I. Background

*1 The plaintiff filed this libel against the defendants alleging that the defendants published an article summarizing a lawsuit that plaintiff filed against his former employer (“the Palladyne action”) and the article contained defamatory statements about the plaintiff. The defendants filed this motion to compel certain documents that they claim are relevant and necessary to their defenses. (Dkt. #109). The plaintiff argues that the documents are protected by the work product doctrine. (Dkt. #119).

II. In Camera Review

At issue are a series of communications between anonymous journalists and the plaintiff's counsel. These communications began before the filing of the Palladyne Action, (Dkt. 119-1 at 3), and continued up to the commencement of this action on March 26, 2015. (Dkt. #1). The plaintiff has not provided a privilege log and the plaintiff's opposition brief does not sufficiently give the Court a basis for determining whether the work product doctrine applies to responsive documents to defendant's request for production No. 21. As such, the Court orders the plaintiff to submit for in camera review unredacted copies of all communications the plaintiff or plaintiff's counsel, or an agent thereof, had with journalists, reporters, news publishers, or new broadcasters regarding the Initial Action and any allegations made in the course of the Initial Action by May 17, 2019. See In re Dow Corning Corp., 261 F.3d 280, 282-83 (2d Cir. 2001)(submitting documents to district court for in camera review of attorney-client and work product claims); In re United States, 565 F.2d 19, 23 (2d Cir. 1977) (District Courts have the authority to hold in camera proceedings); Edebali v. Bankers Std. Ins. Co., No. 14-cv-7095 (JS)(AKT), 2017 U.S. Dist. LEXIS 110665, at *19 (E.D.N.Y. Jul. 17, 2017) (“[A] party's privilege log, supporting affidavits and an in camera review of the documents themselves are generally required to permit a proper inquiry.”).

III. Plaintiff's failure to provide a Privilege Log

FRCP 26(b)(5) requires a party withholding information on the basis of privilege or work product “(i) expressly make the claim; and (ii) 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). “[C]ourts generally require compliance with this statutory mandate that an adequately detailed privilege log be provided.” Trudeau v. New York State Consumer Prot. Bd., 237 F.R.D. 325, 334 (N.D.N.Y. 2006); see also United States v. Construction Prods. Research, 73 F.3d 464, 473 (2d Cir. 1996); Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993). Additionally, Local Rule 26(e) requires:

*2 Local R. 26(e). Under Local Rule 26, the plaintiff is not required to produce communications between “a party and its trial counsel after commencement of the action and the work product material created after commencement of the action.”

Here, the plaintiff has not provided a privilege log or document specifically complying with FRCP 26(b)(5) or Local Rule 26(e). He argues his “affidavit” and “opposition memorandum” sufficiently explain the documents so the court and opposing counsel can understand their content. (Dkt. #119 at 10). However, neither the court nor the defendant have been able to determine the extent or presence of the protections of the work product doctrine from these documents.

The plaintiff states that “his purpose for contacting journalists was to confirm facts, to obtain leads to persons or organizations who could assist in confirming them, to obtain documents and to otherwise learn what he could from persons who knew about, witnessed or were looking into matters that could assist the Friedman case. It was also to find and identify witnesses and interview them.” (Dkt. #119 at 9). This explanation may describe “the general subject matter” of the documents plaintiff is withholding, but the plaintiff still has not identified the types of documents, the authors of the documents, or the recipients of the documents.

The plaintiff claims that he is unable to provide the identities of journalists he communicated with because it would “end those relationships” or compromise his ability to continue gathering evidence for the Friedman case. (Dkt #119-1 at 4, 6). The identities of individuals the plaintiff interviewed in preparing his case are not discoverable. See United States v. Dist. Council of New York City and Vicinity of the United Bhd. of Carpenters, No. 90-cv-5722 (CSH), 1992 U.S. Dist. LEXIS 12307, at *30 (S.D.N.Y. Aug. 18, 1992); see also Seven Hanover Assoc. v. Jones Lang LaSalle Americas, Inc., No. 04-cv-4143 (PAC) (MHD), 2005 U.S. Dist. LEXIS 32016, at * 3 n.1 (S.D.N.Y. 2005) (“[d]efendant is free to ask for names of persons with knowledge of the facts, but is not entitled, through plaintiffs, to identification of who among such knowledgeable individuals have been interviewed by plaintiffs’ attorney”). However, unlike an interrogatory that asks a party to identify who the plaintiff interviewed in preparing his case, disclosure of identities in a privilege log does not inform the defendant here “which individuals the [plaintiff] considered more or less valuable as witnesses and how it was preparing for trial.” United States v. Dist. Council, 1992 U.S. Dist. LEXIS 12307, at *30.

Nevertheless, the plaintiff is only required to provide the identities of authors or recipients of withheld communications where the purpose of the communication was not an interview nor a request for a statement. The Court orders the plaintiff to produce a privilege log to the Court and the defendant by May 17, 2019, which complies with this order, FRCP 26(b)(5), and Local Rule 26(e).

IV. Plaintiff's Prior Testimony

Plaintiff argues that he cannot produce documents related to his prior testimony because such documents are covered by a protective order. He also argues that such documents are not relevant. Presently, the Court does not have enough information regarding the protective order in the prior action to require the production of the plaintiff's prior testimony. Courts have compelled the production of deposition transcripts taken in prior actions, even when the common party in the second action was bound by a protective order entered during the course of the first action. See Carter-Wallace, Inc. v. Hartz Mountain Industries, 92 F.R.D. 67 (S.D.N.Y. 1981).

*3 In Carter-Wallace, the protective order prevented the “receiving party” of any documents and information produced by a party for use at trial from using or disclosing that evidence for any other purpose. Id. at 69. The court in Carter-Wallace found that the discovery request in that action was directed at the party that controlled the evidence and was the source of the information. Thus, the request was not directed at the “receiving party.” Id.

Here, the protective order is not one sided as it prevents either party from disclosing any designated deposition transcripts or portions thereof. (Second Amended P.O. p.13). The protective order repeatedly emphasizes that designated material may only be used in that litigation. The parties were also bound to either destroy or return to the producing party all designed material upon final termination of that action. (p. 17).[1]

The Court does not know if the deposition of the plaintiff in that case was designated. The plaintiff is ordered to provide notice to the Court of the depositions designation status and whether such status remains valid as the prior action was terminated. Such notice will be provided by May 17, 2019.

V. Remaining Disputes

The plaintiff, on the first page of his opposition motion, states that he has no objection to producing his tax returns, copies of plaintiff's resume, from the time he applied to work for Palladyne and a current resume, and communications from plaintiff to Palladyne (or others) in which he made the allegations set forth in the complaint in the Palladyne Action, and, in particular, the documents that Plaintiff directly quotes in paragraphs 174-76 of the Palladyne Action complaint. (Dkt. #119 at 1 referring to Dkt #109-1 at 19). He made further assurances that he would produce all responsive documents within three days of his memorandum, which was dated December 17, 2018. (Dkt. #119 at 1). Four days later, on December 21, 2018 when the defendants filed their reply memorandum, the plaintiff had yet to comply with his prior assurances to produce the documents. (Dkt. #122 at 2). If at this point the plaintiff has still yet to produce responsive documents to the above mentioned requests, the plaintiff is ordered to do so by within 3 days of this order.

Moreover, the plaintiff did not object to producing plaintiff's affidavits from the Palladyne action, which the defendant requests in the narrowed version of its request for production No. 26. (Dkt. #119 at 39, Dkt. #109-1 at 16). If the protective order in the initial action does not prohibit the plaintiff from doing so, the plaintiff is ordered to produce these documents.

Conclusion

This is not a Recommended Ruling. This is a discovery ruling or order which is reviewable pursuant to the “clearly erroneous” statutory standard of review. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. R. 72.2. As such, it is an order of the Court unless reversed or modified by a district judge upon motion timely made.

SO ORDERED this 3rd day of May, 2019 at Hartford, Connecticut.