Glover v. EQT Corp.
Glover v. EQT Corp.
2023 WL 5321810 (N.D. W. Va. 2023)
August 14, 2023
Mazzone, James P., United States Magistrate Judge
Summary
The court denied the defendants' motion to compel the production of emails between Rocky Fitzsimmons and Forrest Miller, as well as emails between Fitzsimmons and other absent putative class members. The court found that the emails were protected by the attorney-client privilege and the common interest doctrine, and that the October 31, 2022 Order precluded the defendants from conducting discovery regarding Miller or any other absent putative class member.
Additional Decisions
WILLIAM D. GLOVER, LINDA K. GLOVER, his wife; RICHARD A GLOVER, CHRISTY L. GLOVER, his wife; and GOSHORN RIDGE, LLC, Individually, and on Behalf of All Others Similarly Situated, Plaintiffs,
v.
EQT CORPORATION, a Pennsylvania corporation; EQT PRODUCTION COMPANY, a Pennsylvania corporation; EQT ENERGY, LLC, a Delaware limited liability company; EQT ENERGY II, LLC, a Pennsylvania limited liability company, Defendants
v.
EQT CORPORATION, a Pennsylvania corporation; EQT PRODUCTION COMPANY, a Pennsylvania corporation; EQT ENERGY, LLC, a Delaware limited liability company; EQT ENERGY II, LLC, a Pennsylvania limited liability company, Defendants
CIVIL ACTION NO. 5:19CV223
United States District Court, N.D. West Virginia
Filed August 14, 2023
Counsel
Andrew R. Cutright, Roger L. Cutright, Cutright Law PLLC, Morgantown, WV, Clayton J. Fitzsimmons, Mark A. Colantonio, Robert J. Fitzsimmons, Robert P. Fitzsimmons, Donald M. Kresen, Fitzsimmons Law Firm, PLLC, Wheeling, WV, Eric M. Gordon, Berry, Kessler, Crutchfield, Taylor & Gordon, Moundsville, WV, Marvin W. Masters, The Masters Law Firm, LC, Charleston, WV, for Plaintiffs.Chelsea Rebecca Heinz, Mark K. Dausch, Babst Calland Clements & Zomnir, P.C., Pittsburgh, PA, David Dehoney, Pro Hac Vice, Jonathan H. Koppell, Pro Hac Vice, Michelman & Robinson LLP, New York, NY, Jennifer Jo Hicks, Timothy M. Miller, Tiffany Marie Arbaugh, Babst, Calland, Clements & Zomnir, P.C., Charleston, WV, Lauren W. Varnado, Pro Hac Vice, Michelman & Robinson LLP, Houston, TX, for Defendants.
Mazzone, James P., United States Magistrate Judge
ORDER DENYING DEFENDANTS' MOTION [375] TO COMPEL PLAINTIFFS TO PRODUCE DOCUMENTS IN RESPONSE TO EOT DEFENDANTS' DISCOVERY REQUESTS AND DOCUMENTS IDENTIFIED ON PLAINTIFFS' PRIVILEGE LOG
*1 Currently pending before the Court, on referral from the District Court, is Defendants' Motion [375] to Compel Plaintiffs to Produce Documents in Response to EQT Defendants' Discovery Requests and Documents Identified on Plaintiffs' Privilege Log, filed July 18, 2023. The Court entered a briefing schedule and directed submission of documents for in camera review on July 21, 2023. ECF No. 384. Plaintiffs filed a brief in opposition on July 28, 2023. ECF No. 389. Plaintiffs have also provided to the Court documents which are the subject of Defendants' Motion. Defendants filed a Reply brief on August 2, 2023. ECF No. 399. After considering the briefs, the applicable law, and the Court file, and after considering the documents submitted, the Court is satisfied that Defendants' Motion should be denied.
I. Factual/Procedural History
Defendants are seeking documents that are “communications between Plaintiffs' agents and/or consultants, on the one hand, and third parties, on the other, that discuss Plaintiffs' leases, royalties on natural gas liquids (“NGLs”), and/or EQT Defendants.” ECF No. 375 at p. 2. According to Defendants' Motion, these documents fall into several broad categories: (1) communications between HartPetro Global, LLC (“HartPetro”)[1] and Goshorn Ridge; (2) communications between HartPetro and third parties (to the extent those communications do not include or involve Goshorn Ridge); and (3) communications between Plaintiffs' lawyers and third parties, including putative plaintiffs and in particular Forrest Miller. See generally ECF No. 375 and 389. Defendants contend that this discovery was requested by RPD Nos. 7 and 11 from Defendants' First Request for Production and Interrogatories on Putative Class Certification to All Plaintiffs, which was propounded on May 5, 2021. ECF No. 375-1.[2] Plaintiffs served their answers to this discovery on June 18, 2021. ECF No. 375-2.
The first time Defendants reached out to Plaintiffs about any alleged deficiencies in these responses was in a letter dated June 3, 2022. ECF No. 375-6. Plaintiffs did not respond to this letter. Defendants reached out again via letter dated May 18, 2023. ECF No. 375-7. The parties met and conferred on June 8, 2023, on a number of alleged outstanding discovery issues. Plaintiffs followed up the meet and confer with a letter dated June 20, 2023, in which Plaintiffs summarized their understanding of the meet and confer session. ECF No. 375-8. There is nothing in the record to show that Defendants disagreed with Plaintiffs' understanding of the meeting.
*2 In their June 20, 2023, meet and confer letter, Plaintiffs stated that they stood by their objections to Plaintiffs' RPD Nos. 7 and 11. ECF No. 375-8. However, as a show of good faith, they conducted another search for e-mails which might have been responsive to RPD Nos. 7 and 11 but were unable to find any. On July 3, 2023, Plaintiffs provided a revised privilege log that identified “for the first time...emails between Forrest Miller, a putative class member, and Rocky Fitzsimmons, claiming that the e-mails are protected from disclosure by the attorney-client privilege.” ECF No. 375 at p. 5; ECF No. 375-9. Defendants filed the instant Motion on July 17, 2023.
II. HartPetro Global, LLC documents
A. Timeliness
Plaintiffs argue that Defendants' Motion is untimely as to the HartPetro documents. The Court agrees. Defendants propounded the discovery at issue on May 5, 2021. Plaintiffs answered the discovery on June 18, 2021. Under the applicable rules of civil procedure, Defendants had thirty days from the date on which Plaintiffs responded, or thirty days from June 18, 2021, to bring a Motion to Compel. See LR Civ. P. 37.02(b). Motions not filed within that timeframe are waived. Id.
Here, Defendants did not file the instant Motion until over two years after Plaintiffs answered the discovery, and there is nothing in the record which would explain or otherwise justify the delay. Defendants first raised alleged deficiencies in Plaintiffs' responses almost one year after Plaintiffs provided their answers, and approximately eleven months after a Motion to Compel would have been due. Plaintiffs did not respond to Defendants' June 3, 2022, letter, but Defendants took no action until May 18, 2023. On June 8, 2023, the parties conducted a meet and confer conference on multiple discovery issues. As detailed in Plaintiffs' June 20, 2023, follow up letter, however, Plaintiffs stood by their answers and objections to the requests for production currently at issue. There is no evidence in the record that Plaintiffs have ever changed their position as to these requests for production.
Defendants argue that the Court has “discretion to examine the circumstances surrounding an untimely motion to compel in order to avoid what may constitute overly technical applications of the Rule.” Patrick v. Teays Valley Trustees, LLC, 297 F.R.D. 248, 254 (N.D.W. Va. 2013). Defendants contend that, much as Plaintiffs did vis-à-vis their Renewed Motion to Compel (ECF No. 319), Defendants needed to await receipt of documents that were being produced on a rolling basis before filing this Motion. The Court is not persuaded by this argument.
With respect to Plaintiffs' Motion ECF No. 319, Plaintiffs sought, in part, answers to certain interrogatories and Defendants relied upon documents which were being produced on a rolling basis, to answer those interrogatories. As the Court noted, even after the documents had been provided to completion, review and analysis of the documents was necessary before Plaintiffs could file the Motion (319), and given the volume and nature of the documents, such review and analysis was likely a time-consuming and slow-moving process. That is not the case here. First, this Motion involves requests for production, not interrogatories, and there is no invocation of R. 33(d) as there was in the answers to interrogatories at issue in Plaintiff's prior Motion (319). Further, there is no evidence that Plaintiffs agreed to produce the documents sought on a rolling basis, which would have resulted in delay. There is no evidence that Plaintiffs' position with respect to their answers ever changed – there is certainly no evidence that Plaintiffs position changed in the first twelve months after Plaintiffs answered the discovery at issue.
*3 Finally, it is notable that this Motion was filed after the conclusion of discovery. The relief Defendants seek would effectively rewrite the current Scheduling Order which is something this Court is without the power to do. In sum, there is nothing on which this Court can rely to excuse the untimeliness of Defendants' filing as to the HartPetro documents.
B. Prior Order Precludes the Discovery Sought
The Court would also conclude that Defendants' Motion should be denied because the requested discovery appears to be precluded by the Court's July 19, 2021, Order.
On June 2, 2021 (approximately one month after the discovery requests at issue were propounded), the Court held a status conference at Defendants' request. During that status conference, Defendants raised the issue of discovery regarding absent putative plaintiffs. Defendants specifically noted that “[w]hat putative class members know or should have known about the matters that plaintiffs allege were concealed from them is at the very heart of plaintiffs' fraud claim, but also their claim for an award of punitive damages.” ECF Nos. 92 at p. 5, and 110 at p. 2. Defendants then requested the ability to conduct limited discovery on absent putative plaintiffs. ECF No. 92. After considering the parties' statements during the status conference and the briefs submitted thereafter, the District Court denied this request. ECF No. 110 (“this Court hereby ORDERS that no discovery be taken of the absent putative class members”) (emphasis in original).
In denying Defendants' request for this discovery, the District Court noted that Defendants' stated purpose for the discovery was “to show that the absent class members should not be made class members at all” and that “[t]his runs afoul of the rule that pre-certification discovery should not be used to reduce the size of or alter the membership of the class.” ECF No. 110 at p. 12. While their current method(s) differ from those presented during the status conference, it nevertheless appears that Defendants are seeking the same information here that they were seeking during the status conference[3] and for the same purpose: to show that “Plaintiffs knew how EQT was paying royalties on NGLs at the time EQT acquired Plaintiffs' leases and began making royalty payments to Plaintiffs,” calling into question Plaintiffs' fraud and misrepresentation claims. ECF No. 375 at p. 3. In other words, it appears that Defendants are trying to do indirectly what they have been precluded from doing directly; that is, to conduct discovery on absent putative class members to reduce the size of the class.
This finding is underscored by the fact that HartPetro's only connection to this litigation is HartPetro's connection to absent putative class members. HartPetro does not appear to have been retained as an expert in this litigation, and the documents Defendants seek arise out of separate litigation. See ECF No. 375 at p. 2. Plaintiffs also deny that HartPetro is an agent or consultant in this matter. There is no evidence in the record before the Court to refute this assertion.
C. The Documents are not Otherwise Discoverable
1. Communications between Goshorn Ridge and HartPetro
*4 Goshorn Ridge admits that it retained the services of HartPetro in other, separate litigation to assist with preparation for trial. However, Plaintiffs assert that HartPetro is not and has not been retained as an expert in this case and will not testify at trial. There is no evidence in the record to refute this argument. Thus, the Court would agree with Plaintiffs that communications between Goshom Ridge and HartPetro are protected from disclosure. See Fed. R. Civ. P. 26(b)(4)(D) (“a party may not...discover facts known or opinions held by an expert who has been retained or specifically employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial). Further, Defendants have not identified exceptional circumstances which would justify disclosure of these documents. See Fed. R. Civ. P. 26(b)(4)(D) (“a party may [discover facts known or opinions held by an expert not expected to be called as a witness at trial]...on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means”).[4]
To the extent Defendants argue that the HartPetro documents are not protected from disclosure by the work product doctrine because they were generated in separate litigation, the Court would disagree.[5] “[W]ork product prepared in anticipation of earlier litigation retains its protection in later disputes.” Cincinnati Ins. Co. v. Zurich Ins. Co., 198 F.R.D. 81, 86 (W.D.N.C. July 24, 2000).
Finally, and notwithstanding the above, review of the documents provided to the Court in camera demonstrate that they are not what Defendants believe they are. That is, the documents relate almost exclusively to developments in the legislature concerning oil and gas rights, and notable court decisions. The documents do not evidence any knowledge of Plaintiffs concerning the methodology employed by EQT to calculate royalties under the Goshorn lease. They are thus not relevant to this action.
2. Plaintiffs are not obligated to obtain and produce communications between HartPetro and other third parties.
Fed. R. Civ. P. 34(a)(1) provides in relevant part that “[a] party may serve on any other party a request within the scope of Rule 26(b)...to produce...items in the responding party's possession, custody, or control.” Courts within this Circuit have recognized that “control” for purposes of R. 34(a)(1) means “actual possession of a document or the legal right to obtain the document on demand.” Reuschel v. Chancellor Senior Management, Ltd., 2023 WL 4674312, at * 6 (S.D.W. Va. July 20, 2023) (cleaned up).
Here, Plaintiffs contend that HartPetro is not Plaintiffs' agent, and Defendants have not provided any evidence to contradict this assertion. HartPetro's services rendered in separate litigation does not make HartPetro Plaintiffs' agent in this case. Further, Plaintiffs contend that they are not in possession of certain documents and do not have the right or ability to obtain them. Based upon the record, the Court would agree. There is no evidence that Goshorn Ridge would have the legal right to obtain communications between HartPetro and other third parties which they do not already possess.
III. E-Mails between Rocky Fitzsimmons and Forrest Miller
A. Timeliness
Defendants also seek production of documents #70 through #98 on Plaintiffs' Fifth Revised Privilege Log.[6] ECF No. 389 at p. at p. 10; ECF No. 389-1. Plaintiffs argue that this Motion is untimely as to this discovery. Inasmuch as the instant Motion, which was filed on July 18, 2023, relates to documents first identified on Plaintiffs' Fourth Revised Privilege Log, and inasmuch as the Fourth Revised Privilege Log was provided on July 3, 2023, the Court would conclude that Defendants' Motion as it relates to the documents on the Fourth/Fifth Revised Privilege Log is timely filed because it was filed within thirty (30) days after production of the Fourth Revised Privilege Log and after the documents at issue were first identified.
B. Order Entered October 31, 2022
*5 Plaintiffs next argue that this discovery is precluded by the October 31, 2022, Agreed Order wherein Defendants agreed that “no further discovery” would “be conducted on Forrest Miller,” or “on any other absent putative class member.” ECF No. 255. Plaintiffs contend that the intent and purpose of the Agreed Order was to foreclose discovery with respect to Forrest Miller and other absentee class members. See ECF No. 389. Defendants argue that this was not the intent of the Order; but rather, that the Order confirmed Defendants' intention to refrain from propounding discovery upon Forrest Miller and/or any absent Putative Class Members. See ECF No. 399. Defendants maintain that they are still entitled to “discovery relating to putative class members.” ECF No. 399 at p. 1 (emphasis in original). Defendants' argument is not supported by the record. Thus, the Court would agree with Plaintiffs.
The Agreed Order filed at ECF No. 255 provides in pertinent part as follows:
EQT Defendants (“EQT”) agree that no further discovery, including but not limited to a deposition, subpoena, subpoena deuces tecum, or request for production of documents will be conducted on Forrest Miller or on any other absent putative class member other than the named class representatives in connection with class certification.
ECF No. 255 at p. 2, ¶ 1 (emphasis in original). Eliminating the examples of discovery set forth in this paragraph, the pertinent language reads: ‘EQT Defendants agree that no further discovery will be conducted on Forrest Miller or on any other absent putative class member other than the named class representatives in connection with class certification.’ The agreed order does not speak in terms of directing, propounding, or sending discovery requests to Forrest Miller and other absent putative plaintiffs. Rather, it uses broader language. This language identifies Mr. Miller and other absent putative class members as the focus of Defendants' discovery requests, not necessarily the recipient(s) of it.[7] Indeed, common synonyms for “on” include: regarding, concerning, and about. Accordingly, the plain language of this Order makes clear that, in exchange for receiving the so-called status emails (referenced in ECF No. 255), EQT agreed to refrain from conducting discovery regarding Forrest Miller or any other absent putative class member.
Additionally, support for the Court's conclusion can be found in the proceedings which led to entry of the October 31, 2022, Order. After Mr. Miller received a subpoena from Defendants for the very same information Defendants now seek in the instant Motion (see 216-1, Subpoena to Forrest Odell Miller), Plaintiffs filed a Motion to Quash (ECF No. 227) and a Motion for Protective Order (ECF No. 250). The Agreed Order arose out of those Motions and negotiations between the parties as to how to resolve the same. Again, even though the subpoena at issue sought the same information Defendants now seek, the October 31, 2022, Order did not reserve anything other than communications between Mr. Miller and other nonpresent putative plaintiffs. See ECF No. 255. The Court notes that, in particular, the Order did not reserve communications between Mr. Miller and any attorneys.
C. The Emails Identified as #70 – 98 on Plaintiffs' Fifth Revised Privilege Log are Protected by the Attorney-Client Privilege
Even if the October 31, 2022, Order does not preclude discovery of the emails, the attorney-client privilege does. The attorney-client privilege protects communications between an attorney and his or her client “to encourage full and frank communication” between them. Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981). “The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out.” Id. (citations and quotations omitted).
*6 The attorney-client privilege applies if:
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with his communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003).
Here, a review of the documents EQT seeks to compel, i.e., #70 – 98 identified on Plaintiffs' Fifth Revised Privilege Log, demonstrates that the documents are protected by the attorney-client privilege. The documents are emails between Rocky Fitzsimmons and Mr. Miller in which Mr. Miller appears to be actively seeking representation regarding a perceived royalty dispute with EQT. The emails outline what Mr. Miller believes are his lease terms, the royalty payments actually received thereunder, and his questions surrounding the same. Mr. Fitzsimmons responds by requesting additional information and attempting to coordinate meetings to discuss representation. Mr. Fitzsimmons was and is an undisputed member of the bar who acted as a lawyer during the relevant communications. The communications related to circumstances which Mr. Fitzsimmons was informed about by Mr. Miller without the presence of strangers for the purpose of securing Mr. Fitzsimmons's legal services. There is no allegation of, and the evidence would not support application of, the crime-fraud exception here. There is no dispute that Mr. Miller has claimed the privilege and claims that he has not waived the same. See ECF No. 227-1. Further, simply because Mr. Miller did not ultimately choose to be represented by Mr. Fitzsimmons does not mean that the attorney-client privilege does not protect the communications at issue. Mr. Miller clearly sought representation from Mr. Fitzsimmons. The communications are thus protected.
The Fifth Revised Privilege Log and accompanying documents provided for in camera review also included emails from Craig Bridgeman, Victor and Theodora Wade, and Dave Schlabach to Rocky Fitzsimmons. A review of these emails demonstrates that they too were sent to Mr. Fitzsimmons in a bid to secure his legal services relative to a perceived dispute with EQT. Again, if these persons did not choose Mr. Fitzsimmons to represent them in any dispute with EQT, that fact does not eliminate the privilege protections accorded to the communications at issue. See In re Grand Jury Subpoena, 341 F.3d at 335.
Defendants argue that there is no attorney-client privilege over communications between putative class members and class counsel prior to class certification. Defendants cite The Kay Co. v. Equitable Prod. Co., 246 F.R.D. 260, 264 (S.D.W. Va. 2007). Defendants misperceive the nature of the ruling in The Kay Co. The case did not eliminate completely the attorney-client between class counsel and putative class members prior to class certification. Indeed, as acknowledged in that case, “those class members with whom a lawyer maintains a personal client-lawyer relationship are clients.” The Kay Company, 246 F.R.D. at 264 (quoting Debra Lyn Bassett, Pre-Certification Ethics in Class Actions, 36 GA. L. Rev. 353, 353-54 (2002) and Restatement (Third) of the Law Governing Lawyers § 99 cmt. 1 (2000)).
*7 Here, it is clear from the email communications that Mr. Miller, Mr. Bridgeman, Mr. and Mrs. Wade, and Mr. Schlabach sought to become personal, direct clients of Rocky Fitzsimmons. These efforts extend the relationship or prospective relationship beyond that of simply class counsel and putative plaintiff. Their communications with Mr. Fitzsimmons are therefore protected by the attorney-client privilege.
It is also of no moment that Mr. Miller, or any other of these individuals, may have been seeking other representation contemporaneously with these communications. There is nothing which prevents a prospective client from shopping around for the best legal representation for their needs. Again, there is nothing to suggest that such activity nullifies the privilege between attorney and prospective client regarding legal representation. The pertinent question is whether a person sought to become the client of a lawyer. See In re Grand Jury Subpoena, 341 F.3d at 335. That occurred here.
Finally, the Court is satisfied that Mr. Miller did not waive the attorney-client privilege. “The common interest doctrine permits parties whose legal interests coincide to share privileged materials with one another in order to more effectively prosecute or defend their claims.” Hunton & Williams v. U.S. Dept. of Justice, 590 F.3d 272, 277 (4th Cir. 2010). The parties agree that Mr. Miller communicated with undisclosed third parties about his discussions with Rocky Fitzsimmons. However, a review of the documents at issue makes clear that the parties with whom he communicated were also interested in pursuing representation with Mr. Fitzsimmons. Mr. Miller appears to have been acting as a figurehead for the participants in the group. Mr. Miller thus appears to have a shared common interest with those to whom he communicated.
Defendants cite to Patterson v. Westfield Insurance Company, 2019 WL 11254357, at * 5 (N.D.W. Va. Nov. 25, 2019) for the proposition that the common interests must be identical, not merely similar, for the common interest doctrine to apply. Review of the disputed documents confirms that the interests were and are identical – Mr. Miller and the third persons on whose behalf he appeared to speak and with whom he communicated were interested in pursuing action against EQT for what appeared to be underpayment of royalties. The common interest doctrine therefore applies. Mr. Miller did not waive the attorney-client privilege.
Accordingly, and for all of the foregoing reasons, Defendants' Motion [375] should be and is hereby DENIED.
It is so ORDERED.
Any party may, within FOURTEEN DAYS of this Order, file with the Clerk of the Court written objections identifying the portions of the Order to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the District Court Judge of Record. Failure to timely file objections to the Order set forth above will result in a waiver of the right to appeal from a judgment of this Court based upon such an Order.
The Court DIRECTS the Clerk of the Court to serve a copy of this Order upon any pro se party by certified mail, return receipt requested, and to counsel of record herein.
Footnotes
HartPetro was hired by Goshom Ridge as a consultant to prepare for prior litigation against Trans Energy, Inc.; Republic Energy Ventures, LLC; and Republic Energy Operating, LLC, regarding royalty payments. Trans Energy, Inc., is EQT Production's predecessor.
For the sake of brevity, and because there is no dispute that RPD Nos. 7 and 11 cover the sought-after discovery, these discovery requests will not be reproduced here.
Compare Defendants' representations made during the June 2, 2021 status conference [ECF No. 92 at p. 6-7]: “That's why we're asking...[to conduct a] maximum maybe ten depositions...a few document requests for communications relating to NGLs, communications with the prior operators, their own knowledge, reliance, [and] investigation;” and Defendants representations made in the instant Motion [ECF No. 375 at p. ]: “The requested communications will show that Plaintiffs knew how EQT Production was calculating and paying royalties on NGLs. The scope and extent of Plaintiffs' knowledge, which is imputed to them by their agents, is critical evidence.”
As both parties point out, employees of HartPetro, including Bob Hart, have been deposed in this matter.
There is no dispute that the documents at issue were protected by the work product doctrine in prior litigation.
Defendants moved for production of documents identified on Plaintiffs' Fourth Revised Privilege Log. The Fourth Revised Privilege Log did not identify the documents by number. Plaintiffs subsequently provided a Fifth Revised Privilege Log which did identify the disputed documents by number. Inasmuch as it is easier for the Court to discuss the documents at issue vis-à-vis the Fifth Revised Privilege Log, the Court will refer to the Fifth Revised Privilege Log when discussing these documents. The timeliness argument will be addressed as to the Fourth Revised Privilege Log, however, as the filing of Defendants' Motion relates in time to the filing of Plaintiffs' Fourth Revised Privilege Log.