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In re Subpoena Duces Tecum Issued to Alliant Insurance Services, Inc.

United States District Court, E.D. Louisiana

May 17, 2018

IN RE SUBPOENA DUCES TECUM ISSUED TO ALLIANT INSURANCE SERVICES, INC.

         SECTION: “A” (5)

          ORDER & REASONS

          MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE

         I. PROCEDURAL BACKGROUND

         This miscellaneous matter arises out of a Rule 45 subpoena duces tecum issued to non-party, Alliant Insurance Services, Inc. (“Alliant”) in case No. 17-CV-7604, entitled “McLaughlin v. BancorpSouth Insurance Services, Inc.” The Defendant in that case, BancorpSouth Insurance Services, Inc. (BXSI”), issued the subject subpoena to Alliant - the current employer of Plaintiff, Scott McLaughlin (“McLaughlin”), seeking production of a wide variety of documents related to Alliant's recruitment and hiring of McLaughlin.

         When Alliant objected to producing documents pursuant to the subpoena, BXSI initiated a miscellaneous action by filing a motion to compel[1] in the Middle District of Louisiana (where compliance with the subpoena was commanded). That Court granted the parties' consent motion to transfer the matter to this Court. (Rec. docs. 8-10).

         This Court held a hearing on BXSI's motion and, as reflected in its minute entry dated March 28, 2018, ordered the production of certain documents to BXSI and ordered the submission of others to the Court for in camera review. (Rec. doc. 24) (the “March 28 Order”). Most pertinent here, the Court ordered the following:

In addition, within 14 days, Alliant is to provide the Court and BancorpSouth with a privilege log identifying any and all communications involving McLaughlin made between Fowler Rodriguez and Alliant and/or any Alliant personnel that predate McLaughlin's resignation date. Upon receipt of that log, the Court will notify counsel for both parties whether it will order any documents identified on the log to be produced for in camera review.

         (Rec. doc. 24, p. 2).

         In response to the foregoing directive, Alliant submitted a privilege log listing 17 documents said to be subject to the attorney-client privilege and/or the work product privileges. Following review of that log, the Court ordered the production of the 17 documents for in camera review. (Rec. doc. 25). Alliant provided those documents on April 9, 2018, along with a cover letter that included the statement “So far we have uncovered no communications amongst Alliant employees (i.e. where Fowler Rodriguez was not a party) that may contain privileged information, but Alliant has not completed the search of all the potential e-custodians and hopes to complete this exercise by this week.” (Rec. doc. 28-2, p. 1).

         On April 16, 2018, counsel for Alliant provided four additional documents said to have been inadvertently omitted from production, bringing the total documents produced for in camera inspection to 21.

         Subsequently (and unknown to the Court), counsel for Alliant provided counsel for BXSI another privilege log pertaining to some 90 additional documents involving internal Alliant communications concerning McLaughlin. (Rec. doc. 29). Counsel for BXSI then provided that log to the Court, apparently over Alliant's objection, stating in his cover letter that “[w]e have conferred with counsel for Alliant and they have taken the position that this log was not requested by the Court and it is inappropriate to share this log with Judge North. However, BXSI disagrees and gave Alliant's counsel the opportunity to provide the log to the Court and they declined.” (Id. (cover letter of Parker Kilgore)).

         Upon receipt of the log from BXSI, and believing that it was, indeed, responsive to the March 28 Order, the Court issued a Rule to Show Cause directing counsel for Alliant to appear and show cause why they and/or Alliant should not be held in contempt of the Court's March 28 Order. (Rec. doc. 26). The Court also ordered Alliant to produce the 90 documents described in the log for in camera review. (Id.). Alliant promptly produced the documents for in camera review and filed a response to the show-cause order. (Rec. doc. 27). BXSI filed a response of its own (rec. doc. 28) and the show-cause hearing went forward on May 16, 2018.

         II. ANALYSIS OF THE ISSUES

         A. Whether Alliant and/or its Counsel Violated the March 28 Order

         Explaining why it failed to produce the most recent privilege log to the Court, Alliant states in its response to the Court's show-cause order that “[i]n sum, Alliant did not produce this log to the Court because it was not covered by the Court's Order.” (Rec. doc. 27 at p. 4). In reply, BXSI offers “[t]here is no credible argument that the documents listed on the April 22 log are not responsive to BXSI's subpoena request, as modified by this Court in its Order compelling the production of responsive documents or their identification on a privilege log if not produced.” (Rec. doc. 28 at p. 3).

         Alliant appears to argue that the language the Court employed in its minute entry did not speak to internal Alliant communications that did not involve counsel's law firm: “The second log at issue does not contain any communications with Fowler Rodriguez (nor does it contain internal Alliant communications that pass along communications from Fowler Rodriguez). (Rec. doc. 27 at p. 2)(emphasis added). But the Court's minute entry says nothing about “passing along” communications; it called for production of a log “identifying any and all communications involving ...


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