Defendants' Motion seeks to overrule Plaintiff's supplemental objections to the second request for production and to compel production of pre-suit responsive documents and preparation of a post-suit privilege log. The discovery dispute involves three requests for production [DE 69–1].

Request for Production # 1 requested “[a]ll documents relating to efforts by you or your attorneys to solicit or obtain additional individuals to join this action.” [DE 69–1]. Plaintiff's initial response was as follows: “Blake objects to the extent the request seeks documents protected by the attorney-client and/or work product privileges. Notwithstanding this objection, none.” [DE 69–2]. The Court first finds that Plaintiff's “answer + objection” response to be improper. See UBS Fin. Servs. v. Bounty Gain Enters., Inc., Case No. 14–81603–CIV–Matthewman, 2016 WL 446556, at *3 (S.D.Fla. Feb. 2, 2016) (citing Guzman v. Irmadan, Inc., 249 F.R.D. 399, 401 (S.D.Fla.2008)). The Court next notes that Plaintiff failed to prepare a privilege log as required by Federal Rule of Civil Procedure 26(b)(5) and Local Rule 26.1(e)(2)(C). Plaintiff later served a “supplemental response” to Request # 1 which belatedly added an objection to the terms “solicit” and “obtain additional individuals” as “vague” and then added a sentence to apparently elaborate on his attorney-client objection. The Court finds that Plaintiff's objection to the two terms on vagueness grounds is untimely and therefore waived. The Court also rejects the vagueness argument on the merits. Plaintiff later served a second supplemental response that stated, “none.” These various responses have caused unnecessary confusion.

Request for Production # 2 requested “[A]ll documents relating to any communications (written or oral) involving you, any prospective or actual plaintiffs in this case (whether identified or unidentified), or any current or former employee of any Defendant regarding such present or former employee's opting into, joining, participating, testifying, providing information, or otherwise becoming involved in any way in this action, including all documents responding to such communications.” [DE 69–1]. Plaintiff's response was as follows: “Blake objects to the extent the request seeks documents protected by the attorney-client and/or work product privileges.” [DE 69–2]. The Court notes that Plaintiff failed to prepare a privilege log as required by Federal Rule of Civil Procedure 26(b)(5) and Local Rule 26.1(e)(2)(C).

*2 Request for Production # 3 requested “[c]opies of any and all emails or letters sent out by your counsel that sought to recruit or solicit opt-in Plaintiffs to this litigation, and any responses hereto.” [DE 69–1]. Plaintiff's initial response was as follows: “Blake objects to the extent the request seeks documents protected by the attorney-client and/or work product privileges. Notwithstanding this objection, none.” [DE 69–2]. The Court first finds that Plaintiff's “answer + objection” response to be improper. See UBS Fin. Servs., supra. The Court next notes Plaintiff failed to prepare a privilege log as required by Federal Rule of Civil Procedure 26(b)(5) and Local Rule 26.1(e)(2)(C). Plaintiff later served a “supplemental response” to Request # 3 which belatedly added an objection to the terms “solicit” and “obtain additional individuals” as “vague” and then added a sentence to apparently elaborate on his attorney-client objection. The Court finds that Plaintiff's objection to the two terms on vagueness grounds is untimely and therefore waived. The Court also rejects the vagueness argument on the merits. Plaintiff later served a second supplemental response that stated, “none.” These various responses have caused unnecessary confusion.

While the Court could feasibly find that Plaintiff's failure to prepare and serve a privilege log as to pre-suit communications resulted in a waiver of any work-product privilege as to pre-suit communications, see Devries v. Morgan Stanley & Co., LLC, No. 12–81223–CIV, 2013 WL 3243370, at * 3 (S.D.Fla. Jun. 26, 2013), the Court would prefer, under the specific facts of this case, to determine the issue on its merits, especially when Plaintiff now asserts that he has no responsive documents to Requests for Production # 1 and # 3 and claims that there are no pre-suit communications [DE 74, p. 2]. If there are no documents, then there is no work-product or attorney-client privilege issue. If there are any documents Plaintiff asserts are covered by the work-product or attorney-client privilege, the Court requires a privilege log filed so that the Court can later rule on any privilege issues as may be necessary.

Accordingly, Plaintiff must produce all pre-suit and post-suit communications responsive to Requests # 1, 2, and 3 that are not protected by the attorney-client privilege or work-product privilege within ten (10) days of the date of this Order. If Plaintiff asserts that any responsive documents are protected by the attorney-client privilege or work-product privilege, Plaintiff shall submit a detailed privilege log in compliance with Local Rule 26.1. Any challenges to Plaintiff's privilege log, if filed, can be determined by the Court upon appropriate motion. The Court also finds that communications between Plaintiff's counsel and any prospective opt-in plaintiff that are responsive to the requests for production, even if initiated by the prospective opt-in plaintiff, shall either be produced or included in the privilege log. Additionally, Plaintiff shall serve amended responses within ten (10) days of this Order to Requests # 1–3 which do not use the improper objection and answer format and which specifically state which pre-suit responsive documents are being produced and which specifically incorporate its privilege log so as to specify which documents are being withheld and why.

Finally, Plaintiff is correct that Local Rule 26.1(2)(C) states that a privilege log is not required when “written and oral communications between a party and its counsel after commencement of the action and work product material created after commencement of the action” are withheld. See also Stern v. O'Quinn, 253 F.R.D. 663, 689 (S.D.Fla.2008) (noting that a policy decision has been made in the Southern District of Florida that parties should not have to suffer the burden and expense of creating a privilege log with respect to documents created after the commencement of the litigation in most cases). Therefore, to the extent that the communications sought are between Plaintiff (or an actual opt-in plaintiff in this case) and Plaintiff's counsel after commencement of the lawsuit, they do not need to be included in the privilege log. However, all responsive communications that are not between Plaintiff (or an actual opt-in plaintiff) and Plaintiff's counsel must be included in the privilege log regardless of when they took place.[1]

*3 Based on the foregoing, it is hereby ORDERED AND ADJUDGED as follows:

DONE and ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 14 th day of April, 2016.