure is one of the most abused
and obfuscated aspects of our litigation practice.”). Reality, then, has given lie to an old vision.
Cf. Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 373, 86 S. Ct. 845, 851, 15 L. Ed. 2d 807
(1966) (“The basic purpose of the . . . Rules is to administer justice through fair trials . . . . These
rules were designed in large part to get away from some of the old procedural booby traps which
common-law pleaders could set to prevent unsophisticated litigants from ever having their day in
court.”).
2

In this order, any and all references to “Rule” or “Rules” are to the Federal Rules of Civil
Procedure unless otherwise noted.

3

Whether called “work product” or “attorney client,” the same kind of log is required. See In re
Grand Jury Proceedings, 802 F.3d 57 (1st Cir. 2015). To wit, while the assertion of each
necessitates a particular and distinct showing, both are often asserted in the same log, and a lack
of specificity therein will forfeit either’s protection under Rule 26.

4

Upon the retirement of the Honorable Stephen C. Riedlinger, a new magistrate judge was
appointed on March 2, 2016. As that appointment post-dates the relevant events, any reference to
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had waived the attorney-client privilege by virtue of certain adjudicated failures, thereby
granting Plaintiff’s first Motion to Compel (“First Ruling”). Particularly, he did so due to the
Defendants’ assertion of this privilege by means of blanket boilerplate, consistent with the trend
in modern federal jurisprudence of treating such broad claims as effectuating absolute and
unconditional waivers of any relevant privilege and possible shield. Despite the First Ruling,
wishing to provide Defendants’ counsel with a chance to avoid the foreseeable consequences of
their deliberate use of such vague and sweeping language in the face of such precedent, this
Court reversed the MJ’s decision (“Reversal”). Presented with this opportunity, a second bite at
the same apple, Defendants submitted a new privilege log. Yet, while much was corrected, these
privilege logs contained at least two factually incorrect entries. Noting this factual deficiency and
emphasizing its implication—that Defendants’ own records could not be trusted to accurately
portray the contents of the documents withheld, whether properly or improperly, in spite of
Defendants’ receipt of a reprieve to which much law does not entitle them, see infra Part III.B—
the MJ ordered a release of all documents conceivably encompassed by the asserted privilege in
a case in which a protective order otherwise constricts the potential ramifications of such a
release (“Second Ruling”), (Doc. 116). Put differently, having two opportunities to comply with
their discovery obligations, Defendants have yet to do so with the kind of rigor compelled by
Rules 1 and 26. So this Court concluded on December 16, 2015, after parsing the MJ’s legal and
factual analyses. .

the “MJ” in this order is to the now retired jurist, who monitored this case from March 4, 2013,
(Doc. 11), through January 7, 2016, (Doc. 180). The currently assigned magistrate judge is the
Honorable Daniel E. Knowles III, of the United States District Court for the Eastern District of
Louisiana.
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Having once more reviewed the Second Ruling upon the filing of the Motion to Amend,
this Court reaches the same conclusion, finding the MJ’s well-considered opinion neither
“contrary to law” nor “clearly erroneous” when the full history of this litigation is unwound. By
any fair measure, with ample support for his legal conclusions and factual deduction evident in
much jurisprudence, the MJ applied the correct legal standard and weighed the facts reasonably
when he assessed one of the Rules’ lesser sanctions5 against a recalcitrant party. For these
reasons, as more fully explained below, this Court DENIES the Defendants’ Motion to Amend
Order.6

II.

BACKGROUND

A.

Factual and Procedural History
This case’s history has been documented before. (Doc. 168 at 1–3.) In brief, the SEC

sued Defendants for an allegedly fraudulent scheme to hide investment losses and conceal the
truth of those losses from investors. (Doc. 148 at 2; see also, e.g., Doc. 1 ¶¶ 38–65; Doc. 168 at
1–2.) Allegedly, “shortly before the original cutoff date for fact discovery . . ., Defendants
formally asserted an advice-of-counsel defense,” later submitting “a nearly four-page extended
narrative describing their defense that spanned most, if not all, of the material allegations of this
case.” (Doc. 182 at 1; see also Doc. 57-2.) Beyond these bare details, only the most recent facts
pertinent to the Parties’ immediate controversy require summarization here.

5

While the Defendants describe the waiver as a “severe” sanction, (Doc. 176-1 at 8), Rule 37
can be construed to authorize far harsher punishments.
6

On March 31, 2016, this Court will issue two other orders clarifying the scope of the MJ’s
order and dealing with the possible appointment of a special master. This Ruling deals solely
with the Motion to Amend as it relates to this Court’s purported misapplication of the law’s
binding standard. See infra Part III.
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On October 29, 2014, the MJ issued the First Ruling. (Doc. 59.) Focused upon a single
issue—the Defendants’ responsiveness to the Plaintiff’s First Set of Interrogatories and First
Request for Production of Documents, served on both Defendants, (Id. at 1–2)—the First Ruling
granted the Plaintiff’s first Motion to Compel, (Doc. 35), in part. (Doc. 59 at 14; see also, e.g.,
Doc. 86-1 at 2–3.) Soon thereafter, this Court reversed that part of this First Ruling “holding that
all Defendants waived their attorney-client privilege with respect to all documents for which that
privilege was asserted and ordering production of those documents within seven days.” (Doc. 77
at 1; see also, e.g., Doc. 86-1 at 3; Doc. 131 at 1.) This Court gave the Defendants until
December 18, 2014, to submit to the Plaintiff a revised privilege log compliant with Rule
26(b)(5)(A) and produce all documents for which the attorney-client privilege had been waived
by the Defendants’ assertion of the advice-of-counsel defense. (Doc. 77 at 1; see also, e.g., Doc.
86-1 at 3; Doc. 131 at 1.) In its second paragraph, this same ruling and order expressly warned
Defendants: “If the Court finds on or after December 18, 2014, that the privilege log descriptions
fail to satisfy Rule 26(b)(5)(A) and/or that Defendants have withheld a document from
production in bad faith, then the Court will deem the attorney-client privilege waived as to all
such documents, and will consider other sanctions as are appropriate,” (Doc. 77 at 1; see also,
e.g., Doc. 86-1 at 3; Doc. 168 at 4), thereby placing Defendants on notice of the possible
imposition of punishments pursuant to Rules 26(5) and 37(b)(2) and as otherwise authorized by
this Court’s inherent authority for any future disobedience.7 Crucially, at oral argument, the

7

The latter power should normally only be employed when no precise basis for sanctions can be
found in the Rules as written. Klein v. Stahl GMBH & Co., 185 F.3d 98, 108 (3d Cir. 1999); see
also, e.g., Natural Gas Pipeline Co. of Am. v. Energy Gathering, 2 F.3d 1397, 1410 (5th Cir.
1993); Flaksa v. Little River Marine Constr. Co., 389 F.2d 885, 888 (5th Cir. 1968). Inherent
powers and Rule 37 remain the dominant methods for ensuring compliance with the Rules’ fifth
title. Ferguson v. Valero Energy Corp., 454 F. App’x 109, 114 (3d Cir. 2011) (citing In re
Prudential Ins. Co. Am. Sales Practice Litig. Acts., 278 F.3d 175, 189 (3d Cir. 2002)).
5 of 25

Defendants averred that it would take them no more than four weeks to submit more precise
privilege logs; out of an abundance of caution, this Court gave Defendants five weeks to comply
with the Rules’ plain text. (Doc. 168 at 4.)
By this deadline, Defendants produced additional documents and five new logs. (Doc.
86-1 at 3.) This production prompted several objections from Plaintiff, as reflected in its Second
Motion to Compel, (Doc. 86). First, “with respect to a significant number of entries,” the revised
logs purportedly still made “it difficult to discern whether the subject matter of the
communication falls within the scope of Defendants’ waiver” of the attorney-client privilege.
(Doc. 86-1 at 3.) Moreover, the SEC contended that the “even the descriptions now provided by
Defendants make clear that they continue to withhold materials clearly within the scope of the
waiver,” taking “a cramped and narrow view of the scope of their waiver that excludes
communications that plainly and clearly shed light on the subject matter now at issue.” (Id. at 4
(emphasis in original).) As it maintained, there “appear[ed] to be materials within the scope of
Defendants’ waiver that Defendants have not identified at all on any privilege log.” (Id. at 5
(emphasis in original).) As summarized in the conclusion to this second motion to compel, the
Defendants’ alleged failures numbered three: “Defendants continue to withhold materials that by
their own descriptions fall within the scope of their waiver; are in possession of a substantial
volume of responsive materials that they have yet to identify on any privilege log; and have in
fact logged items in a manner that conceals that withheld materials are within the scope of their
waiver.” (Id. at 18.)
Finding “[a]ll of the [P]laintiff’s evidence and arguments . . . persuasive,” on September
29, 2015, the MJ issued the Second Ruling. (Doc. 131; see also Doc. 168 at 5–6.) In this Second
Ruling, the MJ correctly characterized this Court’s prior order as follows: “In his Ruling and

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Order[,] the district judge did not disagree with the determination that [D]efendants’ privilege
logs . . . were wholly inadequate. . . . He disagreed with the remedy: waiver of the privilege and
production of the withheld documents.” (Id. at 12–13.) The new privilege logs, however, combed
through with care, now struck him as “less reliable than the ones . . . [Defendants] previously
produced because they include insufficient and sometimes misleading descriptions.” (Id. at 13
(emphasis in original).) Indeed, by his reckoning, Plaintiff had “persuasively shown that the
[D]efendants improperly redacted at least two specific documents.” (Id.) This omission, in turn,
provided “good cause to believe there are more improperly redacted documents,” a conclusion
from which a key finding sprung: “[T]he [D]efendants waived their attorney-client privilege and
should be required to produce all previously withheld documents.” (Id.)
In making this decision, the MJ explicitly recapitulated a litany of failures, including
Defendants’ failure to take “any reasonable steps to prevent the disclosure of claimed stillprivileged information” and submission of “deficient and sometimes misleading revised privilege
logs which, overall, are not reliable.” (Id. at 14.) In these circumstances, so much having already
been withheld, “it is simply unfair to the [P]laintiff to allow the [D]efendants to assert a broad
advice-of-counsel defense, interpret it narrowly, and then based on their narrow interpretation
withhold information and documents relevant to that defense.” (Id. at 14–15.) Based on these
multiple factors, the MJ ordered Defendants to produce “all documents withheld on the basis of
the attorney-client privilege, whether solely or in part,” (Id.), with one implicit temporal
limitation.8 Defendants promptly appealed. (Doc. 133.)
In the Relevant Order, this Court rejected the Defendants’ arguments. (Doc. 168 at 6.) As
this Court there observed, “[t]he Magistrate Judge has spent countless hours presiding over

8

This limitations will be clarified in this order’s concluding section. See infra Part IV.
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the complex discovery disputes in this case and, based on his intense familiarity with both its
facts and the Parties’ legal posture, found an unacceptable mismatch between the true nature of
the documents withheld and the rightful ambit of Commonwealth’s remaining privilege.” (Id.)
His analysis “reasonable,” this Court found the MJ to have utilized “the proper standard in a
most reasonable manner, leaving this Court with no firm conviction that . . . mistakes had been
committed.” (Id.) The Relevant Order thereupon referred to the “clearly erroneous” touchstone
instead of the “contrary to law” standard applicable to a magistrate judge’s legal conclusion.9

B.

Parties’ Arguments
In relevant part, in the Motion to Amend, the Defendants ask the Court to reconsider the

Relevant Order, as it “wrongfully gave deference to the Magistrate Judge’s legal conclusion and
wrongfully gave deference to the Magistrate Judge’s application of the law to the case.” (Doc.
176-1 at 4.) Three different arguments are made to support this conclusion. First, the Defendants
maintain that this Court erred due to “its complete reliance upon the deferential standard of
review applicable to findings of fact,” and “to the extent that the Magistrate Judge’s ruling is
premised upon disputed legal conclusions, the Court must review any such conclusions de novo.”
(Id. at 5, 6.) Defendants point to four separate “legal conclusions”: (1) “an advice-of-counsel
privilege waiver extends indefinitely into the future”; (2) “a waiver of attorney-client privilege
necessarily waives work-product protection”; (3) “a client can waive work product protection
belonging to the attorney”; and (4) “Commonwealth diminished its privilege claims by
inadvertently disclosing document metadata.” (Id. at 6–7.) In its view, “[u]nless the Court

9

As will be shown below, see infra Part III.B, the difference between these standards is a matter
of degree and cannot bear the weight placed upon it by Defendants.
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determines de novo that each of the duly-challenged legal conclusions underpinning the
Magistrate Judge’s ruling is correct, the Court cannot affirm the ruling.” (Id. at 7.) Second,
according to Defendants, the Second Ruling was inconsistent with an earlier ruling by the MJ as
to privilege redactions in two documents, (See Doc. 182 at 12–13), and as the latter establishes
the law of the case, this duo’s consistency is a question of law that the Court must review de
novo. (Doc. 176-1 at 7.) Third, the MJ had relied upon “a substantial, blatantly erroneous factual
finding,” for he ruled that the privilege logs provided may be improper for ostensibly excluding
documents not then in Commonwealth’s possession. (Id. at 8.) In sum, choosing to characterize
the MJ’s ruling as “the result of multiple subsidiary factual findings and legal conclusions,” this
Court erred “[b]y giving any deference to the Magistrate Judge’s resolution of legal questions.”
(Id.) Defendants add that if this Court does “not agree with any one of the Magistrate Judge’s
challenged legal conclusions, the magistrate judge’s findings . . . must fall and the evidence
presented reevaluated.” (Id. (alteration in original) (internal quotation marks omitted).)
The SEC contests every point, placing particular emphasis on this case’s tortured history.
(Doc. 182 at 2–3.) In general, the SEC describes Defendants’ every assertion as “wrong.” (Id. at
5.) Instead, [a]s an examination of each of the supposed legal conclusions identified by
Defendants makes clear, the Magistrate Judge’s ruling involved the application of established
law in view of substantial findings of fact.” (Id.) Thereafter, the SEC points out that “the
application of the attorney-client privilege is a fact question; thus, the Second Ruling, affirmed
by the Relevant Order, was actually based on this “number of specific factual findings
concerning Defendants’ privilege logs and litigation tactics.” (Id. at 6, 7.) Precisely because
Defendants’ “deficient and misleading logs . . . made it impossible to determine . . . whether any
of the documents that they continued to withhold fell within the scope of the attorney-client

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privilege, if any, not waived by their assertion of a broad advice-of-counsel defense,” the issue is
more properly classified as “a factual determination subject to erroneous review.” (Id. at 9
(internal quotation marks omitted).) The SEC maintains that the same can be rightly said about
the MJ’s work-product analyses. (Id. at 10–12.) Finally, the SEC questions the application of the
law-of-the-case doctrine, stressing not only the inapplicability of this doctrine but also
Defendants’ failure to raise it before the MJ, as required for purposes of a motion for
reconsideration. (Id. at 12–15.) In light of all these reasons, “there was no error, much less the
sort of manifest mistake Defendants are required to show to prevail on a motion for
reconsideration.” (Id. at 5.)

III.

DISCUSSION

A.

Relevant Law

1.

Standard for Reconsideration
Somewhat inexplicably, the Rules do not formally recognize the existence of motions for

reconsideration. E.g., Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991);
Lavespere v. Niagra Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990). Despite this
dearth, courts customarily consider such motions under either Rule 60(b) or Rule 59(e). Fuller v.
M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991); accord Computerized Thermal Imaging, Inc.
v. Bloomberg, L.P., 312 F.3d 1292, 1296 n.3 (10th Cir. 2002). Usually, any “postjudgment
motion [is] . . . considered a Rule 59(e) motion where it involves ‘reconsideration of matters
properly encompassed in a decision on the merits.’” Osterneck v. Ernst & Whinney, 489 U.S.
169, 174, 109 S. Ct. 987, 990, 103 L. Ed. 2d 146 (1989) (quoting White v. N.H. Dep’t of Emp’t
Sec., 455 U.S. 445, 451, 102 S. Ct. 1162, 1166, 71 L. Ed. 2d 325 (1982)). In accordance with

10 of 25

binding precedent, a motion for reconsideration is to be granted if any one of four circumstances
is shown.10
Four bases are most often invoked. Reconsideration should take place if a court (1) is
presented with newly discovered evidence or (2) has committed clear error. Circuit City Stores,
Inc. v. Mantor, 417 F.3d 1060, 1064 n.1 (9th Cir. 2005) (quoting Sch. Dist. No. 1J v. ACandS,
Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)); see also Templet v. HydroChem Inc., 367 F.3d 473,
478–79 (5th Cir. 2004) (“[A] motion [for reconsideration] is not the proper vehicle for rehashing
evidence, legal theories, or arguments that could have been offered or raised before the entry of
judgment.”). Beyond these two, other grounds have been recognized. Hence, (3) if the initial
decision was manifestly unjust, reconsideration is merited. United Nat’l Ins. Co. v. Spectrum
Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009) (quoting Zimmerman v. City of Oakland, 255
F.3d 734, 740 (9th Cir. 2001)). Lastly, (4) change in controlling law can justify an order’s
modification. 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). Other
“highly unusual circumstances” may do as well. Sch. Dist. No. 1J , 5 F.3d at 1263. Any such
further inquiry must account for the fact that “a motion for reconsideration is an extraordinary
remedy, to be used sparingly in the interest of finality and conservation of judicial resources.”
Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citation and internal quotation marks
omitted); see also ICEE Distribs. Inc., 445 F.3d at 847–48; cf. Messenger v. Anderson, 225 U.S.
436, 444, 32 S. Ct. 739, 740, 56 L. Ed. 1152 (1912) (observing that “the practice of courts [is]
generally to refuse to reopen what has been decided”).
In utilizing this test, courts have repeatedly deemed invalid a number of different grounds
often advanced. Such motions may not be used “to raise arguments or present evidence for the

10

The same essential test is utilized whether Rule 59 or Rule 60 forms the basis for the motion.
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first time when they could reasonably have been raised earlier in the litigation.” Kona Enters.,
Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000); see also, e.g., Waltman v. Int’l Paper
Co., 875 F.2d 468, 473–75 (5th Cir. 1989) (commentating that Rule 59(e) motions “serve the
narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly
discovered evidence” (internal quotation marks omitted) (citing Keene Corp. v. Int’l Fidelity Ins.
Co., 561 F. Supp. 656, 665 (N.D. Ill. 1982))). Old arguments cannot be reconfigured, robed
anew. Resolution Trust Corp. v. Holmes, 846 F. Supp. 1310, 1316 & n.18 (S.D. Tex. 1994)
(collecting cases). An “unhappy litigant” cannot enjoy “one additional chance to sway the
judge.” Durkin v. Taylor, 444 F. Supp. 879, 889 (E.D. Va. 1977). “Rule 59(e) requires something
new and decisive, some blatant injustice, or an obvious error, not substantively identical
assertions reechoed.” United States ex rel. Carter v. Bridgepoint Educ., Inc., No. 10-CV-01401JLS (WVG), 2015 U.S. Dist. LEXIS 26423, at *16–17 (S.D. Cal. Feb. 20, 2015) (citing
Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985); Frasure v. United States, 256 F.
Supp. 2d 1180, 1183 (D. Nev. 2003); and Bahrs v. Hughes Aircraft Co., 795 F. Supp. 965, 965
(D. Ariz. 1992); cf. Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981) (“The law of the case
will be disregarded only when the court has a clear conviction of error with respect to a point of
law on which its previous decision was predicated.” (internal quotation marks omitted))).
Essentially, as case after case evidences, “[a] motion for reconsideration is not an avenue to relitigate the same issues and arguments upon which the court already has ruled,” Brown v.
Kinross Gold, U.S.A., 378 F. Supp. 2d 1280, 1288 (D. Nev. 2005) (relying on Nunes v. Ashcroft,
375 F.3d 805, 807-08 (9th Cir. 2004), and Brogdon v. Nat’l Healthcare Corp., 103 F. Supp. 2d
1322, 1338 (N.D. Ga. 2000)), or to “repackage familiar arguments to test whether the Court will
change its mind,” Brogdon, 103 F. Supp. 2d at 1338.

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2.

Standard for Review of Magistrate Judge’s Non-Dispositive Orders
A MJ may “hear and determine any [non-dispositive] trial matter pending before the

Court.” 28 U.S.C. § 636(b)(1)(A);11 Cardona v. Gen. Motors Corp., 942 F. Supp. 968, 970
(D.N.J. 1996); Tim A. Baker, The Expanding Role of Magistrate Judges in the Federal Courts,
39 VALPARAISO U. L. REV. 661, 675–76 (2005). Once referred, “the magistrate judge must
promptly conduct the required proceedings and, when appropriate, issue a written order stating
the decision”; within fourteen days of being served with a copy, a party may file any objections.
FED. R. CIV. P. 72(a); see also Popular Imports v. Wong’s Int’l, 166 F.R.D. 276, 277 (E.D.N.Y.
1996). A judge of the relevant district court may then reconsider any such ruling on a “pretrial
matter” where it is shown to be “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A);
accord FED. R. CIV. P. 72(a); see also, e.g., St. Paul Fire & Marine Ins. Co. v. SSA Gulf
Terminals, Inc., No. 01-3063, 2002 U.S. Dist. LEXIS 20120, at *3–4, 2002 WL 31375611, at *2
(.E.D La. Oct. 21, 2002); Gunter v. Ridgewood Energy Corp., 32 F. Supp. 2d 162, 164 (D.N.J.
1998). In general, pretrial discovery questions are deemed non-dispositive, subjecting them to
review pursuant to these distinct standards. See Commodity Futures Trading Comm’n v.
Standard Forex, 882 F. Supp. 40, 42 (E.D.N.Y. 1995).
A factual finding is clearly erroneous “when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.” United States v. United States Gypsum, 333 U.S. 364, 395, 68 S. Ct. 525,
542, 92 L. Ed. 746 (1948). This standard “plainly does not entitle a reviewing court to reverse
the finding of the trier of fact simply because it is convinced that it would have decided the case

11

In this order, any and all reference to “Section []” or “§ []” is to this particular provision.
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differently.” Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S. Ct. 1504, 1511, 84 L.
Ed. 2d 518 (1985); see also, e.g., Brinkley v. Comm’r, 808 F.3d 657, 664–65 (5th Cir. 2015)
(explicating the same standard). Thus, where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co.,
338 U.S. 338, 342, 70 S. Ct. 177, 179, 94 L. Ed. 150 (1949); see also, e.g., United States v.
Stevens, 487 F.3d 232, 240 (5th Cir. 2008) (“A factual finding is clearly erroneous if, although
there is evidence to support it, after viewing the record we are left with the definite and firm
conviction that a mistake has been committed.” (internal quotation marks omitted)); St. Aubin v.
Quarterman, 470 F.3d 1096, 1101 (5th Cir. 2006) (“A finding is clearly erroneous only if it is
implausible in the light of the record considered as a whole.”). In a principle derived from the
common law, the reviewing court may not consider evidence which was not before the MJ.
Haines v. Liggett Grp., 975 F.2d 81, 92–93 (3d Cir. 1992).
The second standard stated in § 636(b)(1)(A)—“contrary to law”—governs review of the
MJ’s legal conclusions. 28 U.S.C. § 636(b)(1)(A); Moore v. Ford Motor Co., 755 F.3d 802, 806
(5th Cir. 2014). As commonly construed, this standard authorizes plenary and thus de novo
review, Alldread v. City of Grenada, 988 F.2d 1425, 1434 (5th Cir. 1993), although “[f]rivolous,
conclusive or general objections need not be considered by the district court,” Battle v. U.S.
Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). An order violates this second criterion if it
“misinterpreted or misapplied applicable law.” Cataldo v. Moses, 361 F. Supp. 2d 420, 424
(D.N.J. 2004). “In other words, this Court may not disturb a magistrate judge’s determination on
a nondispositive matter merely because it could have been decided differently.” Martinez v.
Pena, No. 4:03-CV-915-Y, 2006 U.S. Dist. LEXIS 82057, at *5, 2006 WL 3289187, at *2 (N.D.
Tex. Nov. 1, 2006). This standard has been frequently described as “extremely deferential.” Am.

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Realty Trust, Inc. v. Matisse Capital Partners, L.L.C., No. 3:00-CV-1801-G, 2001 U.S. Dist.
LEXIS 13241, at *4, 2001 WL 1029466, at *1 (N.D. Tex. Aug. 28, 2001) (citing to Reko v.
Creative Promotions, Inc., 70 F. Supp. 2d 1005, 1007 (D. Minn. 1999)). Crucially, when legal
conclusions are based on predicate questions of fact, these implicit questions are subject to the
clearly erroneous, rather than the contrary to law, standard. Price v. Drexel Burnham Lambert,
Inc., 791 F.2d 1156, 1159 (5th Cir. 1986). Moreover, more than one court has construed these
standards identically, ruling that “[a] decision is clearly erroneous or contrary to law when the
reviewing court is left with the definite and firm conviction that a mistake has been committed.”
Herzog v. Johns Manville Prods. Corp., No. 02-1110 Section “L” (5), 2002 U.S. Dist. LEXIS
22187, at *4, 2002 WL 31556352, at *1 (E.D. La. Nov. 15, 2002) (emphasis added); accord,
e.g., Koch Indus., Inc. v. Columbia Gas Transmission Corp., No. 89-2156 “G,” 1990 U.S. Dist.
LEXIS 5564, at *3, 1990 WL 72789, at *1 (E.D. La. May 29, 1990).
When discovery questions are raised, another principle is often invoked. As explained by
one court, “[w]here . . . the magistrate has ruled on a non-dispositive matter such as a discovery
motion, his or her ruling is entitled to great deference and is reversible only for abuse of
discretion.” Kresefsky v. Panasonic Commc’ns & Sys. Co., 169 F.R.D. 54, 64 (D.N.J. 1996);
accord, e.g., Nunn v. State Farm Mut. Auto. Ins. Co., No. 3:08-CV-1486-D, 2010 U.S. Dist.
LEXIS 51609, at *7, 2010 WL 2044477, at *2 (N.D. Tex. May 24, 2010) (citing Scott v.
Monsanto Co., 868 F.2d 786, 793 (5th Cir. 1989) (citing Eastway Gen. Hosp. v. Eastway
Women’s Clinic, Inc., 737 F.2d 503, 505 (5th Cir. 1984))); Arters v. Univision Radio
Broadcasting TX, L.P., No. 3:07-CV-0957-D, 2009 U.S. Dist. LEXIS 39924, at *8, 2009 WL
1313285, at *2 (N.D. Tex. May 12, 2009); 12 CHARLES ALAN WRIGHT ET AL., FEDERAL PRAC. &
PROC. § 3069 (2d ed.) (“[I]t is extremely difficult to justify alteration of the magistrate judge’s

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nondispositive actions by the district judge.”); cf. United States v. Bullion, 466 F.3d 574, 577
(7th Cir. 2006) (“The striking of a balance of uncertainties can rarely be deemed
unreasonable[.]”); United States v. Santiago, 826 F.2d 499, 505 (7th Cir. 1987) (concluding that
abuse of discretion occurs “only when no reasonable person could take the view adopted by the
trial court”).
This deferential approach is “especially appropriate where the Magistrate Judge has
managed this case from the outset and developed a thorough knowledge of the proceeding.”
Public Interest Res. Grp. v. Hercules, Inc., 830 F. Supp. 1525, 1547 (D.N.J. 1993).This power is
accentuated by the minimal relevance standard set forth in Rule 26, FED. R. CIV. P. 26(b)(1), and
the diversity of sanctions authorized by Rule 37, FED. R. CIV. P. 37(b), as the Rules together
form an interlocking framework which favors disclosure subject to a few well-defined and
narrowly-construed exceptions, see, e.g., Herbert v. Lando, 441 U.S. 153, 175, 99 S. Ct. 1635,
1648, 60 L. Ed. 2d 115 (1979) (“Evidentiary privileges in litigation are not favored, and even
those rooted in the Constitution must give way in proper circumstances.”); United States v.
Oloyede, 982 F.2d 133, 141 (4th Cir. 1992) (“[T]he [attorney-client] privilege is to be ‘strictly
confined within the narrowest possible limits consistent with the logic of its principle.’” (quoting
In re Grand Jury Investigations, 599 F.2d 1224, 1235 (3d Cir. 1979))); cf. Amir Shachmurove,
Purchasing Claims and Changing Votes: Establishing “Cause” under Rule 3018(a), 89 AM.
BANK. L.J. 511, 531–35 (2015) (explaining how procedural rules are typically interpreted by
federal courts).
As a matter of context, of particular importance here are three distinctive lines of
precedent within this jurisprudence. First, both these discovery rules have been persistently
invoked by magistrate judges (and district court judges) in finding waiver of a valid objection

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upon a party’s use of boilerplate. St. Paul Reinsurance Co. v. Commercial Fin. Corp., 198
F.R.D. 508, 513 (N.D. Iowa 2000) (collecting cases); see also, e.g., Mills v. East Gulf
Preparation Co., 259 F.R.D. 118, 132 (S.D.W. Va. 2009) (“Objections to Rule 34 requests must
be stated specifically, and boilerplate objections regurgitating words and phrases from Rule 26
are completely unacceptable.”); Frontier-Kemper Constructors, Inc. v. Elk Run Coal Co., Inc.,
246 F.R.D. 522, 528 (S.D.W. Va. 2007) (“There is abundant caselaw to the effect that boilerplate
objections to Rule 34 document requests are inappropriate.”); Athridge v. Aetna Cas. & Surety
Co., 184 F.R.D. 181, 190 (D.D.C. 1998) (“Although Rule 34 governing production of documents
does not contain identical language [as Rule 33], no reason exists to distinguish between
interrogatories and requests for production as to the requirement for specificity and the risk of
waiver.” (internal quotation marks omitted)); Redland Soccer Club, Inc. v. U.S. Dep’t of the
Army, 55 F.3d 827, 856 (3d Cir. 1995) (“[T]he party resisting discovery must show specifically
how each interrogatory is not relevant or how each question is overly broad, burdensome or
oppressive.” (internal quotation marks omitted) (quoting Josephs v. Harris Corp., 677 F.2d 985,
992 (3d Cir. 1982))); McLeod, Alexander, Powel & Paffel, P.C. v. Quarles, 894 F.2d 1482, 1485
(5th Cir. 1990) (holding saying “an interrogatory was overly broad, burdensome, oppressive and
irrelevant was not adequate to voice a successful objection to an interrogatory” and seeing “no
reason to distinguish the standards governing responses to interrogatories from those that govern
responses to production requests” (internal quotation marks omitted)).
Second, assertions of work-product protection and the attorney-client privilege have
repeatedly fallen for similar reasons. Pham v. Hartford Fire Ins. Co., 193 F.R.D. 659, 662 (D.
Colo. 2000); accord, e.g., Bess v. Cate, 422 F. App’x 569, 572 (9th Cir. 2011) (finding that
“well-established law that parties seeking to invoke privileges are not permitted to provide mere

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blanket objections to discovery requests” supported a magistrate judge’s order to sanction parties
who “lodged blanket objections and [thereby] failed to provide sufficient information to enable
other parties to evaluate the applicability of the claimed privilege or protection”); Burlington N.
& Santa Fe Ry. v. Kapsner, 408 F.3d 1142, 1148 (9th Cir. 2005) (quoting FED. R. CIV. P.
26(b)(5) advisory committee note (1993 amendments.)); MMAR Grp. Inc. v. Dow Jones & Co.
Inc., 187 F.R.D. 282, 292 n.6 (S.D. Tex. 1999) (concluding that a party’s five general objections,
including the attorney-client, work-product, and investigative privileges, were pure boilerplate
that impermissibly hampered its opponent’s ability to prosecute its own case); Athridge v. Aetna
Cas. & Surety Co., 184 F.R.D. 181, 194 (D.D.C. 1998) (finding that assertions of the attorneyclient privilege and work-product doctrine were too general to satisfy Rules 33 and 34); Miller v.
Pancucci, 141 F.R.D. 292, 302 (C.D. Cal. 1992) (“Objections, in such boilerplate terms as those
stated by [d]efendants, are improper and therefore no claim of privilege at all.” (internal
quotation marks omitted) (quoting Int’l Paper Co. v. Fireboard Corp., 63 F.R.D. 88, 94 (D. Del.
1974))). Logic supports this particular tendency, as the burden of proving any privilege’s
applicability always rests on the party seeking to shield evidence from disclosure. See, e.g.,
Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 1577, 48 L. Ed. 2d 39
(1976).Hickman v. Taylor, 329 U.S. 495, 512, 67 S. Ct. 385, 394, 91 L. Ed. 451 (1947). In design
and intent, the Rules favor disclosure and a narrow understanding of even the most wellestablished privileges, facts that require a party to assert it clearly and assert it exactly so. See,
e.g., United States v. Mendelsohn, 896 F.2d 1183, 1188-89 (9th Cir. 1990) (holding that an
inaccurate statement of a privileged communication waives the privilege with respect to that
communication); Clark v. United States, 289 U.S. 1, 16, 53 S. Ct. 465, 470, 77 L. Ed. 993 (1933) (“A
privilege surviving until the relation is abused and vanishing when abuse is shown to the satisfaction of
the judge[.]”); cf. United States v. Richard Roe, Inc. (In re Richard Roe, Inc.), 68 F.3d 38, 40 n.2

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(2d Cir. 1995) (noting that since the attorney-client privilege and work product immunity
“substantially overlap,” no need exists for a different piercing standard for attorney work product
for purposes of the crime-fraud exception).
Finally, for purposes of measuring the sufficiency of a party’s privilege log under Rule
26(b)(5)(B), claims of work-product protection and attorney-client privilege must satisfy the
same minimal threshold. Consequently, if the log does not “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 privileged or protected, will enable other parties to assess the
claim,” FED. R. CIV. P. 26(b)(5)(A)(ii), the claim must fail.12 Any party resisting disclosure for
any reason must produce a document index or privilege log, see, e.g., Bregman v. Dist. of
Columbia, 182 F.R.D. 352, 363 (D.D.C. 1998); First Am. Corp. v. Al-Nahyan, 2 F. Supp. 2d 58,
63 n.5 (D.D.C. 1998); Avery Dennison Corp. v. Four Pillars, 190 F.R.D. 1, 1 (D.D.C. 1999), and
the failure to provide a complete privilege log demonstrating sufficient grounds for assuming the
relevant shield defeats its application, see Dorf & Stanton Commc’ns, Inc. v. Molson Breweries,
100 F.3d 919, 923 (Fed. Cir. 1996).

B.

Application
Based on the foregoing law, this Court is unpersuaded by the Motion to Amend to the

extent that it predicates reconsideration on the basis of this Court’s application of the incorrect
standard of review to the MJ’s Second Ruling. The reasons are threefold. First, while the legal

12

Thus, the Defendants’ purported distinction between work-product and privilege is, at best,
sophistry. (See Doc. 176 at 6.) A failure to distinguish between the two does not affect the
standard, such that the Defendants’ failure to provide a log sufficiently specific to evaluate either
shield’s application forfeits its protection. That, and no more, was found by the MJ.
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adequacy of the relevant privilege logs may be a question of law, the Second Ruling’s conclusion
in this regard was predicated upon a factual determination: that the description provided by the
Defendants as to two withheld documents was inaccurate and, by virtue of being true, threw
other entries into suspicion. Stated differently, the MJ reached a factual conclusion first, In re
Grand Jury Subpoenas, 561 F.3d 408, 413 n.10 (5th Cir. 2009); St. Paul Fire & Marine Ins. Co.,
2002 U.S. Dist. LEXIS 20120, at *3–4, 2002 WL 31375611, at *2; cf. In re Public Defender
Serv., 831 A.2d 890, 898 (D.C. 2003) (“Rulings on claims of testimonial privilege typically
involve intermingled questions of fact and of law.”); that this factual determination later formed
the basis of a legal conclusion does not mean de novo review was compelled, see supra Part
III.A.2. The ineluctably factual determination—that the elements of the attorney-client privilege
and/or the work-product doctrine, as established by uncontested precedent, had not been
adequately shown by the Defendants’ deficient logs, a failure sufficient to result in the waiver of
the underlying privilege and/or work product claim, see, e.g., Corvello v. New Eng. Gas Co., 243
F.R.D. 28, 34 (D.R.I. 2007)—was supported by the record as a whole, its legal consequences
irrelevant to its character as a factual query.
Second, upon so finding, the MJ exercised the broad discretion afforded to him under the
Rules in the management of discovery to find a general waiver of the underlying waiver. As
shown above, this result coheres with dozens of cases compelling production whenever a party’s
privilege log has been found inadequate. See, e.g., Bess, 422 F. App’x at 572; see supra Part
III.A.2. In such cases, most surely whenever the magistrate judge is deeply familiar with the case
at hand, great deference is habitually given—and owed. See, e.g., Nunn, 2010 U.S. Dist. LEXIS
51609, at *7, 2010 WL 2044477, at *2; Arters, 2009 U.S. Dist. LEXIS 39924, at *8, 2009 WL
1313285, at *2; Kresefsky, 169 F.R.D. at 64; Public Interest Res. Grp., 830 F. Supp. at 1547.

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Otherwise, the very efficiency so prized by Rule 1 would be needlessly endangered, and the
functioning of the Rules stymied to no good end. When this Court referenced its deference to the
MJ’s determination, it meant no more than such legally sanctioned respect, according the MJ the
respect that precedent clearly mandates, and did so because, as the foregoing cases reveal, a
substantial body of law can be found to buttress the Second Ruling. With so much precedent
extant, it cannot be “contrary to law,” as § 636 requires for reversal of a legal conclusion to
occur. Indeed, the First Ruling would have been amply supported by this growing body of case
law; having been granted this first reprieve, Defendants now ask this Court to again reject
substantial precedent. It did not do so then, and it will not do so now in light of the prevailing
standard for an order’s reconsideration.
Lastly (and repeatedly), as this same law shows, Defendants conflate the standard of
review and the basis for reversal. While a district court reviews legal conclusions de novo, it can
only reject a legal conclusion based on the law’s clear misapplication. As such, if either case law
or statute supports a magistrate judge’s determination, the decision cannot be rightly
characterized as “contrary to law” and cannot be overturned. In this sense, to argue, as
Defendants have done in the Motion to Amend, that the improper standard of review was applied
misses the Relevant Order’s central thrust: that the MJ had ample legal basis in law (and in fact)
to issue the punitive decision that he did. Because the Second Ruling did so, it must be affirmed.
Not one of Defendants’ arguments convince this Court that a manifest error sufficient to
trigger reconsideration has occurred. As already noted, much law and a reasonable factual
determination support the Second Ruling. See supra. When so much case law can be marshalled
to support waiver’s imposition and where the predicate question is an inescapable factual one,
the resulting order withstands review pursuant to § 636. In addition, to construe a discrete ruling

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as to two documents’ privileged status as creating the law of the case so as to bar the disclosure
of documents subsequently ordered to be released based on later analysis reads this limited
doctrine far too broadly. Previously, the MJ made a discrete decision as to the status of certain
documents; afterward, based on Defendants’ subsequent misdeed, he issued a broader ruling
justified by more general and ongoing concerns. As a court may always revisit its earlier
determinations, see Copeland v. Merrill Lynch & Co., Inc., 47 F.3d 1415, 1423 (5th Cir. 1995),
and as the first decision was narrowly tailored and tightly focused, it cannot be said to have
created a true inconsistency worthy of being called a question of law. At most, such apparent
inconsistency may require clarification; it does not invalidate an otherwise valid order.
Regardless, with the later order’s breadth rooted in its peculiar circumstances, the Defendants
could have fulfilled either obligation at the time in which they were ordered to do so, and since
such compliance was possible, the duties imposed by two orders can be easily reconciled. Even
putting these facts aside, the law of the case doctrine is a discretionary rule of practice,
permitting a change of position when an original ruling no longer meets present exigencies. See,
e.g., Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 75 L. Ed. 2d 318 (1983); TelPhonic Servs, Inc. v. TBS Int’l Inc., 975 F.2d 1134, 1138 (5th Cir. 1992). The Second Ruling can
be so characterized.
Finally, Rule 26 mandates that a party consistently update disclosures. FED. R. CIV. P.
26(e). That the Defendants did not have materials that should be disclosed in their possession
does not change their obligation to surrender those documents once such possession was gained.
Regardless, even though Defendants contend that the MJ found that they withheld unprivileged
documents on December 18, 2014 that they did not obtain until March 2015, the Second Ruling
says no such thing. Instead, the MJ highlighted how the Defendants’ insistence that the omission

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of certain materials in their privilege logs should be excused “due to the fact that such documents
are supposed to appear on Morgan Lewis’ privilege log . . . suggest[ed] . . . that the [D]efendants
may be withholding additional relevant discoverable materials – but not disclosing them on any
privilege log.” (Doc. 131 at 7.) Certainly, in this passage, the Second Ruling did not compel
Defendants to surrender what they never had. Rather, as its fair reading shows, the MJ was
spotting a pattern and summarizing what Plaintiff had intuited. That he too came to this
conclusion—that certain documents that should not have been withheld had been filed and stored
away—does not mean that he embraced a temporal impossibility. Even if he did, however, the
mistake is simply too minor to undercut the cogency of his eventual conclusion: that without full
disclosure, the pertinence and suitability of Defendants’ claims of privilege or work-product
could not be properly evaluated. Once more, the Court finds this result to accord with much law
and much reason.
To summarize, where an abundance of case law supports a magistrate judge’s legal
position and the Parties’ documented history lends every credence to his factual analyses, the law
is clear: a magistrate judge’s decision must be sustained. Here, the MJ, intimately familiar with a
pattern of delay and privy to two inaccurate factual description of documents in a dilatory party’s
latest logs, ordered a complete release that would allow confirmation of which documents, if
any, were improperly shielded from disclosure. In other words, the Second Ruling sought to do
no more than ensure that the Defendants would finally comply with the duties imposed upon
them by settled law. In such cases, justice and efficiency, Rule 1’s lodestars, and the Rules’
general bias in favor of discovery is better served by obtaining confirmation, not again
withholding data for otherwise unverifiable reasons. See, e.g., United States v. Bilzerian, 926
F.2d 1285, 1292 (2d Cir. 1991) (“The attorney-client privilege cannot at once be used as a shield

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and a sword.”). For fairness’ sake, both law and record here can support this result. See, e.g.,
Herbert v. Lando, 441 U.S. 153, 175, 99 S. Ct. 1635, 1648, 60 L. Ed. 2d 115 (1979)
(“Evidentiary privileges in litigation are not favored, and even those rooted in the Constitution
must give way in proper circumstances.”); United States v. Oloyede, 982 F.2d 133, 141 (4th Cir.
1992) (“[T]he [attorney-client] privilege is to be ‘strictly confined within the narrowest possible
limits consistent with the logic of its principle.’” (quoting In re Grand Jury Investigations, 599
F.2d at 1235)). As such, § 636 impels but one end.
In their third and final ground for reconsideration, Defendants point to the supposed lack
of clarity in the Second Ruling as to the appointment of a special master. However, as the SEC
notes, this reference appeared in a footnote in the Second Ruling, (Doc. 131 at 15 n.33), and the
Defendants never “elected to seek such clarification from the Magistrate Judge himself in the
days and weeks following the Magistrate Judge’s ruling.” (Doc. 182 at 19.) Furthermore, until
the filing of the Motion to Amend, the Defendants did not “raise this issue anywhere in their
appeal to this Court.” (Id.) This Court agrees with the SEC: having chosen not to seek
clarification from the MJ and having failed to previously raise this point, Defendants are not
entitled to transfigure an ambiguous footnote into a legal defect so significant as to invalidate an
otherwise clear order. Whatever ambiguity such a footnote effects is the product of their own
deliberate decision to leave it so unclear.

IV.

CONCLUSION
Considered in light of this case’s full record, including the Defendants’ multiple chances

to provide a privilege log sufficient to satisfy Rule 26(b)(5), the Second Ruling contains neither
clear error nor a law’s misapplication. In the absence of such a demonstration, no reconsideration

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of this Court’s own order so finding is merited pursuant to well-established jurisprudence.
Accordingly, this Court orders as follows:
(1) The Motion to Amend is DENIED to the extent that it seeks reversal of this Court order
affirming the Magistrate Judge’s Second Ruling on the basis of the incorrect application
of the controlling standard of review.
(2) Nonetheless, as the SEC has already stated, (Doc. 175 at 2; see also Doc. 174 at 4), and
as Defendants themselves request as a form of alternative relief, (Doc. 131 at 4), the
Defendants are not now required to produce attorney-client documents produced since
the initiation of this litigation.
(3) On or before 11:59 a.m., on April 14, 2016, the Defendants must produce every
document required by each and every order issued by this Court and the Magistrate
Judge.
(4) This production will not be stayed, subject to a convincing showing of extraordinary
circumstances, in light of the conduct of these Defendants and the abundant case law
supporting the waiver of their privilege.
Signed in Baton Rouge, Louisiana, on April 6, 2016.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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