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, ECF No. 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.

PROCEDURAL HISTORY

On February 19, 2014, the parties submitted a joint Rule 26(f) Report to the Court for approval. The Report provided a discovery plan as required under Rule 26(f)(3), Fed.R.Civ.P., which included the following agreement for the handling of privileged or protected documents in accordance with Rule 26(f)(3)(D), to wit:

See ECF No. 105. Thereafter, on April 13, 2015, the parties submitted an Amended Rule 26(f) Report to the Court that included the same provision. See ECF No. 292.

In this motion, the Estate seeks to modify the Rule 26(f) Report by deleting the provision shown above in bold print, and to substitute in its place a requirement that each of the parties provide a privilege log for all communications with their respective counsel occurring on or before the date of Keith Wellin’s death on November 14, 2014.

The Estate’s Motion to Amend the Parties Rule 26(f) Report was filed on November 2, 2017. See ECF No. 683. The Wellin Children filed their Response in Opposition to the Estate’s Motion to Amend the Parties’ Rule 26(f) Report on November 30, 2017. The Motion was heard by the undersigned on December 11, 2017, and is now ripe for consideration and disposition.

Having reviewed the memoranda, exhibits and the arguments of counsel, I make the following Report and Recommendation for disposition of the Motion.

APPLICABLE LAW

*2 The Court has broad discretion in addressing disputes related to the course and scope of discovery. See Wellin v. Wellin, No. 2:13-cv-01831-DCN, 2015 WL 5781383, at 2 (D.S.C. Sept. 30, 2015) (“The scope and conduct of discovery are within the sound discretion of the district court.” (quoting Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 568 n.16 (4th Cir. 1995)); see also, Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402 (4th Cir. 2003) (quoting Mylan Labs, Inc. v. Akso N.V., 2 F.3d 56, 64 (4th Cir. 2003)). Rule 26 of the Federal Rules of Civil Procedure limits discovery to “non-privileged matter.” Fed R. Civ. P. 26(b)(1), and also provides protection of work product. Id. R. 26(b)(3).

Rule 26(b), Fed.R.Civ.P., delineates the scope of discovery:

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

To facilitate discovery, Rule 26(f)(2) requires a conference of the parties, the purpose of which is to consider several subjects surrounding the discovery process, including the development of a discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting a written report outlining the plan to the court within 14 days after the conference.

However, the Court still has the discretion to limit discovery in certain circumstances. In this regard, Rule 26(b)(2)(C) reads as follows:

In light of these provisions, the undersigned recognizes that the Court does have the discretionary authority to order a privilege log be provided notwithstanding the agreement of the parties to the contrary in their Rule 26(f) Report. However, based upon the record presently before this Court, such a recommendation is not warranted at this time.

DISCUSSION

*3 The parties agreed to modify the provisions spelled out in Rule 26(b)(5)(A) regarding the necessity of a privilege log to exclude communications “between the parties and their respective legal counsel” in both the February 19, 2014 Rule 26(f) Report and the April 13, 2015 Report. However, the undersigned does acknowledge there has been some dispute as to precisely what was intended by this exclusion.[2] Nonetheless, there has been no attempt to formally alter the operative language in the course of this litigation.

The Estate preliminarily argues that the Court has interpreted the agreement to apply only to counsel of record as exemplified in its orders requiring that a privilege log be prepared for communications between parties Wendy and Keith Wellin and their attorneys, Edward Bennett and his firm, Evans, Carter, Kunes and Bennett (ECKB), and ordering a privilege log be prepared for their communications with attorney Tom Farace and Rick Candler. See ECF Nos. 408 & 158. None of the three attorneys or their firms were attorneys of record in these proceedings. The Estate argues this ruling should apply equally to the communications between the Wellin Children and Jonathan Harris, who has assisted the Wellin Children in the litigation, although not as attorney of record. However, a careful reading of the respective rulings by this Court reveals that this argument misinterprets the basis for the rulings.

The Report and Recommendation requiring a privilege log to be prepared for communications with Edward Bennett and his firm addressed the Rule 26(f) agreement directly but nonetheless recommended a log be provided under the unique circumstances before the Court concerning the testamentary exception. See ECF No. 408 at 16-17. It is clear that the basis for requiring a privilege log for the communications between the Plaintiff and Evans, Carter, Kune and Bennett P. A. was the application of the testamentary exception to the attorney-client privilege, and not because the law firm’s role was as assisting counsel who were not performing as attorneys of record in the litigation.

The Court also ordered the Estate to prepare a privilege log for communications with attorney Tom Farace at the request of the Wellin Children, despite the Rule 26(f) agreement. Thus, the Estate asserts the Wellin Children’s denial of their request to modify the agreement is again inconsistent with the position they have previously taken on this subject. Again, this argument misinterprets the Court’s reasons for ordering privilege logs. See ECF No. 158.

Mr. Farace was Keith Wellin’s estate planning attorney for many years, including the time period when Keith implemented his estate plan in 2009, which included the Wellin Family 2009 Irrevocable Trust and the time when Keith made gifts of 10 million dollars to each of his three children and to Wendy Wellin. Both of these transactions are at the center of this litigation, and in both instances, Keith asserts he was not informed properly about the consequences of these actions. Thus, the advice of Mr. Farace is clearly an issue in the case, and the attorney-client privilege was deemed accordingly waived. American Reinsurance Comp. v. U.S. Fidelity and Guaranty Comp., 40 A.D. 3d 486, 492, 837 N.Y.S.2d 616, 622 (1st Dept. 2007) (Under the “at-issue” doctrine, where a party places legal advice or other privileged facts or communications at issue, the party is deemed to have waived the privilege with respect to such facts or communications and can be compelled to produce them); Saint Annes Development Co., LLC v. Trabich,2009 WL 324054, Feb. 9, 2009; Computer Network Corp. v. Spohler, 95 F.R.D. 500 (1982); In re Rodriguez, 20133 WL 2450925 (Bkrtcy. S.D. Tex. 2013; EEOC v. Unit Drilling Co., 2014 WL 354845 N.D. Okla. July 17, 2014); Woodward v. Avondale Industries, Inc., 2000 WL 385513, 3 (E.D. La. 2000); Langer v. Presbyterian Med. Ctr of Philadelphia, 1995 WL 79520, 10 (E.D. Pa. 1995); EEOC v. Caesars Entertainment, Inc., 237 F.R.D. 428(D. Nev. 2006); see also, LaBrecque v. School Administrative Dist. No. 57, 463 F. Supp.2d 88, 95 (D. Me. 2006); Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 303, 306 (E.D. Mich. 2000); Friction Div. Products, Inc. v. E.I. DuPont De Nemours & Co., Inc., 117 F.R.D. 535 (D. Del. 1987); Titan Corp. v. M/A-Com, Inc., 1994 WL 16001739, *2 (S.D. Cal. 1994). Consequently, the privilege log was necessitated by legal advice or other privileged facts or communications being placed at issue, and not because Mr. Farace was considered by the court to be outside of the scope of the Rule 26(f)agreement.

*4 The third attorney identified by the Estate is Rick Candler, who was Wendy C. H. Wellin’s personal attorney in Florida. The Estate asserts the Wellin Children required the preparation of a privilege log. However, the correspondence regarding this indicates the Wellin Children did not request a privilege log, but wrote to opposing counsel only to confirm that Wendy Wellin was “treating materials in the possession of those attorneys that relate to their representation of Mrs. Wellin as materials that are in Mrs. Wellin’s custody and control.” See ECF No. 683 at 7.

The Estate maintains it was originally told that Jonathan Harris gave Peter Wellin legal assistance in the handling of his real estate transactions. The Estate argues that during the course of discovery it has learned that attorney Jonathan Harris also has played a role in assisting the Wellin Children in this litigation and in the handling of various legal matters as attorney for both Keith Wellin and Peter Wellin. Therefore, his involvement is much more material to the issues in these cases than originally represented at or about the time of the Rule 26(f) agreement. The Estate asserts it “may” be entitled to the communications between the Wellin Children and Jonathan Harris. For example, during the course of the litigation, the Wellin Children divulged that Harris had been retained as early as July of 2011 to help them prepare for possible litigation against Wendy C. H. Wellin and to help protect their father’s true intent in the handling of his estate, years before Wellin I was initiated in July of 2013.

However, the record reveals that Wendy Wellin knew about Harris’ retention by the Wellin Children in connection with this case prior to November 26, 2014, at which time Wendy filed a Motion to Compel Discovery and argued, inter alia, that factual summaries prepared by the Wellin Children were not protected from disclosure by the work product doctrine or by attorney-client privilege, notwithstanding the involvement of Jonathan Harris. Despite this knowledge, the Estate again agreed to the same privilege log limiting language in the April 2015 Rule 26(f) Report submitted to the court and has participated in discovery with the Rule 26(f) agreement in effect through over four years of almost continuous discovery without moving for relief from the agreement.

The Estate further argues that some of the correspondence between Harris and the Wellin Children was never intended to be privileged. To allow them the opportunity to identify such material, they argue a privilege log is necessary.

In addition to the above, the Estate asserts that it is entitled to discover the advice given to the Wellin Children by their attorneys following the initiation of the suit in Wellin I. Following the initiation of Wellin I, Keith Wellin executed various documents purporting to substitute certain assets of the Wellin Family 2009 Irrevocable Trust and appointing a successor Trust Protector. The point of these documents was to gain control of the Trust and its assets to the exclusion of the Wellin Children, which included the Berkshire Hathaway stock held in Friendship Partners LP. However, the Wellin Children took steps to prevent this from happening. Specifically, Cynthia Plum was manager of Friendship Management, LLC. which, in turn, was managing partner in Friendship Partners, LP. By dissolving Friendship Partners, LP, the Children were successful in liquidating the Berkshire Hathaway stock and, as members of the Trust Distribution Committee, were able to disperse all funds out of the Trust.

*5 The Estate argues it is entitled to know the advice given to the Wellin Children by their counsel during this time frame because Keith Wellin was a limited partner in Friendship Partners, LP at the time of this transaction. The Estate maintains that Keith, as a limited partner in Friendship Partners, LP, was owed certain fiduciary duties by the Wellin Children in their capacities as controlling members of Friendship Management, L.L.C. In this regard, the Estate points out that it served a number of requests for production on the Wellin Children as early as February 4, 2014, including a request for production of correspondence and documents sent or received by them in any way related to the Wellin Family 2009 Irrevocable Trust, Friendship Partners, LP, and Friendship Management, L.L.C. However, to date, the Wellin Children have refused to produce this information, correspondence or “to even disclose the existence of any advice they may have received with respect to these actions on a privilege log.”

In response to the Estate’s requests for production, the Wellin Children objected on the grounds of work product protection and attorney-client privilege. They point out that in their response they specifically noted that, pursuant to the Rule 26(f) Report, they were not logging communications between the Wellin Children and Nelson Mullins. See ECF No. 703. They argue that during the more than three years of discovery since the objection was made, the Estate has never moved to compel production of these communications.

The proper vehicle to have raised the issue was by a timely motion to compel. Under Local Civil Rule 37.01, the deadline for doing so was twenty-one (21) days after receiving the Wellin Children’s objection. As the Wellin Children argue, any attempt by the Estate to compel production now is time-barred. See Kelly v. Equifax, Inc., 8:12-CV-03095-MGL, 2013 WL 5954799, *2 (D.S.C. Nov. 7, 2013)( holding the court need not reach the merits of a motion to compel because the defendant filed its motion to compel three (3) days after the twenty one day deadline of Local Rule 37.01 expired); Johnson v. Cnty of Horry, S.C., 4:09-CV-1758-JMC-TER, 2012 WL 1580456, *1 n.2 (D.S.C. May 4, 2012) (denying plaintiff’s motion to compel as untimely and holding: “Local Rule 37.01 provides for extensions if the parties are actively engaged in resolving issues and the agreement to extend is in writing.).

Furthermore, there appear to be preliminary issues relating to the Estate’s position that it is entitled to the requested discovery. Contrary to the Estate, the Wellin Children maintain Keith ceased being a partner in Friendship Partners LP in 2007. Indeed, they argue he conceded this in his original Complaint. See e.g., Complaint, ECF No. 1 at ¶ 33, 58. Furthermore, by the time the November and December actions were accomplished, Keith had already sued the Wellin Children and as the Court has already ruled in connection with the denial of a similar request for the same communications, “[c]learly, by that time the battle lines were drawn.” SeeECF No. 345 in 2:13-CV-3595 at 12-13.

The Estate next states that a search error identified by the Wellin Children in connection with a prior production of documents may extend through each of their discovery searches. Specifically, counsel for the Wellin Children notified the parties that its disclosure of documents responsive to a request seeking correspondence between Nelson Mullins and Brown Brothers Harriman was inaccurate. The reason given for the inaccuracy was that prior to attorney review, Nelson Mullins had its litigation support personnel remove any communications to or from an email address containing *nelsonmullins.com. As Nelson Mullins explained, “We excluded these emails to avoid having to review thousands of privileged communications between our firm and our clients in light of the parties’ agreement not to log communications between clients and counsel.” Although Nelson Mullins acknowledges this error, they assert in response that the error was caught, and only pertained to one search for documents. I conclude the Estate has failed to provide a basis for claiming any ongoing systemic error, and speculation that the same error may occur in other discovery is unfounded, and is not a reason to require a privilege log.

*6 Next, the Estate asserts that Peter Wellin testified during his deposition that from July 2013 forward, it would be a “rare” event for the Wellin Children to communicate about this litigation without copying counsel. SeeECF No. 683. Peter stated in the deposition, “[w]e’ve been very careful, though, to – any emails relative to the litigation, we’ve been careful to copy counsel on.” Id. The Estate claims that in each of two e-mails that have been produced, a Wellin Child references a general inclusion of counsel for the purpose of maintaining privilege, even where the underlying communication does not appear to have sought legal advice.

The Estate argues that “[t]he practice of the Wellin Children – including counsel as recipient on what appears to be the majority of correspondence exchanged after the litigation – when coupled with the Wellin Children’s broad interpretation of the Rule 26(f) applicability to their own correspondence, prevents the other parties in these consolidated actions from identifying even a starting point from which to challenge the sufficiency of the Wellin Children’s productions.”

In response to this argument, the Wellin Children point out that the reason the Estate has the two emails referred to above is because they were provided in discovery, notwithstanding the fact that Nelson Mullins was copied on the emails. In other words, the documents were not considered privileged and were produced.

The Estate argues that another search error provides a further example of why a privilege log from counsel of record is necessary. During the course of discovery, the Wellin Children were ordered to produce certain narratives or factual summaries (alluded to earlier in this Report) that they prepared prior to the commencement of the litigation to preserve their recollection of various events. The narratives they were required to produce were those found not to have been prepared in anticipation of litigation. Narratives prepared on or after June 1, 2013 were found to be in anticipation of litigation, and were protected from discovery as work product. See ECF No. 320.

In April of 2017, the Wellin Children notified opposing counsel that they had inadvertently left out approximately 23 narratives from the production as a result of errors in the technical data that furnished the actual date of the documents’ preparation. They explained that the metadata for each document contained a “creation date”, but they later learned that the creation date was not always correct. The Estate opines that one possible explanation is that the date actually identified is the date the document was conveyed to counsel as opposed to the date it was created or modified.

The Wellin Children’s counsel further explained that they attempted to de-duplicate the document production by comparing documents, but did not match seemingly identical documents in a word for word review. Consequently, they initially failed to produce a few discoverable narratives or factual summaries having minor differences.

The Estate argues the Wellin Children’s attempts at explanation expose one fundamental flaw in the Wellin Children’s privilege logs – that is, there is no delineation on the 2017 versions of the privilege logs between narrative or factual summaries contained on the Wellin Children’s own electronic devices and those found as attachments to an email or found on a device or server of counsel for the Children. The Estate asserts this failure “fundamentally hinders other parties’ ability to identify the full extent of the Wellin Children’s failure to appropriately comply with the Special Master’s July 2015 ruling as well as the full extent of their breaches of fiduciary duty toward their father or their civil conspiracy against Mrs. Wellin, individually.” In response, the Estate requested that the Wellin Children supplement their privilege log to identify all communication between themselves and attorneys transmitting any of these materials. The Wellin Children refused to do so on the basis of the Rule 26(f) agreement.

*7 Overall, the Estate argues that the issues identified above display the need to amend the Rule 26(f) agreement. They propose that the Court qualify the previous agreement to exclude the requirement of a privilege log only for communications occurring after Keith Wellin’s death on September 14, 2014. The proposed agreement, as amended, would read as follows:

Although the Estate proposes to tie the requirement of a privilege log for communications between the parties and their respective counsel to the date of Keith Wellin’s death, the Estate articulates no basis for this cut-off.

CONCLUSION

After careful consideration of all of the Estate’s arguments in support of their motion, I conclude the motion should be denied. The parties have participated in extensive written discovery and a significant amount of depositions for more than four years. During that time, they have abided by the stipulation contained in the Joint Rule 26(f) Report that is at issue here. Consequently, neither side has maintained a log of communications between their clients and their attorneys involved in the litigation.

As the Wellin Children point out, most of the Estate’s purported issues can be litigated without the need for the requested privilege log. The request for Nelson Mullins communications providing advice to the Wellin Children in November and December of 2013 when the Children removed the assets from the Wellin Family 2009 Trust is obviously privileged and not discoverable unless Keith Wellin was a partner in Friendship Partners at the time and as such, was entitled to that information despite the fact these two parties were on opposite sides of this litigation commencing in July of 2013. A privilege log is not required to litigate these issues. If it is determined that the Estate is entitled to the information, then a privilege log can be required, as was the case regarding the Bennett and the Farace communications.

I further do not agree that the Wellin Children have been inconsistent in the application of the agreement, nor do I conclude inconsistency would be a basis to modify, rather than to reinforce, the agreement at this late date. As noted previously, the requirement of a privilege log for Keith and Wendy Wellin’s communications with Edward Bennett was necessitated by the application of the testamentary exception to the attorney-client privilege. The requirement of a privilege log for the communications with Tom Farace was required because his advice to Keith Wellin was placed squarely at issue in this case by the allegations of the Plaintiff, Keith Wellin, and now by the Estate.

As to the discrepancies in the discovery responses provided by the Wellin Children and the glitches in the searches for electronic discovery, they have been identified and corrected, or are currently under consideration by the Court in other motions.[3] A privilege log is not required to address the arguments in those motions.

*8 Where, as here, the parties have provided the Court with a Joint Rule 26(f) Report containing a discovery plan with a provision altering a discovery rule, the plan controls, and not the explicit provisions of the rule. Akeva L.L.C. v. Muzuno Corporation, 212 F.R.D. 306 (M.D.N.C. 2002). Moreover, the Court has no basis from the record before it to conclude that the Wellin Children have not properly abided by the agreement. See, e.g., Lumber v. PPG Industries, Inc., 168 F.R.D. 641 (D. Minn. 1996)(“the Court must accept, at face value, a party’s representation that it has fully produced all materials that are responsive to a specific discovery request.”

After more than four years of discovery, including over eighty depositions, the parties are within two months of completing their fact based discovery under their proposed amended scheduling order. Requiring the creation of a privilege log for all communications between each client and their litigation counsel would be labor intensive and time consuming. The difficulties in obtaining discovery attributable to the agreement not to provide privilege logs for the parties’ communications with their litigation counsel was foreseeable, as was the fact that the litigation would expand with greater issues as the discovery process continued. At this stage of the litigation, both the burden and the expense of the proposed discovery outweigh its likely benefit. Based upon the above, I conclude allowing the proposed modification to the parties Joint Rule 26(f) discovery plan at this late stage for the reasons asserted by the Estate would be inconsistent with the mandates of Rule 26(b)(2)(C) and would undermine the objectives set forth in Rule 16(b)(i),(ii), and (iii).[4]

For the foregoing reasons, it is Recommended:

The electronic case filing numbers refer to entries submitted in Case Nos. 2:13-cv-1831-DCN, 2:13-cv-3595-DCN, and 2:14-cv-4067-DCN respectively. These cases have been consolidated for pre-trial purposes. Hereinafter, unless otherwise indicated, all references to electronic filing numbers will be directed to filings in Case No. 2:13-cv-1831-DCN only.

The parties have asserted that the scope of this provision was intended to apply only to counsel of record, and in other settings, that it should also include attorneys who are assisting on the case but are not listed as counsel of record. Thus, for example, both the Estate and the Wellin Children have at various times argued this agreement as the basis for denying a request to prepare a privilege log for communications with their counsel of record. In addition, the parties have argued over whether or not this agreement also applies to communications with various attorneys who allegedly are assisting in the litigation but are not attorneys of record. The agreement has been in place without any change in its language from the time of its submission on February of 2014 until the present, such that neither party has logged their communications with counsel of record.

The undersigned currently has under consideration a motion to compel production or to require submission for in camera review of the additional narratives the Wellin Children recently identified, and a motion for protective order regarding the recently identified additional copies of the draft letter Peter Wellin wrote to his father, Keith Wellin.

On March 2, 2018, the Estate filed additional memorandum and briefing with regard to the above issues. See ECF No. 747. Specifically, the Estate submitted portions of recent deposition testimony from the February 8, 2018 Rule 30(b)(6) deposition of Friendship Management, LLC, asserting that the deposition excerpts highlight the inequity resulting from the Wellin Children’s position regarding the Rule 26(f) Report. The Wellin Children responded to the above-referenced memoranda on March 29, 2018. See ECF No. 760. After careful consideration of all arguments advanced by both parties, the undersigned finds no new grounds or arguments which warrant a result contrary to the recommendations set forth above.