Boyer, et al v. Reed Smith LLP

Filing 43

ORDER RE: MOTION TO COMPEL DISCOVERY FROM DEFENDANTS, granting in part 32 Motion to Compel. On or before June 21, 2013, Defendants must provide a valid privilege log. Signed by Judge Robert J. Bryan. (JL)

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

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AT TACOMA

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JAMES PATRICK BOYER, an individual;
CATHERINE BOYER, an individual,

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Plaintiffs,

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ORDER RE: MOTION TO COMPEL
DISCOVERY FROM DEFENDANTS

v.

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Case No. C12-05815 RJB

REED SMITH, LLP, a Delaware limited
liability partnership; JAMES J. BARNES,
an individual; LMJ ENTERPRISES, LLC,
a Delaware limited liability company,

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Defendants.

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This matter comes before the Court Plaintiff’s Motion to Compel Discovery from

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Defendants. Dkt. 32. The Court has considered the pleadings in support and in opposition to the

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motion and the record herein.

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The thrust of Plaintiffs’ motion is the Defendants’ privilege assertions without production

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of a privilege log. Plaintiffs contend Defendants have waived any privilege by not timely

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providing a privilege log and request an order compelling discovery. In the alternative, Plaintiffs

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request an order compelling Plaintiffs to provide a privilege log.

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Under Federal Rule of Civil Procedure 26(b)(5), when a party withholds discovery on the

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basis of privilege, it must provide a privilege log. But the failure to provide a timely or sufficient

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privilege log does not automatically waive the attorney-client privilege. Instead, the Ninth

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Page 1 –

ORDER RE: MOTION TO COMPEL DISCOVERY

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Circuit has instructed district courts to conduct a “holistic reasonableness analysis,” and apply

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the following factors in determining whether a privilege has been waived:
... the degree to which the objection or assertion of privilege enables the litigant
seeking discovery and the court to evaluate whether each of the withheld documents is
privileged (where providing particulars typically contained in a privilege log is
presumptively sufficient and boilerplate objections are presumptively insufficient); the
timeliness of the objection and accompanying information about the withheld documents
(where service within 30 days, as a default guideline, is sufficient); the magnitude of the
document production; and other particular circumstances of the litigation that make
responding to discovery unusually easy ... or unusually hard.

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Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142, 1149
(9th Cir. 2005).
At this stage of the proceedings, the only truly disputed factor is the nature of Defendants'
objections and timeliness of a privilege log.

According to Plaintiffs, Defendants initially

provided boilerplate privilege assertions in their responses to discovery and only in the face of
this motion have agreed to provide a privilege log. Defendants assert that Plaintiffs’ motion is
premature and unwarranted as they were in middle of the meet and confer process concerning the
assertions of privilege and Defendants are in the process of providing a privilege log.
The circumstances of this litigation do not warrant a waiver based solely on the failure to
provide a timely privilege log. Nor are terms to be assessed against Defendants. Defendants will
be provided the opportunity to produce an appropriate privilege log. The privilege log must
document which documents are withheld and 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). Based on the complexity of this case and volume and
timing of document production, Plaintiffs have recently obtained an extension of the discovery
deadline to August 7, 2013. In light of this extension of discovery, Plaintiffs should have ample
opportunity to assess Defendants’ privilege log.

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Page 2 –

ORDER RE: MOTION TO COMPEL DISCOVERY

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Therefore it is hereby ORDERED:

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Plaintiff’s Motion to Compel Discovery (Dkt. 32) is GRANTED IN PART. On or

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before June 21, 2013, Defendants must provide a valid privilege log. Failure to do so may result

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in the imposition of sanctions.

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DATED: June 10, 2013.

A

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ROBERT J. BRYAN
United States District Judge

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ORDER RE: MOTION TO COMPEL DISCOVERY