R. ALEXANDER ACOSTA, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Plaintiff, v. MEDICAL STAFFING OF AMERICA, LLC, et al., Defendants Action No. 2:18cv226 United States District Court, E.D. Virginia Filed March 15, 2019 Counsel Chervonti Jones, Pro Hac Vice, Avni Amin, Pro Hac Vice, LaShanta Harris, Pro Hac Vice, Ryma Naje Lewis, Karen M. Barefield, US Department of Labor Regional Solicitor's Office, Arlington, VA, for Plaintiff. Christopher D. Davis, Davis Law, PLC, Chesapeake, VA, Joshua Lee Jewett, Julia Amato Rust, Pierce McCoy, PLLC, John M. Bredehoft, Sharon Kerk Reyes, Kaufman & Canoles PC, Norfolk, VA, for Defendants. Krask, Robert J., United States Magistrate Judge ORDER *1 On February 26, 2019, plaintiff R. Alexander Acosta, Secretary of Labor, United States Department of Labor (“the DOL”) filed a motion to compel discovery. ECF No. 39. Defendants, Medical Staffing of America, LLC, doing business as Steadfast Medical Staffing, and Lisa Pitts (collectively “defendants”) filed two motions to compel discovery on March 4, 2019. ECF Nos. 44, 46. The discovery motions have been briefed pursuant to an expedited briefing schedule ordered on March 5, 2019. ECF No. 49. For the following reasons, the DOL's motion to compel discovery, ECF No. 39, is DENIED, and defendants' motions to compel discovery, ECF Nos. 44, 46, are GRANTED in part and DENIED in part. The request for a hearing, ECF No. 60, is DENIED. 1. The DOL's motion to compel the production of 45,000 pages of invoices is denied. The DOL served its first requests for production of documents on September 26, 2018. ECF No. 40-1. In request number 7, the DOL asked for “[a]ll documents, including but not limited to contracts and invoices, related to any agreements or business relationships between Steadfast and any third party (covering any part of the last three calendar years) regarding (a) staffing services, and/or (b) Steadfast employees (as defined herein) providing various services.” Id. at 4–5. Defendants responded on October 26, 2018, producing copies of independent contractor agreements. ECF No. 40 at 2. On January 7, 2019, during a telephonic meet and confer, defendants' prior counsel informed counsel for the DOL that there were approximately 45,000 pages of invoices responsive to the request. ECF No. 40 at 2. On January 29, 2019, Joshua L. Jewett, Esq., noted an appearance as counsel on behalf of defendants, and former counsel's motion to withdraw was later granted. ECF Nos. 24, 34. On February 2, 2019, Mr. Jewett made the invoices available for DOL counsel to review or scan. ECF No. 54 at 3. Mr. Jewett later offered for DOL to retain an outside vendor to scan the invoices, or for DOL to take the invoices for 30 days to their office to review. Id. The DOL refused to take possession of the documents, or to retain an outside vendor to scan or copy the documents. Id. The DOL filed a motion to compel production of the invoices on February 26, 2019, requesting that the Court order defendants to scan and produce the invoices in electronic format. ECF No. 40. The DOL asserts that, due to the defendants' failure to inform the DOL of the existence of these documents until two months after producing their responsive documents, the defendants should bear the burden of producing the invoices in an electronic format.” ECF No. 55 at 2–3. Defendants responded to the motion on March 8, 2019, and the DOL replied on March 11, 2019. ECF Nos. 54, 55. Rule 34 of the Federal Rules of Civil Procedure provides that a party may serve on another party a request “to produce and permit the requesting party or its representative to inspect, copy, test, or sample [any designated documents] in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a)(1)(A). When responding to the requests, the rule further provides, *2 the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request.... The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. Fed. R. Civ. P. 34(b)(2)(B). Defendants have produced the 45,000 invoices to the DOL by making the documents available for inspection, copying, or scanning. While this offer was not made in the defendants' initial response to the requests for production on October 26, 2018, former counsel informed the DOL about the existence of the documents on January 7, 2019. The Court does not find that this delay obligates defendants to scan and produce electronically these invoices that have been produced for the DOL's inspection. Accordingly, the DOL's motion to compel is DENIED. 2. Defendants' motion to compel production of documents withheld or redacted on the bases asserted in the DOL's privilege log is granted in part and denied in part. Defendants filed a motion to compel the production of documents withheld or redacted on the bases asserted in the DOL's privilege log. ECF No. 45. Defendants assert that the DOL has made improper and blanket assertions of deliberative process privilege, informant's privilege, and attorney-client privilege without providing sufficient reasons for preserving the confidentiality of the documents included in the log. Id. Defendants ask the Court to find the privilege waived, and to order production of the documents described in the privilege log in unredacted form. Id. at 11–12. Alternatively, defendants ask that the documents be produced to the Court for in camera review. Id. at 11. The DOL responds that in the meet and confer discussions regarding the privilege log, defendants only stated that the log lacked detail, and did not argue their position with particularity until 10 days before the close of discovery, which did not afford the DOL time to respond before defendants filed the motion to compel. ECF No. 52 at 4. Further, the DOL responds that it anticipates producing by March 15, 2019,[1] a formal assertion of the deliberative process privilege through a declaration from the Acting Administrator of the Wage and Hour Division, who will personally consider the documents, “state with particularity the information subject to the privilege, and provide the reasons for preserving the confidentiality of the requested documents.” Id. at 8–9. Defendants assert the DOL responded to their discovery requests on February 8, 2019, that they had discussions by telephone regarding the deficient privilege log on February 13 and 19, 2019, and sent a detailed letter on February 24, 2019, to which the DOL did not respond. ECF No. 56 at 3; see also ECF No. 45-3. The Court finds the defendants complied with the Rule 37(a)(1) requirement to confer prior to filing the motion to compel on the last day of the discovery period, March 4, 2019. A party withholding otherwise discoverable documents, by asserting the documents are privileged, is required to “expressly make the claim,” and “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). “A party can sustain this burden through a properly prepared privilege log that identifies each document withheld, and contains 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.” Sky Angel U.S., LLC v. Discovery Communications, LLC, 28 F. Supp. 3d 465, 483 (D. Md. 2014); see also Johnson v. Ford Motor Co., 309 F.R.D. 226, 234 (S.D.W. Va. 2015) (finding privilege log did not comply with Rule 26(b)(5)(A) because it failed to “provide any concrete facts about the nature or subject matter of the withheld documents, which would allow an individual reviewing the log to assess the appropriateness of the privilege claim”). *3 The DOL's three-page log, which asserts the deliberative process privilege, informant's privilege, and attorney-client privilege, as the bases for redacting or withholding over 100 pages of documents, does not comply with Rule 26(b)(5)(A). See ECF Nos. 45-1, 52 at 9 n.2. The privilege log provides a Bates number for the documents identified, indicates whether the document was redacted or withheld, lists the privilege asserted by the DOL, and provides a brief description of the document (for example “WHISARD Compliance Action Report,” or “Letters to employee”). See ECF No. 45-1. The DOL's privilege log fails to provide any dates for the redacted or withheld documents, the name of the sender or receiver, or the document's general subject matter so that defendants could assess the claimed privilege. Some entries indicate a document contains “email communications between” and lists the names and offices of those involved in the communication. Id. These email entries do not contain a date, who sent and who received the communication, or any indication of the subject matter of the communication. The information provided in the privilege log does not allow the defendants or the Court to determine whether the claimed privilege is appropriate. The DOL asserts that the date and author of the documents can be found on those documents that were redacted as opposed to withheld, and a side-by-side comparison of the redacted documents with the privilege log would provide the necessary context. ECF No. 52 at 11. There are 22 documents listed on the DOL's privilege log, 13 of which were withheld and 9 of which are redacted. ECF No. 45-1. Therefore, the DOL's argument about the documents providing the necessary context applies to less than half of the documents listed. Further, the Court does not have the documents, and does not intend to perform a side-by-side comparison of the log and documents to determine if the deficiencies in the log can be cured by such a comparison. In opposing the motion to compel, the DOL provides some examples for why certain privileges apply to specific documents. ECF No. 52 at 9–10. The DOL asserts that the deliberative process privilege attaches to the FLSA Narrative DOL 5–17 because this narrative contains Investigator Mazuera's “recommendations, opinions and analyses” “as well as his opinions about the evidence he gathered in the investigation as it relates to the ‘Employment Relationship Factors.’ ” Id. at 9. The privilege log does not even indicate that the FLSA Narrative was prepared by Investigator Mazuera, much less provide this basis for asserting the privilege. The DOL further asserts DOL 312 was redacted because it is an email communication between Alvaro Mazuera and his supervisors, where Mazuera “seeks guidance from his supervisor about actions that needed to be taken in his investigation.” Id. at 10. The only information provided in the log regarding this document is the Bates number, an indication that the document was redacted, that it is an “[e]mail communication between Alvaro Mazuera, Richard Barbour and Carmen Otero-Infante,” and that the DOL is asserting the “[d]eliberative process privilege.” ECF NO. 45-1 at 3. The information provided by the DOL in response to the motion to compel should have been included in the original privilege log. The DOL notes that defendants questioned Investigator Mazuera during his deposition regarding the “majority of the documents in his investigatory file, which was the bulk of Plaintiff s response to Defendants' requests for production of documents,” and defendants' argument that they cannot determine the date, author, and recipient of documents reviewed during the deposition is moot. ECF No. 52 at 12–13. That some of the deficient entries in the DOL's privilege log were discussed during Investigator Mazuera's deposition does not relieve the DOL from the obligation to provide a privilege log that complies with Rule 26. The DOL next argues that many of the documents listed in the privilege log do not have senders or recipients, and references DOL 3–4, a “Compliance Action Report” maintained by the Wage and Hour Division that outlines basic information about the Wage and Hour investigation. ECF No. 52 at 14. When a document does not have a sender or recipient, the DOL needs to ensure that the other log entries pertaining to that document contain “sufficient identifying information to properly assert the privilege.” ePlus Inc. v. Lawson Software, Inc., No. 3:09cv620, 2012 WL 6562735, at *4 (E.D. Va. Dec. 14, 2012). *4 The Court finds that the DOL's privilege log, ECF No. 45-1, does not comply with Rule 26(b)(5)(A). The DOL has indicated that a detailed declaration from Acting Administrator Keith E. Sonderling will be provided, outlining the “precise reasons” for asserting the deliberative process privilege and informant's privilege. ECF No. 52 at 2 n. 1, 15. Further, the DOL stated that it “will amend the privilege log to include details that will better inform Defendants of the basis of said privilege.” ECF No. 52 at 14–15. The DOL should have amended its clearly deficient privilege log when defendants first brought the deficiencies to the DOL's attention. Accordingly, defendants' motion to compel is GRANTED in part. The DOL is ORDERED to provide defendants with a privilege log, by March 20, 2019, that will enable defendants to assess the privilege claimed. At a minimum, the information in the DOL's privilege log must be supplemented with the following information for each of the 22 documents redacted or withheld: (1) the date of transmission or creation, (2) the author or the sender and recipient, (3) the nature of the document, and (4) the subject matter. The DOL is further ORDERED to review the documents withheld or redacted based on the privilege log and ensure that only the information subject to the privilege is withheld or redacted, and that all factual information contained in the documents is made available to defendants by March 20, 2019. Defendants' request that the Court deem the asserted privileges waived and compel production of the redacted and withheld documents is DENIED. Counsel are ORDERED to meet and confer by March 22, 2019, to discuss any further disputes regarding the privilege log and confidential documents. If disputes cannot be resolved, counsel are DIRECTED to schedule a conference call with the undersigned no later than March 29, 2019. 3. Defendants' motion to overrule objections and compel discovery responses is granted in part and denied in part. Defendants filed a motion to overrule the DOL's objections to discovery and compel responses to interrogatories and requests for production of documents. ECF No. 46. The DOL responded to the motion and defendants replied. ECF Nos. 53, 57. Defendants' motion to overrule objections and compel discovery responses is granted in part and denied in part, and the DOL is ORDERED to supplement its discovery responses as directed below by March 20, 2019. First, the DOL has listed several general objections to defendants' interrogatories and requests for production prior to objecting and answering the individual discovery requests. ECF No. 53-1 at 1–3, ECF No. 53-2 at 1-3. Generalized, boilerplate objections such as these “are highly disfavored in the Fourth Circuit.” Paulino v. Dollar Gen. Corp., 3:12cv75, 2013 WL 1773892, at *12 (N.D.W. Va. 2013) (collecting cases). Accordingly, these general objections are OVERRULED. Defendants' motion to compel supplemental responses to interrogatories 7, 10, and 18, and requests for production of documents 6, 8, and 11 are DENIED. In response to interrogatory 7, which seeks “ ‘all rules, regulations, or guidance documents relied upon or used by the DOL’ in concluding that Defendants violated the Fair Labor Standards Act,” and how such documents “were applied during the investigation,” the DOL referenced all documents posted on the DOL's website. ECF No. 47 at 6–7, ECF No. 53-1 at 7. The DOL argues defendants' request for the applicable law the DOL intends to rely on in the case is not a discoverable fact. ECF No. 53 at 10–11. Defendants have deposed the DOL's investigator, and have had the opportunity to discover this information. Accordingly, the motion to compel a response to interrogatory 7 is DENIED. Interrogatory 10 seeks the factual basis for the allegation that defendants willfully violated the FLSA. ECF No. 53-1 at 9. The DOL has responded that it does not contend defendants willfully violated the FLSA, but has refused to withdraw the multiple objections to the interrogatory. ECF No. 53-1 at 9, ECF No. 47 at 7. Similarly, interrogatory 18 and request for production 8 seek discovery regarding the DOL's expert witnesses. ECF No. 53-1 at 13–14, ECF No. 53-2 at 6–7. The DOL has responded that it does not intend to call an expert witness at trial, but refuses to withdraw the objections to the discovery requests. Id., ECF No. 47 at 7-8. Defendants' motion to compel supplemental responses to interrogatories 10 and 18 and request for production 8 is DENIED. Request for production 6 seeks the DOL's calculation of damages, and designates that Word or Excel spreadsheets be produced in their native file format. ECF No. 53-2 at 5. The DOL has produced PDF files, and defendants have moved to compel production of the native files. ECF No. 47 at 8. Defendants have not explained why they need these documents in their native file format and their motion to compel a supplemental response to request for production 6 is DENIED. *5 Request for production 11 seeks all documents related to the allegations in the complaint that have not otherwise been produced. ECF No. 53-2 at 7. Defendants' motion to compel an answer other than one that references the document production, ECF No. 47 at 8, is DENIED. Due to the DOL's response to the motion to compel, some issues raised in the motion to compel are now MOOT. In response to interrogatories 5 and 6, and request for production 3, the DOL objected on the basis that each discovery request “assumes facts not in evidence.” ECF No. 47 at 5, ECF No. 53-1 at 5–7, ECF No. 53-2 at 4. In the opposition to the motion to compel, the DOL indicates that it did not withhold any documents or information for the discovery responses based on these objections. ECF No. 53 at 7. The DOL felt the objection necessary to address defendants' use of the phrase “compliance with or alleged violations of the Fair Labor Standards Act,” because that phrase presumed defendants' compliance, which is in dispute. ECF No. 53 at 7–8. Similarly, the DOL states in response to the motion to compel that no documents or information were withheld based on its objection that interrogatories 5 and 6 were vague and ambiguous. ECF No. 53 at 9–10. The fact that no information was withheld based on these two objections should have been provided to defendants during the meet and confer discussions to avoid briefing this issue before the Court. With that clarification, these objections to interrogatories 5 and 6 and request for production 3 are MOOT. In responding to defendants' interrogatories 3–5, 8–9, and 11–14, and requests for production of documents 1–4, 7, and 11, the DOL identified its entire document production. ECF No. 47 at 3, ECF Nos. 53-1, 53-2. During his deposition, Investigator Mazuera responded to questioning and identified specific documents responsive to each of the interrogatories. ECF No. 47 at 3–4. Defendants ask that the DOL supplement its interrogatory responses to reflect Investigator Mazuera's testimony, and identify documents responsive to each request for production. Id. at 4. The DOL asserts Federal Rule of Civil Procedure 33(d) permits the production of business records in response to interrogatories. ECF No. 53 at 3. The DOL further indicates that, “simply because Investigator Mazuera, in his deposition, pinpointed certain documents that he believed were the most pertinent in response to some of the interrogatories, does not mean those are the only documents responsive to those particular interrogatory requests.” Id. The DOL offers to review responses to discovery and “determine whether specific pages within the responsive documents may be identified as being more pertinent than others.” Id. at 4. Rule 33(d) does not permit a party to answer discovery requests by referring to the party's entire document production, but requires the producing party to “specify[ ]” the documents in the production that are responsive to each interrogatory. See Brown v. Blue Cross and Blue Shield of Alabama, No. 3:13cvl21-GCM, 2014 WL 3519100 at *6 (W.D.N.C. July 15, 2014) (“[A] party seeking to employ Rule 33(d) must specify for each interrogatory the documents that ‘will actually reveal answers to the interrogatories.’ ”); Minter v. Wells Fargo Bank, N.A., 286 F.R.D. 273, 278-79 (D. Md. 2012) (“The specificity requirement in 33(d)(1) is designed to limit the practice of responding by ‘directing the interrogating party to a mass of business records or by offering to make all... records available.”) (citing Fed. R. Civ. P. 33 advisory committee's note). The Court notes that the DOL's reference to all documents produced, which consists of the DOL's investigative file, sufficiently responds to interrogatories 3 and 4, and requests for production 1, 4 and 11. Interrogatories 8, 9, and 11–14 will be addressed below. Accordingly, the DOL is ORDERED to supplement responses to interrogatories 5 and 8 and request for production 7 to identify which documents are responsive to each interrogatory or request for production. *6 Defendants next argue that the DOL's objections to scope, relevancy, and proportion when responding to interrogatories 1–6, 8–9, and 16, and requests for production 1, 4–5, and 7, are improper and should be overruled. ECF No. 47 at 4–5. The DOL argues in opposition that interrogatories 5 and 9, and request for production 1, are overly broad, but fails to address the remaining discovery requests addressed in defendants' motion. ECF No. 53 at 4–6. The DOL's objections based on scope, relevancy, and proportion with respect to interrogatories 1-6, 8-9 and 16, and requests for production 1, 4–5, and 7, are OVERRULED and the DOL is ORDERED to supplement its discovery response with any discovery withheld based on these objections. As noted above, the DOL's reference to all documents produced, which consists of the DOL's investigative file, is a sufficient response to interrogatories 3 and 4, and requests for production 1, 4 and 11. Defendants' motion to compel responses to interrogatories 8 and 9 is GRANTED in part. These interrogatories seek “the entirety of the DOL's investigatory process and information relied upon by the DOL in concluding that Defendants' classification of certain workers as independent contractors [and failure to maintain certain records] violated the Fair Labor Standards Act.” ECF No. 53-1 at 7–8. In response to this question, the DOL has referenced the entire document production, which consists of the investigatory file. The DOL is ORDERED to supplement answers to interrogatories 8 and 9 and state the material facts upon which the DOL relied in contending defendants violated the FLSA. The DOL objected to interrogatories 11–16, which request the factual basis for the DOL's allegations, calculation of damages, and Rule 26(b)(3)(C) statements, by asserting the interrogatories “call for narrative, essay-type responses and not a brief categorical statement as contemplated by FRCP 33.” ECF No. 47 at 5, ECF No. 53-1 at 9-13. The DOL responds that these interrogatories, which seek long narrative explanations, are better reserved for depositions. ECF No. 53 at 6–7. The DOL further objects to interrogatories 11–16 on the basis that they seek “an opinion or contention that relates to fact or the application of law to fact.” ECF No. 47-1 at 8–11. Rule 33(a)(2) provides that “[a]n interrogatory is not objectionable merely because it asks for an opinion or contention that relates to a fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete ....” Discovery in this case is complete. Defendants' motion to compel is GRANTED in part. The DOL is ORDERED to supplement responses to interrogatories 11–14 indicating the material facts relied upon to support the pertinent allegations in the complaint. The DOL has indicated that all responsive documents have been produced or withheld pursuant to the privilege log. Accordingly, it is not necessary for the DOL to identify “all documents concerning or relating” to these interrogatory requests. The DOL's objections to interrogatories 15 and 16 are OVERRULED and it is ORDERED to respond to interrogatories 15 and 16 by March 20, 2019. Request for production 7 seeks: [a]ll documents recording, memorializing, or relating to any statement, as defined by Federal Rule of Civil Procedure 26(b)(3)(C), made by you or any person having knowledge of the facts relevant to the subject matter of this action, including but not limited to, any former or current employee or independent contractor of Defendant Steadfast Medical Staffing. ECF No. 53-2 at 6. In response to this request, the DOL has referenced its entire document production. Id., ECF No. 47 at 8. As discussed above, the DOL is ORDERED to identify the documents in the document production responsive to this interrogatory. Defendants' requests for an award of costs and attorneys' fees associated with the motions to compel are DENIED. *7 The Clerk shall send a copy of this Order to all counsel of record. Norfolk, Virginia Footnotes [1] The DOL asserts that the declaration would have been filed simultaneously with the opposition if they had been afforded the full 14 days to respond to the motion to compel. ECF No. 52 at 9 n.2.