The Wellin Children supplemented their privilege log as required, and on July 23, 2018, Wendy Wellin filed her Supplemental Brief In Support of Motion of Wendy C.H. Wellin Individually to Compel Production of The Withheld “Factual Summaries”, ECF No. 795 in 2:13-CV-01831-DCN.[1] On August 2, 2018, the Wellin Children filed their Response to Wendy Wellin’s supplemental brief, ECF No. 798, and on August 7, 2018, Wendy Wellin filed her Reply, ECF No. 584 in 2:14-cv-04067-DCN.

This 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.

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.

FACTUAL HISTORY RELEVANT TO THE PRESENT MOTION

*2 As noted in the previous Report and Recommendation regarding this Motion, this 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)).

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 database 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.

*3 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 the “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.

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.

APPLICABLE LAW/ANALYSIS

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.

*4 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 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.R.D. 522, 538 (D.S.C. 2018)(quoting AVX Corp. v. Horry Land Co., Inc., C/A No. 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.R.D. 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). In the previous Report, the undersigned recommended that the Wellin Children be required to supplement their log to comply with the above requirements, which they have now done. The undersigned further noted that from an in camera inspection of the 22 documents the Wellin Children claim are protected from disclosure by the work product doctrine, the undersigned determined that these documents are, indeed, factual summaries as described in the privilege log.

The issue of work product protection for factual summaries prepared by the Wellin Children was first addressed by the Court in ruling upon Plaintiff Schwartz/McDevitt’s Motion to Compel – ECF No. 183 in 2:13-cv-03595-DCN and Plaintiff Wellin’s Motion to Compel – ECF No. 234 in 2:13-cv-01831-DCN. At that time, in support of their position that the summaries were protected work product, the Wellin Children filed affidavits explaining the genesis of the summaries. According to the affidavits, they began making and exchanging contemporaneously prepared notes and summaries of relevant occurrences after a series of events that led them to believe their father’s wife, Wendy Wellin, was isolating their father from them and attempting to assert control over his substantial assets. According to the Defendants, in 2008 their father was diagnosed with cancer, and his physical health began to decline. At that time, they aver that Wendy Wellin took steps to prevent or limit visits between them and their father

*5 On April 21, 2011, Mr. Wellin suffered a stroke, causing his health to decline more rapidly. Thereafter, the Defendants state they observed Wendy Wellin increase her efforts to isolate them from their father and to obtain control over his finances. This, in turn, led them to believe litigation relating to access to their father and/or his assets was “likely to occur.”

Based upon this apprehension, they state Defendant, Peter Wellin, met with attorney Jonathan Harris on behalf of all three Wellin children for advice because of their belief that litigation was likely to occur. Attorney Harris corroborates in his affidavit that he met with Peter Wellin starting in July of 2011 to advise him “regarding the possibility of litigation relating to the protection of their rights of access to their father and protection of their father’s estate from interference.” Further, he “advised Peter Wellin regarding steps that he and his sisters should take in anticipation of litigation.”

According to the Wellin Children’s affidavits, after Peter Wellin received advice from Mr. Harris, they began drafting summaries and notes regarding events that might be relevant for future litigation involving their father and his estate. They also identified additional events which reinforced their belief that litigation was likely to occur. This included further alleged attempts by Wendy Wellin to isolate their father and attempts to replace Tom Farace as their father’s counsel.

Based upon this history, the Defendants maintained their notes and summaries were protected by the work product doctrine, and the exchange of these documents between the three of them did not waive the privilege because of the common interest doctrine. See Amended Report and Recommendation of the Special Master, ECF No. 320, filed on July 31, 2015 and Order of Judge Norton, ECF 343 in 2:13-cv-01831-DCN, adopting the R & R as modified. However, as noted previously, 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. SeeAmended Report and Recommendation of the Special Master, ECF No. 320 and ECF No. 343. The Court concluded the summaries prepared in 2011, 2012 and the first part of 2013 leading up to June 1 were not protected from discovery by the work product doctrine because they were not created “because of” anticipated or pending litigation. Instead, the Court concluded they were created to “perpetuate evidence for the resolution of future disputes ... with the general possibility of litigation in mind.” Notwithstanding this conclusion, there is no indication in the record that the factual summaries were prepared for any business or other purpose unrelated to litigation.

Although the Court concluded the 2011, 2012 and 2013 summaries leading up to June 1 were not protected, the Court found the factual summaries created on or after June 1, 2013 “were sufficiently close to or after the commencement of the litigation and were therefore prepared in anticipation of litigation.” ECF No. 320 at 46. There was no objection to this finding by the parties, and the Court thereafter issued an order adopting the ruling. ECF No. 343.

Wendy Wellin first argues the withheld factual summaries are not protected work product because they address events occurring prior to June 1, 2013. I find this argument to be unavailing. As the Wellin Children point out, the Court’s 2015 ruling required them to produce the factual summaries prepared in 2011, 2012 or prior to June 1, 2013, but did not require them to produce factual summaries prepared following June 1, 2013.

*6 Wendy Wellin next argues that the Wellin Children have been unable to accurately establish that the withheld factual summaries were created on or after June 1, 2013. Their assertion is premised upon the confusion outlined earlier in this Report regarding production and analysis of the summaries, including unreliable metadata regarding creation dates for these documents. However, with the agreement of the parties, the undersigned received and reviewed an ex parte letter from counsel for the Wellin Children explaining the factual basis for the assertion that each of the 22 withheld summaries was prepared on or after June 1, 2013. Having reviewed this letter, I conclude the Wellin Children have carried their burden of establishing that the summaries were prepared on or after June 1, 2013. A copy of the ex parte letter will be submitted to the Court for review under seal.

Next, Wendy Wellin argues the withheld summaries should be produced because there were revisions made by siblings to each other’s narratives. No law is cited for this proposition. and no reason is advanced that supports it. As the Court has previously found, the three Wellin Children share a common interest and the same representation in this litigation. No law is advanced in support of the argument that when two or more of these parties jointly review and/or contribute to the preparation of a factual summary initially prepared by one of the jointly interested parties, it somehow destroys work product protection.

Next, Wendy Wellin asserts she has a substantial need to obtain the factual summaries. Rule 26 provides that an opposing party may obtain fact work product, but only if the party can show “that it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii). This Court and other district courts consistently hold that a substantial need does not exist where the moving party can depose the witnesses who created the work product regarding the events described in the work product. For example, in Hohenwater v. Roberts Pharm. Corp., 152 F.R.D. 513, 517 (D.S.C. 1994) (Norton, J.), this Court held that no substantial need existed to require production of a memorandum protected by the work product doctrine, concluding:

Wendy Wellin argues that when the Wellin Children were deposed they recalled little, if any, information about the narratives in the withheld summaries. They argue there is no way for them to acquire the substantial equivalent of these five year old factual summaries through deposition or otherwise, as memories fade and it is impossible to obtain the equivalent of a party’s immediate impression of the circumstances when they occurred. But the deposition excerpts provided by Wendy Wellin in support of her position concern questions and answers as to the preparation of the summaries themselves, and not questions concerning the facts of the case identified in the summaries.

It is true that case law supports the position that a substantial need for production of contemporaneously prepared reports regarding the facts of an incident has been shown in certain circumstances where memory loss has occurred. See e.g. Suggs v. Whitaker, 152 F.R.D. 501, 507 (M.D. N.C. 1993) (where Plaintiff was seriously injured in an accident, hospitalized for more than a year, and had total memory loss about the facts of an accident); City of Springfield v. Rexnord Corp., 196 F.R.D. 7, 10 (D. Mass. 2000)(finding substantial need where the documents were twenty years old and the opposing party admitted that the whereabouts of some of the witnesses were unknown).

*7 But such is not the case here. In addition to written discovery, the Wellin Children point out that Wendy has deposed or attended the depositions of the Wellin Children and most, if not all, of the witnesses mentioned in the withheld summaries regarding the events described therein. Wendy’s argument centers around the Wellin Children’s inability to remember details surrounding the preparation of the summaries, not details regarding the facts of the case contained in the summaries.

As such, I conclude Wendy Wellin seeks the withheld factual summaries to aid her in the impeachment of the Wellin Children. Accordingly, Wendy has not shown a substantial need for these documents. Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503, 510 (S.D. Cal. 2003) (rejecting Plaintiff’s argument that it had a substantial need for documents memorializing communications with witnesses where the plaintiff could depose the relevant witnesses and holding: “[t]he mere possibility that these statements may have some impeachment value does not create a substantial need for their production.”); See also Gargano v. Metro-N, 222 F.R.D. 38, 40 (D. Conn. 2004) (rejecting plaintiff’s argument that it had a substantial need for documents memorializing communications with witnesses where the plaintiff could depose the relevant witnesses and holding: “Plaintiff has had, or will have, the opportunity to question the witnesses about the events at issue and about the contents of the oral statements. Plaintiff does not argue that the witnesses made statements to the claim agent that they could not later recall at their depositions. Nor is there any evidence of inconsistency between the prior statements and the deposition testimony.”).

For the foregoing reasons, it is therefore:

Recommended that the motion of Wendy Wellin to compel the Wellin Children to produce the 22 withheld summarises be denied.

The electronic case filing numbers refer to entries submitted in C.A. 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.