On October 16, 2002, this Court ordered Defendant Boy Scouts of America (“BSA”) to produce additional documents responsive to document request nos. 6, 9, 23, and 24, and to specifically include in that production documents such as e-mails, correspondence, memoranda, or other internal communications. BSA has now produced documents responsive to those requests, along with a declaration, as ordered by this Court, setting forth the efforts taken to locate responsive documents.

Plaintiffs now raise two additional issues regarding that document production. First, Plaintiffs argue that BSA has improperly applied a three-year time limit to its document production, based upon this Court’s August 28, 2002 Order (which imposed such a limitation as to certain particular document requests). Second, Plaintiffs argue that BSA has improperly failed to maintain e-mails relevant to this case as a result of its internal “retention” policy.

(a) Three-year time limit

Although document request nos. 6, 9, 23, and 24 and the October 16, 2002 Order compelling further responses contain either no time limit or a ten-year time limit, BSA has taken the position that it is not required to produce documents generated more than three years ago. BSA’s argument is based upon the fact that this Court, in its August 28, 2002 Order ruling on a motion to compel responses to certain other document requests, imposed a three-year time limit as to those requests. BSA has interpreted that order as imposing a three-year time limit on all document requests served thereafter in this case. With regard to the document requests now at issue, the Plaintiffs' motion, leading to the October 16, 2002 Order, did not discuss the relevant time period for production of documents, and instead focused upon the categories or types of documents to be produced by BSA. In opposition to that motion, BSA did not seek a protective order limiting the production to three years.

In opposition to the current motion, BSA cites to footnote 8 at page 17 of its opposition brief filed relative to the prior motion to compel, wherein it stated that “Plaintiffs asked for 10 years of documents, but were limited to three years by the Court’s August 28, 2002 ‘Order ...’.” [Doc. No. 99, filed October 9, 2002]. BSA argues that “the Court ordered no relief to Plaintiffs on the three year discovery limitation, and ordered production of documents in four categories of document requests without modifying the three year time limitation.” [Boy Scouts' Response to Plaintiffs' Motion to Compel, p. 4]. This argument ignores the fact that the three year limitation imposed by the August 28, 2002 Order was with regard to the particular document requests before the Court at that time. Defendants have never sought, and this Court has never imposed, a general three-year limit on all document requests propounded by Plaintiffs in this case.

*2 Contrary to BSA’s assertion, the August 28, 2002 Order imposing a three year time limit as to certain particular document requests does not justify such limitation on all other document requests in this case. If BSA wants to limit its production of documents to a time period other than that called for by the Plaintiffs in their individual document requests, BSA has the burden of demonstrating good cause for such a limitation. The disputed requests are as follows:

Plaintiffs point out that the document requests at issue in the prior motion, sought information related to usage statistics at the leased premises and DPC’s process for screening members, volunteers, and applicants, and thus were reasonably limited to three years. Plaintiffs argue that the currently disputed requests instead seek information relating to BSA’s decision to maintain its policies precluding gays and non-believers from membership even in light of the extensive litigation regarding those policies over the last 10 years. Plaintiffs argue that the 10 year time period is relevant to determine the influence organized religions have on the policy-making of the BSA.

In response, BSA argues that a three-year limitation is necessary and reasonable “[g]iven the number and breadth of requests....” Defendants point out that Plaintiffs have propounded, and Defendants have responded to, 107 interrogatories (six sets), 137 requests for admissions (four sets), and 215 document requests (four sets). Although BSA should have previously sought a protective order, the Court agrees that it would be unduly burdensome to require them to produce 10 years worth of documents responsive to the currently-disputed requests. Even though the policies underlying Plaintiffs' claims have been litigated throughout the 1990s, it is the validity of the current leases that the Plaintiffs challenge. As such, the Court concludes that the BSA’s responses to the currently disputed document requests is appropriately limited to the last three years.[1] Thus, the Court will deny Plaintiffs' motion to compel further production of documents.

Plaintiffs also raise an issue with regard to the failure of BSA to produce the “Task Force on Resolutions” report to the National Executive Board of the BSA, as well as documents reflecting the Task Force’s deliberations and recommendations, even though those documents appear to be well within the 3 year time limit. Plaintiffs specifically mentioned this document in their prior motion. In meet and confer letters since the October 16, 2002 Order was issued, however, BSA has taken the position that because Plaintiffs specifically named this document in its prior motion, and this Court did not specifically order it produced, that it does not have to be produced. In opposition to the current motion, as in opposition to the prior motion, BSA argues that the Task Force report is not responsive because the Relationships Subcommittee is not involved in the “governance” of BSA and because BSA admits the policies that serve as the basis of Plaintiffs' claims for relief in this action. BSA further responds that it has already produced the resolution of the Executive Board resulting from the Task Force’s report, as well as the Executive Board minutes leading up to the resolution. As Plaintiffs point out, however, the underlying documents may reveal information regarding the extent to which the BSA policies are influenced or controlled by religious organizations. Thus, the Court will order BSA to produce these documents forthwith.

*3 Finally, Plaintiffs point to several documents produced by BSA which have no date and which are stamped “redacted.” Plaintiffs argue that this shows that BSA has produced documents more than three years old where such documents are favorable to BSA. In response, BSA simply states that they are not aware of having redacted dates, and never intended to produce anything that pre-dates the last three years. The Court will also order BSA to investigate the redaction of the documents identified by Plaintiffs, and provide dates the extent they have been previously removed.

(b) E-mails

The second issue now raised by Plaintiffs relative to BSA’s production of documents following the October 16, 2002 Order has to do with e-mails. In response to the October 16, 2002 Order, BSA produced 265 pages of e-mails, consisting mostly of October 2002 e-mails with a few from August and September 2002. Pursuant to a request by Plaintiffs, BSA also produced a copy of its current e-mail retention policy. According to that policy, which states that it became effective on February 1, 2002, all e-mail is deleted after 90 days unless it has been saved to disc or archived by the individual receiver. It is not clear the extent to which e-mails relevant to this action have actually been deleted under that policy since January 23, 2002, when Plaintiffs filed their motion to amend to add BSA as a Defendant. BSA has also not produced a copy of its prior e-mail retention policy. Plaintiffs argue that BSA had an obligation, at least as of the time the motion to amend to add them to this case was filed, to maintain e-mails relevant to this action despite the 90-day policy, and that this Court should order BSA to take steps to recover from its e-mail system correspondence that has been deleted under this policy.

This Court notes that e-mails are “documents” within the meaning of Fed. R. Civ. P. 34, and that BSA had a duty to maintain those documents during the pendency of this litigation. See Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 76 (S.D.N.Y. 1991) (discussing the general rule that notwithstanding a document retention policy, a party has an “obligation to maintain [relevant] records once the litigation had been filed.”). Because it is unclear exactly how BSA has responded to its obligation, the Court concludes that supplemental briefing is appropropriate with regard to the following issues: (1) the use of e-mail among and between the organization’s decision-making personnel, including a discussion of the extent to which a hard-copy follow-up is sent to the recipient or retained by the sender and the extent to which particular individuals who would have sent or receieved e-mails relevant to this action and responsive to the discovery requests archived or otherwise saved the materials via electronic media or hard copy; (2) the effort made by BSA and its counsel to determine if responsive e-mail existed, including a discussion of whether individual e-mail accounts, including any hard drives, tapes, floppies, or CD backups, were searched; and (3) the efforts made by BSA and its counsel to ensure that relevant and responsive e-mails have been retained since the filing of the motion to amend to add BSA as a Defendant to this case, despite the 90-day retention policy. The supplemental briefing shall include declarations from persons most knowledgeable regarding the above subjects.

In the interim, BSA is hereby ordered to refrain from deleting any e-mails that are relevant to the subject matter of this litigation and responsive to discovery requests made in this case pursuant to its 90-day retention policy, and take steps to ensure such documents are preserved.

*4 Aside from the document production issues relative to the October 16, 2002 Order, Plaintiffs also argue that certain of the documents withheld from production by Defendants Boy Scouts of America -- Desert Pacific Council (“DPC”), and listed on their privilege log, should be produced. In particular, Plaintiffs identify three categories of documents: (a) documents for which no author and/or recipient are identified; (b) documents that appear to be communications between DPC and the City of San Diego; and (c) documents that appear to have been distributed to third parties.

As the party asserting the privilege, DPC has an obligation to produce a privilege log containing sufficient information to allow both Plaintiffs and the Court to evaluate the claim of privilege. Miller v. Pancucci, 141 F.R.D. 292, 302 (C.D. Cal. 1992). As to the first category of documents for which the privilege log fails to identify either an author or recipient or both (DPC08821-22, DPC08826-27, DPC08953-54, and DPC08951), Plaintiffs correctly note that the privilege log is insufficient. For example, DPC08821-22 is identified as “Handwritten notes re lawsuit,” and is claimed to be attorney work product. There is nothing in the privilege log to indicate, however, who wrote the notes. Similarly, DPC08826-27 is identified as being authored by Ted Cox, who is not an attorney, but is claimed to be an attorney client privileged document. DPC’s opposition focuses on the lack of waiver of privilege, but the Court concludes that the DPC’s log is insufficient to establish privilege in the first instance. As to these documents, therefore, the Court will order DPC to revise the privilege log to provide the pertinent information establishing assertion of the privilege.

As to the second category of documents (DPC08828-31, DPC08832-34, DPC08843-63, and DPC08872-77), Plaintiffs argue that the claim of privilege fails because the documents constitute communications between the DPC and the City of San Diego, not between DPC and its attorneys. DPC points out, however, that these are unsigned, draft documents with handwritten notes, written by and exchanged between attorney and client. As a general rule, preliminary drafts of documents are protected by the attorney-client privilege. Schenet v. Anderson, 678 F.Supp. 1280,1284 (E.D. Mich. 1988). As such, the Court will deny Plaintiffs' motion to compel production of these documents, as well as the request to review them in camera.

Finally, as to the third category of documents (DPC08806-08, DPC08864-68, DPC08869-71, and DPC08884-85), Plaintiffs argue that any privilege that may have existed was waived when copies were distributed to City employees or officials. In opposition to the motion, DPC asserts that even if copies were distributed to City employees, there was no waiver because of the joint defense privilege. It is difficult to tell from the privilege log, being unfamiliar with all of the individuals identified as author and recipient, to determine whether these documents are, indeed, privileged or whether any privilege has been waived. Thus, the Court will order DPC to lodge these documents for in camera review, and submit supplemental briefing regarding the identity of the author, recipient, and persons copied with the documents, as well as any further information regarding the assertion of the joint defense privilege.

In their motion, Plaintiffs argue that DPC provided inadequate responses to certain requests for admissions, and seek an order compelling additional responses. DPC has now served supplemental responses, and Plaintiffs do not, in their reply, seek any further relief in this regard.

*5 Plaintiffs ask that the Court hold a status conference to discuss the revision of pretrial dates in this case as a result of Defendants' alleged failure to timely produce documents and other information. The Court concludes that Plaintiffs' request, however, would best be addressed through an ex parte application demonstrating exactly what additional discovery Plaintiffs believe is necessary and how much additional time it would require. Before such an application may be filed, however, Plaintiffs shall communicate such information to Defendants, in detail, and counsel shall meet and confer and discuss, in detail, whether additional time and/or discovery is necessary.

For the reasons set forth herein, Plaintiffs' motion to compel is GRANTED IN PART AND DENIED IN PART, and supplemental briefing will be received as follows:

1. Plaintiffs' motion to compel further responses to document request nos. 6, 9, 23 and 24 is DENIED;

2. BSA shall produce, forthwith, the Task Force on Resolutions report to the National Executive Board of the BSA, as well as documents reflecting the Task Force’s deliberations and recommendations;

3. BSA shall forthwith investigate the redaction of dates on the documents identified by Plaintiffs in their moving papers, and provide copies forthwith of the documents showing the dates to the extent they have been previously redacted;

4. BSA shall produce to Plaintiffs forthwith a copy of the e-mail retention policy in place at the time this action was commenced and prior to the revision on January 3, 2002

5. By December 18, 2002, BSA shall submit supplemental briefing regarding its e-mail retention policies including: (1) the use of e-mail among and between the organization’s decision-making personnel, including a discussion of the extent to which a hard-copy follow-up is sent to the recipient or retained by the sender and the extent to which particular individuals who would have sent or receieved e-mails relevant to this action and responsive to the discovery requests archived or otherwise saved the materials via electronic media or hard copy; (2) the effort made by BSA and its counsel to determine if responsive e-mail existed, including a discussion of whether individual e-mail accounts, including any hard drives, tapes, floppies, or CD backups, were searched; and (3) the efforts made by BSA and its counsel to ensure that relevant and responsive e-mails have been retained since the filing of the motion to amend to add BSA as a Defendant to this case, despite the 90-day retention policy. The supplemental briefing shall include declarations from persons most knowledgeable regarding the above subjects.

6. BSA shall immediately, and until further order of the Court, take steps to ensure that e-mail messages relevant to this action and responsive to the discovery requests are not deleted pursuant to the 90-day retention policy;

7. BSA shall revise its privilege log forthwith regarding DPC08821-22, DPC08826-27, DPC08953-54, and DPC08951, to identify pertinent information necessary to support the claim of privilege;

8. By December 18, 2002, BSA shall lodge, for in camera review, DPC08806-08, DPC08864-68, DPC08869-71, and DPC08884-85, and shall submit supplemental briefing identifying the roles of the author, recipient, and persons copied with these documents as well as any other information pertinent to the assertion of the joint defense privilege; and

9. Plaintiffs' request for sanctions, and any oral argument regarding the subjects for which the Court is receiving supplemental briefing is deferred until that briefing is received and reviewed.

IT IS SO ORDERED.

To the extent BSA has limited its production of documents in response to other requests to three years, counsel should meet and confer regarding whether further production is necessary. Plaintiffs should bear in mind, however, that as to each of the requests that have previously been presented to the Court, this Court has concluded that the three year limit is reasonable.