I. Background

On June 17, 2022, Plaintiffs filed a motion to compel documents withheld based on attorney-client privilege as delineated in a privilege log provided to Plaintiffs on December 3, 2019. (ECF No. 209, 216.) Defendant responded (ECF No. 217) and Plaintiffs replied. (ECF No. 221.) The parties provided a joint statement of resolved and unresolved issues to the court and a hearing was held on the motion on August 24, 2022.

II. Analysis

Although listed as the third unresolved issue, it made logical sense to consider the timeliness or untimeliness of the motion first during oral argument and for purposes of this Court’s Order. A small timeline may shed light on the issue. The complaint in this case was initially filed on January 29, 2016. (ECF No. 1,) and an Amended Complaint on February 3, 2016. (ECF No. 7.) On July 14, 2017, judgment entered in favor of Plaintiffs against Defendant. (ECF No. 113.)

Plaintiffs filed a notice of appeal on August 11, 2017 (ECF No. 114.) and on February 15, 2018. (ECF No. 133.) Opinions from the Sixth Circuit Court of Appeals entered on August 30, 2018. (ECFs No. 135, 136.) The case continued.

As indicated above and stipulated to by the parties at oral argument, Defendant provided its privilege log to Plaintiffs on December 3, 2019.

On January 8, 2020, the scheduling order was amended to extend discovery until February 7, 2020, and dispositive motions until February 21, 2020. (ECF No. 160.) On February 5, 2020, the dispositive motion cutoff was extended until March 6, 2020. (ECF No. 166.) The parties agreed that the last scheduling order set the discovery cutoff date entered by the Court was February 7, 2020. (ECF No. 160.)

The case proceeded and on August 7, 2020, an Opinion and Order and Judgment entered granting Defendant’s motion for summary judgment. (ECF Nos. 197, 198.) A second notice of appeal was filed on March 3, 2021 (ECF No. 203) and on April 25, 2022, the Sixth Circuit issued an opinion reversing and remanding the case for further proceedings regarding Plaintiff’s claim that Defendant breached its fiduciary duty under ERISA in failing to pay Medicare-Like Rates (MLRs). (ECF Nos. 207, 208.)

Neither Fed. R. Civ. P. 26 or 37 set any deadlines for how long an opposing party has to challenge, via a motion to compel, a party’s assertion of privilege in a privilege log. Under Rule 33(b)(2) interrogatories must be responded to within 30 days. Under Rule 34, the party responding to a document request must produce or object to production within 30 days. Under Rule 36(a)(3) requests for admission must be denied within 30 days or they are deemed admitted. However, no rule addresses when a party who has provided a privilege log may rest easy that there will be no upcoming motion to compel. Accordingly, it would seem that the motion should be filed within a reasonable time after having been provided with the privilege log. In Orgill, Inc. v. Distribution Centers of America, 2017 WL 8777459 (N.D. W.V. 2017), the Court held that a motion to compel was untimely because it was not filed within 30 days of having been provided with the privilege log. The decision rested at least in part on the court’s reliance on its Local Rule 37.02(b) which provides that a “motion to compel, or other motion in aid of discovery, is  deemed waived if it is not filed within 30days after the discovery response or disclosure requirement sought was due…unless such failure to file a motion was caused by excusable neglect or by some action of the non-moving party.” L.R. 37.02(b) N.D.W.V.

Here, the motion to compel was not filed until nearly two and one-half years or 30 months after the privilege log was provided by Defendant to Plaintiff. Although there appears to be no direct rule requiring the motion to be filed in any set number of days, such a gap in time is nowhere near any potential standard of 30 days (or even 6 months or a year). Courts may exercise their discretion to entertain untimely motions to compel after the close of discovery where “’special circumstances’ justify their tardiness” but no such special circumstances exist here. Sound Energy Company, Inc. v. Ascent Resources – Utica, LLC, 2022 WL 2128016, at &2 (S.D. Ohio June 14, 2022). Even if the court excludes the time during which the case was on appeal, the motion was filed over 16 months after the privilege log was provided to Plaintiff. At oral argument, Plaintiff’s counsel asked the court to forgive any untimeliness because Defendant is not prejudiced by the untimeliness. However, when Plaintiff did not object for these many months, Defendant was entitled to rest in the assurance that Plaintiff did not have any objection or such an objection would have been made known to Defendant within a reasonable period of time. I find a party is harmed by such a lengthy delay as occurred in this case before any objection was voiced.

Although the motion raises interesting questions that the court would enjoy reaching, since the motion is so grossly untimely, the motion must be denied for this reason alone.

Review of this order is governed by 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72, and E.D. Mich. LR 72.1(d).

Date: September 1, 2022
s/ Patricia T. Morris
Patricia T. Morris
United States Magistrate Judge