Eastern Technologies, Inc. v. Chem-Solv, Inc.

128 F.R.D. 74, 1989 U.S. Dist. LEXIS 12574, 1989 WL 126506
CourtDistrict Court, E.D. Pennsylvania
DecidedOctober 23, 1989
DocketCiv. A. No. 88-4603
StatusPublished
Cited by8 cases

This text of 128 F.R.D. 74 (Eastern Technologies, Inc. v. Chem-Solv, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eastern Technologies, Inc. v. Chem-Solv, Inc., 128 F.R.D. 74, 1989 U.S. Dist. LEXIS 12574, 1989 WL 126506 (E.D. Pa. 1989).

Opinion

OPINION AND ORDER

VAN ANTWERPEN, District Judge.

This matter comes before the court upon the defendant Chem-Solv, Inc.’s (“ChemSolv”) motion to compel the production of certain documents by plaintiff Eastern Technologies, Inc. At issue is the production of the complete minutes of the Meeting of the Board of Directors of Eastern Technologies, Inc., held on May 9, 1988. Plaintiff is willing to provide only an expurgated version of these minutes, claiming that portions of these minutes are protected by the attorney-client privilege. The issues presented by this motion to compel are whether plaintiff has waived this privilege and, if. not, whether plaintiff may validly claim it.

[75]*75The Federal Rules of Civil Procedure require a party to respond to a request to produce within thirty days. Fed.R.Civ.P. 34(b). The Rule further states:

The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item of category, the part shall be specified.

Claims of privilege can be the basis for an objection. Likewise, a party can claim privilege by means of a request for a protective order made pursuant to Fed.R.Civ.P. 26(c). In the instant case, the plaintiff neither specifically raised a claim of privilege via an objection nor requested a protective order. Plaintiffs response contained copies of the minutes in question with substantial portions deleted. No explanation as to the rationale behind these deletions was provided until counsel for Chem-Solv objected and plaintiffs counsel, by letter dated June 20, 1989, to ChemSolv’s counsel, explained that deletions had been made of portions protected by the attorney-client privilege.

The first issue presented for our consideration is whether the plaintiff has waived the privilege claimed by failure to raise a timely objection. The implications of such failure were discussed in some detail in Boselli v. Southeastern Pennsylvania Transportation Authority, 108 F.R.D. 723, 726 (E.D.Pa.1985):

The failure to object to a discovery request in a timely fashion may constitute a waiver of the objection. Pension Benefit Guaranty Corp. v. Pincus, et al., C.A. No. 83-5244 [1984 WL 2721] (E.D.Pa. May 21, 1984) (Newcomer, J.). However, it is within the Court’s discretion not to compel discovery which is patently improper. Courts generally consider the reasons for the failure to respond to a discovery request and reserve the harshest sanctions only for the most flagrant violations. General Accident Ins. Co. of America v. Fidelity and Deposit Co. of Maryland, et al., C.A. No. 83-3223 [1984 WL 2736] (E.D.Pa. March 19, 1984) (Pollak, J.). The principle that the failure to timely object to a discovery request constitutes a waiver of the objection has been applied with particular regularity when the objections relate solely to the relevance or burdensomeness of the discovery request. Northfleet Corp. v. Consolidated Rail Corp., C.A. No. 83-2992 [1984 WL 2615] (E.D.Pa. April 27, 1984) (Pollak, J.).

It is not that we think that the discovery requested is “patently improper”; rather, we think that, given the specific circumstances of this individual case, the failure to object is not such a “flagrant violation” as to warrant “the harshest sanctions.” Also, the objection belatedly raised does not relate merely to relevance or to burdensomeness.

Among the cases cited by Chem-Solv in support of its argument that the failure to claim the attorney-client privilege in writing operates as a complete waiver of such claim is United States v. O’Neill, 619 F.2d 222 (3d Cir.1980). The privilege at issue in O’Neill was executive privilege. The Third Circuit, in O’Neill, 619 F.2d at 225-26, made brief reference in the following paragraph to Fed.R.Civ.P. 34(b):

When a request for relevant documents or information is made, a claim of privilege should be interposed judiciously and not casually. Under ordinary circumstances, objection to production of documents on the ground of privilege should be made in writing. The same rationale for requiring that a party objecting to a request for production of documents under Fed.R.Civ.P. 34(b) must submit a written response specifying the objection to each category applies equally to the response to a subpoena duces tecum. This gives each party the opportunity to analyze the request and the corresponding objection, and gives the court a fuller record on which to base its ruling. It also provides some assurance that the party asserting the privilege has directed his or her attention to the scope of the claim being asserted.

[76]*76Nothing in O’Neill addresses the problem presented by the instant case. It is not stony silence that has met Chem-Solv’s discovery request. A document was produced, albeit expurgated and without explanation as to the expurgation. Whether such response merits an interpretation that the attorney-client privilege has been waived is at the heart of the instant case. The reference in O’Neill stands only for a general proposition. Unfortunately, the unique facts of the instant case make such a general proposition of limited help.

Fed.R.Civ.P. 37(d) reads in pertinent part: “If a party ... fails ... (3) to serve a written response to a request for inspection submitted under Rule 34, ..., the court in which the action is pending on motion may make such orders in regard to the failure as are just, ...” In the instant case, we do not have a complete failure to respond. We believe that, in producing the minutes in question, the plaintiff was trying to make a good faith effort to comply with discovery. From the gaps that existed in the pages submitted, it would be reasonable for a reader to assume that some sort of privilege was being exercised. We in no way condone the plaintiff’s failure to state the nature of the privilege claimed by way of objection or by motion for protective order. We believe, however, that the nature of the plaintiff’s transgression is not so severe that we should mandate the disclosure of those parts of the minutes which the plaintiff has sought to protect through expurgation.

In addition to arguing that the plaintiff has waived its attorney-client privilege by failure to follow Fed.R.Civ.P. 34(b), ChemSolv also argues that the plaintiff’s chairman, at a preliminary injunction hearing, held before this court on June 19, 1989, revealed “more than the existence of allegedly privileged communications. Actual information as to the contents of the allegedly privileged communication has been revealed.”

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Bluebook (online)
128 F.R.D. 74, 1989 U.S. Dist. LEXIS 12574, 1989 WL 126506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eastern-technologies-inc-v-chem-solv-inc-paed-1989.