*1 Defendant and third-party plaintiff Ridgeway International USA Inc. (“Ridgeway USA”) has moved to compel plaintiff Woods Hole Oceanographic Institution (“WHOI”) to produce certain documents withheld on the basis of attorney-client privilege and work product protection. Docket No. 683.[1] In addition, Ridgeway USA moves for an order compelling WHOI to produce its witnesses Anthony Tarantino and Ty Boyce for a further limited deposition. Id. Defendant Australian National Maritime Museum has joined in the motion. Docket Nos. 688, 695. I heard oral argument on May 11, 2022. For the following reasons, I grant in part and deny in part the motion.

I. BACKGROUND

This action arises from the transportation of a submarine known as the Deepsea Challenger (the “Submersible”) from Woods Hole, Massachusetts to Australia that took place under an agreement by plaintiff WHOI to loan the Submersible to the Australian National Maritime Museum (the “Museum”). During transit, on or about July 23, 2015, the Submersible caught fire in Connecticut and was allegedly damaged. WHOI brings claims against the Museum and several defendants allegedly involved in the transportation of the Submersible.

WHOI filed this case on November 21, 2017. Docket No. 1. On June 3, 2019, Judge Gorton set the fact discovery deadline for February 29, 2020. Docket No. 143. That deadline was subsequently extended.

The instant motion is Ridgeway USA's fourth motion to compel plaintiffs to produce documents. On May 11, 2020, I granted Ridgeway USA's motion to compel WHOI to produce certain documents withheld on the basis of privilege. Docket No. 262. I found that WHOI had failed to meet its burden to show that the withheld documents were privileged. Id. at 6-12. On October 9, 2020, I granted in part and denied in part Ridgeway USA's motion to compel Eagle Underwriting Group, Inc. (“Eagle”) to produce certain documents withheld as protected by the work product doctrine. Docket No. 374.

On December 18, 2020, I granted in part and denied in part Ridgeway USA's motion to compel the production of certain documents. Docket No. 417. Specifically, I ordered WHOI to conduct a diligent search for documents responsive to Ridgeway USA's requests for production of documents nos. 21 and 24, which sought, respectively, documents regarding the complete history of estimates for the repair of the Submersible and all reports prepared by or on behalf of WHOI regarding any repair or future repair of the Submersible. Id. at 6. I also allowed Ridgeway USA to take a limited deposition of Anthony Tarantino to question him about certain spreadsheets created by Tarantino concerning budgets for the repair of the Submersible, any additional documents produced as a result of the order, and any reasonable follow up questions. Id. at 5. I denied Ridgeway USA's request for sanctions. Id. at 6.

On January 15, 2021, WHOI produced 65 pages of mainly spreadsheets. Docket No. 684 at 4. The second deposition of Tarantino took place on January 26, 2021. Id. During that deposition, it became apparent that WHOI had not in fact conducted a diligent search for documents as ordered by this Court and that not all responsive documents had been produced. See id. at 4-5.

*2 On April 27, 2021, WHOI produced additional documents as well as the declaration of Ronald L. Timm II, WHOI's Business Analyst. Id. at 5. After Ridgeway USA pointed out some deficiencies in WHOI's search and production, WHOI produced an additional 291 pages of documents on May 17, 2021. Id. at 6. Upon review of the documents, Ridgeway USA determined that WHOI's production was still incomplete. Id. After several discussions among the parties, WHOI agreed to retain Consilio, an independent IT expert, to conduct a forensic search of WHOI's files to determine whether there were further documents responsive to Ridgeway USA's document requests nos. 21 and 24. Id. With Consilio's assistance, on July 12, 2021, WHOI produced an additional 76 documents. Id.

On or about August 5, 2021, Consilio completed the collection and processing of the data extracted from the mailboxes of ten WHOI employees. Id. at 7. After applying the agreed search terms to the collected documents, WHOI made additional productions on September 17, 2021 and October 7, 2021. Id.

On November 22, 2021, WHOI produced a privilege log listing 275 documents withheld on the grounds of the attorney-client privilege and/or work product doctrine. Id. After some back and forth between the parties, WHOI produced additional documents that it had originally withheld on privilege grounds. Id. at 7-8. Plaintiffs also agreed to produce Tarantino and Ty Boyce for 2 hours each of additional deposition testimony. Id. at 7, see also Docket No. 686 at 2. These depositions, however, have not yet taken place. Docket No. 684 at 7. WHOI has produced an additional 88 documents since the filing of the instant motion, but it continues to withhold certain documents on the basis of the attorney-client privilege and the work product doctrine. See Docket No. 686 at 5.

Trial in this matter is scheduled to start on July 18, 2022.

II. ANALYSIS

A. Standard Of Review

One claiming privilege, “bears the burden of establishing that ... [the privilege] applies ... and that it has not been waived.” In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003); see also Amgen, Inc. v. Hoecsht Marion Roussel, 190 F.R.D. 287, 289 (D. Mass. 2000) (“The party claiming the protection of a privilege bears the burden of demonstrating, by a fair preponderance of the evidence, not only that the privilege applies, but also that it has not been waived.”). Once a party claiming privilege has carried its initial burden of establishing grounds for asserting the privilege and that the privilege has not been waived, the burden shifts to the opposing party to establish any exceptions to the privilege. Vicor Corp. v. Vigilant Ins. Co., 674 F.3d 1, 17 (1st Cir. 2012).

B. The Attorney-Client Privilege

The attorney-client privilege protects communications made in confidence by a client to his or her attorney in order to obtain legal advice. In re Grand Jury Subpoena (Custodian of Records, Newparent, Inc.), 274 F.3d 563, 571 (1st Cir. 2001) (citing United States v. Mass. Inst. of Tech., 129 F.3d 681, 684 (1st Cir. 1997)). The privilege assures both attorneys and clients that discussions regarding their cases which are made in confidence will remain undiscoverable. Amgen Inc. v. Hoechst Marion Roussel, Inc., 190 F.R.D. at 289. “Without this assurance, attorneys and clients might be inhibited from engaging in the free, complete and candid exchange of information that is the cornerstone of an effective attorney-client relationship.” Id. (quoting Fleet Nat'l Bank v. Tonneson & Co., 150 F.R.D. 10, 13 (D. Mass. 1993)). Nevertheless, “[b]ecause it stands in the way of [the] right to every man's evidence, the privilege applies only to the extent necessary to achieve its underlying goal of ensuring effective representation through open communication between lawyer and client.” In re Grand Jury Subpoena, 274 F.3d at 571 (citing Fisher v. United States, 425 U.S. 391, 403 (1976)).

C. The Work Product Doctrine

*3 The work product doctrine protects (1) documents or other things, (2) prepared in anticipation of litigation, (3) by or for a party or a party's representative. Fed. R. Civ. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495 (1947). “The underlying purpose of the work product doctrine is to protect the integrity of the adversarial process by creating a zone of privacy for those matters prepared by or for the party or the party's counsel in anticipation of litigation.” Amgen, Inc. v. Hoechst Marion Roussel, Inc., 190 F.R.D. at 290. The work product doctrine does not protect the underlying facts contained in the documents. Tyler v. Suffolk County, 256 F.R.D. 34, 38 (D. Mass. 2009); In re Grand Jury Subpoena, 220 F.R.D. 130, 141 (D. Mass. 2004).

D. WHOI Has Failed To Meet Its Burden To Show That Many Documents Listed In Its Privilege Log Are In Fact Privileged And/Or That Any Privilege Has Not Been Waived

As stated above, WHOI bears the burden of proving not only that the attorney-client privilege and/or work product doctrines apply to the documents listed in the privilege log but also that any privilege has not been waived. In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d at 22. “In discharging its burden, the proponent [of an asserted privilege] must adduce competent evidence in support of its claims.” Precision Airmotive Corp. v. Ryan Ins. Servs., Inc., No. 2:10-mc-244-JHR, 2011 WL 148818, at *8 (D. Me. Jan. 17, 2011) (citation omitted). “Consistent with these strictures, the proponent of the privilege must offer more than just conclusory statements, generalized assertions, and unsworn averments of its counsel.” Id. “Where the proponent fails to adduce sufficient facts to permit the court to conclude with reasonable certainty that the privilege applies, its burden is not met.” Id.

Here, WHOI has not provided an affidavit supporting its claims of privilege. It relies exclusively on a chart provided by counsel that often does not provide sufficient information to evaluate WHOI's claims of privilege. See Docket No. 686-1. This Court has reviewed the subject documents in camera, but, in many instances, it is not apparent from the face of the document whether a document is privileged. For example, sometimes the author of a document is not apparent and WHOI has not provided that information in its privilege log or elsewhere. See, e.g., WHOI_PRIV0094, 0096, 0149. In other instances, there has been no showing that a communication was made for the purpose of seeking or giving legal advice or prepared in anticipation of litigation. See, e.g., WHOI_PRIV0017, 36, 44. Attached hereto as Exhibit A is a chart with my ruling on each document. WHOI shall produce those documents for which this Court has found WHOI has not met its burden to establish privilege within one week of the date of this order.

E. Continued Depositions Of Anthony Tarantino And Ty Boyce

Ridgeway USA has also moved for an order compelling WHOI to produce Anthony Tarantino and Ty Boyce for a further limited deposition. Docket No. 684 at 11-12. WHOI does not oppose this request. See Docket No. 686 at 2. Accordingly, this Court orders WHOI to produce Tarantino and Boyce for a further limited deposition at a mutually agreeable date within two weeks after the production of the documents ordered produced by this order. Each deposition shall last no more than two hours.

F. Ridgeway's Request For Attorney's Fees And Costs

Ridgeway USA requests that this Court award sanctions in the form of costs and attorney's fees associated with this motion as well as with the continued depositions of Tarantino and Boyce. Rule 37 of the Federal Rules of Civil Procedure provides for the payment of costs and attorney's fees if a motion to compel is granted unless the failure to provide discovery was “substantially justified,” or “other circumstances make an award of expenses unjust.” See Fed. R. Civ. P. 37(a)(5). Similarly, the court may also impose sanctions for failure to obey a discovery order unless the failure to comply was “substantially justified” or “other circumstances made an award of expenses unjust.” See Fed. R. Civ. P. 37(b)(2)(C).

*4 I find that an award of attorney's fees and costs is appropriate under the circumstances. This is the fourth time Ridgeway USA has been forced to move to compel plaintiffs to produce documents improperly withheld on the grounds of privilege. Despite this Court's prior orders setting forth clear guidelines as to what documents are privileged and the proper way to make a claim of privilege,[2] WHOI once again has failed to meet its burden to show that most of the documents it withheld were privileged, necessitating motion practice and further depositions well after the discovery deadlines have passed and only a few weeks before trial. In addition, the events leading up to the filing of this motion show that WHOI failed to comply with this Court's December 18, 2020 order to conduct a diligent search for documents responsive to Ridgeway USA's requests for production of documents nos. 21 and 24.

I encourage the parties to confer in an attempt to agree on the proper amount of attorney's fees and costs. Should the parties be unable to agree on the proper amount of fees, Ridgeway USA may file an application for such fees within two weeks after completing the depositions of Tarantino and Boyce.

III. ORDER

For the foregoing reasons, I grant in part and deny in part Ridgeway USA's motion to compel.