I. BACKGROUND

This dispute turns on a 1,016-page privilege log titled “Thomas Nelson's Metadata Log of Privileged or Protected Documents.” (Doc. No. 357, PageID# 8450–9465.) The log contains the following fields: document type, document identification number, beginning and ending document identification numbers, from, to, copy, blind copy, sent date, master date, all custodians, and the type of privilege claimed. (Doc. No. 357, PageID# 8450–9465.) Following this log is a three-page description of the twenty-five categories of documents withheld, titled “Thomas Nelson's Description by Category of Documents for Which the Attorney-Client Privilege, Work Product Doctrine, Common-Legal Interest Privilege, or Marital Communications Privilege Is Claimed.” (Doc. No. 357, PageID# 9466–9468.) Important for purposes of this motion, the twenty-five categories of documents withheld are not associated with the metadata fields found in the log.

II. LEGAL STANDARD

A party who withholds otherwise discoverable materials as privileged or work-product bears the burden of establishing the application of the privilege. Fed. R. Civ. P. 26(b)(5)(A); United States v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006) (citations omitted); Ross v. City of Memphis, 423 F.3d 596, 606 (6th Cir. 2005) (citation omitted). Typically, parties ensure compliance with Rule 26(b)(5)(A) through a document-by-document privilege log that states the “date and time of the document, the type of communication, the author, the addressee(s), identification of the recipients, the privilege asserted, and an explanation of the privilege claimed.” First Horizon Nat'l Corp. v. Houston Cas. Co., No. 2:15-CV-2235-SHL-DKV, 2016 WL 5867268, at *5 (W.D. Tenn. Oct. 5, 2016) (collecting cases).

Where a document-by-document privilege log would be unduly burdensome and without much benefit, courts have permitted a categorical logging approach. See, e.g., id. (explaining that other courts have permitted categorical logging); see also Fed. R. Civ. P. 26(b)(5) advisory committee's note to 1993 amendment (“Details concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories.”). Even where a categorical approach is used, however, the log must still provide information needed to evaluate claims of privilege, including the category, date range, authors and recipients, privilege asserted, and representations that the materials fall within the scope of the privilege. See First Horizon Nat'l Corp., No. 2:15-CV-2235-SHL-DKV, 2016 WL 5867268, at *7 (explaining that a categorical log was insufficient even though it provided the category, date range, authors and recipients, and privilege asserted);[1] Manufacturers Collection Co., LLC v. Precision Airmotive, LLC, No. 3:12-CV-853-L, 2014 WL 2558888, at *5–6 (N.D. Tex. June 6, 2014) (faulting a categorical log for not identifying the specific authors and recipients for each category, providing generic document descriptions, and lumping together multiple types of privilege in the same category)[2]; S.E.C. v. Thrasher, No. 92 CIV. 6987 (JFK), 1996 WL 125661, at *2 (S.D.N.Y. Mar. 20, 1996) (explaining that a categorical log must include the relevant time period, the individuals involved, and representations that the elements of privilege or work product are satisfied).

*2 Ultimately, the information submitted by the withholding party must “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)(ii).

III. ANALYSIS

The metadata log is substantively deficient. Read in conjunction, the log and category descriptions contain the ingredients for either a document-by-document log or a categorical log. The fatal flaw is TNI's failure to associate the twenty-five categories of withheld documents with the fields of information listed in the voluminous metadata log. Absent some connection between the document categories and the metadata, EPAC and the Court cannot reasonably assess Thomas Nelson's asserted reasons for withholding the documents as privileged or protected. It is not the Court's job, nor is it EPAC's, to ferret out the alleged justification for each withheld document.

Thomas Nelson complains that amending the metadata log will consume excessive resources for little value. (Doc. No. 360, PageID# 9531–9533.) The Court is sympathetic to counsel's complaint. Had the parties stipulated to the format of the metadata log, there would be little reason to disturb the document. See Fed. R. Civ. P. 29(b). But Thomas Nelson was on notice that EPAC objected to this proposed format before and after TNI produced the metadata log on July 17, 2015. (Doc. No. 255-2, PageID# 5034 n.1) (Doc. No. 354-4) (Doc. No. 354-5.) Faced with EPAC's objections and the sheer volume of documents to be logged, counsel could have sought a protective order. See Fed. R. Civ. P. 26(b)(5) advisory committee's note to 1993 amendment (“A party can seek relief through a protective order under subdivision (c) if compliance with the requirement for providing [a justification for withholding documents as privileged or protected] would be an unreasonable burden.”). Thomas Nelson did not, and that ship has now sailed.

Thomas Nelson additionally complains that EPAC's motion to compel is untimely. (Doc. No. 360, PageID# 9528–9529.) Generally speaking, a court may deny a motion to compel as untimely if it violates discovery deadlines. Craig-Wood v. Time Warner N.Y. Cable LLC, 549 F. App'x 505, 508 (6th Cir. 2014) (citations omitted). This is not the case, as fact discovery has not yet closed. (Doc. No. 374.) Further, the undersigned gave EPAC leave to file the instant motion.

IV. CONCLUSION

Thomas Nelson has not met its burden of establishing privilege for the items withheld on the metadata log. The Court GRANTS EPAC's motion to compel and ORDERS the parties to meet and confer within twenty-eight days of the date of this order to agree upon a protocol by which to implement the Court's order. Should the parties be unable to agree, they shall notify the Court and it will impose an appropriate protocol.

It is so ORDERED.

TNI filed a copy of the categorical log in dispute in First Horizon.(Doc. No. 361-5, PageID# 9671–9677.)

To view the insufficient categorical log in Manufacturers' Collection, see Appendix in Support of AVCO Corporation's Brief in Support of Its Response to Precision's Motion to Compel Discovery at App. 51–63, Manufacturers Collection Co., LLC v. Precision Airmotive, LLC, No. 3:12-CV-853-L (N.D. Tex. June 6, 2014), ECF No. 147.