Clay v. Consol Pennsylvania Coal Company

Filing 369

MEMORANDUM OPINION AND ORDER AFFIRMING 333 THE MAGISTRATE JUDGE'S ORDER ON THE PRODUCTION OF IN CAMERA DOCUMENTS AND OVERRULING THE 341 DEFENDANTS' OBJECTIONS. Accordingly, the defendants are ORDERED to produce the documents listed above within 5 days of the date of this order. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/13/2013. (copy to counsel of record via CM/ECF) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TONY B. CLAY,
Plaintiff,
v.

Civil Action No. 5:12CV92
(STAMP)

CONSOL PENNSYLVANIA COAL
COMPANY, LLC,
a foreign limited liability
company and subsidiary of
Consol Energy, Inc.,
McELROY COAL COMPANY,
a foreign corporation and
subsidiary of Consol Energy, Inc.
and CONSOL ENERGY, INC.,
a foreign corporation,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING THE MAGISTRATE JUDGE’S ORDER
ON THE PRODUCTION OF IN CAMERA DOCUMENTS
AND OVERRULING THE DEFENDANTS’ OBJECTIONS
I.
The

above-styled

civil

Background
action

involves

claims

of

racial

discrimination and retaliation under Title VII, a claim for breach
of the plaintiff’s employment agreement, and a claim for violation
of West Virginia’s Wage Payment and Collection Act.

This matter

was referred to United States Magistrate Judge James E. Seibert who
was designated and authorized to consider the record and do all
things proper to decide any nondispositve pretrial motions filed in
this case, excluding motions in limine.

Thereafter, discovery

disputes arose and the parties filed various motions in relation to
said disputes.

Included

in

these

motions

was

defendants’

motion

for

a

protective order to limit the topics of a scheduled Rule 30(b)(6)
deposition. The magistrate judge held a hearing on this motion and
granted in part a protective order, and limited certain deposition
topics that were noticed.

The topic at issue for this order is

Topic 17, which asked the corporate defendants to provide a witness
to testify to the defendants’ efforts to search and identify all
information responsive to the plaintiff’s discovery requests.

The

defendants argued that this material would be protected by the
attorney-client privilege and work product doctrine.

In response

to this argument, on June 25, 2013, the magistrate judge ordered
that: (1) defendants produce a witness to testify about what kinds
of documents were searched and the specific actions taken to
search; (2) defendants produce a privilege log as required by this
Court’s Local Rules for all documents withheld on the basis of a
privilege to both the plaintiff and the Court; and (3) defendants
produce all documents withheld to the Court for an in camera
review. After the magistrate judge conducted the in camera review,
he ordered that the defendants produce many of the documents to the
plaintiff.
The magistrate judge informed the parties that they may object
to his order within 14 days from the date of the order being filed.
Thereafter, the defendants filed a motion requesting that this
Court stay the magistrate judge’s order pending a ruling on their

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objections.

This Court granted that motion, and the defendants

thereafter filed timely objections to the magistrate judge’s order
on the in camera documents.

The plaintiff then filed a motion for

leave to respond to these objections, which this Court granted, and
the plaintiff thereafter filed his response.

For the reasons

stated below, this Court affirms the magistrate judge’s order on in
camera document production and, therefore, overrules the defendants
objections.
II.

Applicable Law

As to nondispositive pretrial matters, a magistrate judge’s
ruling may be reversed only on a finding that the order is “clearly
erroneous or is contrary to law.”

Fed. R. Civ. P. 72(a); 28 U.S.C.

§ 636(b)(1). “A finding is ‘clearly erroneous’ when although there
is evidence to support it, the reviewing court on the entire
evidence is left with a definite and firm conviction that a mistake
has been committed.”

United States v. United States Gypsum Co.,

333 U.S. 364, 395 (1948).

In light of the broad discretion given

to a magistrate judge in the resolution of nondispositive discovery
disputes, the court should only overrule a magistrate judge’s
determination if this discretion is abused.

Detection Sys., Inc.

v. Pittway Corp., 96 F.R.D. 152, 154 (W.D. N.Y. 1982).

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III.
A.

Discussion

Documents Submitted Without a Privilege Log
The magistrate judge first found that the following sets of

documents, which were marked as privileged must be produced to the
plaintiff, as the defendants failed to produce a privilege log as
to such documents:
•

084632–086605

•

009655–009656, 009659--009660, 009667–009668, 009681–009682,
009711–009712

•

010112–010126, 010128–010130, 010131–010137, 010153–010156,
010169–010235, 010246, 010261–010316, 010328–010329,
010331–010336, 010350–010355, 010361–010364, 010370–010371,
010377–010383, 010385–010388, 010396–010397, 010402–010500,
010503–010516, 010519, 010524–010525, 010536–010537,
010585–010586, 010619–010620, 010622–010624, 010630–010632,
010635–010638, 010642–010790, 010894–010895, 010897–010902,
010907–010909, 010913–010985, 010988–011069, 011076–011082,
011084–011085, 011091–011126, 011128–011130

•

042792–042795, 042866–042867, 042870–042872, 042876–042877

•

043020–043029, 043032–043037, 043047–043060, 043084–043090,
043158, 043161–043162, 043165–043167, 043169–043170,
043179–043180, 043182–043186, 043198–043200

•

045022–045024, 045033–045051, 045078, 045115, 045184

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The defendants objected to this finding for various reasons.
They seem to at first argue that these documents are subject to
attorney-client privilege and work product doctrine, and therefore
are not subject to discovery.
be without merit.

This Court finds this objection to

The magistrate judge did not make any finding

regarding whether these documents were subject to such protections,
and thus undiscoverable.

The magistrate judge specifically stated

that the defendants had waived these privileges.

Therefore, even

if such documents were subject to such privileges, the documents
were nonetheless to be provided to the plaintiff based on such
waiver.

This Court finds no clear error in the magistrate judge’s

finding that such protections were waived.
As stated by the magistrate judge, this Court has previously
held that a “[f]ailure to timely produce a privilege log or the
production of an inadequate privilege log may constitute a waiver
of any asserted privileges.”

Herbalife Intern. V. St. Paul Fire

and Marine Ins. Co., No. 5:05CV41, 2006 WL 2715164, at *4 (N.D. W.
Va. Sept. 22, 2006) (citing

Atteberry v. Longmont United Hosp.,

221 F.R.D. 644, 649 (D. Colo. 2004)).

This Court has noted,

however, that the waiver of a privilege may only extend to those
cases in which the offending party committed unjustified delay,
inexcusable conduct, or bad faith in responding to discovery.

Id.

In this instance, the magistrate judge found that the defendants
conduct was inexcusable, as the defendants have repeatedly failed

5

to meet their duties under the Federal Rules and the Local Rules,
and this conduct adds another unjustified delay in this action.
This Court agrees.

As part of the magistrate judge’s order,

ordering the defendants to produce such documents for in camera
review, the magistrate judge required that a privilege log be
provided.

The defendants failed to so, and such direct violation

of the magistrate judge’s order is inexcusable.
The defendants next seem to argue that these documents should
not be produced because they are not relevant to any issue and not
responsive to the plaintiff’s discovery requests. This Court finds
this objection to be without merit as well.

If the defendants

believed that such documents were not relevant or responsive to the
plaintiff’s discovery requests, the defendants should have objected
to the magistrate judge’s order from June 25, 2013, which ordered
the defendants to produce all claimed attorney-client privilege and
work product protected materials for in camera review.

Waiting to

object until after the magistrate judge has now ordered the
defendants to produce such documents is improper, as any objection
to their relevancy and responsiveness should have been made before
they were produced to the magistrate judge for review.
Similarly, the defendants object to the production of these
documents stating that they were not required to be included in a
privilege log as they were created after the litigation in this
matter began.

Again, such objection should have been made in

6

relation to the magistrate judge’s order on June 25, 2013, wherein
the

magistrate

judge

ordered

that

the

defendants

produce

a

privilege log of all claimed attorney-client privilege and work
product protected materials, and submit said documents to the Court
for

in

camera

review.

Objecting

to

the

order

wherein

the

magistrate judge ordered the production of these documents was too
late.

If the defendants felt that they should not have to comply

with the magistrate judge’s order to produce a privilege log as to
these documents, that objection should have been made directly
after the defendants were ordered on June 25, 2013 to produce such
documents with a privilege log, not after the August 21, 2013 order
wherein they were ordered to produce the documents to plaintiff.
The defendants next object arguing that notwithstanding all of
their above arguments, the defendants did include these documents
on the privilege log, by referring to the documents collectively as
“various and daily communications between Leech Tishman and CONSOL
made in the course of litigation and the EEOC proceedings.”

The

defendants argue that this comports with the requirements of a
privilege

log

under

26(b)(5)(A)(ii).

Federal

Rule

of

Civil

Procedure

This Court, however, finds that it does not

comport with such rule, and further does not comport with this
Court’s Local Rule 26.04 that sets forth the requirements for
privilege logs submitted in the Northern District of West Virginia.
Under

Federal

Rule

of

Civil

Procedure

7

26(b)(5)(A)(ii),

the

privilege log must “describe the nature of the documents . . . and
do so in a manner that . . . will enable other parties to assess
the claim.” Local Rule 26.04 states that the log shall include the
type of document, the subject matter of the document, the date of
the document, and “such other information as is sufficient to
identify the document for a subpoena duces tecum.”

Even if an

argument can be made that the vague information comports with the
Federal Rule regarding privilege logs, it certainly does not
comport with the Local Rule, as it does not provide the dates for
the documents, the subject matter of the documents and does not
seem to be sufficient enough to identify the document for a
subpoena duce tecum.
The

defendants

also

state

that

while

they

believe

the

privilege log entry is sufficient it has nonetheless now prepared
a privilege log specific to this category of documents, which they
attach to their objections.

This log should have been produced to

the magistrate judge in compliance with the magistrate judge’s
order of June 25, 2013.

As such, this Court finds that production

of such log now is insufficient and does not cure the defendants
prior error that resulted in a waiver of any privilege as to these
documents.
Finally, as to these specific documents, the defendants argue
that they did not engage in bad faith as it relates to the
submission

of

these

documents

and,

8

therefore,

the

magistrate

judge’s finding that the defendants waived any privilege as to
these documents is in error. This Court finds this objection to be
without merit.

First, this Court notes that the magistrate judge

did not make a finding of bad faith. The magistrate judge instead,
made a finding of inexcusable conduct that resulted in yet another
delay of this action.

The defendants cite to cases wherein they

believe the conduct of the parties in relation to privilege logs is
vastly worse than the defendants conduct in this matter and the
courts in those actions did not find a waiver of privilege as a
result of such conduct.

This Court, however, as indicated above,

reviews the magistrate judge’s orders on nondispositive issues for
clear error.

This Court finds no clear error in the finding that

the defendants conduct in this matter was a result of inexcusable
conduct.

As stated before, the magistrate judge ordered documents

be produced, and ordered them produced with a privilege log.

The

defendants did not object to this order, yet failed to fully comply
with such order.

This resulted in yet another delay of this

action, as is evidenced by this Court’s order on the parties joint
motion to extend the discovery deadlines.

The parties made the

joint motion partially because of the possible documents required
to be produced based on this order and the plaintiff’s need for
these documents prior to redeposing certain individuals.

As such,

this Court does not find that the magistrate judge erred in finding

9

that the defendants conduct amounted to inexcusable conduct, which
resulted in a further delay of this litigation.
B.

Documents Not Submitted to The Court
The magistrate judge next found that the following documents

were to be produced to the plaintiff because the defendants, while
submitting a privilege log as to the documents, failed to provide
the documents to the Court, which was a direct violation of the
magistrate judge’s June 25, 2013 order:
•

084632–086605

•

009655–009656, 009659--009660, 009667–009668, 009681–009682,
009711–009712

•

010112–010126, 010128–010130, 010131–010137, 010153–010156,
010169–010235, 010246, 010261–010316, 010328–010329,
010331–010336, 010350–010355, 010361–010364, 010370–010371,
010377–010383, 010385–010388, 010396–010397, 010402–010500,
010503–010516, 010519, 010524–010525, 010536–010537,
010585–010586, 010619–010620, 010622–010624, 010630–010632,
010635–010638, 010642–010790, 010894–010895, 010897–010902,
010907–010909, 010913–010985, 010988–011069, 011076–011082,
011084–011085, 011091–011126, 011128–011130

•

042792–042795, 042866–042867, 042870–042872, 042876–042877

•

043020–043029, 043032–043037, 043047–043060, 043084–043090,
043158, 043161–043162, 043165–043167, 043169–043170,
043179–043180, 043182–043186, 043198–043200

10

•

045022–045024, 045033–045051, 045078, 045115, 045184
The

defendants

object

to

the

magistrate

judge’s

order

regarding these documents, arguing that they were not required to
produce these documents based on the magistrate judge’s June 25,
2013. The defendants contend that the magistrate judge’s law clerk
informed defendants’ counsel that the defendants need only provide
privileged documents regarding the defendants’ efforts to search
for and identify all information responsive to the plaintiffs’
discovery requests.
merit.

This Court finds this argument to be without

The magistrate judge’s June 25, 2013 order states that

“Defendants are ORDERED to submit to the Court and counsel for
Plaintiff a privilege log as required by the local rules of all
claimed

attorney

client

privilege

and

work

product

protected

materials. Further Defendants are ORDERED to submit said documents
to the Court for in camera review on or before July 5, 2013.”
No. 236.

ECF

This order in no way qualifies which documents are to be

produced, but states that all documents that the defendants claim
are protected by the attorney-client privilege or the work product
doctrine.

As the plaintiff states in response to this objection,

if the defendants had a question about the requirements of this
order, the defendants were free to file objections to the June 25,
2013 order to seek clarification or their responsibility.

As the

defendants failed to do so, and this Court has no actual knowledge
of the conversation that allegedly occurred between defendants’

11

counsel and the magistrate judge’s law clerk, this Court finds no
clear error in the magistrate judge’s findings relating to these
documents.
C.

Documents Not Privileged
The magistrate judge lastly held that the following documents

be

produced

because

he

found

that

such

documents

were

not

privileged, either because the work product doctrine was asserted
for documents not created by a lawyer or not made with an eye
toward litigation, or the attorney-client privilege was asserted
for documents that contained communications which were not legal in
nature:
•

009683–009700

•

010127, 010157, 010236–010245, 010247–010255, 010317–010324,
010330,

010359–010360,

010384,

010389–010395,

010528,

010791–010792, 010827, 010881–010882, 010887, 010892–010893,
010903–010904, 010906, 011139–011143, 011145–011146
•

043181

•

045116, 045185–045189
The defendants object to this finding, arguing that such

documents are in fact protected by attorney-client privilege or the
work product doctrine.

After reviewing these documents, however,

this Court finds that such documents are not subject to attorneyclient privilege or protected by the work product doctrine.

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As

such, this Court finds the magistrate judge’s finding relating to
these documents were not clearly erroneous.
IV.
For

the

reasons

Conclusion

stated

above,

this

Court

AFFIRMS

the

magistrate judge’s order on in camera document production (ECF No.
333), and OVERRULES the defendants’ objections (ECF No. 341).
Accordingly, the defendants are ORDERED to produce the documents
listed above within 5 days of the date of this order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

September 13, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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