United States District Court, M.D. Louisiana
AIDS HEALTHCARE FOUNDATION, INC.
CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE, THROUGH THE CITY OF BATON ROUGE DIVISION OF HUMAN DEVELOPMENT AND SERVICES
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff's Motion to Compel. (R. Doc. 107).
The motion is opposed. (R. Doc. 116).
discovery dispute concerns this Court's Order dated
October 22, 2018 (R. Doc. 105), which required, in relevant
part, the City of Baton Rouge/Parish of East Baton Rouge,
through the City of Baton Rouge Division of Human Development
and Services (“Defendant” or “EBR”)
to provide to AIDS Healthcare Foundation, Inc.
(“Plaintiff” or “AHF”) a supplemental
privilege log in compliance with Rule 26(b)(5)(A) of the
Federal Rules of Civil Procedure and Local Rule 26(c).
Order provides a detailed history of the parties'
discovery efforts, including the exchange of electronically
stored information (“ESI”). In concluding that
EBR's initial privilege log was insufficient, the Order
provides the following:
EBR's 54-page privilege log, which identifies
approximately 2, 500 withheld emails, is organized
alphabetically by the recipients of the withheld emails, and
indicates the senders of the e-mails, the subject-lines for
the e-mails, the date of the e-mails, and the size of the
e-mails. (R. Doc. 78-1). Some of the names of the recipients
and senders, however, appear to be cut-off of the privilege
log as indicated by ellipses. For various entries, EBR has
redacted the e-mail subject-lines, or portions of those
subject-lines. The privilege log contains handwritten
designations of “A” or “B” next to
various entries, but it is not clear what these letters are
meant to represent. Some redacted subject lines contain the
words “attorney client” or “post
litigation” next to the redactions. Other redacted
subject lines do not have any annotations. It is also unclear
whether any attachments to the e-mails on the privilege log
have been withheld as privileged.
Given the foregoing, the Court concludes that EBR's
privilege log does not meet the requirements set forth in
Rule 26(b)(5)(A) and Local Rule 26(c). EBR must provide a
supplemental privilege log identifying the full names of all
individuals who sent and received the e-mails identified on
the privilege log. In addition, EBR must, at the very least,
identify whether the individuals named on the privilege log
are employed by EBR and whether the individuals are
attorneys. EBR must also provide a brief description of the
subject matter of each withheld e-mail sufficient enough for
AHF to access the claim of privilege. The actual subject line
of an e-mail may provide this information in certain
circumstances. EBR must also specifically identify the basis
on which the e-mail has been withheld from production.
Finally, EBR must clarify whether any attachments have been
withheld from production and, to the extent such attachments
have been withheld, the subject matter of the attachment and
the basis for withholding the attachment.
EBR argues that it should be exempt from the foregoing
requirements largely in light of the volume of withheld
documents on the privilege log and its status as a
governmental entity. The Court disagrees. The number of
e-mails that appear on EBR's privilege log results from
the parties' failure to properly address the needs of ESI
discovery in this action, including the use of strategies to
reduce the number of potentially privileged documents that
are collected in the search of ESI materials. EBR did not
seek to avoid costs regarding its review of privileged
materials by entering into a claw-back agreement regarding
privileged documents or otherwise seek a court order
consistent with Rule 502 of the Federal Rules of Civil
Procedure. See Zubulake v. UBS Warburg LLC, 216
F.R.D. 280, 290 (S.D.N.Y.2003) (noting that parties may enter
into “so-called ‘claw-back' agreements that
allow the parties to forego privilege review altogether in
favor of an agreement to return inadvertently produced
privilege documents”). Under the circumstances, the
Court finds no basis for issuing a protective order
precluding EBR from having to produce a privilege log as
(R. Doc. 105 at 15-16).
November 5, 2018, EBR produced a supplemental privilege log,
which asserts the deliberative process privilege for the
first time. (R. Doc. 107-2).
November 7, 2018, Plaintiff's counsel then wrote a
deficiency letter claiming that the supplemental privilege
log did not comply with the October 22, 2018 Order and
remained insufficient for AHF to assess the claims of
privilege. (R. Doc. 107-3). The letter specifically sought
production of specific withheld emails that did not involve
attorneys or that involved third parties. (R. Doc. 107-3 at
1-2). In response, EBR produced certain emails that did not
involve attorneys, but refused to “summarize the
contents pf privilege attorney-client communications beyond
the subject lines” of the emails remaining on the
privilege log. (R. Doc. 107-4 at 1-2).
November 9, 2018, EBR produced a second supplemental
privilege log that included certain additional subject-matter
descriptions of withheld emails and a statement that all
emails withheld on the basis of attorney-client privilege
involve privileged communications. (R. Doc. 107-5; R. Doc.
107-6). That same day, Plaintiff's counsel wrote another
deficiency letter claiming that the second supplemental
privilege log was also insufficient, claiming that EBR's
assertion of privilege in the second supplemental privilege
log is conclusory. (R. Doc. 107-7).
November 13, 2018, counsel for the parties held a discovery
conference. (R. Doc. 107-8). Defense counsel represents that
at the conference EBR requested AHF to identify of the
specific emails for which it was seeking additional
information “beyond the subject line and brief
descriptions already included.” (R. Doc. 107-8 at 1).
Defense counsel further represents that Plaintiff's
counsel stated that AHF “was not satisfied with the
subject lines and/or descriptions of any of the emails, and
refused to identify any specific emails for which [AHF] was
seeking additional information.” (R. Doc. 107-8 at 1).
Defense counsel requested “the opportunity to limit the
emails on its privilege log to contain only those privileged
items which relate to the decision not to renew AHF's
contract and to decertify AHF from the 340B Program, ”
which consists of information responsive to AHF's
Requests for Production Nos. 1, 3-7, 12-21 and AHF's
Supplemental Requests for Production Nos. 1-12. (R. Doc.
107-8 at 1).
November 14, 2018, Plaintiff's counsel responded by
stating AHF would file a motion if EBR did not provide a
“full and complete privilege log with all 2, 500
entries containing a ‘brief description of the subject
matter of each withheld email sufficient enough for AHF to