Anderson vs. Caldwell County Sheriff's Office, et al
Filing
132
ORDER granting 82 Motion to Compel. The Court DIRECTS Plaintiff to produce all responsive materials to Defendants First Requests for Production of Documents within twenty (20) days of the entry of this Order. The Court DIRE CTS Plaintiff to supplement his responses to Defendants interrogatories within ten (10) days of entry of this Order. Finally, the Court AWARDS Defendant its costs in bringing this motion. The Court DIRECTS the parties to confer in an attempt to res olve the issue of expenses amicably. If the parties cannot agree as to the reasonable expenses, Defendant shall file an accounting of its expenses, including attorneys fees, incurred in filing its Motion to Compel by June 24, 2011. Signed by Magistrate Judge Dennis Howell on 6/10/11. (siw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:09cv423
JERRY ANDERSON,
)
)
Plaintiff,
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)
v.
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)
CALDWELL COUNTY SHERIFF’S
)
OFFICE, et al.,
)
)
Defendants.
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___________________________________ )
ORDER
Pending before the Court is Defendant Caldwell County Sheriff’s Office’s
Motion to Compel [# 82].
Defendant moves the Court to compel Plaintiff to
supplement his answers to interrogatories and produce documents in response to its
First Set of Interrogatories and Requests for Production of Documents. Specifically,
Defendant contends that Plaintiff has failed to produce a privilege log supporting his
claims of privilege and has failed to fully respond to its discovery requests. In
response to Defendant’s motion, Plaintiff produced a privilege log and supplement its
discovery responses. The Court GRANTS Defendant’s motion [# 82].
I.
Factual Background
Defendant served Plaintiff with its First Set of Interrogatories and Requests for
Production of Documents on May 17, 2010. On August 20, 2010, Plaintiff served his
response on Defendant. In his response, Plaintiff asserted a number of objections,
including the attorney-client privilege and work product doctrine. Plaintiff, however,
did not provide Defendant with a privilege log and provided no further detail
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regarding the application of the attorney-client privilege to the specific documents at
issue. Plaintiff’s response also contained a number of boilerplate objections. On
February 25, 2011, counsel for Defendant sent a letter to Plaintiff’s counsel regarding
Plaintiff’s responses to Defendant’s discovery requests. The letter requested that
Plaintiff provide Defendant with a privilege log and indicated that Defendant would
file a motion to compel if Plaintiff failed to do so. In addition, the letter set forth what
Defendant believed were other deficiencies in Plaintiff’s response. After receiving no
privilege log in response to the letter, Defendant filed this motion to compel on March
15, 2011. In response to Defendant’s motion, Plaintiff supplemented his discovery
responses and provided, for the first time, a privilege log.
II.
Legal Standard
Generally speaking, parties are entitled to discovery regarding any nonprivileged matter that is relevant to any claim or defense. Fed. R. Civ. P. 26(b)(1).
“Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” Id. Where a
party fails to respond to an interrogatory or a request for production of documents, the
party seeking discovery may move for an order compelling an answer to the
interrogatories or the production of documents responsive to the request. Fed. R. Civ.
P. 37(a)(3)(B).
“Over the course of more than four decades, district judges and
magistrate judges in the Fourth Circuit . . . have repeatedly ruled that the party or
person resisting discovery, not the party moving to compel discovery, bears the
burden of persuasion.” Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243
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(M.D.N.C. 2010) (collecting cases); Mainstreet Collection, Inc. v. Kirkland’s, Inc.,
270 F.R.D. 238, 241 (E.D.N.C. 2010).
III.
Analysis
A.
The Attorney-Client Privilege and Attorney Work Product Doctrine
Rule 26 of the Federal Rules of Civil Procedure provides that where a party
withholds discoverable information on the ground that the information is privileged,
the party must:
(I)
expressly make the claim; and
(ii)
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 the parties to assess the claim.
Fed. R. Civ. P. 26(b)(5)(A). Typically, this description takes the form of a privilege
log. Mezu v. Morgan State Univ., 269 F.R.D. 565, 577 (D. Md. 2010); Smith v. Café
Asia, 256 F.R.D. 247, 250 (D.D.C. 2009). “A party simply cannot claim privilege and
refuse to provide a privilege log; indeed, some courts have found that doing so results
in waiver of the privilege.” Travelers Indemnity Co. v. Allied Tube & Conduit, Corp.,
No. 1:08cv548, 2010 WL 272579, at *1 (W.D.N.C. Jan. 15, 2010) (Howell, Mag. J.);
Mezu, 269 F.R.D. at 577 (“a privilege log . . . must accompany a written response to
a Rule 34 document production request, and a failure to do so may constitute a
forfeiture of any claims of privilege.”); AVX Corp. v. Horry Land Co., Inc., No.
4:07cv3299, 2010 WL 4884903, at *4 (D.S.C. Nov. 24, 2010) (“Failure to produce
a timely or sufficient privilege log may constitute a forfeiture of any claims of
privilege.”).
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In response to Defendant’s discovery requests, Plaintiff asserted boilerplate
objections, including that the documents were subject to the attorney-client privilege.
Plaintiff, however, did not produce a privilege log and failed to provide any
information that would enable the parties to assess Plaintiff’s claim of privilege, as
required by Rule 26. Instead, Plaintiff waited until April 12, 2011 - nearly eleven
months after Defendant served its discovery requests and eight months after serving
its written responses on Defendant - to provide Defendant with a privilege log.
Moreover, Plaintiff only provided this privilege log in response to Defendant’s
Motion to Compel.
Rule 26(b)(5)(A) provides that a party asserting a claim of privilege must
describe the nature of the documents not disclosed so that the opposing party can
evaluate the merits of the claims of privilege. Fed. R. Civ. P. 26(b)(5)(A). Plaintiff
failed to comply with the rule until nearly a year after Defendant served its discovery
responses. By waiting to produce the privilege log until Defendant filed a motion to
compel, Plaintiff has unduly delayed discovery in this case and necessitated the filing
of a motion to get Plaintiff to provide Defendant with the information it was required
to provide in August 2010. Although the Court strongly considered finding that
Plaintiff had waived the attorney-client privilege and attorney work product doctrine
as to all responsive documents because of Plaintiff’s failure to comply with Rule 26,
the Court will exercise restraint and allow Plaintiff to assert the privilege because of
the potential seriousness of waiving the attorney-client privilege in a case where
Plaintiff was tried for the alleged murder of this wife. Instead, the Court AWARDS
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Defendant its costs, including attorneys’ fees for bringing this Motion.
Finally, after reviewing the untimely privilege log produced by Plaintiff, if
Defendant believes that some of the documents withheld by Plaintiff are not in fact
subject to a claim of privilege, Defendant may file a motion to compel those specific
documents within twenty (20) days of the entry of this Order. Upon the filing of such
a motion, the Court will conduct an in camera review of the documents at issue and
determine whether they are subject to the applicable privilege specified in the
privilege log. Prior to the filing of such a motion, however, the Court DIRECTS
counsel for Plaintiff and Defendant to meet face to case and in person and attempt in
good faith to resolve the issue without Court intervention. The Court INSTRUCTS
Plaintiff that if upon a review of the documents withheld, it determines that any
documents were withheld without a reasonable basis for believing that they are, in
fact, subject to a privilege, the Court will reconsider its decision that Plaintiff has not
waived the attorney-client privilege and work product doctrine as to all responsive
documents.
B.
Plaintiff’s Boilerplate Objections
In response to Defendant’s discovery requests, Plaintiff asserted a variety of
additional objections, including that the requests are overly broad and not relevant.
Plaintiff’s response, however, failed to state how the requests were irrelevant or why
they were overly broad. In fact, Plaintiff states in response to the Motion to Compel
that he “made his objections in order to preserve them.” (Pl.’s Resp. to Def.’s Mot.
Compel at 17.) Such boilerplate objections are invalid. See Kinetic Concepts, 268
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F.R.D. at 241 (collecting cases); Mainstreet Collection, 270 F.R.D. at 240; Hanger v.
Graham, 267 F.R.D. 486, 491 (N.D. W. Va. 2010); Mancia v. Mayflower Textile
Servs. Co., 253 F.R.D. 354, 358-59 (D. Md. 2008). Moreover, there is no provision
in the Federal Rules that allows a party to assert objections simply to preserve them.
Instead, the Federal Rules require that objections be specific. See Fed. R. Civ. P.
34(b)(2), 33(b)(4); Mancia, 253 F.R.D. at 356; see also Mainstreet Collection, 270
F.R.D. at 240. Accordingly, the Court finds that Plaintiff has waived any objections,
other than privilege, to Defendant’s document requests and OVERRULES the
objections. The Court DIRECTS Plaintiff to produce all responsive materials to
Defendant’s First Requests for Production of Documents within twenty (20) days of
the entry of this Order.
C.
Plaintiff’s Responses to Interrogatories
In response to a number of Defendant’s interrogatories, Plaintiff references or
incorporates other documents. For example, Plaintiff references several attachments
to his response that summarize the factual allegations supporting his claim. In
addition, he references the documents generated in the criminal prosecution of
Plaintiff and documents produced to Defendant. Defendant contends that these
responses are insufficient. (Def.’s Reply to Mot. Compl. at 10.)
In responding to an interrogatory, a party must answer “separately and fully in
writing under oath.” Fed. R. Civ. P. 33(b)(3). The general rule is that an answer to
an interrogatory should not refer to other documents such as pleadings, depositions,
or other interrogatories, but should be complete in itself.
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See Williams v.
Sprint/United Mgmt. Co., 235 F.R.D. 494, 501 (D. Kan. 2006); Scaife v. Boenne, 191
F.R.D. 590, 594 (N.D. Ind. 2000); Mahoney v. Kempton, 142 F.R.D. 32, 33 (D. Mass.
1992); Martin v. Easton Pub’n Co., 85 F.R.D. 312, 315 (E.D. Pa. 1980). Although
there is an exception to this general rule for business records, this exception has no
application in this case. See Fed. R. Civ. P. 33(d). Accordingly, the Court DIRECTS
Plaintiff to supplement his responses to Defendant’s interrogatories by answering each
interrogatory separately and fully without incorporating by reference other documents,
pleadings, or answers. Each response should be complete within itself. To the extent
that a specific document provides the information requested by Defendant, the Court
will allow Plaintiff to reference in the response the specific document that contains the
information requested. Plaintiff may not reference general documents or a specific
category of documents. Rather, Plaintiff must identity the specific document by Bates
label that contains the information requested. Plaintiff shall supplement his responses
within ten (10) days of entry of this Order.
D.
Rule 26(g) of the Federal Rules of Civil Procedure
Rule 26(g) provides that every response to a discovery request or objection
must be signed by at least one attorney of record in the attorney’s own name. Fed. R.
Civ. P. 26(g)(1). “By signing, an attorney . . . certifies that to the best of the person’s
knowledge, information, and belief formed after a reasonable inquiry” a response or
objection to a discovery requests is “consistent with these rules” and “not interposed
for any improper purpose, such as to . . . cause unnecessary delay, or needlessly
increase the cost of litigation. . . .” Fed. R. Civ. P. 26(g)(1)(B); see also Mancia, 253
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F.R.D. at 358-59 (discussing Rule 26(g) in connection with asserting boilerplate
objections to discovery requests). The rule requires an attorney “to stop and think
about the legitimacy of a discovery request, a response thereto, or an objection.” Fed.
R. Civ. P. 26(g) advisory committee’s note to the 1983 amendments. The rule further
provides for a sanction against the attorney, party, or both if a certification violates
Rule 26 without substantial justification. Fed. R. Civ. P. 26(g)(3).
Attorneys Robert Elliot and Lisa Dubs signed the discovery responses at issue,
which failed to comply with the requirements of the Federal Rules. The responses did
not contain a privilege log or the information required by Rule 26 and contained
unspecific, boilerplate objection - some of which were offered simply to preserve the
objection. The Court reminds counsel of their obligations under Rule 26(g). Prior to
making an objection or responding to discovery, counsel should stop and think about
the legitimacy of the response and ensure that it complies with the requirements of the
Federal Rules.
E.
Payment of Expenses
The Court AWARDS Defendant its reasonable costs, including attorneys’ fees
in bringing this motion. The Court DIRECTS the parties to confer in an attempt to
resolve the issue of expenses amicably. If the parties cannot agree as to the reasonable
expenses, Defendant shall file an accounting of its expenses, including attorneys’ fees,
incurred in filing its Motion to Compel by June 24, 2011. Defendant should also
submit affidavits setting forth the number hours counsel reasonably expended filing
the Motion to Compel, the hourly rate charged, and the prevailing market rate in the
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relevant community. See Robinson v. Equifax Information Servs., LLC, 560 F.3d
235, 243-244 (4th Cir. 2009); Neves v. Neves, 637 F. Supp. 2d 322, 340 (W.D.N.C.
2009) (Reidinger, J.). Plaintiff shall have until July 1, 2011, to file specific objections
to the expenses requested by Defendant. The Court will then calculate the award of
attorneys' fees by multiplying the number of reasonable hours expended by counsel
times the reasonable hourly rate. Robinson, 560 F.2d at 243. In determining what
constitutes a reasonable number of hours and rate, the Court shall consider:
(1) the time and labor expended; (2) the novelty and difficulty of the
questions raised; (3) the skill required to properly perform the legal
services rendered; (4) the attorney's opportunity costs in pressing the
instant litigation; (5) the customary fee for like work; (6) the attorney's
expectations at the outset of the litigation; (7) the time limitations
imposed by the client or circumstances; (8) the amount in controversy
and the results obtained; (9) the experience, reputation and ability of the
attorney; (10) the undesirability of the case within the legal community
in which the suit arose; (11) the nature and length of the professional
relationship between attorney and client; and (12) attorneys' fees awards
in similar cases.
Id. at 243-44 (quoting Barber v. Kimbrell’s Inc., 577 F.2d 216, 266 n.28 (4th Cir.
1978)).
IV.
Conclusion
The Court GRANTS Defendant’s Motion to Compel [# 82]. The Court
DIRECTS Plaintiff to produce all responsive materials to Defendant’s First Requests
for Production of Documents within twenty (20) days of the entry of this Order. The
Court DIRECTS Plaintiff to supplement his responses to Defendant’s interrogatories
within ten (10) days of entry of this Order.
Finally, the Court AWARDS Defendant its costs in bringing this motion. The
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Court DIRECTS the parties to confer in an attempt to resolve the issue of expenses
amicably. If the parties cannot agree as to the reasonable expenses, Defendant shall
file an accounting of its expenses, including attorneys’ fees, incurred in filing its
Motion to Compel by June 24, 2011.
Signed: June 10, 2011
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