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United States v. Bollinger Shipyards, Inc.

United States District Court, E.D. Louisiana

April 13, 2015

UNITED STATES OF AMERICA
v.
BOLLINGER SHIPYARDS, INC., BOLLINGER SHIPYARDS LOCKPORT, L.L.C., AND HALTER-BOLLINGER JOINT VENTURE, L.L.C., Section R (5)

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is the government's motion for review of Magistrate Judge Chasez's August 28, 2013 order granting Bollinger's motion to compel.[1] The Court grants the motion because the government's supplemental production has largely mooted this dispute and because the Magistrate Judge failed to provide sufficient justification for her order requiring the government to produce the documents over which it had claimed attorney-client or work product privileges.

I. BACKGROUND

The United States filed this action under the False Claims Act, 31 U.S.C. § 3729, et seq., alleging that Bollinger Shipyard Inc., Bollinger Shipyard Lockport, LLC, and Halter Bollinger Joint Venture, LLC (collectively "Bollinger") knowingly submitted false statements and false claims for payment to the government in relation to a government contract under which Bollinger was to modify eight vessels owned by the United States Coast Guard.[2]

The government provided Bollinger with its first set of privilege logs on March 15, 2013. Bollinger challenged the government's assertions of attorney-client and work product privileges arguing that the government failed to provide sufficient information in the privilege logs for Bollinger to evaluate the merit of such claims. At a discovery status conference on May 1, 2013, the Magistrate Judge intervened and ordered the government to revise its privilege log with respect to documents over which the government claimed attorney-client or work product privileges.[3] The Magistrate Judge ordered the government to complete this task by May 10, 2013.[4] The government failed to meet this deadline and, at a May 13, 2013 discovery conference, the Magistrate Judge extended the government's deadline to May 17, 2013.[5] The Magistrate Judge also authorized Bollinger to follow up on this order "with further motion practice."[6] On May 17, 2013, the government failed to produce the revised privilege logs and instead filed a motion for an extension of time.[7] The Magistrate Judge granted the motion over Bollinger's objection and gave the government until June 3, 2013 to produce the revised logs. The Magistrate Judge granted the continuance with the understanding that "no further extensions will be granted."[8]

On June 3, 2013, the government produced its revised privilege logs. Bollinger found the revised logs deficient with respect to 776 attorney-client and work product privilege claims, contending that the government failed to provide sufficient information to justify the privileges asserted. Bollinger also contested the government's work product claims for documents generated before the government's implementation of a litigation hold. Bollinger attempted to resolve the dispute without court intervention to no avail.[9] Thus, on August 13, 2013, Bollinger filed a motion to compel the government to produce the 776 documents for which the government allegedly failed to provide sufficient justification.[10]

The government responded arguing that all of its privilege claims were well-founded.[11] The government also highlighted that some of the challenged entries actually identified an attorney as the sender or recipient, namely the Coast Guard Judge Advocate General's office, and therefore these claims were sufficient as a matter of law.[12] In its reply memorandum, Bollinger withdrew its challenges to the Coast Guard Judge Advocate General's office documents, but maintained that the remainder of Bollinger's privilege log entries were deficient.[13]

On August 28, 2013, the Magistrate Judge issued the following minute entry order:

Given the voluminous nature of the documents in question and the vagueness of a number of the government's privilege log entries, within two (2) weeks the government is to identify the documents via a new, separate range of bates numbers and is to provide a copy thereof to the defendants in an attempt to narrow down the number of documents that are truly privileged. This production shall be subject to the terms of the protective order and shall not constitute a waiver of any applicable privileges. If the defendants anticipate utilizing any of those documents at any upcoming depositions they shall so advise the government beforehand.[14]

On September 11, 2013, the government filed the instant motion for review of the Magistrate Judge's August 28, 2013 order.[15] In its memorandum in support, the government argues that the Magistrate Judge's order requiring the government to produce all of the contested documents is contrary to law because (1) the ruling was based on the "erroneous legal conclusion" that a privilege log claiming attorney-client or work product privileges is deficient as a matter of law if it does not identify an attorney as an author or recipient, (2) the Magistrate Judge erroneously concluded that documents produced prior to a litigation hold cannot be protected by the work product doctrine, and (3) the Magistrate Judge erroneously concluded that the proper remedy is for the government to produce the withheld documents to Bollinger.[16]

On March 12, 2015, the government filed a supplemental memorandum in support of its motion for review.[17] In this memorandum, the government informed the Court that it had undertaken "an extensive document by document re-review" of the withheld documents.[18] As a consequence of this re-review, the government produced 357 documents previously withheld as privileged and provided Bollinger with detailed revisions to the privilege logs clarifying the basis for withholding each privileged document.[19] Bollinger responded arguing that the revised log contains "at least two dozen entries that do not involve attorneys and do not state any other justification for applying the privilege" and objected to the government's continued withholding of communications with employees of the American Bureau of Shipping."[20] On March 26, 2015, the government withdrew its claims of privilege as to the American Bureau of Shipping documents.[21] Thus, the parties original dispute over 776 documents has been whittled down to a contest over approximately two dozen privilege log entries. Nevertheless, despite the resolution of all but approximately two dozen claims, Bollinger urges the Court to deny the government's motion for review and enforce the Magistrate Judge's August 28, 2013 order requiring the government to produce all 776 of the challenged documents.[22]

II. STANDARD OF REVIEW

Federal law affords a magistrate judge broad discretion in the resolution of non-dispositive discovery disputes. Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A). Nevertheless, a party dissatisfied with a magistrate judge's ruling may appeal to the district court for review. Fed.R.Civ.P. 72(a). When a timely objection is raised, the district judge must review the magistrate's ruling and "modify or set aside any part of the order that is clearly erroneous or contrary to law." Id. Under this highly deferential standard, a magistrate judge's ruling "should not be rejected merely because the court would have decided the matter differently." Ordemann v. Unidentified Party, CIV. A. No. 06-4796, 2008 WL 695253, at *1 (E.D. La. Mar. 12, 2008) (internal quotation omitted). Instead, the decision must ...


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