Sigma Delta, LLC v. George
Sigma Delta, LLC v. George
2009 WL 10679727 (E.D. La. 2009)
January 13, 2009
Shushan, Sally, United States Magistrate Judge
Summary
The court addressed the issue of ESI that had been withheld from the plaintiff. The court ordered the defendant, Sher Garner, to prepare a revised privilege log for the ESI that was withheld for both relevance and preparation in anticipation of litigation. The court also ordered separate requests to be served on behalf of the Sher Garner firm and the four lawyers with the firm who were named as defendants. This case highlights the importance of ESI in legal proceedings, as it can be used to provide evidence and support a party's argument.
SIGMA DELTA, L.L.C., et al
v.
Eric GEORGE, M.D., et al
v.
Eric GEORGE, M.D., et al
Civil Action No: 07–5427–EEF–SS
United States District Court, E.D. Louisiana
Signed January 13, 2009
Counsel
Barrett Robert Stephens, Lewis & Caplan, Mark Powell Seyler, Peter J. Butler, Jr., Richard G. Passler, Robert E. Barkley, Jr., Barkley & Thompson, L.C., Pauline M. Warriner, Matthews & Warriner, LLC, Robert Hugh Matthews, Robert H. Matthews, Attorney at Law, W. Christopher Beary, Orrill, Cordell & Beary, LLC, Fred L. Herman, Law Offices of Fred L. Herman, Thomas Jeffrey Barbera, Barbera Law Firm, Bobby Ray Thomas Malbrough, Bobby Ray T. Malbrough, Attorney at Law, Campbell Edington Wallace, Frilot L.L.C., Robert Stephen Rooth, Walter Francis Becker, Jr., Chaffe McCall LLP, New Orleans, LA, Peter Joseph Butler, Peter J. Butler, LLC, Nicole S. Tygier, Robert A. Kutcher, Wagar Richard Kutcher Tygier & Luminais, LLP, Metairie, LA, for Eric George, M.D., et al.Shushan, Sally, United States Magistrate Judge
ORDER
*1 OMEGA'S MOTION TO COMPEL COMPLIANCE BY THE BELLINA DEFENDANTS WITH THE MAGISTRATE JUDGE'S ORDER (Rec. doc. 511) OF MARCH 5, 2008 (Rec. doc. 849)
GRANTED IN PART, DENIED IN PART AND RESET
OMEGA'S MOTION TO COMPEL SHER GARNER'S COMPLIANCE WITH DISTRICT JUDGE'S ORDER (Rec. doc. 508) OF MARCH 5, 2008 (Rec. doc. 850)
GRANTED IN PART AND DENIED IN PART
SHER GARNER'S MOTION TO COMPEL RESPONSES TO DISCOVERY FROM BETA GAMMA (Rec. doc. 856)
GRANTED IN PART AND DENIED IN PART
SHER GARNER'S MOTION TO COMPEL RESPONSES TO DISCOVERY FROM MBC (Rec. doc. 857)
GRANTED IN PART AND DENIED IN PART
SHER GARNER'S MOTION TO COMPEL RESPONSES TO DISCOVERY FROM OMEGA (Rec. doc. 858)
GRANTED IN PART AND DENIED IN PART
Before the undersigned are the following motions:
1. Motion of Omega Hospital, LLC (“Omega”), to compel the Bellina defendants' compliance with the undersigned's order (Rec. doc. 511) of March 5, 2008;
2. Omega's motion to compel Sher, Garner, Cahill, Richter, Klein & Hilbert, LLC to comply with the District Judge's order (Rec. doc. 508) of March 5, 2008;
3. Motion of the Sher Garner firm, Leopold Z Sher, Steven I. Klein, Ryan D. Adams, Marie A Moore and Westport Insurance Corporation (collectively referred to as “Sher Garner”) to compel Beta Gamma of Louisiana, LLC (“Beta Gamma”) to provide responses to written discovery;
4. Sher Garner's motion to compel MBC of Louisiana, LLC (“MBC”) to provide responses to written discovery; and
5. Sher Garner's motion to compel Omega to provide responses to written discovery.
I. Omega's Motion to Compel Compliance with Magistrate Judge's Discovery Order.
The discovery issues raised by Omega's motion concern the claims against Sher Garner.[1] It is alleged that Sher Garner breached its fiduciary duties to the claimants in a number of respects, including undertaking the joint representation of both sellers and buyers in the November 2005 transaction involving Omega Hospital without full disclosure to all parties.
Background
The events leading to the March 5, 2008 discovery order are pertinent. On November 6, 2007, Omega requested that Sher Garner produce all original files in which Omega was a client. Rec. doc. 267(Exhibit 3). Omega contends that, pursuant to the Rule 1.16(d) of the Louisiana Rules of Professional Conduct and the termination of the Omega/Sher Garner relationship, it is entitled to: (1) all files in which it was a client; and (2) all files in which it and other clients, including the Bellina defendants, were mutually represented by Sher Garner. It urges that the right to demand production of these files belongs to its current management. Rec. doc. 267.
On December 18, 2007, Sher Garner filed a motion for determination of ownership and privilege. Rec. doc. 233. The parties filed oppositions.[2] The Bellina defendants urged that: (1) Sher Garner should be able to determine who it represented and to whom the files belonged; (2) where there was joint representation, the files could be copied for each client; (3) the mere filing of claims against Sher Garner did not result in the waiver of the attorney-client privilege; (4) their claims of attorney-client privilege should be protected; (5) there was no waiver for matters unrelated to the subject at issue in the litigation; and (6) they should be given an opportunity to review their Sher Garner files before a ruling on the motion for determination. Rec. doc. 266.
*2 On March 5, 2008, the District Judge granted in part and denied in part the motion for the reasons stated on the record.[3] Rec. doc. 508. In argument Sher Garner questioned whether the Omega Hospital files generated prior to Dr. George's involvement in Omega should be produced to the current operators or to the Bellina defendants, the owners of Omega Hospital prior to Dr. George's involvement. Rec. doc. 877 (Exhibit A at 14–15). Sher Garner suggested that all issues might be resolved by the disclosure of its 90 page file index to all parties followed by an opportunity for them to reach agreement on who got what. The Court ordered the parties to follow this procedure. Id. at 15. Omega again urged that it had the right to all Omega Hospital files whether or not they were generated prior to Dr. George's involvement in the hospital, but it had no objection to sharing them with the Bellina defendants. Id. at 16. The Bellina defendants responded with a request that they have the opportunity to review the files which they owned to determine whether portions of the files should not be produced. Id. at 17. The Court repeated the instruction for the parties to review the index, determine were there was agreement, and where there was no agreement, state the reason why. Id. at 18. Although the Court addressed the issue of the joint representation of the Bellina defendants and the George defendants, it did not respond to the issue of Omega Hospital files generated prior to Dr. George's involvement in the ownership of the hospital. Id. at 18–19.
Immediately after the recess, the parties reconvened before the undersigned. Rec. doc. 511. It was anticipated that the parties would be able to reach agreement on three categories: (1) files which were not relevant to the litigation; (2) files in which the Bellana defendants contended they were the exclusive client; and (3) files in which all parties agreed that at least one of the George defendants was a client. The first category would not be produced. The second category was referred to as “putative Bellina client files.” They were to be reviewed by the Bellina defendants and if it was determined that there were files to which the attorney-client privilege would be asserted, a list of these files with some indication of the subject matter was to be prepared. Id. at 2. The Bellina defendants were to follow the same procedure for “hard copy” e-mails. Id. at 3. The George defendants reported that they waived their attorney-client privilege, and therefore all of their files were to be produced. Id. at 2. After the proceedings before the undersigned, the parties returned for an afternoon session in the District Judge's courtroom. Without the participation of the District Judge or the undersigned, the parties recorded what they were able to agree on after their review of Sher Garner's file index. Rec. doc. 877 (Exhibit A at 23–44). The practical effect of the March 5, 2008 order was to grant the request of the Bellina defendants to review at least some of the Sher Garner files before there was a final ruling on the motion for determination of ownership and privilege. See Rec. doc. 266 at 5.
On April 16, 2008, the Bellina defendants circulated a list of the files and hard copy e-mails which they contended should not be produced in the litigation.[4] They urged that the information contained in these files and e-mails was not relevant to the claims and defenses of parties because they related to investments, real estate and insurance for Dr. Bellina and medical practice claims against him. They urged that the Bellina defendants did not waive the attorney-client privilege as to these files and e-mails when they filed claims against Sher Garner. Rec. doc. 849 (Exhibit 1). On May 15, 2008, the Bellina defendants circulated a supplemental list. Rec. doc. 849 (Exhibit 3).
On June 20, 2008, Omega filed the motion to compel compliance with the undersigned's order of March 5, 2008. It urged that the Bellina defendants did not provide sufficient information in the April 16 and May 15, 2008 letters to permit it to challenge the contention that the documents are not relevant and/or subject to the attorney-client privilege. It requested sanctions and an order for the production of all documents referred to in the two letters. The request for sanctions is denied.
*3 The Bellina defendants contend that: (1) there are no discovery requests at issue; (2) they complied with the undersigned's order of March 5, 2008; and (3) Omega has no standing to obtain production of Sher Garner files on “unrelated matters” or a privilege log on every file or document. Rec. doc. 877. Sher Garner objected to any attempt by the Bellina defendants to require it to review the Bellina documents and prepare a privilege log. Rec. doc. 883. Omega's reply reiterates its long standing position that the files at issue belong to it. Rec. doc. 905 at 3.
Analysis
The Bellina defendants argue that Omega has not made a request for production of documents. This ignores that Omega initiated this process with a request to Sher Garner for all files in which it represented Omega Hospital. The authorities are divided on whether a letter possesses sufficient formality to comply with Fed. R. Civ. P. 34.[5] In the circumstances of this action, Omega's e-mail to Sher Garner complies with Fed. R. Civ. P. 34 and supports the motion to compel.[6]
A goal of the March 5, 2008 proceedings was for the parties to reach agreement on files which were not relevant to the litigation and files in which the Bellina defendants were the only clients. If the Bellina defendants determined that the attorney-client privilege should be urged for some files or e-mails, they were ordered to provide some indication of the subject matter. This requirement is vague. The information provided by the Bellina defendants does not permit either Omega or the Court to resolve issues concerning the ownership of the files, the relevancy of information in the files, and whether they contain information protected from disclosure by the attorney-client privilege.
A. Sher Garner's joint representation of the Bellina defendants and Omega.
At least since the filing of its memorandum in opposition to Sher Garner's motion to determine privilege and ownership, Omega has urged its entitlement to Sher Garner files in which it and other clients, including the Bellina defendants, were mutually represented by the firm whether or not the files were generated prior to Dr. George's involvement in Omega. Rec. doc. 267. It appears that the Bellina defendants contend that there are some files in which they are the only parties represented by Sher Garner. They also contend that there are files which are unrelated to the subject matter of the litigation.
With the issue of ownership of the files, it is immaterial whether the subject matter of the file is not relevant to the claims or defenses of the parties. Omega's request and Sher Garner's motion put all of the files at issue. If there was a matter in which Sher Garner represented both Omega and the Bellina defendants, Omega is entitled to the documents.[7] This applies to matters on which Sher Garner was consulted prior to Dr. George's involvement in Omega. Rec. doc. 267 at 5. In Brown v. Car Insurance Company in Receivership, 634 So.2d 1163 (La. 1994), the Louisiana Supreme Court stated:
When control of a corporation passes to new management, the authority to assert and waive the corporation's attorney-client privilege passes as well. New managers installed as a result of a takeover, merger, loss of confidence by shareholders, or simply normal succession, may waive the attorney-client privilege with respect to communications made by former officers and directors. Displaced managers may not assert the privilege over the wishes of current managers, even as to statements that the former might have made to counsel concerning matters within the scope of their corporate duties.
*4 Id. at 1166.
The Bellina defendants are correct that Sher Garner should know who it contends it was representing in a particular matter. Rec. doc. 266 at 1–2. Sher Garner will be required to examine the files and e-mails identified by the Bellina defendants in the April 16 and May 15, 2008 letters and state whether the only clients for the files and e-mails were the Bellina defendants and Dr. Bellina or whether the representation was joint with Omega Hospital. If the Bellina defendants agree that there was joint representation with Omega Hospital, the documents shall be produced to Omega.[8] If the Bellina defendants dispute Sher Garner's contention that there was joint representation, the issue of joint representation will be resolved by the Court.
B. Relevancy of a file or document.
If the only clients on a Sher Garner file were Dr. Bellina and the Bellina defendants, Omega has no right to the files and e-mails under Rule 1.16(d) of the Louisiana Rules of Professional Conduct. If the subject matter of the files and e-mails are not relevant to the parties' claims and defenses, then Omega's quest for the documents is at an end. There is no need to consider whether any of the files are protected by the attorney-client privilege or whether the privilege was waived as result of the claims of the Bellina defendants against Sher Garner.
C. Attorney-client privilege.
If the only clients on a Sher Garner file were Dr. Bellina and the Bellina defendants and the documents contain information which is relevant to the parties' claims and defenses, the applicability of the attorney-client privilege must be resolved. Four elements are required to establish the existence of the attorney-client privilege: (1) a communication; (2) made between privileged persons; (3) in confidence; and (4) for the purpose of obtaining legal assistance. Edna Selan Epstein, The Attorney–Client Privilege and the Work–Product Doctrine, A.B.A., Sec. of Lit. (5th Ed. 2007) (“Epstein “), p. 64. Merely because documents were transmitted by a client to his attorney does not mean that the documents privileged. Id. at 126. Not all documents in the files of an attorney are necessarily subject to the attorney-client privilege. Alternatively some of the information in the files of the attorney may be protected by the attorney work-product doctrine. If the documents are relevant to the parties' claims and defenses and the Bellina defendants contend they are protected by the attorney-client privilege or the work-product doctrine, the Bellina defendants shall prepare a privilege log which fully complies with Fed. R. Civ. P. 26(b)(5)(A). See also Vioxx Products Liability Litigation v. Merck, 2006 WL 1726675, (5th Cir. 2006) (Unpublished Opinion).[9] Sher Garner will not be required to prepare the privilege log.
D. Waiver.
*5 With a privilege log, the parties will also be able to address whether the privilege has been waived.
E. Further proceedings.
The parties shall proceed as follows.
1. By Monday, January 26, 2009, Sher Garner shall state for each file and e-mail listed in the April 16 and May 15, 2008 letters whether Omega Hospital was a client. This information shall be contained in a letter addressed to counsel for the Bellina defendants with copies to the all counsel and the undersigned.
2. By Monday, February 2, 2009, for each file and e-mail identified by Sher Garner as a matter in which Omega Hospital was the client the Bellina defendants shall state whether they agree. This information shall be contained in a letter addressed to counsel for the Bellina defendants with copies to all counsel and the court. If Sher Garner and the Bellina defendants agree that Omega Hospital was the client on any of the files or e-mails, they shall be produced to Omega.
3. If the Bellina defendants disagree with Sher Garner's position that Omega Hospital was the client on a file, then by Wednesday, February 4, 2009, the Bellina defendants shall file a memorandum in support of their position. This memorandum shall separately address each file and e-mail where there is disagreement with Sher Garner's position.
4. By Wednesday, February 11, 2009, Sher Garner shall submit a memorandum which separately addresses each file and e-mail where there is disagreement and provide the basis for its contention that Omega Hospital was the client. The information contained in the memoranda submitted by the Bellina defendants and Sher Garner will not be construed as a waiver of the attorney-client privilege.
5. By Wednesday, February 11, 2009, Omega may submit a memorandum in response to the memorandum filed by the Bellina defendants.
6. Omega's motion to compel compliance with the undersigned's order (Rec. doc. 511) of March 5, 2008 will be reset for hearing (no oral argument) on Wednesday, February 11, 2009, on briefs.
If the undersigned determines that in camera inspection of any of the files and e-mails is required to resolve the issue of whether Omega Hospital was a Sher Garner client, the parties will be notified and Sher Garner will be asked to produce them for in camera inspection. If an in camera inspection is required, the undersigned will also attempt to resolve without further briefing whether the files and e-mails submitted for in camera inspection contain information that is relevant to the parties' claims and defenses. After the completion of this process a further order will be issued to resolve the remaining issues with the files and e-mails identified in the April 16 and May 15, 2008 letters.
II. Omega's Motion to Compel Compliance with District Judge's Discovery Order.[10]
As with the first motion, the background on this motion begins with Omega's request to Sher Garner for all of its files. In its motion for determination of ownership and privilege, Sher Garner raised the subject of e-mails. It said:
While some emails were printed and placed in files, there are numerous emails which the Firm has been in the process of recovering since early November. To date, the Firm has recovered and downloaded approximately ten boxes of emails, many of which appear to be duplicates, i.e., sent to multiple recipients within the Firm. Many times the emails address multiple matters and may contain emails which would have been privileged had the negligence actions not been filed. Once the Court makes its determination as to the waiver of privilege, all emails should be made available to all parties, avoiding the need for sorting and/or redaction and any delay associated with such a process.
*6 Rec. doc. 233 at 7 (emphasis added). None of the parties made a specific response to Sher Garner's discussion of the e-mails. During the proceedings before the District Judge, the focus was on the Sher Garner files. There was no mention of the Sher Garner e-mails. Rec. doc. 877 (Exhibit A at 13–23). The undersigned's minute entry of March 5, 2008 states:
By Monday, March 31, 2008, counsel for the Bellina defendants shall review these documents (Sher Garner hard copy e-mails) at the office of counsel for Sher Garner and proceed as described above for the Sher Garner putative Bellina client files. The George defendants have asserted no privilege over these documents.
Rec. doc. 511 at 3. After the conference with the undersigned, the parties reconvened in the afternoon in the District Judge's courtroom but without the presence of the District Judge or the undersigned. Rec. doc. 877 (Exhibit A at 23). The proceedings turned to the hard copy e-mails. One concern was the possibility of a HIPPA violation with the disclosure of patient information. Id. at 35–36. It was Omega's position that the e-mails should be reviewed, perhaps by a paralegal, and all reference to patients of Omega Hospital should be redacted before they were reviewed by the Bellina defendants. Id. at 40, 41 and 43. The Bellina defendants reserved their right to accept this procedure. Id. at 41 and 43. On April 16, 2008, the Bellina defendants submitted the letter with the “list of objected-to” files and hard copy e-mails. Rec. doc. 849 (Exhibit 1).[11]
On May 15, 2008, there was a telephone conference between some of the counsel in the case. A court reporter was present and the conference was transcribed. Rec. doc. 875 (Exhibit B). It was reported that the original set of hard copy e-mails were Bates stamped and redacted for patient information by an Omega paralegal. Id. at 12 and 19. Sher Garner stated that:
[It] would be redacting [the hard copy e-mail] documents for information ... related to third parties, related to confidential information such as Social Security number in a document transaction, as to things that were irrelevant, and as to things that would have been subject to the attorney/client privilege, and more so anticipation of litigation.
Id. at 8, 11 and 17. Sher Garner reported that after the Bellina defendants completed their review, it would prepare a privilege log. Id. at 9.
On May 29, 2008, Sher Garner sent all parties a privilege log for the hard copy e-mails. It reported that they were redacted for three categories: (1) attorney work-product; (2) relevancy, including information regarding “third party clients;” and (3) confidentiality, for example the social security numbers of third party purchasers of property. Rec. doc. 875 (Exhibit A) and Rec. doc. 850 (Exhibit 3).
Arguments of the Parties
*7 Omega contends that as the former of client of Sher Garner it is entitled to the entirety of its files, including the hard copy e-mails in their original unredacted state, and that Sher Garner had no authority to redact or withhold hard copy e-mails from Omega for any reason. In the alternative, it urges that Sher Garner must provide a privilege log of the type described in Vioxx. Based on gaps in the Bates numbering sequence, it contends that Sher Garner failed to produce e-mails. It seeks sanctions. The request for sanctions is denied. Rec. doc. 850.
Sher Garner maintains that it has the right to withhold or redact from the e-mails information which: (1) is not related to Omega; and (2) was prepared by Sher Garner in anticipation of claims made against it by the parties to this proceeding. It contends that: (1) it can account for any gaps in the production; and (2) its privilege log complies with the Vioxx requirements. Rec. doc. 875.
Analysis
Omega's motion directed at the Bellina defendants concerned both Sher Garner files and hard copy e-mails. Omega's motion directed at Sher Garner only concerns hard copy e-mails identified on the privilege log. Some of these e-mails were also identified by the Bellina defendants. Rec. doc. 850 (Exhibit 3 at 5–6).
A. Identity of third party clients.
Omega's argument is premised on Rule 1.16(d) of the Louisiana Rules of Professional Conduct, which provides that, “[u]pon written request by the client, the lawyer shall promptly release to the client or the client's new lawyer the entire file relating to the matter.” Omega also cites an opinion of the Louisiana State Bar Association, which states that, “[a]t the termination of representation, a lawyer must surrender the client's papers and property. ...” Opinion 05–RPCC–003 (4/4/05). Rec. doc. 267 at 3–4. Sher Garner emphasizes that hard copy e-mails are it issue.
Inter-firm e-mails may contain information on two unrelated clients. For example, a lawyer may make an inquiry to another lawyer in the firm about a matter for Client A and that lawyer may respond by referring to advice that he rendered in a similar pending matter for Client B. There could be an e-mail in Client A's file referring to Client B and the advice rendered to Client B. When Client A terminates its relationship with the law firm, its right to its entire file does not extend to the identity of Client B.
If Omega's position were accepted, the lawyer for Client B would have to couch his response to his colleague without any disclosure of the identity of Client B. The law firm would have to erect a series of Chinese walls for communications among lawyers within the firm. This would unduly impair the functioning the firm. It would not be in the interest of Client A as it would inhibit the ability of the lawyer working on its affairs to draw on the experience and wisdom of other in the firm.
If hard copy e-mails contain the identity of third party clients or information which will permit the identification of third party clients, Sher Garner may redact this information from the emails.
B. Other relevancy issues.
The only example of irrelevant information cited by Sher Garner in its letter of May 29, 2008 is information related to third party clients. Rec. doc. 875 (Exhibit A). The privilege log identifies other categories including time sheet entries. If these entries relate to the representation of Omega, they must be produced. There is no basis to withhold them.
There are a number of categories in which the issue appears to be moot as a result of the settlement between the plaintiffs and the George defendants. For example, page 14 of the privilege log refers to a September 26, 2006 e-mail from L. Sher to M. Moore. The description is “[p]lease ask Steve to look at the structure of Omega.” Rec. doc. 850 (Exhibit 3 at 8). The log indicates that it was withheld on the basis of relevancy. With the settlement, there should be no objection to producing to Omega an e-mail concerned with its structure. Even without the settlement, the decision to withhold this document does not make sense. The word “relevant” as employed in Fed. R. Civ. P. 26(b)(1) is not determinative. Omega has requested all of its files. As discussed above, it is immaterial whether the subject matter of the file or document is or is not relevant to the claims or defenses of the parties.
*8 Sher Garner shall produce to Omega the hard copy e-mails for which the following are present: (a) the sole basis for identification of a document on the privilege log was relevance;[12] (b) any information which permits the identification of a third party client is redacted; and (c) the e-mail relates in any way to the representation of Omega. Where (a) and (b) are present, but the e-mail relates to the representation of parties in this litigation other than Omega and the Bellina defendants, for example Dr. George, Sher Garner shall confer with counsel for those parties to determine whether they may be produced to Omega.
C. Prepared in anticipation of litigation.
Pursuant to Fed. R. Civ. P. 26(b)(3), “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party...” Id. Sher Garner contends that many e-mails were prepared in anticipation of the claims made against it in this suit. The complaint was filed on September 5, 2007. Rec. doc. 1. One of the e-mails was dated July 30, 2007. It was from L. Sher to M. Moore. It refers to a request from Eades Hogue and Ed Wallace to meet. Rec. doc. 850 (Exhibit 3 at 39). Considering that the plaintiffs' litigation counsel sought a meeting with Sher Garner about a month before the complaint was filed, the privilege log contains enough information to conclude that it was prepared in anticipation of litigation. This is not true for all entries. For example, there is an entry for an April 24, 2007 e-mail from L. Sher to M. Moore concerning “Section 4 of the September 2004 option.” This is insufficient to enable Omega or the undersigned to assess Sher Garner's claim that the e-mail was prepared in anticipation of litigation.
Sher Garner shall be required to revise its privilege log for entries for e-mails which were withheld on the basis that the e-mail was prepared in anticipation of litigation. If Omega has issues with any entry, Omega and Sher Garner shall participate in an in-person L.R. 37.1 conference. If Omega files a motion to compel any of the e-mails withheld as prepared in anticipation of litigation, its supporting memorandum shall address each document at issue and report the results of the L.R. 37.1 conference for each e-mail. Sher Garner's opposition memorandum shall respond in like manner. If the undersigned determines that any of these e-mails must be produced for in camera inspection, the parties will be notified.
D. Privacy.
Sher Garner reported that it redacted information from the hard copy e-mails which raised privacy concerns, including the social security numbers of third party purchasers of property. Rec. doc. 875 (Exhibit A). The privilege log demonstrates that only a limited number of documents were redacted for privacy concerns. Rec. doc. 850 (Exhibit 3 at 11–13, 16–17 and 38). Sher Garner has provided sufficient information to support the redaction of the hard copy e-mails for privacy concerns. To the extent Omega seeks the privacy concern information, its motion is denied.
E. More than one party claims privilege.
*9 Sher Garner reported that there are some hard copy e-mails it and another party contend are privileged. Rec. doc. 875 (Exhibit A). An example is an e-mail dated January 16, 2007 from R. Adams to M. Moore and L. Sher. The description is “Omega.” Rec. doc. 850 (Exhibit 3 at 1). This description is insufficient to enable Omega or the undersigned to assess the claims of privilege. Sher Garner shall be required to revise the privilege log for this category of e-mails.
F. Gaps in production.
Omega contends that Sher Garner's production of the hard copy e-mails is incomplete because there are gaps in the Bates numbering sequence which are not accounted for by the privilege log. It cites one example. Rec. doc. 850 at 4–5. Sher Garner contends that its production is complete. It reports that the documents cited by Omega were made available to all parties on the discs provided by IKON and it attached them as an exhibit. Rec. doc. 875 (Exhibit E). Omega replies with a nine page exhibit which it contends demonstrates that there are many gaps in the Sher Garner e-mail production. Rec. doc. 907 at 5 and Rec. doc. 902 (Exhibit 2). This process tries the undersigned's patience. It is obvious that the parties have not met and conferred with respect to this issue.
Omega's motion is granted to the extent that Sher Garner is required to account for what Omega contends are gaps in the production. If Omega is not satisfied with Sher Garner's accounting, it shall conduct an in-person L.R. 37.1 conference with counsel for Sher Garner before filing a further motion. The conference shall address each alleged gap in the production. Omega's motion to compel with respect to any unresolved gap, shall separately address each alleged gap and report the results of the L.R. 37.1 conference for that gap. Sher Garner's opposition shall respond in like manner.
G. Further proceedings.
By Monday, February 2, 2009:
1. Sher Garner shall produce to Omega all hard copy e-mails where the following are present: (a) the sole basis for identification of a document on the privilege log was relevance; (b) any information which permits the identification of a third party client was redacted; and (c) the e-mail relates in any way to the representation of Omega.
2. Sher Garner shall confer with all parties other than the Bellina defendants and determine whether hard copy e-mails where the following are present may be produced to Omega: (a) the sole basis for identification of a document on the privilege log was relevance; (b) any information which permits the identification of a third party client was redacted; and (c) the e-mail relates to the representation of parties in this litigation other than the Bellina defendants and Omega.
3. By Monday, January 26, 2009, and in conformity with Parts IIC andIIE above, Sher Garner shall submit a revised privilege log for entriesfor e-mails which were withheld on the basis that the e-mail was prepared in anticipation of litigation or more than one party claims the e-mail is privileged. If Omega remains dissatisfied with any entries on the revised privilege log, it shall proceed as described in Parts IIC and IIE above.
4. By Monday, January 26, 2009, and in conformity with Part IIF above, Sher Garner shall provide an accounting to Omega for the alleged gaps in Sher Garner's production which are identified in Omega's Exhibit 2 to Rec. doc. 902. If Omega remains dissatisfied with any part of Sher Garner's accounting, it shall proceed as described in Part IIF above.
III. Sher Garner's motion to compel discovery responses from Beta Gamma.
*10 Sher Garner served written discovery on Beta Gamma.[13] Rec. doc. 856 (Exhibit A). Beta Gamma responded. Id. (Exhibit B). The parties divided the disputed discovery responses into four categories.
A. Beta Gamma's legal representation.
Interrogatory no. 1 seeks the identity of each attorney who provided services to Beta Gamma from January 2003 through July 31, 2007. Category nos. 1 and 2 of the request for production seek documents related to the information sought in interrogatory no. 1. Beta Gamma responded that from its formation in November 2005 until September 2007 it was represented by Sher Garner. Sher Garner contends that Beta Gamma should report whether it was represented by anyone else. Beta Gamma replies that no other counsel represented it during the relevant period. It added that this clarification could have been obtained in a L.R. 37.1 conference. This is a waste of the parties' resources and the undersigned's time. The parties must fully comply with L.R. 37.1 before filing a discovery motion.
Beta Gamma shall amend its response to interrogatory no. 1 to provide the clarification.
B. Persons with authority to act for Beta Gamma.
Interrogatory no. 2 requests the identity of each person who had authority to act on behalf of Beta Gamma with regard to any legal matters or transactions for the relevant period. Beta Gamma objected that it called for a legal conclusion. It added that Sher Garner was counsel for Beta Gamma during the relevant period and it relied on Sher Garner to prepare all corporate papers. It referred to the operating agreements which were produced to Sher Garner.
Beta Gamma's objections are overruled. Sher Garner is entitled to know the name of the person or persons who Beta Gamma contends had the authority to act for it during the relevant period. Beta Gamma shall provide a supplemental response to interrogatory no. 2.
C. Information regarding breach of fiduciary duty and negligence.
Interrogatory no. 3 seeks: (1) the facts upon which Beta Gamma bases its allegations that Sher Garner breached fiduciary duties and contractual obligations; (2) identification of each such fiduciary duty and contractual obligation; (3) identification of witnesses with knowledge of the facts; and (4) identification of documents which support the allegations. Interrogatory no. 4 seeks similar information regarding Beta Gamma's allegations of negligence. This information is sought separately for Sher Garner and the four lawyers.
Beta Gamma objected on the basis of burden. It provided a list of fiduciary duties and contractual obligations. Sher Garner contends this is merely a restatement of the allegations in Beta Gamma's third party complaint. Beta Gamma responds that at this stage of the proceeding, it cannot provide more information. The undersigned agrees. Beta Gamma will develop information sought by Sher Garner in the first two parts of interrogatory nos. 3 and 4 (facts supporting allegations and identification of duties, obligations and acts of negligence) through discovery. Pursuant to Fed. R. Civ. P. 26(e), a party who had responded to an interrogatory must supplement its response “in a timely manner if the party learns that in some material respect the ... response is incomplete. ...” Id. As the information is developed during discovery, Beta Gamma must promptly supplement its discovery responses. It cannot wait to the conclusion of discovery because Sher Garner would be prejudiced in its ability to conduct its own discovery and prepare its defenses. At this point, however, it is premature to require Beta Gamma to attempt to provide more detailed information. This is equally true for the request that Beta Gamma provide a separate response for each lawyer named as a defendant. However, as Beta Gamma supplements its responses with information gained through discovery, it must provide separate responses for each lawyer named as a defendant.
*11 In response to the request for identification of documents, Beta Gamma referred to Omega's response to Sher Garner's written discovery, and memoranda and affidavits submitted by Beta Gamma in opposition to Sher Garner's motion for summary judgment. At this stage of the proceedings, Beta Gamma's response is sufficient.
Sher Garner reports that Beta Gamma identified 88 persons who have knowledge of the allegations against Sher Garner. Beta Gamma reports that among the 88 persons are 20 present or former Sher Garner attorneys or staff and all parties to the transactions at issue. At this stage of the proceeding, this too is a sufficient response. Beta Gamma is not required to make a further response to interrogatory nos. 3 and 4 from the law firm and interrogatory nos. 1 and 2 from the individual lawyer defendants.
D. Additional requests for facts supporting allegations.
Interrogatory nos. 5, 7 and 8 sought the facts supporting Beta Gamma's allegations that Sher Garner did not properly prepare certain documents related to the transfer of Omega Hospital, including allegations concerning allocation of the purchase price, failure to itemize assets and failure to prepare business transaction documents. Omega's former expert, Andy Correro, submitted an opinion on these matters (Rec. doc. 874 at 3) and Beta Gamma provided responses to the interrogatories. At this stage of the proceedings, Beta Gamma is not required to make a further response to interrogatory nos. 5, 7 and 8. As with the interrogatories seeking information regarding the breach of fiduciary duties and negligence, Beta Gamma must timely supplement its responses to interrogatory nos. 5, 7 and 8 as it develops additional information. Fed. R. Civ. P. 26(e).
IV. Sher Garner's motion to compel discovery responses from MBC.
Sher Garner's written discovery to MBC is similar to the written discovery served on Beta Gamma. MBC's responses are similar to Beta Gamma's responses. MBC shall supplement its responses to interrogatory nos. 1 and 2 concerning the identity of the attorneys representing it and the persons who had the authority to act on its behalf. See Rec. doc. 857 (Exhibit C). At this time it is not required to supplement its responses to the remaining interrogatories addressed by Sher Garner's motion. MBC, like Beta Gamma, must timely supplement its discovery responses as it develops additional information. Fed. R. Civ. P. 26(e).
MBC raised issues about the failure of Sher Garner to produce documents identified on its privilege log. The privilege log was addressed in the discussion on Omega's motion to compel Sher Garner's compliance with discovery orders. If any issues remain, MBC should file a motion to compel after it fully complies with L.R. 37.1.
V. Sher Garner's motion to compel discovery responses from Omega.
This motion is substantially the same as Sher Garner's motions to compel Beta Gamma and MBC. For the reasons stated above, Omega shall supplement its responses to interrogatory nos. 1 and 2. At this time it is not required to supplement its responses to the remaining discovery requests addressed in Sher Garner's motion to compel. Omega, like Beta Gamma and MBC, must timely supplement its responses as it develops additional information. Fed. R. Civ. P. 26(e).
IT IS ORDERED that:
1. Omega's motion to compel the Bellina defendants' compliance with the Magistrate Judge's order (Rec. doc. 511) of March 5, 2008 (Rec. doc. 849) is GRANTED in PART, DENIED in PART and RESET in PART for hearing (no oral argument) on Wednesday, February 11, 2009, on briefs as provided herein.
*12 2. Omega's motion to compel Sher Garner's compliance with the District Judge's order (Rec. doc. 508) of March 5, 2008 (Rec. doc. 849) is GRANTED in PART and DENIED in PART as provided herein.
3. Sher Garner's motion to compel discovery responses from Beta Gamma (Rec. doc. 856) is GRANTED in PART and DENIED in PART. By Monday, February 2, 2009, Beta Gamma shall supplement its responses as provided herein.
4. Sher Garner's motion to compel discovery responses from MBC (Rec. doc. 857) is GRANTED in PART and DENIED in PART. By Monday, February 2, 2009, MBC shall supplement its responses as provided herein.
5. Sher Garner's motion to compel discovery responses from Omega (Rec. doc. 858) is GRANTED in PART and DENIED in PART. By Monday, February 2, 2009, Omega shall supplement its responses as provided herein.
6. All parties must fully comply with L.R. 37.1 before filing any further discovery motions. Unless the parties are specifically required to meet in-person, they may confer by telephone. An exchange of e-mails or letters will not suffice. The conference must address each issue and each discovery request that will be presented in the discovery motion. The parties must report the results of the conference in their memoranda submitted in support of or in opposition to the discovery motions. If the undersigned determines that the parties did not comply with these instructions before filing a discovery motion, sanctions may be imposed.
Footnotes
The plaintiffs' claims against all defendants were settled, but the claims against Sher Garner were reserved. Rec. doc. 1025. Some the claims against Sher Garner may be found in pleadings filed by Omega (Rec. doc. 97), the George defendants (Rec. doc. 112), MBC (Rec. doc. 199), Omega Management Services, LLC (Rec. doc. 163), Beta Gamma (Rec. doc. 204), and the Bellina defendants (Rec. doc. 205).
Opposition or responses were filed by: Beta Gamma (Rec. doc. 255); the George defendants (Rec. doc. 256); Omega Management Services (Rec. doc. 257); MBC (Rec. doc. 263); the plaintiffs (Rec. doc. 265); the Bellina defendants (Rec. doc. 266); Omega (Rec. doc. 267); and Jerry Marty (Rec. doc. 271).
The proceedings may be found at Rec. doc 877 (Exhibit A). Pages 13–23 reflect the portion of the proceedings concerned with Sher Garner's motion at which Judge Zainey was present. Pages 23–44 reflect the portion of the proceedings at which the District Judge was not present.
On May 15, 2008, Sher Garner reported that they were in possession of approximately ten boxes of documents which contained Sher Garner files and hard copy e–mails that had been withheld from copying on instructions of the Bellina defendants. Rec. doc. 875 (Exhibit B at 19).
See Financial Bldg. Consultants, Inc. v. American Druggists, Inc., 91 F.R.D. 59, 61 (N.D. Ga. 1981) (a letter was sufficient), and Schwartz v. Marketing Publ'g Co., 153 F.R.D. 16, 20–21 (D. Conn. 1994) (denying a motion to compel as to documents requested in a letter). See also 7 James Wm. Moore, et al., Moore's Federal Practice ¶ 34.11[3] (3d ed. 1997).
This should not be construed as a blanket approval of letter requests. Formal requests are preferred.
During the March 5, 2008 proceedings the District Judge determined that where there was joint representation of the George defendants and Bellina defendants, both groups of defendants were entitled to the documents. Rec doc. 877 (Exhibit A at 19). The same conclusion is applicable where there was joint representation of Omega Hospital and the Bellina defendants.
For example, if there was a malpractice action against Dr. Bellina and Omega Hospital in which Sher Garner defended both parties, there was joint representation and the file must be produced to Omega.
The opinion reported that “the privilege log identified for every withheld document: the bates number; the date of the communication, the names of the author(s) and/or correspondent(s); the names of the recipient(s) and/or addressee(s); a description of the document, including the subject matter upon which legal advice was sought or given; the nature of the privilege asserted; and the attachments related to that document.” 2006 WL 1726675, *1, n. 2
The motion was referred to the undersigned. Rec. doc. 850.
The undersigned was required to address the issue of e-discovery. On March 25, 2008, an order regarding e-discovery was issued. Rec. doc. 550. To support its position that it was entitled to redact the hard copy e-mails for certain information, Sher Garner cites the part of the March 5, 2008 order concerning Sher Garner's right to review e-documents before they are produced. Rec. doc. 550 at 5. This part of the March 5, 2008 order was concerned with Sher Garner's obligation to maintain the attorney-client privilege for persons who are not parties to this litigation and who were described in the order as “third party clients.” Id.
Most of the e-mails which the privilege log demonstrates were withheld for relevance were not withheld for any additional reason. Some e-mails were withheld as prepared in anticipation of litigation and for relevance. For example, there is a May 10, 2007 email from L. Sher to D. Bellina. The description is “Dr. George in dispute.” Rec. doc. 850 (Exhibit 3 at 1) and see other e-mails on pages 1, 13–17, 20, 22, 27, 33 and 37 of Exhibit 3. For those e-mails identified on the privilege log as raising issues of both relevance and preparation in anticipation of litigation, Sher Garner shall prepare a revised privilege log as discussed in Part IIC below.
Separate requests were served on behalf of the Sher Garner firm and the four lawyers with the firm who were named as defendants.