Maxwell v. Tyson Foods, Inc.
Maxwell v. Tyson Foods, Inc.
2011 WL 13071930 (S.D. Iowa 2011)
November 1, 2011
Shields, Thomas J., United States Magistrate Judge
Summary
The court ordered the parties to confer to ensure that the privilege logs were adequate and that all relevant ESI was produced. This is important because ESI can be a valuable source of evidence in a legal case. The court's order requires that the parties confer to ensure that the privilege logs are adequate and that all relevant ESI is produced.
America Maxwell, on behalf of herself and all other similarly situated individuals, Plaintiff,
v.
Tyson Foods, Inc. d/b/a Tyson Fresh Meats, Inc., Defendant
v.
Tyson Foods, Inc. d/b/a Tyson Fresh Meats, Inc., Defendant
CIVIL NO. 1:08–CV–00017–JAJ–TJS
Signed November 01, 2011
Shields, Thomas J., United States Magistrate Judge
ORDER ON PLAINTIFFS' MOTION TO COMPEL
I. INTRODUCTION
*1 Plaintiff America Maxwell brought this case on behalf of herself and all other similarly situated individuals either currently or formerly employed by defendant Tyson Foods, Inc. d/b/a Tyson Fresh Meats, Inc. (“Tyson Foods”) at a meat processing facility in Council Bluffs, Iowa. (See Amended Complaint (Clerk's No. 63).) Plaintiffs claim they are entitled to payment for unpaid wages under Iowa law and the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. (Id. ¶¶ 1, 2.) They contend the uncompensated time includes time preparing, donning, and doffing; time obtaining and sanitizing sanitary and safety equipment and gear; time obtaining tools, equipment and supplies necessary for the performance of their work; and time walking between work sites after the first compensable work activity and before the last compensable work activity. (Id. ¶ 3.) The matter has been conditionally certified as a collective action under the FLSA. (See Order (Clerk's No. 108).)
Currently before the court is Plaintiffs' Motion to Compel Defendant to Provide Further Responses to Plaintiffs' First Set of Requests for Production of Documents (Clerk's No. 165) filed under seal on August 8, 2011. Plaintiffs ask the court to compel Tyson Foods to produce certain documents and provide further written responses specifically identifying responsive documents. Plaintiffs submitted a Memorandum of Points and Authorities (Clerk's No. 166), Separate Statement (Clerk's No. 167), and Declarations with attached exhibits (Clerk's Nos. 168, 169) in support of their motion.
In response, Tyson Foods filed a Brief in Opposition (Clerk's No. 174) and an Appendix (Clerk's Nos. 174–1 through 174–5) on August 23, 2011. According to Tyson Foods, a number of the issues raised by plaintiffs relate to documents that have already been produced or will be produced, documents that do not exist, and items that were never discussed between the parties. Tyson Foods contends the remaining issues involve documents that plaintiffs never requested or that plaintiffs are not entitled to because they go beyond the scope of discovery.
The court heard oral arguments on August 25, 2011. In light of certain information and additional discovery provided by Tyson Foods after the filing of the motion to compel, counsel for plaintiffs requested an opportunity to provide a supplemental pleading, which was granted by the court.
On September 9, 2011, plaintiffs filed a Supplemental Briefing (Clerk's No. 177) under seal with a supporting Declaration and exhibits (Clerk's Nos. 177–1 through 177–6). Plaintiffs informed the court as to the additional information provided by Tyson Foods, including two excel spreadsheets produced on August 17, 2011, and two privilege logs produced on August 24, 2011. From this production, and Tyson Foods' response in opposition to the motion, plaintiffs identified the issues which remain in dispute.
Tyson Foods filed a Resistance to Plaintiffs' Supplemental Briefing (Clerk's No. 190) on October 11, 2011.
*2 For the following reasons, the motion to compel shall be granted in part and denied in part.
II. STANDARDS FOR DISCOVERY
Federal Rule of Civil Procedure 26 defines the scope of discovery as follows:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
Fed.R.Civ.P. 26(b)(1). As explained by the Court of Appeals for the Eighth Circuit, Rule 26(b)
is widely recognized as a discovery rule which is liberal in scope and interpretation, extending to those matters which are relevant and reasonably calculated to lead to the discovery of admissible evidence. While the standard of relevance in the context of discovery is broader than in the context of admissibility ..., this often intoned legal tenet should not be misapplied so as to allow fishing expeditions in discovery. Some threshold showing of relevance must be made before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case.
Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992)(internal citations omitted).
The party resisting production bears the burden of establishing objections such as lack of relevance and undue burden. St. Paul Reinsurance Co. v. Commercial Financial Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000). A mere statement that a request for production is overly broad, burdensome, and irrelevant is not sufficient. Id.; Oleson v. Kmart Corp., 175 F.R.D. 560, 565 (D. Kan. 1997)(“The litany of overly burdensome, oppressive, and irrelevant does not alone constitute a successful objection to a discovery request.”). Instead, the party resisting discovery must show specifically how the discovery request is overly broad, burdensome, or seeks information that is not relevant. St. Paul Reinsurance, 198 F.R.D. at 512; Oleson, 175 F.R.D. at 565.
Finally, under this court's Local Rules, no motion relating to discovery may be filed unless counsel for the moving party declares that “[c]ounsel, in good faith, has conferred personally with counsel for the opposing party in an attempt to resolve or narrow by agreement the issues raised by the motion.” L.R. 37(a).
III. ANALYSIS OF REMAINING DISCOVERY DISPUTES
A. Provision of Verified, Supplemental Discovery Responses
Plaintiffs contend that Tyson Foods must provide supplemental, verified pleadings attesting to its production of documents, including the identification of the specific requests to which the documents are responsive. According to plaintiffs, Tyson Foods produced over 360,000 documents that are not in any way labeled, separated, categorized or organized. Plaintiffs also believe they are entitled to supplemental, verified pleadings attesting to Tyson Foods' position that it does not have certain documents requested by plaintiffs.
*3 In response, Tyson Foods contends it has fully complied with the requirements of discovery by producing documents as they were kept in the usual course of business. Tyson Foods produced documents in groups by their location within the Council Bluffs facility or corporate headquarters and, in the case of documents governed by the ESI stipulation, by custodian. Tyson Foods notes that it produced documents in this manner in other similar actions.
Tyson Foods claims plaintiffs have had information identifying the custodians of the ESI documents, the vast bulk of the documents produced, since those documents were produced on August 16, 2010. Although Tyson Foods originally rejected plaintiffs' request that it identify custodians for hard copy documents, Tyson Foods states it has since provided additional information that should assist plaintiffs in identifying the general source of the documents. Tyson Foods believes the spreadsheets produced on August 17, 2011, which identify the custodian for each document produced, either by computer custodian for ESI documents or by room location for hard copy documents, enable plaintiffs to better identify the source of the documents.
Tyson Foods argues that it should not be required, in addition to providing this custodian and location information, to identify which of the almost 370,000 pages it produced were responsive to plaintiffs' 89 document requests. Tyson Foods contends the requests are duplicative, and many of the documents produced are responsive to multiple requests. Tyson Foods claims that identifying each responsive document produced for the various requests would be unduly burdensome, especially at this late stage of the discovery process. Tyson Foods believes plaintiffs should have raised their concern about the manner in which it was producing documents early in the discovery process, before Tyson Foods had reviewed and produced thousands of pages, rather than waiting until the last day of the discovery period.
In general, the court does not find fault in the manner in which Tyson Foods has produced documents and electronically stored information to plaintiffs. The Federal Rules of Civil Procedure provides that “[a] party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” Fed.R.Civ.P. 34(b)(2)(E)(i)(emphasis added). As for electronically stored information,
[i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms....
Fed.R.Civ.P. 34(b)(2)(E)(ii). “A party need not produce the same electronically stored information in more than one form.” Fed.R.Civ.P. 34(b)(2)(E)(iii).
On the other hand, a party to whom a request for production “is directed must respond in writing.” Fed.R.Civ.P. 34(b)(2)(A).
For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.
Fed.R.Civ.P. 34(b)(2)(B). Rule 26(g) requires “every” disclosure and discovery response to be signed and certified:
(1) ... Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name—or by the party personally, if unrepresented.... By signing, an attorney or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry:
*4 (A) with respect to a disclosure, it is complete and correct as of the time it is made....
Fed.R.Civ.P. 26(g)(1).
Based on a reading of the rules as a whole, this court believes plaintiffs are entitled to signed responses to their requests for production which adequately identify the documents produced in response to the requests or indicate if no such documents exist. Tyson Foods' argument that it would be unduly burdensome to provide such information is, in this court's opinion, without merit and somewhat disingenuous. Presumably, counsel for Tyson Foods first reviewed each request for production served by plaintiffs, and then either produced responsive documents which were located, or determined responsive documents do not exist, or determined the responsive documents were privileged. The court finds no undue burden exists for Tyson Foods to now verify this information to plaintiffs to ensure its disclosures are “complete and correct.”
The court will not require, however, Tyson Foods to produce written responses which match each page of the responsive documents with each specific request for production. Such a task improperly places form over substance contrary to the purpose and spirit of the rules of discovery. Instead, in this court's view, the parties' interests and concerns would be best served by counsel conferring in good faith to ensure Tyson Foods' discovery production is complete and plaintiffs are able to fully understand and use the information provided by Tyson Foods. The rules clearly reflect the need to produce documents in an organized or reasonably usable form for the other party. SeeFed.R.Civ.P. 34(b)(2)(E).
Primarily due to the timing of plaintiffs' motion, in conjunction with Tyson Foods' provision of additional information and documents, counsel for the parties, in the court's opinion, have not fully conferred in good faith. Without good faith discussions among counsel, as required by Local Rule, a court order directing Tyson Foods to merely serve verified supplemental pleadings will accomplish little in providing the actual information plaintiffs need to complete their discovery.
For these reasons, counsel shall meet and confer as to the organization and completeness of Tyson Foods' production of information, and determine the content of written supplemental responses from Tyson Foods which will adequately ensure plaintiffs that Tyson Foods' production of documents is complete and responsive to their requests, without placing an unreasonable burden upon Tyson Foods. After the conference, Tyson Foods shall provide to plaintiffs signed supplemental responses to the requests for production which adequately identify documents responsive to the requests or indicate if such documents do not exist.
B. Specific Remaining Topics In Dispute
According to plaintiffs, the following specific topics remain in dispute: (1) requested payroll data; (2) documents identifying which employees receive a K Code payment; (3) personnel files for all opt-in plaintiffs; (4) documents identifying employee start and stop times or employee schedules; (5) documents related to studies conducted in 1998; (6) “New Employee/Supervisor Checklists”; (7) documents identified in Tyson Foods' Rule 26 Initial Disclosures; and (8) the privilege logs produced by Tyson Foods.
1. Requested Payroll Data
*5 Plaintiffs requested time and attendance and pay records for all opt-in plaintiffs in their Request Nos. 3, 20, 67 and 71. Plaintiffs argue Tyson Foods must produce payroll data, punch records, and/or time and attendance records in their original format, instead of producing a spreadsheet containing information obtained from a database. Plaintiffs note they did not request the information in a spreadsheet format, but requested the records themselves, and were not apprised of nor consulted in the formulation of the spreadsheet. Plaintiffs also do not know what information was available from the database, what information, if any, was excluded, or why it was excluded. Plaintiffs specifically assert they are entitled to copies of “Payroll for Approval” documents and daily time reports.
In response, Tyson Foods explains that it produced pay and punch data in a file that can be opened with various spreadsheet applications to enable plaintiffs to manipulate the data and calculate their alleged damages. Tyson Foods notes it produced such information in the same manner in other similar cases, which was used at trial. Tyson Foods rejected plaintiffs' request to produce the data in its original format because it is maintained on a system created by Tyson Foods and is proprietary. The information contained in the spreadsheet, according to Tyson Foods, was pulled directly from the system. Tyson Foods claims it has repeatedly offered to explain the data, but plaintiffs have not presented any specific questions.
As for the Payroll for Approval documents and daily time reports specified by plaintiffs, Tyson Foods argues those documents are neither relevant nor responsive to plaintiffs' requests. Tyson Foods further argues production of the documents would be unreasonably cumulative and duplicative because the documents are hard copy reports generated by the system. According to Tyson Foods, the reports are voluminous and generated on a daily basis for supervisors to review and edit, then entered into the system data and destroyed after a short period. The Payroll for Approval documents are printed off the system at the end of each week for supervisors to review and sign. Tyson Foods notes it has provided samples of these reports.
The court finds the arguments of Tyson Foods to be persuasive and denies plaintiffs' motion to compel on this issue. The court agrees with Tyson Foods that production of the Payroll for Approval documents and daily time reports would be unreasonably burdensome, and merely cumulative and duplicative of information which is electronically stored in the normal course of business and has already been produced in an appropriate manner. As discussed above, the Federal Rules of Civil Procedure provides that “a party must produce [electronically stored information] in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms....” Fed.R.Civ.P. 34(b)(2)(E)(ii)(emphasis added). “A party need not produce the same electronically stored information in more than one form.” Fed.R.Civ.P. 34(b)(2)(E)(iii).
Plaintiffs have not persuasively shown that the spreadsheet produced by Tyson Foods is not “reasonably usable” or that relevant, discoverable information has been excluded. To the extent plaintiffs need any additional information to understand or use the data, plaintiffs' counsel should accept Tyson Foods' offer to further discuss the spreadsheet in good faith during the meet and confer session ordered above.
2. Documents Identifying Which Employees Receive a K Code Payment
Plaintiffs assert that Tyson Foods should produce documents that identify by name the production employees who were paid by the “K Code” method. The K Code apparently relates to the pay of employees who work with knifes and hooks. Plaintiffs contend such documents are relevant and responsive to their Request Nos. 2 and 69.
*6 Tyson Foods disagrees that plaintiffs' discovery requests seek this information, and notes that neither Request No. 2 or No. 69 even mentions the K Code. Tyson Foods further notes that Request No. 2 specifically states: “This request does not seek the identity of any employee or information linking the identity of any employee to the payroll data requested (such information may be redacted).” As explained by Tyson Foods, despite this limitation on the request, it produced payroll information with identifying information, such as Social Security numbers and personnel numbers.
Tyson Foods also points out that plaintiffs never met and conferred about their alleged inability to identify which employees received the K Code. According to Tyson Foods, had they met and conferred on this issue, Tyson Foods would have explained to them that any line in the payroll data produced to them that identifies the “cost code” as a “K” means that the employee was paid for the K Code on that particular week. Tyson Foods believes this should have been apparent to plaintiffs, considering the deposition testimony of Ronda Litras. Because Tyson Foods has already provided a method for determining which employees received the K Code, it argues this section of plaintiffs' motion should be denied as moot.
In their Supplemental Briefing, plaintiffs complain that in order to determine which employee received the K Code payment plaintiffs are required to compare documents and search through multiple pages to determine the name of an employee receiving a K Code payment. Plaintiffs argue this is Tyson Foods' effort to flip the burden of organizing records on to plaintiffs.
Notwithstanding plaintiffs' failure to request the documents with particularity, their request for documents that identify employees who were paid by the K Code method appears reasonably calculated to lead to the discovery of admissible evidence, and such documents are discoverable under Rule 26. Tyson Foods is not required, however, to create such documents in the specific form desired by plaintiffs. In this court's opinion, Tyson Foods has provided plaintiffs with responsive information which satisfies the requirements of Rule 34(b)(2)(E), and plaintiffs have not shown good cause to compel the production of any further documents on this topic.
If not already provided, Tyson Foods shall identify with specificity the documents which contain the K Code information. To the extent plaintiffs need any additional information, these matters should be discussed in good faith during the meet and confer session ordered above.
3. Personnel Files for All Opt–In Plaintiffs
Plaintiffs contend Tyson Foods must produce personnel files for all opt-in plaintiffs. In response, Tyson Foods emphasizes that plaintiffs did not specifically request the files for all of the approximately 175 opt-in plaintiffs. Tyson Foods notes the only request for production referencing personnel files is Request No. 44, which seeks only the file for the named plaintiff. Tyson Foods agreed to produce the files for the named plaintiff and opt-in plaintiffs who were deposed, and intends to produce or make available personnel files for those individuals plaintiffs disclose as trial witnesses. In its opinion, the personnel files of opt-in plaintiffs who would not be trial witnesses are irrelevant and unlikely to lead to the discovery of admissible evidence. Tyson Foods further argues the files contain duplicative documents, and the burden of producing all the files would outweigh any benefit to plaintiffs.
Plaintiffs rely on Request No. 67, which requested “[a]ll documents identified or described in Defendant's Initial Disclosures.” Plaintiffs contend the files for all opt-in plaintiffs should be produced because Tyson Foods specifically listed “Plaintiffs' personnel files” in its Rule 26 initial disclosures. Plaintiffs further argue the files are directly relevant to their claims regarding Tyson Foods' donning and doffing, and timekeeping practices.
*7 The court finds plaintiffs sufficiently requested the personnel files for all opt-in plaintiffs under Request No. 67 because the files were specifically listed in Tyson Foods' initial disclosures. The court also finds that the personnel files likely contain information relevant to the subject matter involved in this action, and plaintiffs' request for the personnel files appears reasonably calculated to lead to the discovery of admissible evidence. The files are, therefore, discoverable under Rule 26(b)(1).
Tyson Foods' argument that production of all files would be unduly burdensome or unnecessarily cumulative, on the other hand, is without merit. Tyson Foods has already produced, and agrees to produce, a number of the personnel files. The court finds no good reason to delay production of remaining files until plaintiffs identify trial witnesses. Such gamesmanship unfairly prejudices plaintiffs' right to timely discovery of relevant information which may assist them in determining which individuals to call as witnesses. Moreover, Tyson Foods stated in their initial disclosures that the documents described therein, which explicitly included “Plaintiffs' personnel files,” will be made available for inspection and copying or “may also be produced directly to plaintiffs' counsel upon agreement of the parties.” The court believes Tyson Foods should adhere to its own statements.
Consequently, the court grants plaintiffs' motion to compel Tyson Foods to produce copies of the personnel files of the opt-in plaintiffs. Counsel shall meet and confer to determine whether the files will be made available for inspection and copying, or produced directly to plaintiffs' counsel.
As discussed further in a separate order to be entered on Defendant's Motion for Show Cause Order (Clerk's No. 175), Tyson Foods shall not be required to produce personnel files for any opt-in plaintiffs who have decided not to proceed in this litigation or have failed or refused to cooperate in responding to discovery served by Tyson Foods. After receiving the court's orders, counsel shall determine during their meet and confer session which of the opt-in plaintiffs' files need to be produced.
4. Documents that Identify Employee Start and Stop Times or Employee Schedules
Plaintiffs request production of documents showing line start and stop times, or employee schedules. Plaintiffs argue such documents are directly relevant to their claims of donning and doffing, and working off the clock. Plaintiffs assert Tyson Foods has not produced these documents as requested, and dispute its contention that responsive documents do not exist.
In its Brief in Opposition, Tyson Foods indicates that it has produced documents that identify employee schedules, to the extent such documents exist. Tyson Foods further states that it does not have documents that identify start and stop times. According to Tyson Foods, it was explained to plaintiffs' counsel during a meet and confer discussion that because the employees at the Council Bluffs facility are not paid based on gang time but rather based on a scheduled start time and their punch out time, such documents do not exist, which was confirmed by several witnesses during depositions.
In this court's opinion, there is no doubt that plaintiffs' requests for documents that identify employee start and stop time, or employee schedules, appear reasonably calculated to lead to the discovery of admissible evidence, and such documents are discoverable under Rule 26. Thus, to the extent Tyson Foods has any such documents, they must be produced and specifically identified as responsive documents. If such documents do not exist, Tyson Foods shall certify accordingly in a signed supplemental response, as directed above.
5. Documents Related to 1998 Studies
*8 In several of their requests, plaintiffs seek production of documents regarding monitoring and enforcement of Tyson Foods' policies as to recording time and any studies regarding time spent donning, doffing waiting and washing. Specifically at issue are documents related to a 1998 time study at the Council Bluffs plant and a study conducted by Dr. Fernandez for the Department of Labor. According to plaintiffs, those studies were conducted as a direct result of prior litigation and influenced the formulation of the K Code which is still in use and at issue in this case. Plaintiffs argue their requests for documents related to the studies are reasonably calculated to lead to admissible evidence. Plaintiffs note Tyson Foods has produced some, but not all, documents related to the studies. They note that a document produced by Tyson Foods refers to “auditing”, “Quarterly monitoring” and a “review process.”
As explained by Tyson Foods, the document it produced refers to audits conducted with respect to the 1998 time study, but the auditing process is not being used at the Council Bluffs facility, as was testified to by management personnel. Consequently, Tyson Foods asserts it has no such auditing documents to produce.
The court finds plaintiffs have not sufficiently shown there are additional relevant, responsive documents which Tyson Foods possesses but failed to produce on this topic. It appears to the court that documents relevant to the studies have been produced or presumably are public documents. While Tyson Foods shall certify whether additional documents do not exist in a signed supplemental response, as ordered above, plaintiffs' motion to compel production of further documents on this subject is denied as moot.
6. “New Employee/Supervisor Checklists”
According to plaintiffs, during the week of June 27, 2011, it was discovered that Tyson Foods uses a document titled, “New Employee/Supervisor Checklist.” The document references such topics as “Knife procedures, glove procedures and laundry procedures” and has a section titled “Job Specific Safety” that references required personal protective equipment. Plaintiffs contend these documents are clearly relevant to their donning and doffing claims and should be produced.
Tyson Foods produced a blank copy of the checklist to plaintiffs, but not all of the completed checklists from the Council Bluffs facility. Tyson Foods explains that the document is filled out by a supervisor with each new employee and then placed in the employee's personnel file. The completed documents vary only by the names and signatures of the employee and supervisor, the date, the department number in which the employee is being placed, the name of the job in which the employee is being placed, and the required PPE for the position in which the new employee is being placed. Tyson Foods argues the only portion that is relevant to plaintiffs' claims is the required PPE for the position, and that information has already been provided to them through the lists of required PPE, originally produced on April 29, 2010, and then supplemented on July 14, 2011.
Tyson Foods also notes that plaintiffs have already received some completed checklists in the personnel files they have received, and will receive additional checklists when Tyson Foods produces the personnel files for opt-in plaintiffs designated as trial witnesses. Tyson Foods argues that plaintiffs have not shown good cause for production of all the completed checklists, and their motion on this issue should be denied.
The court's granting of plaintiffs' motion to compel Tyson Foods to produce copies of the personnel files, in effect, renders this issue moot because the files apparently contain the checklists. Consequently, while the court tends to agree with plaintiffs that the checklists are discoverable, the court will not require Tyson Foods to make a separate production of the checklists outside of producing the personnel files.
7. Documents Identified In Rule 26 Initial Disclosures
*9 As discussed above, in Request No. 67, plaintiffs requested all documents identified by Tyson Foods in its Rule 26 initial disclosures. Plaintiffs contend Tyson Foods has not produced all documents identified in its initial disclosures and argue that Tyson Foods' additional production in August 2011 does not cure the deficiencies.
Plaintiffs explain that the excel spreadsheets produced by Tyson Foods on August 17, 2011, identify documents produced by Bates number, the custodian of the documents, and/or the location from which the documents were obtained. For example, one excel spreadsheet identifies that TMA 00150649 is contained in production volume MAXWELL 0006. The custodian of this document is listed as Steven White.
Plaintiffs contend the excel spreadsheets are inadequate for several reasons. First, plaintiffs again complain that Tyson Foods has yet to identify which documents are responsive to each request. Second, plaintiffs assert the spreadsheets do not provide any information about the content of any document produced and how it is responsive to a discovery request. Third, plaintiffs note that Tyson Foods provides the location of the CD, which contains the document identified on the spreadsheet, but each CD contains multiple folders, each of which contains numerous individual documents. Plaintiffs complain that Tyson Foods does not identify the document produced by folder, thereby requiring navigation between the folders and files to identify the location of each document.
The court addressed above several of the documents plaintiffs identified in its motion to compel as responsive to Request No. 67, but not produced. Other issues raised by plaintiffs should be resolved in counsel's meet and confer session as to the identification of responsive and nonexistent documents in supplemental responses. Thus, the court views much of the parties' dispute under this topic as moot.
As for the concerns raised by plaintiffs regarding the spreadsheets, those matters should be discussed by counsel before any further action or order of the court. Because of the timing of the production of the spreadsheets, the court does not believe counsel has fully conferred regarding plaintiffs' concerns. Consequently, pursuant to this court's Local Rules, counsel shall confer personally, in good faith, to resolve any remaining issues related to the spreadsheets provided by Tyson Foods. See L.R. 37(a).
8. Privilege Logs
Plaintiffs contend that the privilege logs produced by Tyson Foods are inadequate. While plaintiffs acknowledge that the logs identify authors, recipients, describe the documents, and identify the applicable privilege, they claim Tyson Foods improperly raises the attorney-client privilege and work product protection repeatedly throughout. Plaintiffs further complain that Tyson Foods impermissibly lists email strings without explaining why each email would be privileged, and fails to identify the number of pages of the email. Plaintiffs also claim the description of some documents as “reflecting legal advice” is unclear.
In its Resistance to Plaintiffs' Supplemental Briefing, Tyson Foods argues that plaintiffs have misstated the obligations with respect to the privilege logs. Notwithstanding those differences, Tyson Foods agrees to revisit the privilege logs to determine if additional descriptions can be given and to re-assess the documents withheld from production. Tyson Foods indicates it will serve a revised log, accompanied by a declaration setting forth which individuals are attorneys or in-house counsel staff.
*10 The Federal Rules of Civil Procedure provides that
[w]hen a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, 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 other parties to assess the claim.
Fed.R.Civ.P. 26(b)(5)(A).
The court finds it is premature to determine whether Tyson Foods' privilege logs fully comply with the requirements of Rule 26(b)(5)(A). As agreed to by Tyson Foods, the issues raised by plaintiffs can be better resolved by further communication and negotiation between counsel, and supplementation of the logs if necessary. Consequently, pursuant to this court's Local Rules, counsel shall confer personally, in good faith, to attempt to resolve by agreement any remaining issues related to the adequacy of the privilege logs. See L.R. 37(a).
IV. CONCLUSION
As set forth above, Plaintiffs' Motion to Compel Defendant to Provide Further Responses to Plaintiffs' First Set of Requests for Production of Documents (Clerk's No. 165) is granted in part and denied in part. Defendant shall produce the discovery responses and documents as ordered by November 15, 2011.
IT IS SO ORDERED.
Dated November 1, 2011.