*1 THIS MATTER is before the Court on Plaintiff's Motion to Compel Production of Nine Secret Recordings that Southern Hens, Inc. has Withheld as Privileged [210]. Having considered the submissions of the parties and the applicable law, the Court finds that the Motion should be granted in part and denied in part as set forth herein.

On September 16, 2022, the Court granted in part and denied in part Plaintiff's Motion for Sanctions for Discovery Misconduct [113]. See Order [188]. The Court found that Southern Hens, Inc. (“Southern Hens”) had audio recordings in its possession that it should have produced in response to Haddonfield Foods, Inc.'s (“Haddonfield”) first set of interrogatories and requests for production that had been served almost two years prior. The Court directed Southern Hens to produce to Haddonfield,

[188] at 8. A footnote in the Order further stated

Id. The Court permitted Haddonfield to redepose several Southern Hens employees at the cost of Southern Hens as a sanction for the delayed production and for serving false and misleading discovery responses. It also extended the discovery deadline until October 10, 2022, for certain limited purposes.

In the instant Motion [210], Haddonfield seeks an order from the Court compelling Southern Hens to produce nine[1] audio recordings it withheld on the basis of the attorney-client privilege. Haddonfield does not question the sufficiency of the privilege log or the substance of the privilege claim, but instead argues that Southern Hens has waived the ability to assert a privilege claim because Southern Hens did not disclose the audio recordings or produce them in response to their discovery requests two-years prior.

Parties may waive the attorney-client privilege and work product protection when they fail to give notice that a document is being withheld. See L.U.Civ. R. 26(e). It is within the Court's discretion to find a waiver of the asserted privileges for failing to timely produce a privilege log. See Galvan v. Mississippi Power Co., 2012 WL 5873633, at *2 (S.D.Miss. Nov. 20, 2012); Lafayette County, MS v. Total Plan Services, Inc., 2008 WL 4186936, at *3 (N.D.Miss. Sept. 8, 2008). However, “[w]aiver is a harsh sanction that a court should impose only in cases of unjustified delay, inexcusable conduct, bad faith or other flagrant violations and after considering the circumstances surrounding the objections.” Janvey v. Alguire, 2018 WL 11362638, at *6 (N.D. Tex. Oct. 17, 2018); see also Equal Emp. Opportunity Comm'n v. BDO USA, L.L.P., 876 F.3d 690, 697 (5th Cir. 2017).

*2 Eight of the recordings at issue were identified on the Defendant's privilege log produced July 26, 2022, before the Court entered its order imposing sanctions. See Order [188]; [210-4]. The Court's sanction order permitted Haddonfield to conduct additional discovery related to the audio recordings, and Haddonfield had an opportunity to challenge the sufficiency and basis of the privilege designations and chose not to do so. Instead, it merely challenges the timeliness of the privilege log with a motion filed nearly four months after it received the log. Under the circumstances, the Court declines to deem the attorney-client privilege waived for these eight recordings.

According to Southern Hens, on October 31, 2022, its counsel discovered that two audio recordings in counsel's possession that had not been produced to Haddonfield. See [217] at 13. One of these recordings included a conversation between the General Manager of Southern Hens John Comino and counsel for Southern Hens. See [210-3] at 3; [217] at 13. The next day, Southern Hens produced one of the recordings in its entirety and portions of the second recording. On November 3, 2022, Southern Hens supplemented its privilege log to include the portion of the audio recording that had been withheld based on the attorney-client privilege. See [210-3] at 3. Two weeks after Southern Hens supplemented its privilege log to include this conversation, Haddonfield filed the instant Motion. The Court does find a waiver in this instance.

“While waiver based on such conduct may seem like a harsh penalty, such a policy is necessary to prevent gamesmanship. If a party is allowed to withhold documents without giving opposing parties notice that the documents exist but are being withheld, the opposing party will obviously be unable to contest the validity of a privilege or protection asserted for those documents.” Robinson v. Texas Auto. Dealers Ass'n, 214 F.R.D. 432, 456 (E.D. Tex.2003) (vacated on other grounds, 2003 WL 21911333 (5th Cir. July 25, 2003)).

Southern Hens produced these two audio recordings after the Court had sanctioned Southern Hens for withholding audio recordings (and initially lying about their very existence), and after the Court directed it to “produce to Haddonfield any and all audio recordings related to any claim or counterclaim in this matter and/or involving any representative or employee of Haddonfield” and a privilege log by September 30, 2022. This late production also came after the additional discovery related to the audio recordings had been completed.

The Court will not further rehash the history of Southern Hens' discovery misconduct and foot dragging with respect to the audio recordings in this case. Suffice to say that when the Court ordered Southern Hens to produce all recordings and to identify all withheld recordings on a privilege log by September 30, 2022, it meant just that.

The belated production of these last two recordings after one sanction order and after the “clean-up” discovery was complete is the very type of “unjustified delay, inexcusable conduct, or bad faith” that warrants waiver of the attorney-client privilege. Equal Emp. Opportunity Comm'n, 876 F.3d at 697. Southern Hens shall produce the recording withheld on the basis of the attorney-client privilege in its entirety to Haddonfield by no later than January 6, 2023.

IT IS, THEREFORE, ORDERED that Plaintiff's Motion to Compel Production of Nine Secret Recordings that Southern Hens, Inc. has Withheld as Privileged [210] is GRANTED in part and DENIED in part as set forth herein.

SO ORDERED this the 5th day of January, 2023.