Employers Mutual Casualty Company v. Maison Heidelberg, P.A. et al
Filing
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ORDER granting 32 Motion to Compel Privilege Logs. Signed by Magistrate Judge Michael T. Parker on April 20, 2011. (jsm)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
EMPLOYERS MUTUAL CASUALTY COMPANY
V.
PLAINTIFF
Civil Action No.: 3:10-cv-616-TSL-MTP
MAISON HEIDELBERG, P.A.,
MAISON HEIDELBERG, ESQ., GINNY KENNEDY, ESQ.,
NILES, BOURQUE, FONTANA & RICE, LLC,
STUART NILES, ESQ., AND JOHN DOES 1-10
DEFENDANTS
ORDER GRANTING MOTION TO COMPEL PRIVILEGE LOGS
This matter is before the court on the Motion [32] to Compel Privilege Logs of Plaintiff
Employers Mutual Casualty Company (hereinafter “Employers Mutual”). Having considered the
submissions of the parties, the court finds the motion [32] is well taken and should be
GRANTED.
This case and its companion stem from a March 2008 settlement of a declaratory
judgment action filed by Employers Mutual against Jackson Hospitality, LLC and Gayatri
Hospitality, LLC. Jackson Hospitality, LLC owned and operated a hotel in Jackson, Mississippi
that was insured by Employers Mutual. Jackson Hospitality alleged that its property was
damaged as a result of Hurricane Katrina and submitted a claim to Employers Mutual. A dispute
arose as to the cause of damage and coverage of the damage, and Employers Mutual filed suit
against its insureds, Jackson Hospitality, LLC and Gayatri Hospitality, LLC. The Defendants in
the instant matter–Maison Heidelberg, P.A.; Niles, Bourque, Fontant & Rice, LLC; Maison
Heidelberg, Esq.; Ginny Kennedy, Esq.; and Stuart Niles, Esq. (hereinafter “Heidelberg and
Niles”)–represented Jackson Hospitality and Gayatri Hospitality in the coverage dispute. See
Complaint [1]. As a result of the March 2008 settlement of the underlying action, First Bank and
Trust filed suit against Employers Mutual alleging that they had a lien on the subject property,
but were not paid out of the settlement proceeds. See First Bank and Trust v. Employers Mutual,
et al., No. 3:08-cv-685 (S.D. Miss. filed November 7, 2008). Employers Mutual filed the instant
suit against Heidelberg and Niles on October 26, 2010, alleging negligence, breach of duty of
good faith and fair dealing, breach of contract, conversion, and breach of fiduciary duty as a
result of Heidelberg and Niles’ knowledge of and failure to inform Employers Mutual of First
Bank and Trust’s alleged special interest in the settlement proceeds as lienholder of the subject
property. Complaint [1].
Defendants’ Initial Disclosures contained the following statement:
Defendants’ litigation files could be made available for inspection at a time
agreeable to the parties but only if the underlying coverage claim will not be
reopened and re-litigated. Otherwise, the Defendants’ litigation files must remain
confidential in the event that the settlement agreement is rescinded and the
underlying coverage claim is re-litigated.
Pl.’s Ex. A [32-1] at 2-3. Defendants produced the Heidelberg privilege log on February 28,
2011, and produced the Niles privilege log on March 8, 2011. Pl.’s Ex. I [32-9]; Pl.’s Ex. M [3213].
As evidenced by correspondence between counsel for both parties, it is clear that
Employers Mutual took issue with the information, or lack thereof, contained in the privilege
logs and communicated this to opposing counsel in an attempt to resolve the matter. In the
instant motion, Employers Mutual argues that the Heidelberg privilege log is deficient in that it
makes claims of categorical privilege as to an unspecified number of documents collectively
contained in folders, labeled only in a general manner. For example, Defendants labeled one such
folder as “Damages Evidence,” described it as “Damages docs w/ attorney notes and mental
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impressions,” and failed to provide any information as to the documents contained therein on the
basis that the privilege of work product prevents Defendants from individually identifying the
documents contained therein.
As to the Niles privilege log, Employers Mutual argues that the log contains claims of
categorical privilege for six disks of electronic data and twenty-seven folders of
documents–while failing to identify those documents by Bates number or describe them in
accordance with the local rules. Moreover, Employers Mutual avers that Defendants claim
various documents are work product, but cannot determine with any certainty whether those
documents had previously been shared with third parties–which Employers Mutual claims would
have served to destroy the work product privilege.
Employers Mutual maintains that it has been prejudiced by the Defendants’ failure to be
forthcoming about the withheld documents, as well as a failure to identify redactions in the
documents produced by Defendants heretofore. See Pl.’s Ex. C [32-3] at 49-50. Accordingly,
Employers Mutual avers that Defendants’ failure to identify documents with more specificity in
the privilege logs prevents Employers Mutual from challenging Defendants’ privilege claims.
The Defendants argue that they have fulfilled their obligation by producing the privilege
logs. According to Defendants, Employers Mutual’s request for more details as to the
Defendants’ litigation files, if granted, would result in Defendants having to reveal how their
files are arranged and what the contents are. Response [34] at 4. To do so, according to
Defendants, would destroy their right to protect their attorneys’ mental impressions, legal
theories and strategies utilized in preparation for their client’s case. See Walker v. George Koch
Sons, Inc., 2008 U.S. Dist. LEXIS 81919, at *16 (S.D. Miss., Sept. 18, 2008). Moreover, the
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Defendants argue that the fact that counsel for Jackson Hospitality, LLC and Gayatri Hospitality,
LLC waived their privilege in the litigation files does negate the Defendants’ rights to protect
their work product. “[W]aiver of the attorney-client privilege does not necessarily result in a
waiver of the work-product privilege. Unlike the attorney-client privilege, the work product
privilege belongs to both the client and the attorney, either one of whom may assert
it...Accordingly, a waiver by the client of the work-product privilege will not deprive the attorney
of his own work product privilege, and vice versa.” Nevada Partners Fund, LLC v. United States,
2008 U.S. Dist. LEXIS 39044, at *4-5 (S.D. Miss., April 30, 2008)(internal quotations and
citations omitted).
Indeed, “[t]he work product privilege is very different from the attorney-client privilege”
in that the work product privilege “does not exist to protect a confidential relationship but to
promote the adversary system by safeguarding the fruits of an attorney' trial preparations from
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the discovery attempts of an opponent.” Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th
Cir. 1989). “Therefore, the mere voluntary disclosure to a third person is insufficient in itself to
waive the work product privilege.” Id.(citation omitted).
However, as Employers Mutual points out in its rebuttal [36], the court need not at this
time reach the issue of whether Defendants are entitled to assert the work product privilege, as
the instant motion [32] merely asks that the court to rule on whether the Heidelberg and Niles
privilege logs comply with Rule 26(a)(1)(C) of the Uniform Local Rules of the United States
District Courts for the Northern and Southern Districts of Mississippi.
Local Rule 26(a)(1)(C) requires “a party withholding information claimed privileged or
otherwise protected” to submit a privilege log that contains the following information:
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(1)
(2)
(3)
(4)
(5)
(6)
name of the document, electronically stored information, or tangible thing;
description of the document, electronically stored information, or tangible
thing, which description must include each requisite element of the
privilege or protection asserted;
date;
author(s);
recipient(s); and
nature of the privilege.
“It makes no difference if there are four documents or four thousand-each individual document
that has an attached privilege must meet these minimum requirements.” E.E.O.C. v.
HWCC-Tunica, Inc., 2008 WL 4533906, at *2 (N.D. Miss., October 6, 2008). The court finds
that Defendants’ privilege logs do not meet the requirements of Local Rule 26(a)(1)(C) in that
Defendants’ have failed to provide the requisite elements, which serve to properly identify each
document withheld so that Employers Mutual might have sufficient information to develop its
arguments as to the merits of the claimed privilege.
IT IS, THEREFORE, ORDERED that Defendants shall produce privilege logs within
fourteen (14) days of this order that include the above elements of L.U. Civ. R. 26(a)(1)(C) for
each document which Defendants claim is privileged, as well as Bates numbers. Defendants are
cautioned that under L.U. Civ. R. 26(a)(1)(C) withholding materials without providing Plaintiffs
with sufficient notice of the aforementioned elements may subject Defendants to sanctions under
Fed. R. Civ. P. 37 or may serve to waive the asserted privilege or protection.
SO ORDERED, THIS the 20th day of April, 2011.
s/ Michael T. Parker
United States Magistrate Judge
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