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United States v. State

United States District Court, M.D. Louisiana

July 31, 2015

UNITED STATES OF AMERICA
v.
STATE OF LOUISIANA AND LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, et al.

ORDER GRANTING THE UNITED STATES' RENEWED MOTION TO COMPEL

RICHARD L. BOURGEOIS, Jr., Magistrate Judge.

Before the Court is the United States' Renewed Motion to Compel a Proper Privilege Log (R. Doc. 246) from Defendant, the Louisiana Department of Health and Hospitals (DHH), based on a sample of 40 entries listed in DHH's April 17, 2015 privilege log (R. Doc. 243-1) and WIC privilege log (R. Doc. 243-2).

I. BACKGROUND

On February 6, 2015, DHH submitted a 2, 941 page privilege log (R. Doc. 231-4) in response to the United States' second Requests for Production. (R. Doc. 231 at 1). The privilege log listed email communications and their attachments, which DHH claimed were protected from production, in part, by the attorney client privilege and the work product doctrine. (R. Doc. 231-4).

On April 10, 2015, the United States filed its first Motion to Compel a Proper Privilege Log, claiming that all of the descriptions in the privilege log provided by DHH were generally inadequate. (R. Doc. 231). On April 17, 2015, DHH provided the United States with an updated privilege log of 2, 302 pages, deleting "over 1500" communications and documents that DHH had included in its February 6, 2015 privilege log. (R. Doc. 243-3 at 1); (R. Doc. 243-1). On that same day, DHH provided the United States with an additional 259 page privilege log describing "approximately 1, 200" responsive documents withheld in relation to a search of 3 WIC custodians. (R. Doc. 243 at 2 n.1); (WIC Privilege Log, R. Doc. 243-2); (DHH's Opp'n, R. Doc. 236 at 4) (confirming the WIC privilege log contains "approximately 1, 200" entries). The United States argues that the WIC privilege log suffers from the same defects as DHH's April 17, 2015 privilege log. (R. Doc. 243 at 2 n.1). Therefore, the Court has treated the April 17, 2015 privilege log and the WIC privilege log as one. Together, these privilege logs are 2, 561 pages long and contain over 13, 000 entries. (April 17, 2015 Privilege, R. Doc. 243-1); (WIC Privilege Log, R. Doc. 243-2).

On May 22, 2015, the Court issued an Order denying the United States' first Motion to Compel to the extent that it sought production of an entirely revised privilege log. (R. Doc. 245). In that same Order, the Court granted the United States leave to renew its Motion, citing up to 40 specific entries from DHH's privilege log that were exemplary of those the United States challenged as insufficient. (R. Doc. 245 at 5). In the event that the United States chose to renew its Motion, the Court further ordered DHH to "submit copies of any identified and challenged documents to the Court for in-camera review." (R. Doc. 245 at 5).

Pursuant to the Court's Order (R. Doc. 245), the United States filed the instant Renewed Motion to Compel, identifying 40 specific entries from DHH's privilege log that it challenges as insufficient. (R. Doc. 246-1 at 2). These items are divided into four categories, each consisting of ten specific entries - "Category One: Communications By and Between Non-Attorneys"; "Category Two: Communications with Descriptions that Suggest No Privilege Applies"; "Category Three: Communications with Descriptions that are too Vague to Determine whether the Asserted Privilege Applies"; and "Category Four: Communications with Underlying Factual Assertions that Appear Non-Privileged." (R. Doc. 246-1 at 2-10). In a "good faith effort... to narrow the ongoing dispute between the parties regarding the sufficiency of DHH's privilege logs" - and without being prompted by the Court - the United States separately filed a 41-page list of "approximately" 3, 520 entries from DHH's privilege log "as to which it does not contest DHH's claim of privilege." (R. Doc. 252 at 1); (List of Uncontested Entries, R. Doc. 252-1).

In compliance with the Court's Order (R. Doc. 245 at 5), DHH then submitted for in-camera review the documents described in the 40 privilege log entries challenged by the United States. This process has provided the Court with specific entries on the privilege log to review as well as the benefit of determining whether the privilege is being properly asserted notwithstanding any potential deficiency in the privilege log itself.

II. APPLICABLE LAW

Rule 26(b)(5) of the Federal Rules of Civil Procedure requires a party withholding information as privileged to: "(i) expressly make the claim" of privilege; and "(ii) describe the nature" of the withheld information in a way that "will enable other parties to assess the claim." A withholding party must "expressly" make its claim of privilege by submitting some form of privilege log describing the otherwise discoverable information being withheld.

The standard for testing the adequacy of a privilege log is whether each entry sets forth facts sufficient to establish each element of the claimed privilege. "The focus is on the specific descriptive portion of the log, and not on conclusory invocations of the privilege or work-product rule, since the burden of the party withholding documents cannot be discharged by mere conclusory assertions." Chemtech Royalty Assocs., L.P. v. U.S., No. 07-405, 2009 WL 854358, at *3 (M.D. La. March 30, 2009). Generally, a privilege log "should not only identify the date, the author, and all recipients of each document listed therein, but should also describe the document's subject matter, purpose for its production, and specific explanation of why the document is privileged or immune from discovery." Estate of Manship v. U.S., 236 F.R.D. 291, 296 n.4 (M.D. La.), partially vacated on other grounds by 237 F.R.D. 141 (M.D. La. 2006); Haensel v. Chrysler Corp., No. 96-1103, 1997 WL 537687, at *4 (E.D. La. Aug. 22, 1997) (same). "Where a party fails to comply with the requirements of Rule 26(b)(5) by submitting an inadequate privilege log, the claim of privilege may be denied." Manship, 236 F.R.D. at 296 n.4.

III. DISCUSSION

After reviewing the privilege log, the parties' memoranda, and the 40 documents provided by DHH for in-camera review, the Court finds the United States' Renewed Motion to Compel a ...


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