*1 The Subscriber and Provider Plaintiffs have moved the court to order Blue Cross Blue Shield of Alabama (“BCBS-AL”) to produce all documents listed on its privilege log as a sanction for the defendant's “repeated failure to produce an accurate privilege log” as required by earlier Orders of the court. (Docs. 2072, 2074). The Plaintiffs assert that they have discovered that over 38% of the documents listed on the privilege log—some 7,300 documents—are not actually privileged and, in fact, were previously produced to the Plaintiffs in discovery before they were listed on the privilege log. It appears to be undisputed that, in creating its privilege log, BCBS-AL listed many documents for “context” to help explain the claims of privilege asserted with respect to related documents. Most if not all of these “context” documents were not only not privileged, but had already been produced to the Plaintiffs in discovery. Yet, the log did not reflect which documents were listed for “context” only or as to which no actual claim of privilege was being made.[1] Indeed, all of the documents listed were identified as subject to a privilege, even when BCBS-AL knew many were not. As a result of this practice, even BCBS-AL cannot identify which documents listed on its log are actually claimed to be privileged. This has required the Plaintiffs to examine thousands of log entries needlessly to attempt to identify and challenge genuine claims of privilege apart from “context” documents. In short, the Plaintiffs argue that BCBS-AL has unnecessarily ballooned the size of its haystack in an attempt to make searching for the needles all the more difficult, time-consuming, and expensive. Further exacerbating the problem, BCBS-AL admits that because it logged documents at the “family” level (i.e., listing related documents and attachments along with the privileged document itself), even it cannot identify among the remaining documents those that are truly privileged. Based on this, the Plaintiffs contend that BCBS-AL's November 1, 2017 certification of the privilege log is “false” for two reasons: first, that the certification failed to “make plain” those documents over which no claim of privilege was being made, and second, that the certification falsely stated that an attorney for the defendant had examined every document on the log and that a “good faith” claim of privilege was being made as to every document listed. These falsehoods, they say, require a unique sanction for violation of Discovery Order No. 76, that BCBS-AL has waived its privileges and that all documents on the log must be produced.

*2 In response, BCBS-AL denies that it has violated Discovery Order No. 76 or that its certification is false. It points out that it was the first defendant to certify its privilege log, that it has provided additional metadata to assist in searching it, and that it has engaged in multiple meet and confers with the Plaintiffs to allay their concerns. Moreover, BCBS-AL asserts that it is continuing to review its privilege log and to de-designate additional documents it no longer claims are privileged. In short, the Defendant argues that, unlike the authorities cited by the Plaintiffs, it has provided more information, not less, about its privileged documents than required by federal discovery rules.

There are several sources from which the court may derive authority to impose sanctions for an abuse of the discovery process. The first, of course, is Rule 37 of the Federal Rules of Civil Procedure, which authorizes a court to impose a sanction when a party or witness “fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a)....” Although not expressly referenced in Rule 37, presumably such orders “to provide or permit discovery” includes orders related to the validity of claims of privilege on a privilege log under Rule 26(b)(5).

Apart from Rule 37 is the sanction provided for violation of the signature certification of Rule 26(g), which states in relevant part:

Fed.R.Civ.P. 26(g)( bolding added for emphasis). Noting the mandatory language of Rule 26(g)(3), some courts have concluded that the imposition of sanctions is not discretionary, although the type of sanction the court imposes is within the discretion of the court. See Kipperman v. Onex Corp., 260 F.R.D. 682, 698 (N.D. Ga. 2009) (citing Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir.1993)). Undergirding the requirement in Discovery Order No. 76 that an attorney sign a certification related to the privilege log was this Rule.

Additionally the court has inherent powers to sanction abusive conduct in litigation, including discovery. See Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S. Ct. 2123, 2132, 115 L. Ed. 2d 27 (1991); Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332, 1335 (11th Cir. 2002).

*3 For the most extreme sanction of dismissal or default judgment under any of these sources of authority, however, it is clear that a showing of willfulness or bad faith must be made. See BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1049 (11th Cir. 1994) (“Our caselaw is clear that only in a case where the court imposes the most severe sanction—default or dismissal—is a finding of willfulness or bad faith failure to comply necessary.... A court may impose lesser sanctions without a showing of willfulness or bad faith on the part of the disobedient party.”). The Eleventh Circuit has explained that a parties failure to offer a credible explanation for its failure to follow the court's orders can be enough to establish the requisite willfulness or bad faith. For example:

United States v. One 32' Scorpion Go-Fast Vessel, 339 F. App'x 903, 905 (11th Cir. 2009).

Because the sanction sought by the Plaintiffs is a declaration that BCBS-AL has waived all privileges with respect to the documents on its privilege log, the question is whether that can be considered a “lesser sanction” that does not require a showing of willfulness or bad faith on the part of BCBS-AL or its counsel. On this point, the only authority the court has located in this Circuit is in district court opinions. As far as this court can determine, the Eleventh Circuit has never commented about what level of culpability is required for a discovery sanction waiving claims of privilege but not either dismissing the action or granting a default judgment. In Williams v. Taser International, Inc., 274 F.R.D. 694 (N.D. Ga. 2008), Judge Storey of the Northern District of Georgia quoted from the opinion in Jones v. American General Life and Accident Ins. Co., No. CV 101–003, 2002 WL 32073037, at *6 (S.D.Ga. Dec. 4, 2002), “Waiver of privilege is the most extreme sanction that a court can impose for failure to follow required procedure and courts should reserve it for cases of unjustifiable delay, inexcusable conduct, and bad faith in responding to discovery requests.” Id. at 698[2]; see also Meade v. General Motors, LLC, 250 F. Supp. 3d 1387, 1393 (N.D. Ga. 2017). Just last year, in Meade v. General Motors, Judge Totenberg of the Northern District of Georgia cited Williams as authority for imposing the sanction of waiver of privileges for “unjustifiable delay, inexcusable conduct, and bad faith in responding to discovery requests by improperly withholding documents on the basis of privilege...,” but also seemed to expand the rule to cover “failing to provide an adequate privilege log in compliance with Rule 26.” Meade v. General Motors, LLC, 250 F. Supp. 3d 1387, 1393 (N.D. Ga. 2017)(italics added).

*4 Notwithstanding the suggestion in Meade, the sine qua non of a court's authority to impose an extreme sanction like the waiver of privilege for discovery abuse is a finding of willfulness or bad faith. The court is not convinced that a mere unintended inadequacy in a privilege log can equate either to the utter failure to provide a privilege log (in which the claim of privilege is waived because it is not asserted) or the willful and bad faith use of a privilege log to obstruct discovery (for which privileges may be waived as a sanction). Given the scope and volume of ediscovery in large, complex cases, during which thousands or tens of thousands of documents are gathered and reviewed for privilege, it is not surprising that errors can occur in the listing or description of documents on a log. To hold that unintended inadequacies in a log can cause the privilege to be lost ignores the extreme and harsh nature of such a sanction, which is the guiding rationale for the traditional majority rule that such a sanction is reserved for “bad faith.” Therefore, the court must determine whether the problems identified in the BCBS-AL's privilege log were unintended or, alternatively, the product of willfulness and bad faith.

The court does not find that BCBS-AL engaged in a willful or bad faith attempt to obstruct discovery when it put together its privilege log, as certified on November 1, 2017. As originally constructed, the privilege log contained about 29,000 listings, of which about 10,000 were explicitly identified as having been produced to the Plaintiffs in earlier discovery. Indeed, the log referred to these 10,000 documents by discovery Bates numbers. The remaining 19,000 or so entries on the log related to documents for which BCBS-AL asserted an actual claim of privilege and some 7,300 documents offered as “context,” to help explain the claim of privilege asserted on related documents. The problem with the log grew from two sources: first, BCBS-AL did not explicitly identify the 7,300 documents it had actually produced previously, and, second, it marked all of the documents (even the 7,300 previously produced) as subject to a privilege. Plainly, this was confusing and non-transparent in that it led the Plaintiff to believe that all 19,000 documents were claimed by BCBS-AL to be privileged. The problem could have been avoid if BCBS-AL had either clearly noted the 7,300 entries as documents already produced in discovery or simply not noted any privilege for them. Either would have allowed the Plaintiffs to know that no claim of privilege was being asserted as to the 7,300 “context” entries. Even so the court does not believe this was done intentionally or in bad faith to make the Plaintiffs' task of reviewing the privilege claims more difficult. Indeed, the intent appears to have been to supply the Plaintiffs with related and “family” documents to better explain the nature of the privilege actually being claimed in other documents. This intent was demonstrated later when BCBS-AL provided metadata for each document to aid in searching for particular types of documents.[3] Through its lawyers, it also engaged in several “meet and confer” sessions to help explain the log to the Plaintiffs and, ultimately, it conducted a new review of all documents on the log to assure the claims of privilege were proper and to de-designate documents for which the claim was not actually made or was shaky. While it is true that many of the problems associated with BCBS-AL's privilege log could have been avoided if it simply had identified the documents it did not claim were privileged (and had already been produced), its lack of bad faith is demonstrated by the fact that BCBS-AL seems to have blinded itself by selecting and designating documents “at the family level,”[4] rather than on a document-by-document basis. This error exacerbated the problem and frustrated the Plaintiffs because they could not get plain answers about what was privileged and what was not. But, critically, this was an inadvertent error by BCBS-AL in the original construction of its privilege log, not a scheme to hide the ball from the Plaintiffs. This facts is demonstrated by the result that BCBS-AL mistakenly hid the ball from itself. Regardless of its intentions toward the Plaintiffs, surely it did not mean to do that.

*5 Because the court finds, therefore, that the errors and problems with BCBS-AL's privilege log were not willful and done in bad faith, the sanction sought by the Plaintiffs—a waiver of all privileges asserted in the log—is not warranted. Waiver of privilege remains an “extreme sanction,” justified only by willful and bad faith obstruction of the discovery process. The court is persuaded that did not occur here. The motion for sanctions (Doc. 2072 and Sealed Doc. 2074) is DENIED.

DONE this 14th day of September, 2018.