Cont'l Cas. Co. v. Peterson Pac. Corp.
Cont'l Cas. Co. v. Peterson Pac. Corp.
2010 WL 11459796 (N.D. Ga. 2010)
April 6, 2010
O'Kelley, William C., United States District Judge
Summary
The court found that the plaintiff had waived any privilege as to the ESI it was ordered to produce due to its failure to timely produce a privilege log. The court set a hearing for all pending matters, including the defendant's motion for summary judgment, for May 3, 2020. This ruling is important because it may contain evidence relevant to the dispute.
Continental Casualty Company, a/s/o Downey Trees, Plaintiff,
v.
Peterson Pacific Corp., Defendant
v.
Peterson Pacific Corp., Defendant
CIVIL ACTION NO. 2:08-CV-0240-WCO
United States District Court, N.D. Georgia, Gainesville Division
Signed April 06, 2010
Counsel
Karen Denise Fultz, Michael A. McKenzie, Cozen & O'Connor, Atlanta, GA, for Plaintiff.Jeffrey Garrett Granillo, Richard W. Bethea, Jr., Chambliss, Bahner & Stophel, P.C., Chattanooga, TN, for Defendant.
O'Kelley, William C., United States District Judge
ORDER
*1 The captioned case is before the court for consideration of plaintiff's “Motion for Reconsideration” [47-1].[1] In addition to ruling on plaintiff's motion, the court herein will set a hearing on all other currently pending matters, at which both sides will have the opportunity to present oral arguments on those matters.
I. Plaintiff's “Motion for Reconsideration”
A. Introduction
Plaintiff filed its motion for reconsideration on December 24, 2009. Defendant filed its response in opposition on December 31, 2009, and plaintiff has not filed a reply. In the motion for reconsideration, plaintiff states that it “is not seeking a change in the [c]ourt's decision to grant [d]efendant's motion [to compel], but is respectfully seeking a limited reconsideration of the [c]ourt's December 23, 2009 [o]rder.” (Mot. Recons. 1).
The court's December 23, 2009 order directed plaintiff to produce seven log entries identified by the court following an in camera review. (Dec. 23, 2009 Order). Plaintiff's present motion for reconsideration argues that “many of the communications contain [p]laintiff's counsel's, representatives', and/or agents' mental impressions, conclusions, opinions, and legal theories” and that “the privileged communications identified in the [c]ourt's [o]rder are non-responsive to [d]efendant's discovery request and extend beyond the scope of any waived attorney-client privilege.” (Mot. Recons. 1).
In response, defendant argues that plaintiff “has either waived the privilege or is not entitled to privilege to the extent the documents relate to its spoliation activities.” (Def.'s Resp. Br. Opp'n Pl.'s Mot. Recons. 2). Specifically, defendant argues that plaintiff “has waived attorney-client and work product privileges by failing to provide the required privilege log or otherwise identify the existence of the responsive documents.” (Id.) (emphasis in original). Defendant also argues that plaintiff should not be allowed “to belatedly challenge the scope of the discovery request,” asserting that defendant's “discovery request encompasses any documents ‘relating to’ efforts to preserve the grinder, not merely communications occurring prior to the destruction of the grinder. (Id. at 4-5) (emphasis in original).
B. Legal Standard
*2 According to Local Rule 7.2(E), “[m]otions for reconsideration shall not be filed as a matter of routine practice.” LR 7.2(E), NDGa. Rather, “[w]henever a party or attorney for a party believes it is absolutely necessary to file a motion to reconsider an order or judgment,” such order must be filed within twenty-eight days after entry of the order or judgment. Id. (emphasis added); see also Bryan v. Murphy, 246 F. Supp. 2d 1256, 1258 (N.D. Ga. 2003) (citations omitted); Preserve Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Eng'rs, 916 F. Supp. 1557, 1560 (N.D. Ga. 1995) (O'Kelley, J.), aff'd, 87 F.3d 1242 (11th Cir. 1996).
A motion for reconsideration should be reserved for certain limited situations, namely the discovery of new evidence, an intervening development or change in the controlling law, or the need to correct a clear error or prevent a manifest injustice. See Preserve Endangered Areas of Cobb's History, Inc., 916 F. Supp. at 1560; Bryan, 246 F. Supp. 2d at 1258-59 (“Reconsideration is only ‘absolutely necessary’ where there is: (1) newly discovered evidence; (2) an intervening development or change in controlling law; or (3) a need to correct a clear error of law or fact.”) (citations omitted).
Motions for reconsideration are not intended “to serve as a vehicle to relitigate old matters ... [or] to give the moving party another ‘bite at the apple.’ ” Mincey v. Head, 206 F.3d 1106, 1137 n.69 (11th Cir. 2000) (citation omitted); see also Prather v. Pickens County, Ga., No. 2:05-CV-32-WC0, 2006 WL 3333717, at *2 (N.D. Ga. Nov. 13, 2006) (O'Kelley, Senior J.). Likewise, “[a] motion for reconsideration is not an opportunity for the moving party and their counsel to instruct the court on how the court ‘could have done it better’ the first time.” Preserve Endangered Areas of Cobb's History, Inc., 916 F. Supp. at 1560.
C. Analysis
The court recognizes that to require a party to produce material that is indeed protected by privilege would constitute a manifest injustice. Accordingly, because plaintiff has asserted that at least some of the entries it has been ordered to produce are protected by privilege, the court exercises its discretion and reconsiders the matter herein.
The court will first briefly address plaintiff's contention that some of the entries it has been ordered to disclose are beyond the scope of defendant's discovery request. Defendant's first request for production was sent to plaintiff on March 27, 2009. (See Def.'s Mem. Supp. Mot. Compel 3; Ex. A to Def.'s Mot. Compel). That request included, among others, a request for plaintiff to “produce all documents and communications relating to efforts made by you or anyone acting on your behalf to preserve the Grinder following the incident at issue.” (Ex. A to Def.'s Mot. Compel 9) (emphasis in original). “Relating to” was defined in the request as follows:
The words “refer to,” “referring to,” “relate to,” and “relating to” shall be construed in their broadest sense and shall mean directly or indirectly describing, setting forth, discussing, mentioning, commenting upon, supporting, contradicting, or referring to the subject or topic in question, either in whole or in part. A document or communication “refers to” or “relates to” a given subject matter if that document or communication constitutes, embodies, comprises, reflects, identifies, states, deals with, comments on, responds to, describes, analyzes, contains information concerning, or is in any way pertinent to the subject matter. These terms mean, without limitation, any reference or relationship which either (a) provides information with respect to the subject of inquiry, or (b) might lead to individuals who, or documents which, might possess or contain information with respect to the subject of inquiry.
*3 (Id. at 3-4) (emphasis in original).
Plaintiff's response to the request on April 27, 2009, included a general objection “to each and every request to the extent that it would require [p]laintiff to respond by disclosing their attorneys' or its representatives' mental impressions, conclusions, opinions, computations, calculations, projections, reasons, legal theories, other work product or the like ....” (Ex. B to Def.'s Mot. Compel 2). Plaintiff's specific response to the request for communications relating to efforts to preserve the grinder was an objection “on the grounds that its [sic] vague.” (Id. at 7). Defendant then sent a deficiency letter to plaintiff on May 21, 2009, asserting that “[t]he missing information and documents requested are discoverable and have routinely been produced by plaintiffs in similar cases.” (Ex. C to Def.'s Mot. Compel). Specifically with regard to the request at issue, defendant clarified that, “[t]hough we do not understand the objection, and feel the question is very clear and concise, in an effort to resolve any dispute, Peterson seeks to determine what steps, if any, [p]laintiff took to keep the Grinder, knowing suit may be commenced. If there were steps taken, then Peterson is requesting copies of any documents generated in regard to the effort to maintain the Grinder for litigation purposes.” (Id.) Plaintiff's response on June 15, 2009, stated: “Again, [p]laintiff maintained possession of the subject grinder until it was examined by all interested parties. Upon completion of the inspections, the equipment was sold for salvage.” (Ex. D to Def.'s Mot. Compel).
After defendant sent a second request for production on October 12, 2009, and plaintiff responded on November 16, 2009, defendant “learned for the first time, months after its initial request for documents, that [p]laintiff had maintained a log of its activity.” (Def.'s Mot. Compel 5-6). Plaintiff did not provide a privilege log until November 17, 2009, after defendant specifically requested it. (See Exs. H & I to Def.'s Mot. Compel).
Considering the broad definition of “relating to” set forth in defendant's initial request for production, the court finds that the log entries set forth in its December 23, 2009 order are responsive to the request. At the very least, the entries directly or indirectly mention, comment upon, or refer to efforts by plaintiff or its representatives to preserve the grinder at issue, which brings them within the scope of defendant's first request for production. Accordingly, the court will proceed to its discussion of whether the entries are protected by privilege.
Defendant argues that plaintiff has waived any privilege by its failure to timely produce a privilege log. While, “[t]he Eleventh Circuit has never determined what constitutes a timely production of a privilege log in response to a request for production of documents,” at least one other district court in this Circuit has adopted the reasoning of the Ninth Circuit, which is the only Court of Appeals to rule on the issue. Universal City Dev. Partners, Ltd. v. Ride & Show Eng'g, Inc., 230 F.R.D. 688, 695 (M.D. Fla. 2005) (citing Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for the Dist. of Mont., 408 F.3d 1142 (9th Cir. 2005)).
*4 In construing the relationship between Federal Rules of Civil Procedure 26(b)(5) and 34,[2] the Ninth Circuit “rejected a per se rule that the failure to produce a privilege log within Rule 34's 30-day time limit results in waiver of the privilege[,]” and instead “enumerated several factors that should be applied ‘in the context of a holistic reasonableness analysis[.]’ ” Id. (quoting Burlington N. & Santa Fe Ry. Co., 408 F.3d at 1149). According to the test set forth by the Ninth Circuit:
[U]sing the 30-day period as a default guideline, a district court should make a case-by-case determination, taking into account the following factors: 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.
Burlington N. & Santa Fe Ry. Co., 408 F.3d at 1149; see also Universal City Dev. Partners, Ltd., 230 F.R.D. at 695 (quoting Burlington N. & Santa Fe Ry. Co., 408 F.3d at 1149). The Ninth Circuit clarified that, “[t]hese factors should be applied in the context of a holistic reasonableness analysis, intended to forestall needless waste of time and resources, as well as tactical manipulation of the rules and the discovery process.” Burlington N. & Santa Fe Ry. Co., 408 F.3d at 1149.
This court will follow its sister court in the Middle District of Florida in adopting the Ninth Circuit's thoughtful reasoning. See Universal City Dev. Partners, Ltd., 230 F.R.D. at 695. In this case, defendant's first request for production of documents was sent to plaintiff on March 27, 2009. Plaintiff responded on April 27, 2009. Plaintiff's response included a general objection based on privilege but did not include a privilege log. Rule 26(b)(5)(A) specifically states that:
When 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) (emphasis added). “Thus Rule 26 clarifies that a proper assertion of privilege must be more specific than a generalized, boilerplate objection.” Burlington N. & Santa Fe Ry. Co., 408 F.3d at 1147. Accordingly, such general or boilerplate objections as that submitted by plaintiff in its April 27, 2009 response to defendant's request for production are insufficient to assert a privilege. See id. at 1149.
In this case plaintiff did not actually produce a privilege log until November 17, 2009, and then only after defendant specifically requested one by e-mail communication on November 16, 2009. (See Ex. H to Def.'s Mot. Compel). This was almost eight months after defendant's first request for production of documents. To withhold materials without the notice required by Rule 26(b)(5) “is contrary to the rule, subjects the party to sanctions under Rule 37(b)(2), and may be viewed as a waiver of the privilege or protection.” Burlington N. & Santa Fe Ry. Co., 408 F.3d at 1147 (citing Rule 26(b)(5) advisory committee's note (1993 Amendments)). In Burlington Northern & Santa Fe Railway Co., the Ninth Circuit held that in the absence of mitigating factors, the fact that a log was filed five months after the Rule 34 time limit would “immunize the district court's ruling [that privilege had been waived] from reversal ....” 408 F.3d at 1149. Additional circumstances that supported a finding of waiver in that case included, among others, the fact that the plaintiff asserting the privilege was “a sophisticated corporate litigant and a repeat player” in the type of lawsuit at issue. Id.
*5 In this case, plaintiff did not produce its privilege log until almost seven months after the 30-day time limit set forth in Rule 34. Moreover, as defendant has pointed out, plaintiff “is a highly sophisticated litigant” familiar with subrogation lawsuits. (Def.'s Resp. Br. Opp'n to Pl.'s Mot. Recons. 3). The court finds that plaintiff's failure to produce a privilege log for more than seven months after it received defendant's first request for production of documents – and even then only after defendant specifically requested a privilege log – is unreasonable. In light of the unreasonable delay, along with the fact that plaintiff is a sophisticated litigant that is familiar with lawsuits of this type and should be familiar with the discovery requirements, the court finds that the privilege plaintiff now attempts to assert has been waived.
Upon reconsideration, the court finds that the entries plaintiff has been ordered to produce do fall within the scope of defendant's first request for production and that plaintiff has waived any privilege as to those entries by its failure to timely produce a privilege log. Accordingly, plaintiff must comply with the court's order of December 23, 2009, and produce the entries identified therein.
II. Remaining Matters Pending on the Court's Docket
The five remaining matters currently pending in this case are: defendant's “Motion for Award of Attorneys' Fees Pursuant to Court Order Granting Motion to Compel and Federal Rule of Civil Procedure 37” [45-1], “Defendant Peterson Pacific Corporation's Daubert Motion to Exclude Expert William E. Briscoe” [52-1], “Defendant Peterson Pacific Corporation's Motion for Sanctions Against Plaintiff Under Federal Rule of Civil Procedure 37 for Spoliation of Vital Evidence” [53-1], “Defendant Peterson Pacific Corporation's Motion for Attorneys' Fees and Court Imposed Fine Against Plaintiff Continental Casualty Company Pursuant to Fed. R. Civ. P. 37” [54-1], and “Defendant Peterson Pacific Corporation's Motion for Summary Judgment” [55-1].
Defendant filed its motion for attorneys' fees on December 22, 2009, following the court's oral ruling granting defendant's motion to compel on December 16, 2009. In the motion for attorneys' fees, defendant requests an award of $8,029.00 in attorneys' fees and costs, which were incurred:
(1) researching, drafting, preparing, and filing Peterson's Motion to Compel and Supporting Brief, (2) reviewing Plaintiff's Response, (3) researching, drafting, preparing, and filing Peterson's Reply Brief, (4) attending the hearing and arguing Peterson's Motion to Compel Responses to Discovery on December 16, 2009, and (5) costs incurred to prepare the attorney fee calculation and Motion.
(Def.'s Mot. for Att'ys' Fees 1). Plaintiff filed a response in opposition to defendant's motion for attorneys' fees on January 4, 2010. Plaintiff opposes the motion for attorneys' fees on the grounds that (1) plaintiff was justified in not producing the communications in its claims log, (2) defendant did not exercise good faith efforts to resolve the discovery dispute before filing its motion to compel, and (3) defendant's request for attorney's fees is unreasonable. (See Pl.'s Resp. to Def.'s Mot. for Att'y's Fees). Because the matter is contested and in order to provide the parties a full and fair opportunity to be heard as contemplated by Federal Rule of Civil Procedure 37(a)(5), this matter will be set for a hearing.
On January 16, 2010, defendant filed its Daubert motion to exclude plaintiff's expert. Plaintiff's response in opposition, filed on February 4, 2010, has been plainly marked “oral arguments requested.” The court will grant plaintiff's request and set the matter for a hearing, at which both sides may present oral arguments on the matter.
Defendant also filed its motion for sanctions for spoliation of vital evidence on January 16, 2010. In its response in opposition, again filed on February 4, 2010, plaintiff has requested oral arguments. The court will grant plaintiff's request and set the matter for a hearing, at which both sides may present oral arguments on the matter. Defendant's motion for attorneys' fees and court imposed fine against plaintiff is related to the spoliation matter and was filed on the same day as the motion for sanctions for spoliation. Plaintiff again requested oral arguments, and the court will grant plaintiff's request and set the matter for a hearing.
*6 Defendant's final motion filed on January 16, 2010, was for summary judgment. Plaintiff filed its response on February 5, 2010, again marked “oral arguments requested.” The court will grant plaintiff's request and set the matter for a hearing, at which both sides may present oral arguments on the matter.
III. Conclusion
For the reasons discussed in this order, plaintiff's “Motion for Reconsideration” [47-1] is hereby GRANTED. Upon reconsideration, the court hereby FINDS that its order of December 23, 2009, need not be reversed or amended. Plaintiff is hereby ORDERED to comply with the court's December 23, 2009 order within ten (10) days.
Defendant's “Motion for Award of Attorneys' Fees Pursuant to Court Order Granting Motion to Compel and Federal Rule of Civil Procedure 37” [451], “Defendant Peterson Pacific Corporation's Daubert Motion to Exclude Expert William E. Briscoe” [52-1], “Defendant Peterson Pacific Corporation's Motion for Sanctions Against Plaintiff Under Federal Rule of Civil Procedure 37 for Spoliation of Vital Evidence” [53-1], “Defendant Peterson Pacific Corporation's Motion for Attorneys' Fees and Court Imposed Fine Against Plaintiff Continental Casualty Company Pursuant to Fed. R. Civ. P. 37” [54-1], and “Defendant Peterson Pacific Corporation's Motion for Summary Judgment” [55-1] will all be set for a hearing, at which both sides may present oral arguments on each of the five pending matters. The hearing on all pending matters is hereby SET for Monday, May 3, 2010, at 10:00 A.M. in the Third Floor Courtroom of the United States Courthouse, 121 Spring St. S.E., Gainesville, Georgia.
IT IS SO ORDERED, this 6th day of April, 2010.
Footnotes
The court notes that defendant's “Motion for Award of Attorneys' Fees Pursuant to Court Order Granting Motion to Compel and Federal Rule of Civil Procedure 37” [45-1], “Defendant Peterson Pacific Corporation's Daubert Motion to Exclude Expert William E. Briscoe” [52-1], “Defendant Peterson Pacific Corporation's Motion for Sanctions Against Plaintiff Under Federal Rule of Civil Procedure 37 for Spoliation of Vital Evidence” [53-1], “Defendant Peterson Pacific Corporation's Motion for Attorneys' Fees and Court Imposed Fine Against Plaintiff Continental Casualty Company Pursuant to Fed. R. Civ. P. 37” [54-1], and “Defendant Peterson Pacific Corporation's Motion for Summary Judgment” [55-1] are also currently pending on the court's docket. The court will defer ruling on those matters until it has held a hearing on them, which will be scheduled herein.
Rule 34 provides in relevant part that: “The party to whom the request is directed must respond in writing within 30 days after being served.” Fed. R. Civ. P. 34(b)(2)(A).