United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
JOSEPH C. WILKINSON, Jr., Magistrate Judge.
This is a garden variety personal injury case. The motion of Intervenor, Fab-Con, Inc., to Quash Subpoena Duces Tecum in Part or, Alternatively, for Protective Order, Record Doc. No. 23, is pending before me. Plaintiff has filed a timely opposition memorandum. Record Doc. No. 28. Having considered the record, the applicable law and the written submissions of counsel, IT IS ORDERED that the motion is GRANTED IN PART AND DENIED IN PART as follows.
Specifically, Fab-Con objects to three production requests contained in the subpoena as follows:
Subpoena Request No. 1 seeks confidential and proprietary information and information generated in anticipation of litigation, ... including confidential investigative reports created in anticipation of litigation....
Subpoena Request No. 8 seeks information or documents that contain or constitute trade secrets, proprietary information, or other confidential business information. Fab-Con has expended a considerable amount of time creating and updating its safety manual and safety training and procedures. This information is not public, but is a product of Fab-Con's knowledge, experience and internal procedures that are privileged, proprietary information.
Subpoena Request No. 18 seeks information generated in anticipat[ion] of litigation.... [and is] overly broad including, without limitation, as to subject matter and/or time period and requests information that is subject to attorney/client privilege and/or the work product doctrine.
Record Doc. No. 23-1 at pp. 2-3.
Subpoenas duces tecum "are discovery devices which, although governed in the first instance by Rule 45, are also subject to the parameters established by Rule 26.'" Garvin v. S. States Ins. Exchg. Co., No. 1:04cv73, 2007 WL 2463282, at *5 n.3 (N.D. W.Va. Aug. 28, 2007) (quoting In re Application of Time, Inc., 1999 WL 804090, at *7 (E.D. La. Oct. 6, 1999), aff'd, 209 F.3d 719, 2000 WL 283199 (5th Cir. 2000)); see Nicholas v. Wyndham Int'l, Inc., No. 2001/147-M/R, 2003 WL 23198847, at *1-2 (D.V.I. Oct. 1, 2003) (the "clear majority position [is] that use of Rule 45 subpoenas constitutes discovery and is thus governed by the temporal restraints of the previous case Scheduling Orders"); Mortg. Info. Servs. v. Kitchens, 210 F.R.D. 562, 566-67 (W.D. N.C. 2002) ("a Rule 45 subpoena does in fact constitute discovery"); Martin v. Oakland County, No. 2:06-CV-12602, 2008 WL 4647863, at *1 (E.D. Mich. Oct. 21, 2008); Fabery v. Mid-S. Ob-GYN, No. 06-2136, 2000 WL 35641544, at *1 (W.D. Tenn. May 15, 2000).
Like Fed.R.Civ.P. 26(c)(1)(G), Rule 45 provides in pertinent part: "To protect a person subject to or affected by a subpoena, the court... may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information;..." Fed.R.Civ.P. 45(d)(3)(B) (emphasis added). Like its counterpart, Fed.R.Civ.P. 26(b)(5)(A), Rule 45 also requires that "[a] person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and [provide a privilege log] that (ii) describe[s] the nature of the withheld documents, communications, or tangible things in manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim." Fed.R.Civ.P. 45(e)(2).
Fed. R. Civ. P. 26(c)(1) governs motions for protective orders and requires the moving party to show "good cause" to support the motion. This requirement "of a showing of good cause to support the issuance of a protective order indicates that [t]he burden is upon the movant to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.'" In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)(emphasis added)); see also United States v. Talco Contractors, Inc., 153 F.R.D. 501, 513 (W.D.N.Y. 1994) ("Good cause must be established and not merely alleged.").
When privilege or work product objections are the basis for failure to provide requested discovery, the objecting party may prevail only if it both properly asserts its objections and substantiates its claims.
Once the proponent has properly asserted the privilege claim and the requisite information about the allegedly privileged document provided to the opponent, the proponent must substantiate all actual assertions about the claim. This is usually done through supporting affidavits from individuals with personal knowledge of the relevant facts, exhibits attached to the motion and briefs, discovery responses, pleadings and other undisputed facts.... To the extent that evidentiary support for the factual basis of the privilege is not forthcoming, the claim is little more than a bald, conclusory, or ipse dixit assertion. The court will deny such an assertion because it forecloses meaningful independent inquiry by the finder of facts (the judge) into the validity of the claim.... Although an attorney's word may be "taken on its face, " a privilege claim is not self-executing. It requires more proof than a conclusion by the party asserting the claim (or his attorney) that it is justified.
P. Rice, Attorney-Client Privilege in the United States § 11:10 at 977-80 (Lawyers Cooperative 1993) (emphasis added).
Proper assertion requires provision of a privilege log. When a party has failed to provide a privilege log, courts have found that all assertions of privilege or other protections against the requested discovery have been waived. E.g., Burlington N. & Santa Fe Ry. v. U.S. Dist. Court, 408 F.3d 1142, 1149-50 (9th Cir. 2005); Pensacola Firefighters' Relief Pension Fund v. Merrill Lynch Pierce Fenner & Smith, Inc., 265 F.R.D. 589, 592-94 & n.1 (N.D. Fla. 2010); Lee v. State Farm Mut. Auto. Ins. Co., 249 F.R.D. 662, 683 (D. Colo. 2008); Lugosch v. Congel, 219 F.R.D. 220, 239 (N.D.N.Y. 2003); Nagele v. Elec. Data Sys. Corp., 193 F.R.D. 94, 108 (W.D.N.Y. 2000); Bordonaro v. Union Carbide Corp., No. 93-3355, 1995 WL 234545, at *2 (E.D. La. Apr. 20, 1995); Burns v. Imagine Films Entm't, Inc., 164 F.R.D. 589, 594 (W.D.N.Y. 1996); Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 914 F.Supp. 1172, 1178 (E.D. Pa. 1996); see also Haid v. Wal-Mart Stores, Inc., No. 99-4186-RDR, 2001 WL 964102, at *2 (D. Kan. June 25, 2001) ("As plainly indicated by Rule 26(b)(5), the question whether materials are privileged is for the court, not the [party asserting the privilege], to decide, and the court has a right to insist on being presented with sufficient information to make that decision."). However, although "[f]ailure to timely produce a privilege log or the production of an inadequate privilege log may constitute a waiver of any asserted privileges, '... the waiver of a privilege may only extend to those cases in which the offending party ...