*1 Before me is Plaintiff Michael S. Zummer's Second Motion to Compel the Federal Bureau of Investigation (“FBI”), and David M. Hardy, Valerie Parlave, Stephen P. Rees, and Gerald Roberts Jr. (collectively, the “Official Capacity Defendants”) to produce unredacted versions of 131 documents, previously produced in redacted form. ECF No. 108. Defendants timely filed an Opposition Memorandum. ECF No. 112. Plaintiff filed a Reply Memorandum. ECF No. 116.

Because the parties' submissions relating to the pending Second Motion to Compel (ECF No. 108, 112, 116) were insufficient to enable the court to decide the important questions at issue, on December 29, 2020, I ordered an in camera review and instructed the Defendant to file a Supplemental Memorandum. ECF No. 117. Defendants delivered the subject documents for in camera review and filed their Supplemental Memorandum. ECF No. 122. Plaintiff filed a Reply Memorandum. ECF No. 123.

Having considered the record, the submissions and arguments of counsel and applicable law and having reviewed the documents in camera, Plaintiff's Second Motion to Compel is GRANTED IN PART AND DENIED IN PART for the reasons set forth herein.

I. BACKGROUND

This litigation arises from Plaintiff Michael Zummer's decision to send two letters to the Honorable Kurt Engelhardt, then a District Judge in the Eastern District of Louisiana, alleging impropriety and malfeasance by the Department of Justice (“DOJ”) in the prosecution of Harry Morel Jr. ECF No. 53, ¶¶ 25, 36, 41. Plaintiff possessed the information contained in the letters because he was the lead agent tasked with investigating Morel, as well as being generally aware of information in the DOJ due to his status as an agent of the FBI. Id. ¶ 21.

After the FBI revoked Plaintiff's security clearance, suspended him without pay, and refused to allow him to publish his letters to the public, Plaintiff filed suit asserting two First Amendment claims and sought relief for (1) revocation of his security clearance in retaliation for sending the letter to Judge Engelhardt and (2) the FBI's refusal to allow him to publish his full, unredacted letter to the public. See generally ECF Nos. 1, 53. Judge Barbier granted in part Defendants' Motion to Dismiss, dismissing Plaintiff's claims regarding security clearance but allowing his claim regarding publication of the letter to proceed against certain Official Capacity Defendants. See Sept. 5, 2019 Order, ECF No. 83; Oct. 18, 2019 Order, ECF No. 90.

Through this motion, Plaintiff seeks to compel Defendants to produce, in unredacted form, 131 documents redacted from the Administrative Record previously produced in this case, arguing that privilege (e.g., the attorney-client, deliberative process or work product doctrine) does not apply (ECF No. 108-1, at 7–16) and any privilege was waived based on the delinquent production and/or failure to provide a privilege log. Id. at 6–7. Alternatively, Plaintiff asks that Defendants be required to deliver the documents, in unredacted form, to the Court for in camera review to determine the validity of the claimed privilege. Id. at 1. Defendants have filed an Opposition Memorandum, arguing that their invocation of privilege is proper and that they sufficiently identified the claim of privilege and nature of the documents in a manner that enabled Plaintiff to assess the claim, in compliance with Fed. R. Civ. P. 26(b)(5). See ECF No. 112. In the event of ambiguity, Defendants attach a privilege log and Affidavit in support of their privilege invocation. ECF No. 112, at 4–5; ECF No. 112-1.

*2 Defendants delivered the documents for in camera review, marked as directed by my Order. ECF No. 117. Defendants also filed a Supplemental Opposition and included the Affidavit of Hillary Rossman to support the invocation of privilege. ECF No. 122, 122-1. Plaintiff filed a Supplemental Reply Memorandum. ECF No. 123.

II. APPLICABLE LAW

Initially, Plaintiff does not seek to compel Defendants to remove the redactions of the names, email addresses and phone numbers redacted from the Administrative Record based on the Privacy Act of 1974, 5 U.S.C. § 552A. Rather, Plaintiff only argues that the documents are not protected by the attorney-client privilege, work product doctrine or deliberative process privilege, and even if so, the privilege was waived. See generally ECF Nos. 108, 112, 116, 122, 123. Accordingly, the Court addresses only the substantive redactions for privilege, and Defendants need not redact any of the name, email address or phone number information redacted from any of these documents.

A. The Attorney-Client Privilege

The attorney-client privilege is the oldest of the privileges for confidential communications.[1] The purpose of the attorney-client privilege is well-established: to encourage candid communications between client and counsel.[2] The applicability of the attorney-client privilege “is a question of fact, to be determined in the light of the purpose of the privilege and guided by judicial precedents.”[3]

The objectives of the attorney-client privilege (i.e., to aid government entities and employees in obtaining legal advice founded on a complete and accurate factual picture) apply to governmental clients.[4] Thus, the Government may invoke the attorney-client privilege in civil litigation to protect confidential communications between its officials and attorneys.[5]

Not all communications between a client and his or her attorney, however, are protected by the attorney-client privilege.[6] While the attorney-client privilege extends to all situations in which counsel is sought on a legal matter, it protects “only those disclosures - necessary to obtain informed legal advice - which might not have been made absent the privilege.”[7] The attorney-client privilege therefore does not attach to every communication between a client and counsel, as the privilege “does not embrace everything that arises out of the existence of an attorney-client relationship.”[8] “What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.”[9]

A party invoking the attorney-client privilege bears the burden of demonstrating its applicability and must show: “(1) that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding.”[10] Thus, Defendants bear the burden of providing proof sufficient to substantiate their claim of privilege.[11]

B. The Work Product Doctrine

*3 Rule 26(b)(3) of the Federal Rules of Civil Procedure governs the disclosure of documents prepared in anticipation of litigation and provides:

Fed. R. Civ. P. 26(b)(3). Rule 26(b)(3) does not require that the document be prepared by the attorney, but rather, also protects from discovery documents prepared by a party or party's agent as long as they are prepared in anticipation of litigation.[12]

The work product doctrine shields from discovery the materials prepared by or for an attorney in preparation for litigation.[13] It is not, however, “an umbrella that shades all materials prepared by a lawyer ....”[14] It focuses only on materials assembled and brought into being in anticipation of litigation.[15] Thus, the work product doctrine does not protect underlying facts relevant to litigation.[16] Also excluded from the work product doctrine are materials assembled in the ordinary course of business or pursuant to public requirements unrelated to litigation.[17] If the document would have been created regardless of whether the litigation was also expected to ensue, the document is deemed to be created in the ordinary course of business and not in anticipation of litigation.[18]

The Fifth Circuit has described the standard for determining whether a document has been prepared in anticipation of litigation as follows:

Thus, in making the fact-specific inquiry as to whether a particular document is work product, “courts consider the primary motivating purpose behind the creation of the document, more so than the timing of production of that document.”[20]

The court's determination of the primary motivation behind the creation of the document requires consideration of evidence, not mere argument, sufficient to establish that the principal factor motivating the creation of the document was anticipation of litigation or preparation for trial, as opposed to ordinary business practice. To carry its burden to establish work product protection,

*5 PAUL R. RICE, ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 11:10 at 977–80 (Lawyers Coop. Publ'g 1993) (emphasis added). When the party resisting discovery carries its evidentiary burden of establishing work product protection from discovery, the burden then shifts back to the party seeking discovery to establish that the materials are nevertheless discoverable, for example, by proving waiver of work product protection, proving both substantial need for and undue hardship in obtaining materials protected by the work product doctrine, or otherwise.[21]

C. The Deliberative Process Privilege

The purpose of the deliberative process privilege is to enhance the quality of agency decisions by assuring individuals “who offer information and opinions to the Government that their communications will be kept in confidence.”[22] For the privilege to apply, a document must be both “predecisional” and “deliberative.”[23] A document is “predecisional” if it was generated before the adoption of an agency policy.[24] It is “deliberative” if “it reflects the give-and-take of the consultative process.”[25] Thus, the document must be such that public disclosure “would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.”[26]

The burden is on the agency to “establish[ ] what deliberative process is involved, and the role played by the documents in issue in the course of that process.”[27] Conclusory assertions that merely parrot the language of the exemption do not suffice.[28] Further, the deliberative process privilege is not an unqualified one. “When documents are protected by the deliberative process privilege, the party seeking such materials may still obtain them if ‘his need for accurate fact finding overrides the government's interest in nondisclosure.’ ”[29]

D. Waiver

*6 A party withholding information by claiming privilege or work product “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) (emphasis added). The use of the word “must” indicates that production of a privilege log, including the detail specified by Rule 26(b)(5)(A)(i) and (ii), is mandatory. Indeed, the “privilege log's description of each document and its contents must provide sufficient information to permit courts and other parties to ‘test[ ] the merits of’ the privilege claim.”[30]

The failure to timely object is not an automatic waiver. Rather, it is the “[c]ontinual failure to adhere to Rule 26's prescription [that] may result in waiver of the privilege where a court finds that the failure results from unjustified delay, inexcusable conduct, or bad faith.”[31] In assessing waiver, courts will typically examine the circumstances behind the failure to respond timely to determine whether it was inadvertent, defiant, or part of a larger calculated strategy of noncompliance, will consider subsequent actions by the party to ascertain whether it was acting in good faith, as opposed to acting in a disinterested, obstructionist or bad faith manner, and will take into account any resulting prejudice and the need to preserve the integrity of the rules.[32] For instance, when a case presents somewhat unusual circumstance or the discovery is facially objectionable and there is adequate time remaining before trial such that the requesting party would not face undue prejudice, objections are not deemed waived.[33] Although untimely responses to discovery may result in a finding of waiver,[34] courts may consider lesser appropriate sanctions.

III. ANALYSIS

A. Waiver

*7 This Court does not find that the Defendants waived any asserted privilege even though they produced the responsive documents after expiration of this Court's deadline for production. Notably, Defendants did not merely make a blanket invocation of privilege over a category of documents without any specific identification. Rather, they produced the documents, in a redacted form, including redaction codes. They also supplemented the production with a privilege log. ECF No. 112-1, at 6–16.

In their Supplemental Memorandum, Defendants explain the reasons for their delayed production. ECF No. 117, at 8–11. The delay resulted primarily from limitations caused by the Covid-19 pandemic, which impacted Defendants' document gathering and review efforts, as well as competing Congressional demands. Given the detailed nature of Defendants' review process and the impact of Covid-19 and other demands, Defendants' delay was not the product of disinterest, bad faith, or obstructionist behavior. Rather, Defendants have proceeded in good faith to accomplish the production as possible given the realities of the circumstances. Further, Plaintiff has not argued that the delay resulted in prejudice to Plaintiff. Accordingly, this Court finds that Defendants have not waived any asserted privilege based on its delinquent production.

B. In Camera Review

In assessing the assertion of privilege, each document must be assessed on a document-by-document basis to determine the propriety of the privilege application because a blanket assertion of privilege over categories of documents is improper.[35]

After in camera review, contrary to Plaintiff's argument, this Court does not find that Defendants have redacted documents because any document “may be embarrassing” or they simply “prefer not to disclose them.” ECF No. 123, at 1. Rather, the redactions appear to reflect efforts to protect from disclosure communications between government employees and counsel regarding legal advice and strategy, including the exchange of drafts, comments on drafts, and submission of documents for legal counsel's review and advice. In some instances, the Defendants did redact logistical and other information, where the primary purpose of the communication was not to secure legal opinions or services, to assist in some legal proceeding, to prepare for litigation, or to reflect pre-decisional communication. As such, the logistical or similar information would not fall within the attorney-client, work product, or deliberative privileges. Those documents, or portions thereof, as identified below must be produced. Defendants' redaction and/or withholding of the majority of the documents, however, was proper, and those documents as identified below need not be produced in unredacted form.

Based on my in camera review of the redactions, the supporting Affidavits, and the applicable law, I find that Defendants have carried their burden to provide proof sufficient to substantiate the invocation of the attorney-client, work product and/or deliberative privileges as to the following documents, reflected by the bates number in the Administrative Record:

0003 0009 (except second email 8/22/2016 1:43 pm) 0017 0101 (except last line of 9/15/2016 1:59 pm email “Got ... afternoon”) 0259 (except first email, first two sentences, 12/28/2016 3:09 pm; second email, first three sentences of paragraph 1 and first two sentences of paragraph 2, 12/28/2016 3:03 pm) 0651-52 9/22/2016 4:58 pm email; 9/22/2016 3:56 pm email; 9/22/2016 7:55 am email) 1708 (except first line of 12/9/2016 11:01 am email) 1741-42 (except first line of 12/9/2016 12:02 pm email) 1744 (except first line of 12/9/2016 11:02 am email) 1761 (except first line of 12/9/2016 11:02 am email) 1767 (except first sentence of 1/9/2017 2:24 pm email; and first line of 12/9/2016 11:02 am email) 1770 1802 1808 1820-22; 1824-25 1836-39 1848 1940 2163-64 (except the portion of the 3/24/2017 1:59 pm email's first line starting with “Do ... phone”) 2178 (except the first email, 4/9/2019 12:35 pm; and first sentence of second and third emails, 4/9/19 11:34 am and 4/9/2019 11:30 am) 2179 2267 (except first email, 9/15/2016 3:26 pm; and last sentence of second email, 9/15/2016 1:59 pm) 2277 2278 (except the first sentence and last sentence of the third email, 8/15/2016 7:18 am; and fourth email, 8/12/2016 4:35 pm) 2282 2284 2297 2315 2323 2324-2332 0999 1000 (except third email, 8/22/2016 1:43 pm) 1067 1268 (except top two emails, 4/18/2019 at 7:03 pm and 10:32 am; third email, lines 1, 3-7 lines, 4/18/2019 9:01 am; fourth email 4/17/2019 6:34 pm) 1434 1460-61 1683-87 (except first three sentences and last sentence of 9/22/2016 4:04 pm email; 2334 2405-06 (except first, third and fourth emails (4/29/2019 5:10 pm, 4/18/2019 7:03 pm and 4/18/2019 10:32 am); fifth email, 4/18/2019 9:01 am, lines 1, 3-7; and first and second emails on following page, 4/17/2019 6:34 pm, 4/17/2019 1:11 pm) 2447 2799 2806 (except second, third and fourth emails, 8/12/2016 4:35 pm, 8/12/2016 2:25 pm, 8/12/2016 2:58 pm) 2815 (except second email, 3/24/2017 1:09 pm; and portion of third email first line starting with “Do ... phone”, 3/24/2017 1:59 pm) 2865 2906 2987 (except first email, 3/24/2017 10:45 am) 2994 3001-03 3056-57 3060 3068 3069 (except first sentence of first email, 9/1/2016 11:29 am; second email and third email, 9/1/2016 11:51 am and 8/31/2016 10:52 am) 3079-83 3086 3095-96 3136 3138-65 3211 3218 3319-20 3431 (except first email, 10/1/2016 12:20 pm) 3526

*8 Defendants have not carried their burden to substantiate privilege as to the following documents or some portions of the following documents. Accordingly, the following documents or portions thereof must be produced:

0009 (only 8/22/2016 1:43 pm email) 0101 (only last line of 9/15/2016 1:59 pm email “Got ... afternoon.”) 0258 0259 (only first email, first two sentences, 12/28/2016 3:09 pm; second email, first three sentences of paragraph 1 and first two sentences of paragraph 2, 12/28/2016 3:03 pm) 1000 (only third email, 8/22/2016 1:43 pm) 1268 (only top two emails, 4/18/2019 at 7:03 pm and 10:32 am; third email, lines 1, 3-7 lines, 4/18/2019 9:01 am; fourth email 4/17/2019 6:34 pm) 1518 1683-87 (only excerpts from 9/22/2016 4:04 pm email, first three sentences and last sentence; 9/22/2016 4:58 pm email; 9/22/2016 3:56 pm email; 9/22/2016 7:55 am email) 1708 (only first line of 12/9/2016 11:01 am email) 1741 (only first line of email 12/9/2016 12:02) 1744 (only first line of email 12/9/2016 11:02) 1761 (only first line of email 12/9/2016 11:02) 1767 (only first sentence of 1/9/2017 2:24 pm email; and first line of 12/9/2016 11:02 am email) 1772 2163 (only the portion of the 3/24/2017 1:59 pm email's first line starting with “Do ... phone”) 2178 (only the first email, 4/9/2019 12:35 pm; and first sentence of second and third emails, 4/9/2019 11:34 am and 4/9/2019 11:30 am) 2267 (only first email, 9/15/2016 3:26 pm; and last sentence of second email, 9/15/2016 1:59 pm) 2278 (only the first sentence and last sentence of the third email, 8/15/2016 7:18 am; and fourth email, 8/12/2016 4:35 pm) 2279 2405-06 (only first, third and fourth emails (4/29/2019 5:10 pm, 4/18/2019 7:03 pm and 4/18/2019 10:32 am); fifth email, 4/18/2019 9:01 am, lines 1, 3-7; and first and second emails on following page, 4/17/2019 6:34 pm, 4/17/2019 1:11 pm) 2806 (only second, third and fourth emails, 8/12/2016 4:35 pm, 8/12/2016 2:25 pm, 8/12/2016 2:58 pm) 2815 (only second email, 3/24/2017 1:09 pm; and portion of third email first line starting with “Do ... phone”, 3/24/2017 1:59 pm) 2986 2987 (only first email, 3/24/2017 10:45 am) 2988 3069 (only first sentence of first email, 9/1/2016 11:29 am; second email and third email, 9/1/2016 11:51 am and 8/31/2016 10:52 am) 3431 (only first email, 10/1/2016 12:20 pm)

IV. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that Plaintiff's Second Motion to Compel (ECF No. 108) is GRANTED IN PART AND DENIED IN PART as stated herein.

New Orleans, Louisiana, this 24th day of February, 2021.

Hodges, Grant & Kaufman v. United States, 768 F.2d 719, 720 (5th Cir. 1985).

Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

Hodges, 768 F.2d at 721.

United States v. Jicarilla Apache Nation, 564 U.S. 162, 169–70 (2011) (citing 1 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 74, Comment b, at 573–574 (1998)).

Id. at 170 (citation omitted).

United States v. Pipkins, 528 F.2d 559, 562–63 (5th Cir. 1976).

Fisher v. United States, 425 U.S. 391, 403 (1976).

Pipkins, 528 F.2d at 563.

United States v. El Paso Co., 682 F.2d 530, 538 (5th Cir. 1982) (internal quotations omitted); see also Hodges, 768 F.2d at 720–21.

United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997) (emphasis in original).

United States v. Newell, 315 F.3d 510, 525 (5th Cir. 2002); In re Santa Fe Int'l Corp., 272 F.3d 705, 710 (5th Cir. 2001); Hodges, 768 F.2d at 721.

Naquin v. UNOCAL Corp., No. 01-3124, 2002 WL 1837838, at *7 (E.D. La. Aug. 12, 2002).

Hickman v. Taylor, 329 U.S. 495, 511–12 (1947); Blockbuster Entm't Corp. v. McComb Video, Inc., 145 F.R.D. 402, 403 (M.D. La. 1992).

El Paso, 682 F.2d at 542; see also Piatkowski v. Abdon Callais Offshore, L.L.C., No. 99-3759, 2000 WL 1145825 at *2 (E.D. La. Aug. 11, 2000).

Piatkowski, 2000 WL 1145825 at *2.

See generally Upjohn, 449 U.S. at 395-96.

Guzzino v. Felterman, 174 F.R.D. 59, 62 (W.D. La. 1997) (quoting El Paso, 682 F.3d at 542 (citing Fed. R. Civ. P. 26(b)(3) advisory committee's notes to 1966 amendment)); accord 8 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2024, at 503 (3d ed. 2010); see also Hill Tower, Inc. v. Dep't of Navy, 718 F. Supp. 562, 565 (N.D. Tex. 1988) (“The mere fact this report deals with facts, opinions, and recommendations that later may be the focus of litigation does not establish that there was the expectation of litigation when this document was drafted.”).

Global Oil Tools, Inc. v. Barnhill, No. 12–1507, 2013 WL 1344622, at *6 (E.D. La. April 3, 2013) (citing S. Scrap Mat'l Co. v. Fleming, No. 01–2554, 2003 WL 21474516, at *6 (E.D. La. June 18, 2003); Piatkowski, 2000 WL 1145825 at *1).

United States v. Davis, 636 F.2d 1028, 1039 (5th Cir. Unit A Feb. 1981) (citations omitted); accord In re Kaiser Alum. & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000) (citing El Paso, 682 F.2d at 542).

Houston Cas. Co. v. Supreme Towing Co., No. 10-3367, 2012 WL 13055045, at *3 (E.D. La. Sept. 17, 2012). Mere proximity in time - while a factor to be considered - is not alone determinative. On one hand, the work product “privilege can apply where litigation is not imminent, ‘as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.’ ” Udoewa v. Plus4 Credit Union, 457 F. App'x 391, 393 (5th Cir. 2012) (quoting In re Kaiser, 214 F.3d at 593). On the other hand, “[t]he mere fact that a document is prepared when litigation is foreseeable does not mean the document was prepared in anticipation of litigation ....” Arkwright Mut. Ins. Co. v. Nat'l Union Fire Ins. Co., No. 93–3084, 1994 WL 58999, at *3 (6th Cir. Feb. 25, 1994) (citing Nat'l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992)). Even “[e]stablishing that a document was prepared after litigation was commenced is insufficient to prove that the document was prepared in anticipation of litigation.... What is crucial is that ‘the primary motivating purpose behind the creation of the document was to aid in possible future litigation.’ ” Robinson v. Tex. Auto. Dealers Ass'n, 214 F.R.D. 432, 449 (E.D. Tex. 2003) (quoting In re Kaiser, 214 F.3d at 593), rev'd on other grounds, 2003 WL 21911333 (5th Cir. July 25, 2003); accord Global Oil Tools, 2013 WL 1344622 at *6; Guzzino, 174 F.R.D. at 62.

Fed. R. Civ. P. 26(b)(3); Hodges, 768 F.2d at 721; In re Int'l Sys. & Controls Corp. Secs. Litig., 693 F.2d 1235, 1240 (5th Cir. 1982); In re Blessey Enters., Inc., Nos. 08-235-RET-DLD, 08-244-RET-DLD, 2009 WL 5915367 (M.D. La. Dec. 7, 2009), aff'd, 2010 WL 610669 (M.D. La. Feb. 19, 2010).

Shermco Indus., Inc. v. Sec'y of Air Force, 613 F.2d 1314, 1318 (5th Cir. 1980).

Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975) (“[P]re-decisional materials are not exempt merely because they are pre-decisional; they must also be a part of the agency give-and-take of the deliberative process by which the decision itself is made.”).

Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980); see also Shermco, 613 F.2d at 1319 (finding pre-decisional communications that were not attached or incorporated into a final decision were immune from disclosure under FOIA).

Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006) (quoting Coastal States, 617 F.2d at 866).

Dudman Commc'ns Corp. v. Dep't of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987).

Coastal States, 617 F.2d at 868; see also In re Santa Fe Int'l Corp., 272 F.3d 705, 710 (5th Cir. 2001) (“A party asserting a privilege exemption from discovery bears the burden of demonstrating its applicability.”).

Senate of Puerto Rico ex rel. Judiciary Comm. v. U.S. Dep't of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (citing Mead Data Cent., Inc. v. Dep't of the Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977) (noting that the government must show “by specific and detailed proof that disclosure would defeat, rather than further, the purposes of the FOIA”)).

Pennison v. United States, No: 16-3615, 2016 WL 5390394, at *4 (E.D. La. Sept. 27, 2016) (quoting Klein v. Jefferson Parish School Bd., No. 00–3401, 2003 WL 1873909, at *4 (E.D. La. Apr. 10, 2003)).

Equal Emp't Opportunity Comm'n v. BDO USA, L.L.P., 876 F.3d 690, 697 (5th Cir. 2017) (citing United States v. El Paso Co., 682 F.2d 530, 541 (5th Cir. 1982); N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011) (“When a party relies on a privilege log to assert these privileges, the log must ‘as to each document ... set[ ] forth specific facts that, if credited, would suffice to establish each element of the privilege or immunity that is claimed.’ ”) (quoting Bowne, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993))).

Equal Emp't Opportunity Comm'n, 876 F.3d at 697 (citing United States v. Philip Morris Inc., 347 F.3d 951, 954 (D.C. Cir. 2003)).

RE/MAX Int'l, Inc. v. Trendsetter Realty, LLC, No. H–07–2426, 2008 WL 2036816, at *5 (S.D. Tex. May 9, 2008); see also Enron Corp. Savings Plan v. Hewitt Assocs., 258 F.R.D. 149, 157 (S.D. Tex. 2009) (summarizing relevant factors as (1) length of the delay; (2) reason for delay; (3) whether there was dilatory or bad faith action; (4) whether the party seeking discovery has been prejudiced; (5) whether the document production request was properly framed and not excessively burdensome; and (6) whether waiver would impose an excessively harsh result).

See Superior Diving Co. v. Watts, Nos. 05–197, 08–5095, 2011 WL 1235195, at *2–3 (E.D. La. Mar. 30, 2011) (Wilkinson, J); see also Enron, 258 F.R.D. at 156–57 (“Acknowledging the harshness of a waiver sanction, courts have reserved the sanction for those cases where the offending party committed unjustified delay in responding to discovery. Minor procedural violations, good faith attempts at compliance, and other such mitigating circumstances militate against finding waiver.”) (quoting Ritacca v. Abbott Labs., 203 F.R.D. 332, 335 (D.C. Ill. 2001)).

B&S Equip. Co. v. Truckla Servs., Inc., Civ. A. Nos. 09–3862, 10–0832, 10–1168, 10–4592, 2011 WL 2637289, at *5 (E.D. La. July 6, 2011) (Roby, J.).

El Paso, 682 F.2d at 539, 541.