*1 On June 8, 2021, plaintiffs filed a motion to compel defendant Western Express, Inc. to produce documents withheld as privileged. Docket no. 430. The motion is supported and opposed in a Joint Stipulations (“JS”). Docket no. 431. Plaintiffs' arguments are further supported by the declaration of plaintiffs' counsel Brandon H. Thomas (“Thomas Decl.”) and exhibits thereto. Defendant's arguments are further supported by the declaration of defense counsel Christopher S. Milligan (“Milligan Decl.”) and exhibits thereto. On June 15, 2021, plaintiffs filed a supplemental memorandum in support of their motion to compel (“P. Supp. Mem.”). Docket no. 437.

The court found a hearing on the motion would not be of assistance, and so vacated the hearing scheduled for June 29, 2021. The court now denies plaintiffs' motion to compel without prejudice, and orders the parties to further meet and confer in light of the discussion below.

Plaintiffs are truck drivers who were formerly employed by defendants. Defendants are trucking companies that operate throughout the country. Plaintiffs allege defendants restrained competition by using a “no-poaching” hiring policy for drivers, and engaged in business practices that kept drivers in unfavorable employment agreements. Plaintiffs seek to certify the following class: all current or former drivers “under contract” as motor vehicle carrier drivers with defendants at any time from May 15, 2013 to the present.

The parties commenced discovery almost three years ago. Defendant Western Express, Inc. served its original privilege log on plaintiffs' counsel on December 1, 2020. Thomas Decl., Ex. 1; Milligan Decl. ¶ 7, Ex. D. Plaintiff found that defendant's original privilege log was deficient, because it did not offer a narrative basis for defendant's claims of privilege and did not identify lawyers referenced in the log. Thomas Decl., Ex. 1. On December 22, 2020, plaintiffs sent defendant a letter identifying these deficiencies and requesting a meet and confer. Id., Ex. 2. After the parties met and conferred on January 8, 2021, defendant agreed to serve an amended privilege log. Id., Ex. 3.

Defendant served its amended privilege log on March 3, 2021. Milligan Dec. ¶ 7, Ex. G; Thomas Decl., Ex. 4. At the same time, defendant also sent plaintiffs' counsel an email addressing some of the issues in the instant motion. Milligan Decl. ¶ 11, Ex. H Specifically, defendant provided further explanation and copies of certain documents which were referenced in defendant's privilege log with questions marks (“???”) noted under the column where explanations and reasons for the privilege have been included. Id. On May 25, 2021 at around 10:45 p.m., plaintiffs' counsel sent defendant a letter requesting that defendant respond and provide a second amended privilege log or additional documents by May 27, 2021. Id. ¶ 13. On May 26, 2021, defendant responded and noted that plaintiffs' letter and the time frame to respond were unreasonable and delayed, and that they would not be able to meaningfully respond until the beginning of the following week. Id. ¶ 14, Ex. J. Defendant informed plaintiffs that it would attempt to provide an updated response regarding its amended privilege log by June 11, 2021, but plaintiffs' counsel failed to respond. See JS at 13. Instead, plaintiffs' counsel sent the instant joint stipulation on May 28, 2021. Milligan Decl. ¶ 15, Ex. K.

*2 The instant dispute relates to defendant's privilege logs regarding documents responsive to plaintiffs' discovery requests that defendant has withheld on the basis of privilege or attorney work-product doctrine. JS at 3. Plaintiffs ask the court to compel defendant to produce in unredacted form all the documents identified on its privilege log, and to the extent defendant maintains that any logged documents are actually privileged, to submit them for in camera review. Id. at 1.

A. Plaintiffs Did Not Sufficiently Meet and Confer With Defendant Regarding the Amended Privilege Log

Defendant contends plaintiffs failed to timely or properly meet and confer prior to filing the instant motion. Id. at 6. Defendant served its amended privilege log on March 2, 2021, and sent plaintiffs' counsel an email addressing some of plaintiffs' alleged concerns in the instant joint stipulation that same day. Id., Milligan Decl. ¶ 10. For months, plaintiffs did not raise any concerns or attempt to meet and confer directly following receipt of the amended privilege log. Id. ¶ 12. Plaintiffs waited until late on May 25, 2021 to send defendant a purported meet and confer letter regarding the amended privilege log, at which time they requested that defendant respond and produce an amended privilege log and additional documents by May 27, 2021, essentially giving defendant only a day to respond. Id. ¶¶ 12-13, Ex. I. Although plaintiffs' letter identifies deficiencies in defendant's amended privilege log, plaintiffs did not actually request that the parties meet and confer to resolve their remaining disputes, and did not provide defendant with sufficient notice or time to adequately respond to plaintiff's letter, as required by Local Rule 37-1. Id. ¶ 13, Ex. I. While the parties met and conferred about defendant's original privilege log in January 2021, that does not excuse plaintiffs of their continuing obligation to attempt to further meet and confer with defendant to resolve any additional disputes regarding defendant's amended privilege log.

Plaintiff argues that further meet and confer would have been futile, but the record indicates otherwise. In particular, further meet and confer regarding defendant's amended privilege log would have eliminated plaintiff's confusion regarding documents withheld under the description listed as “???,” which defendant clarified involved email strings where either prior communication from legal counsel was being directly referenced in the string or where communication from or to legal counsel appears in the string itself. See JS at 12-13, Milligan Decl. ¶ 11; P. Supp. Mem. at 4. Further, in response to plaintiffs' purported meet and confer letter, defendant suggested it was amenable to continuing to meet and confer so that it could provide a further response or possibly a second amended privilege log by June 11, 2021, but plaintiffs did not respond to that proposal. See JS at 11-12, 15; Milligan Decl. ¶ 14, Ex. J. Many of the issues plaintiffs identify with defendant's amended privilege log could have been resolved with a timely request for clarification.

Plaintiffs thus failed to sufficiently meet and confer with defendant regarding its amended privilege log prior to filing the instant motion. Further, plaintiffs filed a sweeping motion asking the court to order that every document on the privilege log be produced without justifying such a sweeping order, particularly in light of their failure to learn through the meet and confer process whether they even could justify their position as to every entry on the amended log. Consequently, the court denies the motion without prejudice. But given the fast approaching discovery cutoff deadline and the fact that the parties previously met and conferred in January 2021 about some of the same issues presented in this motion, the court addresses aspects of the present dispute below in an effort to provide guidance for the parties' meet and confer efforts.

B. The Court Orders the Parties to Further Meet and Confer

*3 Defendant's amended privilege log provides five different reasons for withholding documents on the basis of privilege: (1) “???”; (2) litigation discovery; (3) attorney work product; (4) request/receipt of legal advice; and (5) outside counsel. JS at 4. Plaintiffs argue the reasons for privilege provided in defendant's amended privilege log, which shows that defendant is withholding more than 400 documents in whole or in part, fails to sufficiently describe the documents at issue to allow plaintiffs to evaluate defendant's privilege claims. JS at 3-5. With respect to the 24 redacted documents for which the reason for privilege was listed as “???,” plaintiffs have withdrawn their motion to compel, since defendant provided further clarification about those documents, as described above. See P. Supp. Mem. at 4; JS at 12-13. But plaintiffs maintain that the other four reasons given for withholding documents are still deficient.

Federal Rule of Civil Procedure 26(b)(5) requires a party asserting a privilege to “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.”

Plaintiffs first contend defendant's description “litigation discovery” is vague and does not make sense, since many of the communications listed under this reason do not appear to have anything to do with discovery, such as filenames titled “Historical Pay Structure,” “Driver Termination Codes,” and “Additional pay.” See JS at 4, Thomas Decl., Ex. 4 at PRIV2, PRIV5-6. But defendant contends the documents cited by plaintiffs were prepared by counsel and are attorney work product. See id. at 13. For example, defendant indicates the denomination “rspeller” in the privilege log refers to defense counsel Rachel Speller, and these documents were prepared in the context of litigation. See id.; Thomas Decl., Ex. 4 at PRIV2, PRIV5-6. Although that may be true, the general description “litigation discovery” fails to sufficiently describe the documents at issue to enable plaintiffs to evaluate defendant's privilege claims, since it is not apparent from this description that these documents were created in the context of litigation. Further, unlike documents withheld under PRIV 2 and PRIV5-6, there are other entries such as the document titled “Deductions and Chargebacks” withheld under PRIV7 where the privilege log does not indicate that the document was authored by counsel, and nothing about the entry suggests it is privileged. As such, the parties must meet and confer regarding the “litigation discovery” log entries. As to any entries for which plaintiff's concerns are not resolved and defendant does not agree to produce the documents, further amendment of the log may be warranted for defendant to provide a sufficient description regarding the documents it is withholding on the basis of “litigation discovery.” These are all matters the parties should discuss.

Plaintiffs also contend defendant has withheld hundreds of documents under the descriptions “Attorney Work Product” and “Request/Receipt of Legal Advice,” and that these descriptions are insufficient, because they simply describe the type of privilege that defendant claims, and do not give plaintiffs any way to ascertain defendant's basis for asserting work product protection or whether the document actually concerns legal advice. JS at 4. Plaintiffs identify several documents that appear to be internal communications among non-lawyer personnel related to enforcing noncompete clauses or drivers' contract status. See JS at 4-5; P. Supp. Mem. at 1. For example, PRIV79-80 refer to communications between business personnel Clarence Eastday and Charlie Haines related to enforcing non-compete clauses. Thomas Decl., Ex. 4 at 13. PRIV119 and PRIV124-25 appear to be communications between business personnel Eastday and Kimberly Carter concerning “Notification of Violation of Noncompete Contract with [defendant]” and the “HADNA-Knight Refrigerated Contract Violation”). Id. at 22, 23-24. Additionally, PRIV410 appears to be communications between two nonlawyers Rick McDonald to Paul Wieck regarding “contract driver information.” Id. at 84. None of these documents appear to be privileged, since they are between nonlawyer personnel, and defendant fails to provide any further explanation of its privilege claim regarding these documents to suggest otherwise. If defendant cannot support its claim of privilege during the parties' meet and confer, these documents (and others like them) should be produced.

*4 Plaintiffs further argue the description “Outside Counsel” is also inadequate because the mere fact that an attorney is “one of several recipients” is not sufficient to distinguish the documents withheld from “ordinary business communications, to which privilege does not apply.” See JS at 4 (citing Applied Med. Resources Corp. v. Ethicon, Inc., 2005 WL 6567355, at *2 (C.D. Cal. May 23, 2005)). Defendant contends the documents that are withheld on the basis of “Outside Counsel” appear to be attorney-work product attached to attorney-client communications.[1] JS at 13-14. Specifically, defendant argues PRIV91 appears to represent an attorney-client communication and work product transmitted between defense counsel Kaley Ray Pennington and attorney Will Choppin at the law firm King Ballow. Id. at 14. Likewise, defendant contends PRIV 401-02 also represent attorney-client communications between defendant and counsel Mark Scudder at Scudder Law, and appears to be sent directly to the attorneys and not as a “cc.” Id.

Although defendant contends the documents withheld under PRIV401-02 are attorney-client communications, the privilege log indicates that these documents were authored by nonlawyer Rick Prickett, defendant's former chief financial offer. See Thomas Decl., Ex. 4 at 82. Further, plaintiffs contend the communication to which the management plans are attached is not privileged, because it appears it was shared with third-party business consultants at Alvarez & Marsal. See P. Supp. Mem. at 4; Sidibe v. Sutter Health, 2018 WL 783808, at *4 (N.D. Cal. Feb. 7, 2018) (“As a general rule, the [attorney-client] privilege does not extend to communications between either the client or its attorney and a third party.” (citations omitted)). It is not apparent from the privilege log that the documents withheld under PRIV401-02 were shared with any third-party business consultants, but the fact that they were authored by nonlawyer Rick Prickett suggests they are not privileged documents. The court orders the parties to further meet and confer with respect to these and any additional documents withheld on the basis of “outside counsel” for which plaintiffs require further clarification. If defendant cannot better support its privilege claims, the documents should be produced.

One likely outcome of the meet and confer would be further amendment of the privilege log, assuming the parties believe that would be of use at this point given the upcoming discovery cutoff. Defendant argues that continued amendment of its privilege log would be unduly burdensome and unnecessary, because its document production now numbers in the hundreds of thousands. See JS at 7-8. But as plaintiffs rightly argue, defendant's privilege log covers only 447 documents, a far less burdensome number to log than the “hundreds of thousands of documents” typically required to warrant deviation from the traditional document-by-document log format. See P. Supp. Mem. at 2-3; In Re Imperial Corp. of America, 174 F.R.D. 475, 478-79 (S.D. Cal. 1997) (The court allowed a categorical privilege log where there were “hundreds of thousands, if not millions, of documents” to be logged, but acknowledged that a “document-by-document log ... has been, undoubtedly will, and should remain, the traditional format” for detailing claims of privilege). Further, although defendant suggests that the motion should be denied because it fully complied with the ESI order, defendant expressly agreed to provide narrative descriptions for its privilege assertions, and defendant's privilege log fails to satisfy its Rule 26(b)(5) obligation to sufficiently describe responsive documents withheld from discovery, as discussed above.

*5 With this guidance in mind, the court orders the parties to promptly meet and confer regarding the matters discussed above and any additional entries that plaintiffs believe require further clarification to assess defendant's privilege claims.

IT IS THEREFORE ORDERED that plaintiffs' motion to compel documents withheld as privileged (docket no. 430) is denied without prejudice for failure to comply with the meet and confer requirements of Local Rule 37, and the parties are ordered to further meet and confer as set forth above.

The court notes this is one of several instances in the Joint Stipulation in which defendant states that documents on its log “appear to be” attorney-client communications or attorney work product. Before meeting and conferring with plaintiffs about the log, defendant must make of point of finding out for certain what the documents on the log are, not merely what they appear to be.