On December 14, 2016, Judge Ezra referred the motion to quash and for protection to the undersigned.[3]

Selected Summary of Procedural History

Defendant initiated this case in this Court when it removed plaintiff's original petition which asserted three claims for negligence under Texas law, each relating to plaintiff's slip and fall accident which allegedly occurred on March 25, 2014.[4] On June 2, 2016, the Court entered the initial scheduling order which, among other deadlines, set a February 27, 2017 deadline for discovery.[5] On September 30, 2016, the Court granted an unopposed deadline to mediate to December 15, 2016.[6] On October 31, 2016, plaintiff filed her first amended complaint—plaintiff's “live” pleading—which asserts six claims of negligence under Texas law, again relating to plaintiff's slip and fall accident.[7]

Summary of Arguments

With respect to the discovery at issue, defendant states that on November 29, 2016, plaintiff served a subpoena on non-party Sedgwick Claims Management Services, Inc. (“Sedgwick”) for a deposition upon written questions. More specifically, the subpoena asked Sedgwick to produce “[a]ny and all records and documents pertaining to Claim Number 30141951059-0001” and deliver them to the officer taking the deposition.[8] Defendant does not attach a copy of the subpoena to its motion.[9]

Defendant advances two main arguments in support of its request that the subpoena be quashed or that Sedgwick be protected from fully complying. First, defendant argues the subpoena should be quashed because the subpoena specifies the officer taking the deposition is Republic Services San Antonio, LLC, located in San Antonio, Texas, which is approximately 244 miles away from Sedgwick, located in Dallas, Texas, and therefore exceeds the distance for service of a subpoena specified in “rule 45(c)(3)(A)(ii).”[10] Second, defendant asks that Sedgwick be protected from fully complying with the subpoena because the subpoena impermissibly requests “confidential communications with attorneys” and “information that was created solely for the purpose of and anticipation of litigation.”[11] Defendant represents that—not withstanding its objection to the distance—defendant “has provided all of the non-privileged portions of the claims file in response to Requests for Production,” apparently a reference to the requests in the subpoena, but asks that Sedgwick be protected from producing the documents and information it has declined to provide, that is, “file notes documenting conversations with attorneys and employees which include case analysis and trial strategy from attorneys.”[12] In sum, defendant asks that the subpoena be quashed and “the Court protect Sedgwick” from the subpoena.[13]

*2 In response, plaintiff argues that Rule 45(d)(3)(A)(ii) of the Federal Rules of Civil Procedure (not Rule 45(c)(3)(A)(ii), as stated by defendant) is applicable and, under that provision and Rule 45(c)(2)(A), the place of compliance for a subpoena seeking the production of documents, electronically stored information, or tangible things is “within 100 miles of where the person resides, is employed or regularly transacts business.”[14] Because the subpoena at issue seeks production of records, was served on the Dallas office of CT Corporation System, Sedgwick's registered agent, and requested production at the same location, plaintiff argues the place of compliance for the subpoena is well within 100 miles of where Sedgwick conducts business.[15] Further, plaintiff argues defendant's arguments that the contents of Sedgwick's claim file are protected by attorney-client and work product privilege are “without merit and unsupported.”[16]

Discussion

With respect to defendant's objection based on a violation of the 100-mile limitation provided in Rule 45,[17] defendant does state that Sedgwick “has provided all of the non-privileged portions of the claims file in response to the Requests for Production.”[18] As noted, the reference to “Requests for Production” appears to be a reference to the “direct questions to be propounded to the witness” attached to the subpoena.[19] To the extent Sedgwick complied with the subpoena prior to defendant filing of the motion to quash or for protection, defendant has submitted no argument or authority to show that defendant's objections are not waived. Therefore, to the extent defendant seeks to quash a subpoena to which Sedgwick has already complied, the motion to quash is denied.

But, to the extent that defendant objects to the further production of responsive information based on a violation of the 100-mile limitation provided in Rule 45, the Court has noted an inconsistency between the first page of the subpoena—which directs Sedgwick to comply at the location of its registered agent for service of process, which is stated to be 1999 Bryan Street, Suite 900, Dallas, Texas—and the first page of the “notice of intention to take deposition by written questions,” which is attached to the subpoena—which states the deposition by written questions will be taken of the custodian of records of Sedgwick at Republic Services San Antonio LLC in San Antonio, Texas.[20] Rule 45(c)(1)(A) provides that a non-party can be directed to attend a deposition within 100 miles of where the non-party resides, is employed or regularly transacts business in person. Although it may be true that, as plaintiff argues and represents, Sedgwick's registered agent is located in Dallas and Sedgwick has an offices/regularly conducts business in both Dallas and San Antonio,[21] again, the first page of the subpoena specified an “instanter” production at the place of the “custodian” stated to be 1999 Bryan Street, Suite 900, Dallas, Texas. Plaintiff has agreed that Sedgwick can produce responsive records and information at the office of Sedgwick's registered agent for the service of process located at 1999 Bryan Street, Suite 900, Dallas, Texas. Therefore, the motion to quash is denied so long as Sedgwick can produce the responsive records and information in compliance with the subpoena at 1999 Bryan Street, Suite 900, Dallas, Texas.[22]

*3 With respect to defendant's objection based on attorney-client privilege and work product protection, defendant does not state that: defendant served plaintiff with a privilege log addressing the documents and information withheld; provide a privilege log as an attachment to its motion; or provide argument, authority and evidence to show the information as issue is validly covered by attorney-client privilege or the work product doctrine. The failure to supply a privilege log is a significant omission. Rule 26(b)(5) of the Federal Rules of Civil Procedure provides that when a party withholds material based on a claim of attorney-client or work product privilege, the party must notify its party opponent(s) that it is withholding information. Rule 26(b)(5) does not attempt to define, for all cases, precisely what information must be provided when a party asserts a claim of privilege or work product protection, but it does indicate that the party withholding information must serve a log of the withheld information which, “without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.”[23] Both the text of Rule 26(b)(5) and the 1993 Advisory Committee notes to Rule 26 indicate that sufficient information must be disclosed to allow the other parties to evaluate the applicability of the privilege or protection. Those same notes also indicate that recording details about the information withheld may be unduly burdensome when, for example, voluminous documents are claimed to be protected and that requiring too many details to be set out in the log effectively could breach the privilege.[24] The level of detail required to identify the information being withheld on a claim of privilege without breaching the privilege is likely a matter that can only be determined on a case-by-case basis. Here, the failure of Sedgwick and defendant to serve plaintiff with a privilege log prevents any meaningful review of the assertion of the attorney-client and work product privileges. Apart from the not-insignificant failure to provide a log, defendant provides no case authority to show any assertion of privilege is not “general, unspecific or vague,” was not waived by disclosure to “a third-party administrator such as Sedgwick,” or is properly considered to be privileged. Therefore, defendant's motion to quash the subpoena to the extent it requests records and information subject to a claim of attorney-client privilege or work product and companion motion for protection is denied at this time and on this record. Nevertheless, because of the importance of attorney-client privilege and work product doctrine, this order delays the date on which Sedgwick must comply to afford defendant the opportunity to confer with plaintiff about the claim of privilege and, if necessary, prepare and serve a privilege log and a second motion for protection.

Conclusion

Upon consideration thereof, unless otherwise agreed to by the parties and unless otherwise ordered by the Court,

IT IS ORDERED that defendant's “motion to quash subpoena and motion for protection from subpoena”[25] is DENIED on this record and, unless otherwise ordered by the Court:

(a) within twenty-one (21) calendar days of the date of this order, Sedgwick Claims Management Services, Inc. must serve an amended response to plaintiff's subpoena dated November 29, 2016[26] and produce all non-privileged records, documents, and information;

(b) within nineteen (19) calendar days of the date of this order, defendant, on behalf of Sedgwick Claims Management Services, Inc. must serve a privilege log that, in sum, lists the information/documents being withheld under the claim of attorney-client privilege or work product with sufficient particularity to allow the information/document to be identified without breaching the privilege and otherwise complies Federal Rule of Civil Procedure 26(b)(5); and

(c) within fourteen (14) calendar days of the date of this order, any party must file any request for review of the rulings in this order by Judge Ezra.

IT IS ALSO ORDERED that the motion referred to the undersigned having been addressed, pending any order of re-referral, this case is RETURNED to the District Judge.

NOTICE OF RIGHT OF REVIEW AND APPEAL

Pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, Rule 4(a) in Appendix C of the Local Rules of this Court,[27] and 28 U.S.C. § 636(b)(1), unless otherwise ordered by the District Judge, any party objecting to any portion of this order must file and serve a written objection within 14 days of the date of this order.

*4 ORDERED, SIGNED and ENTERED this 21st day of December, 2016.

Docket no. 29.

Docket no. 32.

Text-only order dated December 14, 2016.

Docket no. 4-1 at 1-5.

Docket no. 9 at 2.

Text-only order dated Sept. 30, 2016.

Docket no. 21 at 1-7.

Docket no. 29 at 1.

Plaintiff did attach a copy of the subpoena to its response. Docket no. 32-1.

Docket no. 29 at 2.

Id.

Id.

Id.

Docket no. 32 at 4-5.

Id.

Id. at 6.

As noted by defendant, the proper method for measuring the 100-mile distance under Rule 45 is a straight-line measurement. See Palazzo v. Corio, 204 F.R.D. 639, 639 (E.D.N.Y. 1998); Sprow v. Hartford Ins., 594 F.2d 412, 417 (5th Cir. 1979)(measuring 100-mile distance under FED.R.CIV.P. 4(k)(1)(B)).

Docket no. 29 at 2.

Docket no. 32-1 at 6.

Docket no. 32-1 at 2, 5.

Docket no. 32-6 at 2.

Of course, the parties can agree to production instead at Sedgwick's San Antonio offices or even the offices of Republic Services San Antonio LLC. If the San Antonio employees of Sedgwick are familiar with the matter and records and responsive information are located in San Antonio, it could well be more convenient for Sedgwick to produce the information in San Antonio.

FED. R. CIV. P. 26(b)(5).

E.g., United States v. Construction Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir.) (“To facilitate its determination of privilege, a court may require ‘an adequately detailed privilege log in conjunction with evidentiary submissions to fill in any factual gaps.’ ”), cert. denied, 519 U.S. 927, 117 S. Ct. 294 (1996); Estate of Manship v. United States, 232 F.R.D. 552, 561 (M.D. La. 2005) (explaining Rule 26(b)(5) “employs the mandatory term, ‘shall,’ requiring that the responding party prepare a privilege log where a privilege is asserted”); Newpark Environmental Serv., L.L.C. v. Admiral Ins. Co., No. Civ. A 99-033,12000 WL 136006, at * 4 (E.D. La. Feb. 3, 2000) (detailed log in support of attorney-client and work product privileges required).

Docket no. 29.

Docket no. 32-1.

Rule 72(a), captioned “Nondispositive Matters,” provides: