United States District Court, E.D. Louisiana
IN RE SUBPOENA DUCES TECUM ISSUED TO ALLIANT INSURANCE SERVICES, INC.
ORDER & REASONS
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE
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.
Alliant objected to producing documents pursuant to the
subpoena, BXSI initiated a miscellaneous action by filing a
motion to compel 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).
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.
doc. 24, p. 2).
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).
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.
(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
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.
ANALYSIS OF THE ISSUES
Whether Alliant and/or its Counsel Violated the March 28
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).
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 ...