Garcia et al v. E.J. Amusements of New Hampshire, Inc. et al

Filing 179

Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. CDMs Objections to Magistrate Judges Ruling 137 are OVERRULED.(Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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Plaintiffs,
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) Civil Action No. 13-12536-PBS
v.
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E.J. AMUSEMENTS OF NEW HAMPSHIRE, )
INC. d/b/a FIESTA SHOWS; FIESTA
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SHOWS, INC. d/b/a FIESTA SHOWS;
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ATSEIF FESTIVAL MOBILE, INC.
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d/b/a FIESTA SHOWS; EUGENE DEAN
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III; EUGENE DEAN; LINDA CHAGROS; )
NORMA DEAN; and MARY DEAN,
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Defendants.
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JORGE GARCIA, ZACHARY DUCLOS,
GEORGE KENT, and JENNIFER MILLER,
on behalf of themselves and all
others similarly situated,

March 5, 2015
Saris, U.S.D.J.
MEMORANDUM AND ORDER
Non-Party Centro de los Derechos del Migrante, Inc. (CDM),
which describes itself as a non-profit legal services
organization, objects in part to the magistrate judge’s order
requiring the organization to produce privilege logs for
documents sought by Defendants E.J. Amusements of New Hampshire,
Inc., et al. (Docket Nos. 122, 125). Defendants issued a subpoena
to CDM seeking three categories of information: research
materials referring to Plaintiff Jorge Garcia that were used to
prepare a report on the abuse of migrant workers in the fair and
carnival industry (Category 1); CDM’s communications with Garcia

regarding his employment by defendants (Category 2); and CDM’s
correspondence relating to Garcia’s attendance at a meeting with
labor officials from the United States and Mexico (Category 3).
CDM moved to quash the subpoena and sought a protective order on
the grounds of attorney-client privilege, academic researcher
privilege, attorney work product, and undue burden. (Docket No.
64). The magistrate judge denied the motions without prejudice
and ordered CDM to produce a privilege log for all the documents
sought. (Docket Nos. 122, 125).
CDM now objects in part to the magistrate judge’s order. The
organization does not object to producing a privilege log for
Category 2, CDM’s communications with Garcia regarding his
employment by defendants. But it argues that producing a
responsive privilege log for Category 1 will itself reveal
privileged information, and producing the logs for Categories 1
and 3 will be an undue burden. The magistrate judge stayed the
order pending the outcome of these objections. (Docket Nos. 177,
178). CDM’s Objections to Magistrate Judge’s Ruling (Docket No.
137) are OVERRULED.
I. LEGAL STANDARDS
A district judge may reconsider a pretrial ruling of a
magistrate judge only “where it has been shown that the
magistrate judge’s order is clearly erroneous or contrary to
law.” 28 U.S.C. § 636(b)(1)(A); see also Fed R. Civ. P. 72(a).
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Under the “clearly erroneous” standard, the Court will accept the
magistrate judge’s findings of fact and conclusions drawn
therefrom unless “after scrutinizing the entire record, we form a
strong, unyielding belief that a mistake has been made.” Phinney
v. Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir. 1999)
(quotation marks omitted). Under the “contrary to law” standard,
the district court’s review is plenary. See PowerShare, Inc. v.
Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010) (“[F]or questions
of law, there is no practical difference between review under
Rule 72(a)’s ‘contrary to law’ standard and review under Rule
72(b)’s de novo standard.”).
II. DISCUSSION
A. Category 1 - Research Materials Referring to Garcia Used to
Prepare a Report on Abuse of Migrant Workers in Carnival Industry
CDM first objects to the magistrate judge’s order because it
requires the organization to create a privilege log with respect
to certain research materials referring to Plaintiff Garcia.
These materials were allegedly used for a report on the abuse of
migrant workers in the fair and carnival industry, which was coauthored by CDM and a clinic at the Washington College of Law at
American University. CDM argues that the people they interviewed
for the report agreed to do so on the condition of anonymity. As
a result, producing a privilege log responsive to defendants’
subpoena, CDM says, would necessarily require them to disclose
whether Garcia participated in the report.
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With respect to the discovery of confidential information
compiled by academic researchers, the First Circuit has
instructed courts to apply a multi-factor balancing test:
Each party comes to this test holding a burden. Initially,
the movant must make a prima facie showing that his claim of
need and relevance is not frivolous. Upon such a showing,
the burden shifts to the objector to demonstrate the basis
for withholding the information. The court must then place
those factors that relate to the movant’s need for the
information on one pan of the scales and those that reflect
the objector’s interest in confidentiality and the potential
injury to the free flow of information that disclosure
portends on the opposite pan.
Cusumano v. Microsoft Corp., 162 F.3d 708, 716 (1st Cir. 1998)
(citing Bruno & Stillman, Inc v. Globe Newspaper Co., 633 F.2d
583, 597-98 (1st Cir. 1980)). “[C]oncern for the unwanted burden
thrust upon non-parties is a factor entitled to special weight in
evaluating the balance of competing needs.” Id. at 717.
At this threshold stage, the Court does not need to
determine whether CDM qualifies for this academic privilege, or
how to balance the competing interests with respect to the
research materials sought by defendants. The magistrate judge’s
order does not definitively rule on whether CDM’s materials are
protected by attorney-client privilege, attorney work product, or
an academic researcher privilege. Rather, the order simply
requires CDM to briefly describe the nature of each document
involving a plaintiff in litigation so that the parties and the
court can assess the claims of privilege. This is consistent with
Federal Rule of Civil Procedure 26(b)(5)(A)(ii), which requires a
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party claiming privilege to “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.” “Whatever quantum of proof is
necessary to satisfy this obligation, a blanket assertion of
privilege is generally insufficient.” In re Grand Jury Subpoena
(Mr. S.), 662 F.3d 65, 71 (1st Cir. 2011) (citations omitted).
“Determining whether documents are privileged demands a highly
fact-specific analysis-one that most often requires the party
seeking to validate a claim of privilege to do so document by
document.” Id. The “universally accepted means” of claiming that
documents are privileged is the production of a privilege log. In
re Grand Jury Subpoena, 274 F.3d 563, 576 (1st Cir. 2001)
(quoting Avery Dennison Corp. v. Four Pillars, 190 F.R.D. 1, 1
(D.D.C. 1999)).
The Court recognizes that creating a privilege log in these
circumstances may necessarily require CDM to disclose whether
Garcia was one of the anonymous contributors to its report. But
CDM’s interest in protecting Garcia’s identity is diminished
here. CDM has already agreed to create a privilege log for
Category 2, which functionally discloses Garcia as one of CDM’s
clients in the advocacy arm of the organization. Also, Garcia is
unlike the other anonymous contributors in the report in that he

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has decided to file a lawsuit. See McFayden v. Duke Univ., 2012
WL 4895979, at *4 (D. Me. Oct. 12, 2012) (“People who bring suit
must expect that their prior statements that are relevant to
their claims cannot be hidden from those whom they are suing.”).
Based on this record, the Court does not find that the magistrate
judge clearly erred in ordering the creation of a privilege log.
B. Categories 1 and 3 - Undue Burden
CDM also objects to the magistrate judge’s order on the
grounds that creating a privilege log for Categories 1 and 3 will
be an undue burden. With respect to its research materials
(Category 1), CDM claims that preparing a privilege log would
entail a “time-consuming” review of all the e-mails and files of
the staff who researched, wrote, or reviewed the report over the
course of several years. Similarly, CDM argues that preparing a
privilege log for correspondence relating to the meeting between
United States and Mexican labor officials (Category 3) would
require the review of “many hundreds of internal e-mails and
communications,” which would “consume CDM’s resources and would
yield little if any information relevant to the claims or
defenses at issue in this matter.” This objection fares no better
than the last.
Federal Rule of Civil Procedure 45(c)(3)(A)(iv) provides
that “[o]n a timely motion, the issuing court must quash or
modify a subpoena that . . . subjects a person to undue burden.”

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“When determining whether a subpoena duces tecum results in an
undue burden on a party such factors as the relevance of the
documents sought, the necessity of the documents sought, the
breadth of the request, [and] expense and inconvenience can be
considered.” Behrend v. Comcast Corp., 248 F.R.D. 84, 86 (D.
Mass. 2008) (quotation marks omitted).
CDM has not shown that the magistrate judge clearly erred by
finding that the production of a privilege log would not
represent an undue burden. CDM did not submit any affidavits
specifically outlining the number of hours it would take to
comply with the magistrate judge’s order. Nor does the transcript
contain any information to support a claim of undue burden.
Rather, CDM only made conclusory statements regarding the burdens
of producing a privilege log. See In re New England Compounding
Pharm. Inc. Prod. Liab. Litig., 2013 WL 6058483, at *6 (D. Mass.
Nov. 13, 2013) (“[A] party cannot rely on the mere assertion that
compliance would be burdensome and onerous without showing the
manner and extent of the burden and the injurious consequences of
insisting upon compliance.” (quotation marks omitted) (collecting
cases)); see also Assoc. of Am. Physicians and Surgeons, Inc. v.
Clinton, 837 F. Supp. 454, 458 n.2 (D.D.C. 1993) (“Defendants’
burdensome argument is categorically rejected. The court does not
accept such arguments without specific estimates of staff hours
needed to comply, and defendants submitted no such estimates.”).
As a result, the Court cannot say that the magistrate judge
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clearly erred by requiring CDM to produce privilege logs for
Categories 1 and 3.1
III. ORDER
CDM’s Objections to Magistrate Judge’s Ruling (Docket No.
137) are OVERRULED.

/s/ PATTI B. SARIS
PATTI B. SARIS
United States District Judge

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CDM also argues that the vast majority of non-privileged
documents in Category 3 solely relate to logistics and travel
arrangements, which are not relevant to this case. This argument
is besides the point. Because these documents are not privileged,
they are not implicated by the magistrate judge’s order to
produce a privilege log.
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