OGD Equipment Co. v. Overhead Door Corporation et al

Filing 199

MEMORANDUM OPINION AND ORDER re 195 MOTION for Reconsideration re 184 Memorandum & Opinion,, Order and 198 Amended MOTION for Reconsideration re 184 Memorandum & Opinion,, Order, 195 MOTION for Reconsideration re 184 Memorandu m & Opinion,, Order, and Objection to Magistrat Judge's Order filed by Overhead Door Corporation. The Court has reviewed the Motions to Reconsider and hereby issues this Order to clarify the October 25, 2019, Order 184 . Signed by Magistrate Judge Kimberly C Priest Johnson on 10/31/2019. (rpc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
OGD EQUIPMENT CO. d/b/a OVERHEAD
GARAGE DOOR, LLC,
Plaintiff,
v.
OVERHEAD DOOR CORPORATION and
OVERHEAD DOOR COMPANY OF
LUBBOCK, INC.,
Defendants.

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§ Civil Action No.: 4:17-cv-00898-ALM-KPJ
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MEMORANDUM OPINION AND ORDER
On October 25, 2019, the Court issued an Order regarding Defendant Overhead Door
Corporation’s (“Overhead”) privilege log after holding a telephonic hearing with the parties (the
“Hearing”). See Dkt. 184. On October 28, 2019, Defendant Overhead filed its Motion to
Reconsider, and Objection to, the Magistrate Judge’s Memorandum Opinion and Order Regarding
Privilege Logs (“Motion to Reconsider”) (Dkts. 195). On October 30, 2019, Overhead filed an
Amended Motion to Reconsider (Dkt. 198). The Court has reviewed the Motions to Reconsider
and hereby issues this Order to clarify the October 25, 2019, Order.
I.

BACKGROUND

The Hearing was the fourth telephonic hearing the Court has held to address discovery
disputes in this case since July 2019. See Dkts. 76, 146, 164, 182. Since the Court does not allow
parties in any case to file motions to compel without leave, the Court allows parties to address their
positions on discovery matters during telephonic hearings. See Dkt. 74. Only if the Court feels that
written briefing is required to resolve the dispute may parties file any motions or briefing
addressing discovery matters. See id. Despite knowing this procedure—and using it to address

numerous discovery disputes in this Court—Overhead argues in the Motion to Reconsider that the
Court entered the Order “without any motion, briefing, or evidence.” Dkt. 198 at 1.
As noted in the Court’s October 25, 2019, Order, the Court has expended significant time
and resources on this case over the course of almost two years since it was filed on December 29,
2017. See Dkt. 1. Pursuant to the Court’s September 24, 2019, Order, all discovery was to be
completed by October 25, 2019. See Dkt. 150. Further, this case is set for a Final Pretrial
Conference on December 6, 2019, and trial in January 2020. See Dkt. 96.
II.

DEFICIENT PRIVILEGE LOG

At the Hearing, Overhead’s counsel acknowledged their privilege log contains
nonprivileged documents and needs additional information to comply with the Federal Rules.
Overhead cannot on one hand refuse to participate in meaningful discovery (See e.g., Dkts. 166,
170) and then complain when it is put to proof by the Court on its admittedly overbroad designation
of privileged materials in efforts to further delay discovery, the resolution of pending motions, and
preparation for trial. Therefore, as detailed below, the Court orders the following:
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Defendants shall revise their privilege log such that it is fully compliant with Federal
Rule of Civil Procedure 26(b)(5), and produce the revised log to OGD by Friday,
November 1, 2019, at 12:00 p.m. While Overhead argues that it served its privilege
log in a timely fashion, Overhead admits that when a privilege log is inadequate—as is
the case here—an appropriate remedy is to require a supplemental privilege log. See
Dkt. 198 at 4. As OGD is required to respond to Defendants’ Motion for Partial
Summary Judgment (Dkt. 104) by November 6, 2019,1 the deadline set by the Court to
provide an updated privilege is necessary so that all relevant nonprivileged documents

This response deadline was extended multiple times, with this final deadline resulting from OGD’s Request for
Rule 56(d) relief. See Dkts. 123, 146, 150, 170.
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are exchanged before OGD must respond. See Dkt. 150. If Overhead needs an
extension of time to revise its privilege log, Overhead may file a motion proposing a
later but reasonable extension of time to do so.
•

Lead counsel for Overhead shall file an affidavit with the Court certifying that the
revised privilege log complies with Federal Rule of Civil Procedure 26(b)(5), and that
lead counsel has assured himself that all documents listed on the revised privilege log
are in fact privileged and can attest to the Court that all such documents are privileged
by Friday, November 1, 2019, at 12:00 p.m.2 This affidavit is to ensure to the Court
that lead counsel is involved in the designation of privilege and has a good faith basis
for such designation. As stated in Eastern District of Texas Local Rule CV-11(a), lead
counsel is “responsible in that action for the party.” Local Rule CV-11(a)(2). The
pattern of delay by Defendants on discovery matters has occasioned this requirement
to expedite this matter toward trial and to narrow any basis for disputes. If Overhead
needs an extension to revise its privilege log and prepare this affidavit, Overhead may
file a motion proposing a later but reasonable extension of time to do so.

•

Defendants shall produce any documents removed from the current privilege log by
Friday, November 1, 2019, at 5:00 p.m. Overhead argues that “the mere fact that
[Overhead] removes a document from a privilege log . . . should not amount to a waiver
of any objection that [Overhead] maintains to the document’s production (e.g. it is both
irrelevant and privileged).” Dkt. 198 at 5. However, under the Federal Rules, parties
are only required to list withheld materials with “information otherwise discoverable”

Overhead argues that it had “neither notice nor an opportunity to be heard” on the October 25, 2019, Order’s
requirement that lead counsel file this affidavit. See Dkt. 198 at 3. However, the Court specifically advised counsel
that it intended to order this affidavit at the Hearing, and no objection was voiced. See Dkt. 182.
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on privilege logs. Fed. R. Civ. P. 26(b)(5) (emphasis added). Irrelevant documents do
not fall within the scope of permissible discovery. See id. at 26(b)(1). If Overhead
objects to the documents on a basis other than privilege or relevance, the Court will
allow Overhead to maintain that objection. If Overhead needs an extension of time to
produce removed documents, Overhead may file a motion proposing a later but
reasonable extension of time to do so.
•

Defendants shall prepare a set of all privileged documents listed on the revised privilege
log with language that makes the document privileged highlighted by Monday,
November 4, 2019, at 5:00 p.m. Overhead notes that requiring all privileged language
to be highlighted could require counsel to highlight “nearly every page of . . . 25,000plus printed pages.” Dkt. 198 at 1. By Overhead’s own admission at the hearing and in
the Motion to Reconsider, the number of documents listed in the revised log will be
substantially less than the more than 6,000 listed in its original deficient privilege log.
See Dkts. 182, 198 at 2. The Court merely wants Overhead to have language
highlighted which it could use to defend its privilege designation if it is challenged.
This will allow the Court to quickly adjudicate any disputes of privilege as close to the
discovery deadline as possible. If Overhead needs an extension of time to complete this
set of privileged documents, Overhead may file a motion proposing a later but
reasonable extension of time to do so.

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OGD shall notify the Court of any remaining dispute regarding Defendants’ revised
privilege log by Monday, November 4, 2019, at 5:00 p.m.

While Overhead argues that the Court is “imposing sanctions” on Overhead, this claim
rings hollow. Overhead has continuously hindered the discovery process (See e.g., Dkts. 166, 170),

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and these measures allow the Court to timely and fairly resolve pretrial matters of discovery and
claims of privilege. Given the circumstances and late hour of this case, the Court believes these
measures are necessary for the management and preparation of the case, and any burden imposed
on Overhead is not unfair or punitive.

So ORDERED and SIGNED this 31st day of October, 2019.

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KIMBERLY C. PRIEST JOHNSON
UNITED STATES MAGISTRATE JUDGE

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