Durkin v. Shields

174 F.R.D. 475, 1997 U.S. Dist. LEXIS 18040, 1997 WL 458091
CourtDistrict Court, S.D. California
DecidedJuly 31, 1997
DocketNo. 92-1003-IEG(LSP)
StatusPublished
Cited by11 cases

This text of 174 F.R.D. 475 (Durkin v. Shields) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Durkin v. Shields, 174 F.R.D. 475, 1997 U.S. Dist. LEXIS 18040, 1997 WL 458091 (S.D. Cal. 1997).

Opinion

ORDER REGARDING PRIVILEGE LOGS

PAPAS, United State Magistrate Judge.

On June 26, 1997, this court granted in part and denied in part defendant Shea & Gould’s Motion to Compel Compliance With Subpoenas. The court’s order of that date indicates that “as to all documents to which a privilege is claimed, a privilege log consistent with Miller v. Pancucci [ (141 F.R.D. 292 (C.D.Cal.1992)) ] must be prepared.” However, the court allowed plaintiffs to submit authority to the court proposing an alternative approach to the production of documents ordered. The court also allowed Shea & Gould to respond. On June 27, 1997, the court received plaintiffs’ letter brief on the subject which argues that the itemization in Miller should not be followed. On July 3, 1997, the court received a letter brief from Robert W. Brownlie, one of the attorneys for Shea & Gould, in opposition.

The plaintiffs argue the court should not require them to produce a document-by-document privilege log. Rather, it should allow plaintiffs to assert privilege and work-product protections on a categorical basis. Plaintiffs believe that this position is warranted in this instance because many of the documents sought by Shea & Gould were created during the course of this litigation during and after the time the firm was actively representing a party in this case. Therefore, to force plaintiffs to produce a privilege log consistent with the detail and specificity required by Miller would unnecessarily intrude into and/or disclose plaintiffs’ counsels’ thoughts, impressions, opinions, strategies and advice regarding various aspects of this litigation.

Shea & Gould, on the other hand, argues that practice in this circuit requires a document-by-document privilege log be produced if requested documents are being withheld on the basis of privilege or work product. Shea & Gould asserts that unless a document-by-document privilege log is provided for every document for which plaintiffs claim a privilege, plaintiffs will fail to make a prima facie showing that a privilege or work-product protection protects the information that plaintiffs seek to withhold. Moreover, Shea & Gould contend that courts in this circuit [477]*477have required the production of document-by-document privilege log regardless of the number of documents involved.

Federal Rule of Civil Procedure 26(b)(5) states:

Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

As indicated in Fed.R.Civ.Pro. 26(b)(5), when information is withheld on the basis of privilege or work-product protection, the withholding party must expressly claim the privilege and describe the nature of the documents or communications not disclosed in a manner that will enable other parties to assess the applicability of the privilege or protection. Failure to do so may constitute an “implied” waiver of the privilege or protection. Clarke v. American Commerce National Bank, 974 F.2d 127, 129 (9th Cir.1992) citing U.S. v. El Paso Co., 682 F.2d 530, 541-42 (5th Cir.1982) cert. denied 466 U.S. 944, 104 S.Ct. 1927, 80 L.Ed.2d 473 (1984). Courts in this circuit have also held that where hundreds of documents are requested, “blanket objections” to production based on privilege and/or work product are improper. Therefore, any privilege objection should be specific with respect to documents or other communications. “Although it may be time-consuming to specifically assert the attorney-client privilege in a document intensive litigation ... courts nevertheless clearly require such specific identification.” Eureka Financial Corporation v. Hartford, Accident and Indemnity Company, 136 F.R.D. 179,182-83 (E.D.Cal.1991).

Litigants who seek to withhold documents often satisfy their obligation to specify the basis for their privilege and/or work product objections by preparing a doeument-by-document privilege log. This document assigns a number to each withheld document, describes each document in general terms, and states a basis for the privilege objection. Miller v. Pancucci, supra; McCaugherty v. Siffermann, 132 F.R.D. 234 (N.D.Cal.1990); Dole v. Milonas, 889 F.2d 885, 890 (9th Cir. 1989).

However, no where in Fed.R.Civ.Pro. 26(b)(5) is it mandated that a document-by-document privilege log is required, if a party seeks to withhold documents based on privilege or work product. In fact, the Advisory Committee Notes following Rule 26 indicate that a document-by-document privilege log is not required in certain circumstances. The Advisory Committee Notes state, in pertinent part:

The rule [Fed.R.Civ.Pro. 26(b)(5)] does not attempt to define for each case what information must be provided when a party asserts a claim of privilege or work product protection. Details concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories ----(emphasis added)

The Ninth Circuit has also stated that while the party asserting the privilege must make a prima facie showing that the privilege protects the information it intends to withhold, a privilege log is one of a number of ways in which a party may sufficiently establish the privilege. In re Grand Jury Investigation, 974 F.2d 1068 (9th Cir.1992).

Plaintiffs cite to the case of SEC v. Thrasher, 1996 WL 125661 (S.D.N.Y.1996), which faced a similar problem that the court discusses here. In Thrasher, the SEC requested that a defendant produce “all documents reflecting contacts between his attorneys and those of other defendants in connection with (that litigation).” The defendant objected to the SEC’s request and refused to provide a detailed privilege log identifying each of the documents he sought to withhold. The court held that while a privilege log identifies each document sought to be withheld, “courts retain some discretion to permit less detailed dis[478]*478closure in appropriate cases.” Id. at *1. The court also held that “... in appropriate circumstances, the court may permit the holder of withheld documents to provide summaries of the documents by category or otherwise limit the extent of his disclosure.” (emphasis added) Id. at *1. The Thrasher court reasoned that:

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Bluebook (online)
174 F.R.D. 475, 1997 U.S. Dist. LEXIS 18040, 1997 WL 458091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durkin-v-shields-casd-1997.