Amin v. UPS, Inc.
Amin v. UPS, Inc.
2021 WL 3629731 (N.D. Tex. 2021)
June 3, 2021
Toliver, Renee H., United States Magistrate Judge
Summary
Plaintiff requested documents from Defendant, UPS, concerning an incident involving Plaintiff. Defendant initially responded that it had already produced documents responsive to the request, but Plaintiff challenged the completeness of the response. After an in camera inspection, the Court found that Defendant had withheld a responsive document and had waived its objection to production based on work product privilege. The Court ordered Defendant to produce the document and granted Plaintiff's request for an award of its reasonable costs and fees.
JOSHUA AMIN, PLAINTIFF,
v.
UNITED PARCEL SERVICE, INC., DEFENDANT
v.
UNITED PARCEL SERVICE, INC., DEFENDANT
CASE NO. 3:19-CV-2578-X-BK
United States District Court, N.D. Texas, Dallas Division
Filed June 03, 2021
Counsel
Robert Clary, Robert Clary PLLC, Murphy, TX, Julie S. Wolf, Wolf Law PLLC, Dallas, TX, for Plaintiff.Andrea W. Paris, Phelps Dunbar LLP, Fort Worth, TX, C. Christine Burns, Pro Hac Vice, BurnsBarton PLC, Phoenix, AZ, J. Day Peake, III, Pro Hac Vice, Phelps Dunbar LLP, Mobile, AL, Marcia N. Jackson, Wick Phillips Gould & Martin LLP, Dallas, TX, for Defendant.
Toliver, Renee H., United States Magistrate Judge
ORDER
*1 Pursuant to the district judge's Order of Reference, Doc. 49, Plaintiff's Motion to Compel, Doc. 48, was referred to the United States magistrate judge for determination. Upon review, the motion is GRANTED.
I. BACKGROUND
Plaintiff filed suit against his former employer, United Parcel Service, Inc. (“UPS”), alleging that his manager denied his request to use the restroom and then—under threat of termination—required him to work for 20 minutes after he defecated in his pants. Doc. 19 at 1. This discovery dispute arose from Plaintiff's Request for Production (RFP) No. 12, which requested:
[a]ll Documents containing or Concerning statements given by Sergio Castro, Othmane Karmouni, Brandon Humphrey, Steve Silva, or other members of UPS Management to any Person (including UPS's Human Resources Department, any third-party or internal investigator, or any safety and security personnel) Concerning the Incident involving Joshua Amin that occurred on December 6, 2018.
Doc. 48-1 at 10. Defendant responded that it had “already produced documents responsive to this request” and objected to a section of the request not relevant to this motion. Doc. 48-1 at 10. Importantly, Defendant did not assert any privilege. When Plaintiff subsequently challenged the completeness of the response, Defendant provided a supplemental response (“the Supplement”). Doc. 48-1 at 14. In the Supplement, Defendant's reasserted its objections to RFP No. 12, adding, “UPS is not withholding any documents responsive to this request.” Doc. 48-1 at 21 (emphasis in original). Still, Defendant did not assert any privilege.
By the motion sub judice, Plaintiff contends that Defendant withheld, and is still withholding, a responsive document, to-wit, an email from Othmane Karmouni to Brad Lusk, in response to Lusk's request for a statement regarding Plaintiff's incident (“the subject email”).[1] Doc. 48 at 1. Plaintiff argues Defendant should have produced the email in response to RFP No. 12, but did not do so—only belatedly asserting the email was work product after its existence was revealed by Lusk during his deposition. Doc. 48 at 1, 4, 6.
II. APPLICABLE LAW
A. Requests for Production
Rule 34(a)(1) of the Federal Rules of Civil Procedure provides that:
[a] party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: (A) any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.
FED. R. CIV. P. 34(a).
*2 A party may move for an order compelling production against another party when the latter fails to produce documents requested under Rule 34. FED. R. CIV. P. 37(a)(3)(B)(iv). An evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond. FED. R. CIV. P. 37(a)(4). Moreover, the party resisting discovery must show specifically how each request is not relevant or is otherwise objectionable. See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). Failure to so specify is “not adequate to voice a successful objection.” Id. (citation omitted).
B. Work Product Privilege
The work product doctrine protects from disclosure documents and tangible things prepared by or for a party or that party's representative “in anticipation of litigation or for trial.” Zenith Ins. Co. v. Texas Institute for Surgery, L.L.P., 328 F.R.D. at 162. However, a work product privilege nevertheless must be asserted. The Federal Rules of Civil Procedure require that
[w]hen a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, 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).
C. Waiver
As a general rule, any potential objections to discovery requests are waived if a party fails to timely respond to the request. In re United States, 864 F.2d 1153, 1156 (5th Cir. 1989). “If a party fails to timely respond in writing after being served with a request for production of documents, it is appropriate for the Court to find that the party's objections are waived, unless the court finds good cause and excuses [that] failure.” Richmond v. SW Closeouts, Inc., No. 3:14-cv-4298-K, 2016 WL 3090672, at *5 (N.D. Tex. June 2, 2016) (Horan, J.); see also In re United States, 864 F.2d at 1156 (“as a general rule, when a party fails to object timely to interrogatories, production requests, or other discovery efforts, objections thereto are waived”).
“Courts have substantial discretion in deciding when objections should be deemed waived.” Enron Corp. Sav. Plan v. Hewitt Associates L.L.C., 258 F.R.D. 149, 156 (S.D. Tex. 2008). The Enron court suggested six factors to consider in determining whether an untimely objection or claim of privilege should be excused: (1) the length of the delay or failure to particularize; (2) the reason for the delay or failure; (3) whether there was any dilatory or bad faith action on the part of the party that failed to raise the objection properly; (4) whether the party seeking discovery has been prejudiced by the failure; (5) whether the document production request was properly framed and not excessively burdensome; and (6) whether waiver would impose an excessively harsh result on the defaulting party. Id; see also Clewis v. Medco Health Solution, Inc., No. 3:12-CV-5208-L, 2013 WL 5354574, at *3 (N.D. Tex. Sept. 25, 2013) (Horan, J.) (applying the six Enron factors).
III. ANALYSIS
As a preliminary matter, the Court finds upon in camera inspection that the subject email is responsive to Plaintiff's RFP No. 12 and that it also qualifies as work product. As such, the Court's determination turns on whether Defendant waived its objection on the basis of work product privilege by failing to timely assert it.
*3 Plaintiff maintains Defendant waived its objection to production based on work product privilege by (1) failing to timely assert it, (2) explicitly stating it was not withholding any documents responsive to RFP No.12, (3) failing to comply with Rule 26(b)(5), and (4) selectively disclosing statements made by other UPS employees but not the subject email. Doc. 48 at 12. Defendant attempts to excuse its initial omission of the subject email from its privilege log by claiming that because the subject email was “presumptively privileged,” Defendant was not required to list it. Doc. 50 at 3. Defendant also contends that even if its claim of privilege was untimely, there was no waiver since Defendant did not act in bad faith or in flagrant violation of any rule. Doc. 50 at 4. The Court disagrees.
First, the timing and specificity of an objection is critically important when asserting a privilege during discovery. See In re United States, 864 F.2d at 1156. As stated previously, the general rule is that when a party fails to timely object, or does not fully and expressly object, the omitted objections are waived. Id.; see also FED. R. CIV. P. 34(b)(2)(A)&(B) (requiring that a party must respond in writing within 30 days of being served with a request for production either (1) that production be permitted as requested or (2) stating specific grounds for objecting to the request). Further, to properly assert work product privilege, a party must claim the privilege and provide “a detailed description of the materials in dispute and state specific and precise reasons for their claim of protection from disclosure.” FED. R. CIV. P. 26(b)(5)(A).
Here, when Defendant first responded to Plaintiff's RFP No. 12, it did not claim work product privilege generally or specifically over the subject email. Defendant simply failed to acknowledge the subject email's existence. See Doc. 48-1 at 10. Two months later, Defendant again failed to assert any privilege in connection with RFP No. 12 in its Supplement or disclose the existence of the subject email and that it was being withheld. Indeed, Defendant explicitly stated that no responsive documents were being withheld. See Doc. 48-1 at 21. It was not until May 2021—seven months after Plaintiff's initial production request and after Lusk revealed the subject email's existence during his deposition—that Defendant finally added the subject email to its privilege log. Doc. 50-2.
Moreover, Defendant's argument that “the emails sought by Plaintiff were not initially included on Defendant's privilege log because they are presumptively privileged and need not be included on any privilege log,” is a nonstarter. Doc. 50 at 3. In support, Defendant cites three cases that assume a privilege under either attorney-client communications or work product that arose after the litigation began. See Doc. 50 at 4. However, neither case is binding on this Court, and more important to the Court's analysis, neither is factually analogous to this case or otherwise persuasive. In any event, Defendant's attempted justification not only flouts the rules, see FED. R. CIV. P. 26(b)(5)(A) (the privilege proponent “must . . expressly make the claim”), it also ignores a fundamental fact: any privilege can be voluntarily waived; so logically, the assertion of privilege simply cannot be presumed. It is also troubling that Defendant suggests by this argument that its actions were intentional rather than inadvertent.
Defendant also contends that even if the Court finds it had an obligation to produce the subject email and failed to properly assert its privilege, the Court should not deem the privilege waived because Defendant's violation was neither flagrant nor in bad faith. Doc. 50 at 4. The Court concedes that waiver of an untimely objection is not automatic. Courts have the discretion to determine whether good cause exists to preclude a finding of waiver. See, e.g., In re United States, 864 F.2d at 1156. However, good-cause preclusion of waiver also is not automatic and only applies if the facts warrant. See Clewis, 2013 WL 5354574, at *3 (holding that a party's failure to articulate a reason for its untimely objection weighed against finding good cause).
*4 The Court concludes that preclusion of waiver is not warranted in this instance. Defendant's actions—purposely omitting that it was withholding a responsive document for some six months, later misleadingly stating that it withheld no responsive documents, and attempting to justify its failure to comply with the unambiguous procedural rules that govern discovery objections and assertions of privilege only after such failure was discovered by Plaintiff—weigh against a finding of good cause.
Finally, when a motion to compel production is granted, “the court must, after giving an opportunity to be heard, require the party ... whose conduct necessitated the motion, the party or attorney advising the conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” FED. R. CIV. P. 37(a)(5) (emphasis added). Plaintiff requests that the Court grant “such other and further relief as he is justly entitled to receive,” and the Court finds no applicable exception to the award of fees and costs, see id., under the facts of this case. Accordingly, Plaintiff may move for an award of its reasonable costs and fees incurred in prosecuting the instant motion, with appropriate documentation of the same, by June 24, 2021. The application and/or attachments may be filed under seal. Defendant may file a response and Plaintiff may file a reply, in accordance with the local rules. See N.D. TEX. L. CIV. R. 7.1 (governing motion practice).
IV. CONCLUSION
Plaintiff's Motion to Compel, Doc. 48, is GRANTED. Defendant is ORDERED to produce the subject email by June 17, 2021.
SO ORDERED on June 3, 2021.
Footnotes
Karmouni is a Pre-Load Manager for Defendant and Lusk is Defendant's Human Resources Manager for the Dallas-Fort Worth area. Doc. 48 at 1.