Chad C. Messier, Esq.

Daniel G. Sanders, Esq.

Nathan J. Mirocha, Esq.

Stuart Sobel, Esq.

Neal R. Novak, Esq.

THIS MATTER is before the Court upon Plaintiff [Great Lakes Insurance S.E.]'s Motion to Compel Reponses to Requests for Production (ECF No. 99). Defendant filed a response to the motion, and said Plaintiff filed a reply thereto.

Plaintiff Great Lakes Insurance S.E., (Great Lakes) seeks an order directing Defendant “to fully respond, without objection, to Plaintiff's Request for Production identified herein in accordance with the Federal Rules of Civil Procedure ....” Mot. at 20. Said Plaintiff also requests that Defendant be ordered to pay Plaintiff's attorney's fees incurred in connection with the motion. Id. Defendant opposes on the grounds that it “has repeatedly furnished all documents responsive to [Great Lakes'] requests,” that its supplemental responses did not act as a waiver of any previously asserted objections, that it “has clearly identified the documents in its production and their relation to specific areas of inquiry,” and that any information possessed by non-disclosed consultants “will be disclosed in accordance with the Court's trial order with respect to expert disclosures.” Resp. at 3.

I. BACKGROUND

In the above-captioned matter, Great Lakes served its First Set of Requests to Produce upon Defendant on January 15, 2020. Mot. at 1; Great Lakes Insurance S.E.['s] First Set of Requests to Produce to Sunshine Shopping Center, Inc. (Requests) (Mot. at Attachment #2 – Exhibit B). Defendant responded to the said requests for production, including raising certain objections. Mot. at 1; Resp. at 2; Sunshine Mall Shopping Center, Inc.'s Response to Great Lakes Insurance S.E.'s First Request [sic] to Produce (Responses) (Mot. at Attachment #4 – Exhibit D). Said Plaintiff found nearly all responses insufficient and informed Defendant via correspondence. Mot. at 1; Letter to Stuart H. Sobel, Esq., and Nathan J. Mirocha, Esq., from Charlotte K. Perrell, dated March 12, 2020 (Rule 37 letter) (Mot. at Attachment #5 -- Exhibit E). Defendant replied to Great Lakes' correspondence, stating that it “will supplement our responses to Requests to Produce by producing (again) all non-privileged documents responsive to the requests.” Mot. at 1-2; Letter to Great Lakes Insurance S.E./HDI Global Specialty S.E./Charlotte K. Perrell from Stuart Sobel, dated March 13, 2020 (Mot. at Attachment #6 -- Exhibit F). The record is devoid of any service of supplemental responses to Great Lakes' requests for production of documents by Defendant.

In the motion currently before the Court, Great Lakes enumerates 26 requests, excepting request numbered 19, only, for which it seeks to compel full and complete responses. Mot. at 4-19. Defendant's response to the motion addresses seven requests, requests numbered 5, 16, 17, 18, 19, 20, and 21, ostensibly to reassert its objections to those requests. However, the requests identified in said Plaintiff's March 12, 2020, Rule 37 letter, are requests numbered 1-16 and 22-27. Mot. at Exhibit E at 10-12. Because Defendant was on notice regarding the requests as outlined in Great Lakes' Rule 37 letter, the Court will rule upon the 22 requests identified and discussed in the Rule 37 letter and not the additional four Great Lakes includes in its motion.

II. DISCUSSION

A. Applicable standards

*2 Federal Rules of Civil Procedure Rule 34 governs the production of documents. With regard to responses to requests, the rule provides, in pertinent part:

Fed. R. Civ. P. 34(b)(2)(B),(C), and (E). While a party may choose whether to “produce documents as they are kept in the usual course of business or ... organize and label them to correspond to the categories in the request,” id. (emphasis added), the rule offers only these two options. Safeair, Inc. v. AirTran Airways, Inc., No. 09-5053 RJB, 2009 WL 4066819, at *2 (W.D. Wash. Nov. 20, 2009) (“The responding party must produce documents in one of the two ways.”).

When choosing the former option, the party

Cardenas v. Dorel Juvenile Grp., Inc., 230 F.R.D. 611, 618 (D. Kan. 2005) cited in Pass & Seymour, Inc. v. Hubbell, Inc., 255 F.R.D. 331, 334 (N.D.N.Y. 2008). See also, e.g., Mamakos v. United Airlines, Inc., CV 14-7294 (JFB) (AKT), 2018 WL 4861392, at *3 (E.D.N.Y. Sept. 28, 2018) (“[A] party ‘must do more than merely represent to the court that the party complied with Rule 34(b)(2)(E)(i).’ ” (quoting Distefano v. Law Offices of Barbara H. Katsos, PC, No. CV 11-2893, 2013 WL 1339536, at *5 (E.D.N.Y Mar. 29, 2013) and citing Pass & Seymour, Inc., 255 F.R.D. at 333-38)). The Mamakos court further notes that the “explanation” generally includes “how its documents are organized in the ordinary course of business and what steps the party took to search and produce the documents.” Mamakos, 2018 WL 4861392, at *3 (citations omitted).

*3 Moreover, the responding party must produce responsive documents “in the responding party's possession, custody, or control ....” Fed. R. Civ. P. 34(a)(1). It is well established that “[f]ederal courts construe ‘control’ broadly for Rule 34 purposes.” Castellani v. City of Atl. City, No. 13-5848 (JBS/AMD), 2016 WL 7155826, at *3 (D.N.J. Sept. 15, 2016). Our sister court for the Western District of Pennsylvania notes, “[E]ven if a document is not within the responding party's actual possession or custody, courts broadly construe the word “ ‘control.’ ” Arconic Inc. v. Novelis Inc., No. CV 17-1434, 2018 WL 4958976, at *3 (W.D. Pa. Oct. 15, 2018) (citations omitted). In Perez v. Great Wolf Lodge of the Poconos LLC, No. 3:12-CV-01322, 2017 WL 34697 (M.D. Pa. Jan. 3, 2017), the court declares:

Id. at *6.

As with all discovery, a party's requests may seek “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case ....” Fed. R. Civ. P. 26(b)(1).

Although Rule 26 allows a party to withhold “information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material,” Fed. R. Civ. P. 26(b)(5), the rule mandates that “the party must: (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)(A). Usually “this description takes the form of a privilege log.” Anderson v. Caldwell City Sheriff's Office, No. 1:09cv423, 2011 WL 2414140, at *4 (W.D.N.C. June 10, 2011); New Park Entm't L.L.C. v. Elec. Factory Concerts, Inc., No. CIV. A. 98-775, 2000 WL 62315, at *8 (E.D. Pa. Jan. 13, 2000) (“Courts in this district have held that parties must comply with the requirements of Fed. R. Civ. P. 26(b)(5) by providing a privilege log.” (citation omitted)). Moreover, “ ‘[a] party simply cannot claim privilege and refuse to provide a privilege log; indeed, some courts have found that doing so results in waiver of the privilege.’ ” Id. at *2 (citations omitted).

B. Requests at issue

Great Lakes claims in it Rule 37 letter that Defendant responded to these 19 requests with the identical response, which declares that Defendant “has produced documents responsive to the Request” and that it would supplement such production “[t]o the extent that there are additional documents responsive to this request ....” Rule 37 letter at 10.

To begin, the Court notes that nowhere in its responses to said Plaintiff's requests does Defendant state that any documents produced are produced “as they are kept in the usual course of business.” See generally Sunshine Mall Shopping Center, Inc.'s Response to Great Lakes Insurance S.E.'s First Request [sic] to Produce (ECF No. 99-4) and Defendant's Response to Plaintiff's Motion to Compel Responses to Request for Production (ECF No. 101). Thus, the Court finds that Defendant has chosen the second option offered in Rule 34(b)(2)(E)(i), namely, to produce documents “organize[d] and label[ed] ... to correspond to the categories in the request.” Id; Safeair, Inc., 2009 WL 4066819, at *2 (W.D. Wash. Nov. 20, 2009) (“AirTran does not contend that the documents it produced [previously] are organized as they are kept in the usual course of business, nor does AirTran contend that the documents are organized and labeled to correspond with the categories in the request as is required by Fed. R. Civ. P. 34(b)(2)(E)(i). The responding party must produce documents in one of the two ways.”).

*4 Although Defendant, in its response to the motion to compel, states that it “produced documents, organized to correspond to each category,” Defendant admits that the documents it produced were produced in response to “pre-suit” requests for documents. Resp. at 2 and n.2. See also Resp. at 3 (where Defendant admits that it did not organize the documents to correspond to Great Lakes' First Set of Requests for Production; rather, production was made corresponding to said Plaintiff's “pre-suit” request). Nothing in Rule 34 allows production of documents in this fashion. The actual language of the rule reads: “organize and label [documents] to correspond to the categories in the request.” Fed. R. Civ. P. 34(b)(2)(E)(i) (emphasis added). This clearly refers to the request propounded pursuant to Rule 34(a)(1). The very nature of “pre-suit” requests implies that they were not propounded pursuant to Rule 34(a)(1). In the matter at bar, Great Lakes propounded requests for documents pursuant to Rule 34(a)(1), and it is such requests that are at issue before the Court, and it is to such requests that Defendant must have organized and labeled its documents to correspond. Consequently, the Court will order Defendant to amend its responses, organizing and labeling any and all responsive documents to correspond to each of Great Lakes' requests numbered 1-4, 6-15, 22-23, 26-27. Owens v. Degazio, No. 216CV2750JAMKJNP, 2019 WL 2388593, at *2 (E.D. Cal. June 6, 2019) (“Plaintiff does not dispute that the documents he provided defendants in response to the July 27, 2018[,] request for production of documents were not organized to correspond to the categories in the request, as required by Federal Rule of Civil Procedure 34(b)(2)(E)(i). For this reason, defendants' motion to compel is granted.”).

In addition, like other courts who have confronted circumstances where documents had been “previously produced,” the Court will “further order[ Defendant] to identify by bates stamp number which documents are responsive to which requests.” Johnson v. Kraft Foods N. Am., Inc., 236 F.R.D. 535, 541 (D. Kan. 2006). See also, e.g., Safeair, Inc., 2009 WL 4066819, at *2 (“AirTran should identify previously produced documents by Bates number in response to each and all of Safeair's RFPs in its second discovery request.”); Cardenas v. Dorel Juvenile Grp., Inc., 230 F.R.D. 611, 618–19 (D. Kan. 2005) (“Since the documents have already been provided to Plaintiffs, the easiest way for DJG to comply with the ‘organize and label’ requirement would be for DJG to identify, by the Bates Numbers the DJG lawyers have already stamped on the documents, which documents are responsive to each of the document requests, as Plaintiffs have requested.”).

To emphasize the fact that the Court expects Defendant to provide all documents that are responsive to the requests, the Court will order Defendant to include any and all responsive documents not only in its possession, but also within its care, custody, and control, Fed. R. Civ. P. 34(a)(1), whether or not the documents have been previously produced. Sierra Equity Group v. White Oak Equity Partners, LLC, No. 08-80017-CIV, 2010 WL 2400080, at *1 (S.D. Fla. June 16, 2010) (“Defendant is hereby put on notice that he is required to produce all documents not only in his possession, but all documents in his care, custody or control.” (citations omitted)); Payless Shoesource Worldwide, Inc. v. Target Corp., Civil Action No. 05-4023-JAR, 2008 WL 973118, at *5 (D. Kan. Apr. 8. 2008) (making clear that the court “was not limiting the nature of defendants' search for, or production of, responsive documents” (emphasis in original)).

2. Requests 24 and 25

A review of Defendant's Responses confirms Great Lakes' allegation that Defendant's responses to requests numbered 24 and 25 are identical, stating that “[t]o the extent that they exist, Sunshine asserts that it has produced documents responsive to this request” and will supplement “[t]o the extent that there are additional documents responsive to this request.” Rule 37 letter at 10; Responses at 6.

The Court finds these responses wholly inadequate. First, Defendant seems to imply that responsive documents may not exist. Second, Defendant failed to “organize and label” any existing responsive documents to the categories identified in the individual requests. See Mot. at 18 (where Plaintiff states, “No documents were labeled as responsive to Request[s 24 and 25] and, therefore it appears that no documents were produced in response to th[ese] request[s]”).[1]

*5 Based upon Defendant's nonresponse, the Court will order Defendant to serve amended responses and produce any and all responsive documents, organized and labeled to correspond to Request 24 and Request 25. In the event Defendant asserts that it has no responsive information and/or documents in its possession, custody, or control, Defendant shall certify the same under oath by way of an affidavit or declaration. Patient Care Assocs. v. New Jersey Carpenters Health Fund, No. CV101669SRCMAS, 2011 WL 13238624, at *5 (D.N.J. Mar. 10, 2011).

Documents related to any expenditures of insurance proceeds, which was the subject of Great Lakes' Interrogatory No. 6 to Defendant, are sought by Great Lakes in this request. Mot. at 6; Requests at 6.

In its response, Defendant objects on the grounds that the request “is not reasonably calculated to lead to discovery of admissible evidence” and claims attorney-client privilege or work product doctrine protection. Responses at 2; Rule 37 letter at 11.

As counsel for Defendant should be aware, the “reasonably calculated to lead to the discovery of admissible evidence” is no longer the standard for relevancy. Federal Rules of Civil Procedure Rule 26(b)(1) was amended in 2015. The provision now reads, in pertinent part: “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case ....” Fed. R. Civ. P. 26(b)(1). Even with the amended language, “[r]elevance is ‘construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.’ ” Green v. Cosby, 314 F.R.D. 164, 171 (E.D. Pa. 2016) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). The Court already has ruled that the distribution of any insurance proceeds received by Defendant is directly relevant to the claims and defenses at issue in this matter. Order Granting Motion to Compel Interrogatory Responses (ECF No. 110) at 14.

Even if an objection based upon relevancy could have been maintained, the Court would overrule Defendant's objection, as stated, because Defendant failed to explain the reasons for the objection. Fed. R. Civ. P. 34(b)(2)(B) (response must “state with specificity the grounds for objecting to the request, including the reasons”). Defendant also failed to state whether any responsive materials were being withheld as required by subsection (b)(2)(C). As the Advisory Committee explains, “The specificity of the objection ties to the new provision in Rule 34(b)(2)(C) directing that an objection must state whether any responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(B) advisory committee's note to 2015 amendment. The amended provisions make clear that boilerplate objections, that is, objections “that merely state the legal grounds for objection without specifying how the discovery request is deficient,” Michigan Auto. Ins. Placement Facility v. New Grace Rehabilitation Ctr., PPC, No. 417CV11007TGBDRG, 2019 WL 355654, at *2 (E.D. Mich. Jan. 29, 2019), if they ever were,[2] are no longer allowed. Id. (“Rule 34(b)(2)(B) of the Federal Rules of Civil Procedure plainly disallows boilerplate objections to discovery requests and requires parties to ‘state with specificity the grounds for objecting to the request, including the reasons.’ (emphasis added). The Rule further provides that any objection to a discovery request must ‘state whether any responsive materials are being withheld on the basis of that objection.’ ” Fed. R. Civ. P. 34(b)(2)(C)). See, also, e.g., Happy Place, Inc. v. Hofesh, LLC, No. 218CV6915ODWSKX, 2019 WL 4221400, at *1 (C.D. Cal. May 17, 2019) (“Boilerplate and general objections ... are no longer allowed.” (citing Fed. R. civ. P. 34(b)(2)(B)-(C))); Mamakos, 2018 WL 4861392, at *4 (where the court observes that “[s]uch boilerplate objections are no longer viable or acceptable as a result of the 2015 Amendments to the Federal Rules of Civil Procedure”). Defendant's failure to comply with the requirements of Rule 34(b)(2) renders its response incomplete; and, thus, the Court treats it as a failure to respond. Fed. R. Civ. P. 37(a)(4).

*6 Further, the Court agrees with other courts who have found that relying on boilerplate objections may be held as a waiver of objections. See, e.g, Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 247 (M.D.N.C. 2010) (where the court states, “[O]bjections of this sort do not suffice. By failing to present valid objections to these discovery requests, Plaintiffs ‘waived any legitimate objection [they] may have had’ ” (citing Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 364 (D. Md. 2008) and Frontier–Kemper Constr uctors, Inc. v. Elk Run Coal Co., Inc., 246 F.R.D. 522, 528-29 (S.D.W. Va. 2007)); Hall v. Sullivan, 231 F.R.D. 468, 474 (D. Md. 2005) (decided before the 2015 amendments to Rule 34 and finding that “[i]mplicit within Rule 34 is the requirement that objections to document production requests must be stated with particularity in a timely answer, and that a failure to do so may constitute a waiver of grounds not properly raised, including privilege or work product immunity, unless the court excuses this failure for good cause shown”); First Sav. Bank, F.S.B. v. First Bank Sys., Inc., 902 F. Supp. 1356, 1360 (D. Kan. 1995) (“When a producing party fails to make a timely and proper objection, a court may find that the party has waived any objections to a document request under Rule 34.” (citations omitted)); Marx v. Kelly, Hart & Hallman, P.C., 929 F.2d 8, 12 (1st Cir. 1991) cited in Scaturro v. Warren and Sweat Mfg. Co., Inc., 160 F.R.D. 44, 46 (M.D. Pa. 1995) (“If the responding party fails to make a timely objection, or fails to state the reason for an objection, he may be held to have waived any or all of his objections.”).

The Court also finds that Defendant's objection based upon attorney client privilege and/or work product doctrine is insufficient. The United States District Court for the Northern District of Texas' explanation of the standard regarding the work-product protection of Federal Rule of Civil Procedure Rule 26(b)(5) in Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 WL 884742, (N.D. Tex. Feb. 27, 2014), is instructive:

Id. at *2 (citations omitted) quoted in Zenith Ins. Co. v. Texas Inst. for Surgery, L.L.P., 328 F.R.D. 153, 162 (N.D. Tex. 2018) (emphasis added). See, also, e.g., Coldwell Banker Real Estate Corp. v. Danette O'Neal, Civ. A. 06–2525, 2006 WL 3845011, *1 (E.D. La. Dec. 29, 2006) (“[P]arties resisting discovery by asserting any privilege bears the burden of proof sufficient to substantiate their privilege claims and cannot rely merely on a blanket assertion of privilege.” quoted in Enron Corp. Sav. Plan v. Hewitt Assocs., L.L.C., 258 F.R.D. 149, 160 (S.D. Tex. 2009)).[3] In the matter at bar, Defendant has offered nothing in the way of facts supporting its objection in the form of affidavits or even a privilege log.[4]

*7 Although “courts have been more circumspect in finding a waiver of a privilege objection,” First Sav. Bank, F.S.B., 902 F. Supp. at 1361, courts have held that, as with boilerplate general objections, “[t]o avoid possible waiver, [assertions of privilege] must contain the additional information identified in [Rule 26(b)5].” Hall v. Sullivan, 231 F.R.D. 468, 474 (D. Md. 2005). See also Mezu v. Morgan State University, 269 F.R.D. 565, 577 (D. Md. 2010) (where the court finds that a failure to provide a privilege log “may constitute a forfeiture of any claims of privilege” (citations omitted)).

Because the Court has determined the request relevant and because the Court finds that Defendant has waived any and all objections thereto due to Defendant's failure to object properly, the Court will order Defendant to serve upon Great Lakes an amended response and produce any and all responsive documents corresponding to request numbered 5 and identify such documents by Bates stamp number.[5]

Great Lakes' Request 16 asks Defendant to produce “any and all documents you intend to introduce in the trial of this case.” Requests at 7. Defendant responded that it would “comply with the Court's order, as required. Until then, this request seeks documents protected by the work product doctrine.” Responses at 4.

Despite that fact that this Court usually issues trial management orders establishing a deadline for trial exhibits, no such order has yet been entered. Moreover, the Court is unable to discover nor has Defendant cited any rule or law prohibiting the discovery of such documents prior to the setting of such a deadline. Near v. Eli Lilly & Co., No. 3:07-CV-00006-TJS, 2008 WL 11334459, at *6 (S.D. Iowa July 16, 2008) (“While this court's Local Rules and the Federal Rules of Civil Procedure establish a deadline for exhibit disclosures, there is no prohibition on discovery requests seeking copies of such documents prior to the deadline. Therefore, Lilly shall produce copies of any documents it intends to introduce as exhibits which have not been previously produced to plaintiff. Final exhibit disclosures shall be served pursuant to this court's Local Rules and the Federal Rules of Civil Procedure.”). See also Mohnsam v. Nemes, No. 3:17-CV-427-CRS-CHL, 2019 WL 3307233, at *3 (W.D. Ky. July 23, 2019) (where the court orders the responding party to produce documents responsive to an interrogatory: “Therefore, Acuity's Motion will be granted as to Interrogatory No. 5. Perry is instructed that he must identify the exhibits he wishes to introduce at trial at this time and may supplement his response at a later date, if warranted, and in accordance with any additional pretrial orders issued by the Court”); Long v. C.M. Long, Inc., No. 2:15-CV-02424, 2016 WL 3619149, at *4 (W.D. La. June 22, 2016) ( where the court finds the documents requested relevant and, therefore, subject to discovery: “Under Rule 34, a party may request another party to produce any designated documents or electronically stored information stored in any medium from which information can be obtained directly that is within the scope of Rule 26(b). Since the documents sought by this request are those that will be introduced at trial, they are relevant to a party's claim or defense and therefore within the scope of 26(b)”). Consequently, the Court overrules Defendant's objection that the request is premature.

*8 The Court also overrules Defendant's objection based upon work product protection. Again, Defendant failed to comply with requirements of Rule 34(b)(2)(B)-(C) to state the objection with specificity and to state whether any responsive documents were being withheld. Defendant also failed to comply with Rule 26(b)(5) requiring a description of the documents withheld. Defendant seems to suggest that the mere compilation of documents is enough to invoke the work product protection. “However, the mere selection and/or organizing of otherwise discoverable documents does not automatically convert them into work product.” Liles v. Stuart Weitzman, LLC, No. 09-61448-CIV, 2010 WL 11505129, at *6 (S.D. Fla. Apr. 22, 2010).[6] Thus, in the absence of any explanation by Defendant regarding how Request 16 seeks protected information, the Court finds that Defendant “has not met his burden of establishing that the work product doctrine applies to the compilation or identification of documents sought by the instant Request[ ].” Id. at *7.

III. CONCLUSION

Having reviewed the parties' briefs and upon due consideration thereof, the Court finds that Defendant's responses to Great Lakes' requests for production at issue are deficient.

In addition, because Defendant did not provide specific objections supported by particularized facts and did not state whether any responsive documents were being withheld as prescribed by Rule 34 (b)(2)(B)-(C), the Court finds that Defendant has waived all of its improperly-raised general objections. Mezu v. Morgan State Univ., 269 F.R.D. 565, 573 (D. Md. 2010) (“[O]bjections to discovery must be specific, non-boilerplate, and supported by particularized facts where necessary to demonstrate the basis for the objection.... ‘[F]ailure to do so may constitute a waiver of grounds not properly raised.’ ... Because Defendant did not provide specific objections supported by particularized facts, it waived its improperly-raised objections.” citing and quoting Hall v. Sullivan, 231 F.R.D. 468, 470 (D. Md. 2005)).

Defendant's attempts to withhold information pursuant to Federal Rules of Civil Procedure Rule 26(b)(5)(A) failed to “describe the nature of the documents, communications, or tangible things not produced or disclosed ...”, Fed. R. Civ. P. 26(b)(5)(A)(ii), as required by the rule. Consequently, the Court finds that Defendant has waived all claims of attorney-client privilege and work product protection as they relate or might have related to the requests at issue. See, e.g., Bregman v. D.C., 182 F.R.D. 352, 362–63 (D.D.C. 1998) (“Furthermore, there is no indication anywhere of why any of these documents falls within the attorney client privilege. Indeed, plaintiff's failure to comply with Fed. R. Civ. P. 26(b)(5), requiring him to file a privilege log, bars in itself any claim of privilege, whatever its basis.”)

Finally, because the Court is granting the motion to compel, it must, after giving an opportunity to be heard, require Defendant to pay said Plaintiff's reasonable expenses related to the motion to compel. Fed. R. Civ. P. 37(a)(5)(A). Prior to ordering such payment, the Court will allow Defendant to show cause why it should not be required to do so.

WHEREFORE, for the foregoing reasons, it is now hereby ORDERED:

ENTER:

In addition, Plaintiff explains that it “sought [the requested] documents prior to the commencement of this proceeding and no documents responsive to th[ese] request[s] have been disclosed under Rule 26(a) or that Plaintiff can identify in the documents produced on March 31, 2020.” Id.

Long before the 2015 amendments to Rule 34, courts had “[w]idely rejected ... [b]oilerplate objections in response to a Rule 34 request for production of documents ....” Frontier-Kemper Constructors, Inc. v. Elk Run Coal Co., Inc., 246 F.R.D. 522, 528-29 (S.D.W. Va. 2007) (collecting cases).

Although not a point at issue here since Defendant has submitted no facts or information, the Court notes that normally a party is required to provide such supporting information when the withheld documents should have been produced. Enron Corp. Sav. Plan, 258 F.R.D. at 163 (“When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. Rule 26(b)(5) plainly contemplates that the required notice and information is due upon a party withholding the claimed privileged material. Consequently, reading Rules 26(b)(5) and 34(b) together, the producing party must provide Rule 26(b)(5) notice and information at the time it was otherwise required to produce the documents under Rule 34.”) (quoting First Savings Bank, F.S.B., v. First Bank System, Inc., 902 F. Supp. 1356, 1360 (D. Kansas 1995)).

No such affidavits or other document identifying and/or describing the alleged protected information were attached to Defendant's response to the motion to compel. Also, Great Lakes declares in its reply: “Sunshine failed to provide any type of a privilege log ...” Plaintiff's Reply to Defendant's Opposition to Motion to Compel Responses to Requests for Production (ECF No. 107) at 5.

In its previous order, the Court directed Defendant to provide a full and complete response and attach copies of documents that support its answer to Great Lakes' interrogatory numbered 6. Order Granting Motion to Compel Interrogatory Responses (ECF No. 110) at 20. To the extent that any documents that are responsive to Request 5 are duplicative of documents that support Defendant's answer to Interrogatory No. 6, Defendant shall so state and shall identify such documents by Bates stamp number.

In Liles, the court supported its decision to grant the motion to compel because the requests at issue sought “documents that support the allegations of Plaintiff's Complaint in order to ascertain the facts in this case.” Liles, 2010 WL 11505129 at *7. Trial exhibits, it is safe to surmise, would be those that support Defendant's defenses and counterclaims and would contain facts relevant to this matter.