The motion is before the undersigned, sitting as Special Master, pursuant to the February 17, 2015 Order of the United States District Court for the District of South Carolina, Charleston Division, Hon. David C. Norton presiding. See ECF Nos. 270, 258, and 35.[1] The above captioned lawsuits involve multiple issues surrounding the handling and disposition of the assets, trusts, and estate of Keith S. Wellin (Keith). The factual allegations and procedural histories of these cases are extensively outlined in the Order of Judge Norton issued in Wellin I, Case No. 2:13-cv-1831-DCN, ECFNo. 158, filed on June 28, 2014, and in the Amended Report and Recommendation of the Special Master, ECF No. 320, filed on July 31, 2015.

Peter J. Wellin, Cynthia W. Plum, Marjorie W. King, and Friendship Management, LLC (the “Wellin Children”), submitted 22 documents to this court for in camera review which are described by them as “[f]actual summaries created for counsel for use in anticipated litigation.” The Wellin Children withheld the documents from production on the grounds that they constitute work product. On October 13, 2017, Wendy Wellin filed her motion to compel production of the documents, or in the alternative, to require supplementation of the Wellin Children’s privilege logs on the grounds that the current privilege logs do not provide sufficient information to allow her to evaluate the claim of work product protection from discovery. See ECF No. 662. On October 27, 2017, the Wellin Children responded to Wendy Wellin’s motion. See ECF No. 675. On November 10, 12017, Wendy Wellin filed her Reply to the Wellin Children’s Response. See ECF No. 689. The motion was heard by the undersigned on March 7, 2017, and is now ripe for review.

The current motion is not the first time the issue of production of the factual summaries created by the Wellin Children has been presented to this court for review. Early in the litigation, the Plaintiffs in Civil Action 2:13-cv-01831-DCN and 2:13-cv-03595-DCN, moved to compel production, inter alia, of all factual summaries prepared by the respective Wellin Children. At that time, the Wellin Children’s privilege log identified less than thirty such summaries. The Court ruled that all factual summaries prepared in 2011, 2012, and prior to June 1, 2013 were subject to production and were not protected by the work product doctrine because they were not prepared in anticipation of litigation as defined by the Fourth Circuit Court of Appeals. See Amended Report and Recommendation of the Special Master, ECF No. 320 and ECFNo. 343. Specifically, the Court ruled that the documents created prior to June 1, 2013 “documented transactions and occurrences to avoid the foibles of memory and to perpetuate evidence for the resolution of future disputes ... with the general possibility of litigation in mind. (2:13-cv 01831-DCN, ECF No. 320, p. 42 (quoting National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992).

*2 According to Wendy Wellin, in April of 2017, the Wellin Children identified approximately 50 additional summaries described as being versions of those documents produced in accordance with the Court’s September 30, 2015 ruling. The production of those documents was not without its difficulties, as described in an April 24, 2017 letter from Nelson Mullins Riley and Scarborough (NMRS), counsel for the Wellin Children, addressed to opposing counsel. See Motion of Wendy C.H. Wellin, Individually, to Compel Production of Withheld “Factual Summaries”, or, in the alternative, To Compel Privilege Log Supplementation, Exhibit 2. NMRS enclosed with their letter revised privilege logs that 1) contained new entries for certain factual summaries created after June 1, 2013, but that were not previously logged, and 2) no longer contained entries for certain factual summaries that were previously logged with a date after June 1, 2013 but that, upon further review, NMRS had determined were created before June 1, 2013, and were therefore produced with the letter.

The letter further explained that NMRS then discovered another factual summary in their data base that had not been logged or produced, leading the firm to search for all factual summaries in their database and compare those to the factual summaries previously produced or logged. In doing so, they identified other versions of factual summaries that had neither been produced nor logged. According to the letter, “almost all” of the factual summaries that had not been produced or logged were “identical or nearly identical” to versions of the factual summaries that had been produced or logged. However, they identified some factual summaries with substantive information not contained in the summaries previously produced or logged. They explained that they identified only one factual summary that was created before June 1, 2013 and which was not merely a version of a previously produced factual summary. That one new document was Peter_Wellin_ESI_00002859 60.

Following the above discovery, the firm undertook an internal review of their document analysis, and a second review of the documents tagged as privileged for purposes of creating the Wellin Children’s privilege logs. During this process, they attempted to de-duplicate the documents to be included on the privilege log, but in doing so, did not compare the metadata of the documents that appeared to be duplicates or attempt to run an electronic comparison of the documents that appeared to be duplicates. As a result, they identified some non-identical factual summaries as duplicates. These summaries were not completely identical because either the metadata differed or there were slight substantive differences between the documents. They treated factual summaries that appeared to be identical to one another as, in fact, identical, but without making a word-by-word comparison and without comparing the metadata.

In addition, when re-reviewing all factual summaries referenced on the privilege logs, they determined that some entries reflected an incorrect date. In a few cases, the incorrect date on the privilege log was after June 1, 2013, and the correct date as determined by their re-review was before June 1, 2013, in which case they state in the letter that they produced the factual summary and removed the entry from the log. In other cases, the incorrect date on the privilege log was after June 1, 2013, and the correct date as determined on re-review was also after June 1, 2013, such that they left the document on the privilege log but simply changed the date. They explained that the reason the entries on the privilege logs for certain factual summaries initially had an incorrect date appears to be that in creating the privilege logs, they typically relied upon the metadata field “Creation Date (E)” to determine the date of the factual summaries. However, based on their re-review of the documents and consultation with relevant experts, they learned that “Creation Date (E)” is not always a reliable field for purposes of determining the date a document was created, and the “Creation Date” field, while not always reliable either, is more reliable than the “Creation Date (E)” field. In addition, they identified some documents where both the “Creation Date” and “Creation Date (E)” metadata fields were obviously incorrect (e.g. a date from 1980), and in those cases, they amended the log to provide an “estimated date” based on the information available to them. Needless to say, these summaries have long been the source of considerable confusion in this litigation.

*3 Based upon the above re-review of the required document production, the Wellin Children produced more than forty additional factual summary documents to Wendy Wellin. They categorized the newly produced summaries as follows:

Following the above disclosure, the Wellin Children logged 22 factual summaries which they maintain are not subject to disclosure because they are protected by the work product doctrine. Despite the difficulties in determining the creation date of the factual summaries identified in their letter, the Wellin Children assert they have accurately determined the creation date for the 22 withheld factual summaries to be after June 1, 2013. Based on the Court’s ruling regarding the initially disclosed factual summaries, they maintain the summaries created after June 1, 2013 were created in anticipation of litigation, which litigation commenced on July 3, 2013 when Keith Wellin filed his summons and complaint against the Wellin Children. The Wellin Children have submitted those 22 factual summaries to the undersigned for in camera review.

In response, Wendy Wellin asserts 1) that the Wellin Children’s justification for withholding the 22 factual summaries is no longer valid in view of the difficulties with the logging and disclosure of the previously identified factual summaries as outlined in the NMRS letter described above; and 2) the information provided on the Wellin Children’s logs – including the author, date of creation, and description of the factual summaries –is no longer sufficient to allow Wendy Wellin to assess the claim of work privilege. With regard to this latter argument, Wendy requests that the Court order the Wellin Children to provide the following additional information in their privilege log:

*4 Federal law applies to determine whether or not the summaries are protected by the work-product doctrine. This is so because the privilege is a creature of Federal Rule of Civil Procedure 26(b)(3), which codified the privilege first recognized by the Supreme Court in Hickman v. Taylor, 329 U.S. 496 (1947). See Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Murray Sheet Metal Co., Inc. 967 F.2d 980, 983-984 (4th Cir. 1992); Doe v. United States (In re Doe), 662 F.2d 1073, 1078 (4th Cir.1981) cert. denied, 455 U.S.1000, 102 S. Ct. 1632, 71 L.Ed.2d 867 (1982); First S. Bank v. Fifth Third Bank, N.A., Civ. No. 10-2097, 2013 WL 1840089 at 4 (D.S.C. May 1, 2013); United Coal Cos. V. Powell Constr. Co., 839 F.2d 958, 966 (3d Cir. 1988); PepsiCo, Inc. v. Baird, Kurtz & Dobson LLP, 305 F.3d 813, 817 (8thCir. 2002). The party asserting the work product doctrine bears the burden of establishing the documents the party seeks to protect were prepared in anticipation of litigation. In re Grand Jury Proceedings, Thursday Special Grand Jury. Sept. Term, 1991, 33 F.3d 342, 352 (4th Cir. 1994); see also, Carnes v. Crete Carrier Corp., 244 F.R.D. 694, 697 (N.D.Ga. 2007); United States v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006). Furthermore, the party asserting the privilege has the obligation to provide a privilege log containing sufficient information to allow opposing parties to assess the claim of privilege.

Rule 26(b)(5)(A) of the Federal Rules of Civil Procedure provides that a party withholding information otherwise discoverable by claiming that the information is privileged or subject to protection as trial preparation material, must:

In addition, the Rule 26(f) Report and Local Rule 26.03 Disclosures filed in each of these cases provides as follows:

See ECF No. 292.

In order to comply with the requirements of Rule 26(b)(5)(A), “a party seeking protection from producing documents must produce a privilege log that ‘identifies each document withheld, information regarding the nature of the privilege/protection claimed, the name of the person making/receiving the communication, the date and place of the communication, and the document’s general subject matter.’ ” Machinery Solutions, Inc. v. Doosan Infracore American Corp, 323 F.RD. 522, 538 (D.S.C. 2018)(quoting AVX Corp. v. Horry Land Co., Inc., C/ANo. 4:07-cv-3299-TLW-TER, 2010 WL 4884903, at 3 (D.S.C. Nov. 24, 2010); Victor Stanley. Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 264 (D. Md. 2008). “The party asserting the privilege ‘must identify the elements of the applicable privilege and demonstrate that each element is present for each document for which they claim the existence of a privilege.’ ” AVX Corp., 2010 WL 4884903, at*3 (quoting Richardson v. Sexual Assault/Spouse Abuse Research Ctr., Inc., 270 F.RD. 223, 228 (D. Md. 2010)).

When a party provides an inadequate or untimely log, the Court may choose between four remedies: (1) give the party another chance to submit a more detailed log; (2) deem the inadequate log a waiver of the privilege; (3) inspect in camera all of the withheld documents; and (4) inspect in camera a sample of the withheld documents. Nationwide Mut. Fire Ins. Co. v. Kelt, Inc., No. 6:14-cv-749-41TBS, 2015 WL 1470971, at *9 (M.D. Fla. Mar. 31, 2015).

*5 The Court has inspected the 22 documents the Wellin Children claim are protected from disclosure by the work product doctrine in camera and determined that they are, indeed, factual summaries as described in the privilege log. The privilege log entry for each of the 22 summaries describes each document as a “factual summary created for counsel for use in litigation.”[2] This description supplies the nature of the document, but it does not provide any information as to the subject of the document. Therefore, it does not meet the requirements of Rule 26(b)(5)(A), which requires the proponent of the privilege to provide adequate information as to the document’s general subject matter.[3]

I conclude the privilege log is insufficient to allow evaluation of the asserted privilege for two additional reasons. First, the author listed as to each document is one of the three Wellin Children, but the evidence produced at deposition reveals the Wellin Children may have corrected, modified, or made suggested revisions to their sibling’s factual summaries. See Eplus Inc. v. Lawson Software, Inc., Civ. Action No. 3:09-cv-620-REP, *3 (E.D. Va. Feb. 21, 2012)(where privilege log failed to list the author of the document or recipients, the log was insufficient and the claim of privilege deemed waived). The privilege logs name the original Wellin child who authored each of the 22 summaries, but the log does not address the inconsistency created by the Wellin Children’s testimony.

Second, the privilege logs do not name recipients of the document. As noted previously, the proponent of the privilege bears the burden of establishing the elements of the privilege. In re Grand Jury Proceedings, 102 F.3d 748, 750 (4th Cir. 1996). In order to fully evaluate the claim of work product protection, opposing counsel is entitled to know the recipients of any alleged work product in order to assert a claim of waiver, if applicable under the facts. When a party relies on a privilege log to assert these privileges, the log must ‘as to each document ... set[ ] forth specific facts that, if credited, would suffice to establish each element of the privilege or immunity that is claimed.’ ” National Labor Relations Board v. Interbake Foods, LLC, 637 F.3d 492 (4th Cir. 2011)(quoting Bowne, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993). Without having information as to the recipient for each document, Wendy Wellin does not have the ability to assess any claim of waiver.

To be sure, there is a difference in the application of the attorney-client privilege and the work product privilege. As Judge Norton noted in Honewater, et. al. v. Roberts Pharmaceutical Corporation, 152 F.R.D. 513 (D.S.C. 1994), the purpose of the work product rule “is not to protect the evidence from disclosure to the outside world but rather to protect it only from the knowledge of opposing counsel and his client, thereby preventing its use against the lawyer gathering the materials.” (quoting 8 C. Wright, A. Miller & R. Marcus, Federal Practice and Procedure § 2024 (1993 Supplement). Thus, the result should be that disclosure of a document to third persons does not waive the work product immunity unless it has substantially increased the opportunities for potential adversaries to obtain the information. Id. Determining the recipients of the document is important to the analysis of waiver in the context of evaluating an assertion of work product protection.

*6 In their brief in support of work product protection, the attorneys for the Wellin Children assert that the Wellin Children “are not aware” of anyone making suggestions for revisions to any of the withheld factual summaries, nor are they “aware” of anyone receiving a copy of the summaries other than the Wellin Children, their counsel, and their spouses, all of whom NMRS represents as joint clients. However, these assertions made in the responsive brief do not supplant the requirements of a proper privilege log. Rambus, Inc. v. Infineon Technologies AG, 220 F.R.D. 264, 273 (E.D.Va. 2004) (“It is true that the courts necessarily must operate on the assumption that attorneys will not take legal positions unsupported by the facts.... That, however, does not absolve a party from its duty under Rule 26 to provide an adequate privilege log, ....”).

Based upon the above analysis, I conclude the Wellin Children should be ordered to supplement their privilege log to provide adequate information regarding the author of each withheld factual summary, the recipients of each withheld summary, and the general description of the subject matter of the factual summary, all of which should be detailed enough to allow Wendy Wellin to assess the claim of work product protection from discovery.[4] I do not find waiver of the privilege to be appropriate. See Westfield Ins. Co. v. Carpenter Reclamation, Inc., 301 F.R.D. 235, 247–48 (S.D.W.Va.2014)(noting federal courts have typically found waiver appropriate where unjustified delay, inexcusable conduct, or bad faith are present). Although this inadequate privilege log falls on the heels of the confusing production of summaries as outlined in the NMRS letter of April 24, 2017, the circumstances do not warrant imposition of the extreme sanction of waiver as the Wellin Children did not commit unjustified delay, inexcusable conduct or bad faith in responding to discovery.

I conclude Wendy Wellin is entitled to accurate and adequate information in the above noted privilege log entries to allow an assessment of the Wellin Children’s claim of work product protection before the motion to compel is considered.

For the above reasons, it is recommended that the Wellin Children be required to supplement their privilege logs regarding the 22 factual summaries for which they claim work product protection within 20 days, to include the following information:

It is Furtber recommended:

Respectfully submitted this 24th day of May, 2018.