Emerson Electric v. Ouellette, et a l . CV-96-364-B 05/12/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Emerson Electric C o .
v. Civil Action No. 96-364-B
Raymond R. Ouellette; Ouellette, Hallisey, Dibble & Tanguay, P.A.
MEMORANDUM AND ORDER
Emerson Electric Co., a manufacturer of electrical equip
ment, retained attorney Raymond R. Ouellette of the law firm of
Ouellette, Hallisey, Dibble & Tanguay, P.A. (collectively the
"defendants") to represent Emerson in a product liability case.
After the jury in that case found Emerson liable, Emerson brought
this action asserting that Ouellette was negligent in preparing
Emerson's defense. In response, defendants sought discovery of
certain communications involving Emerson's in-house and post
verdict counsel. Emerson declined to comply, arguing that the
communications are privileged. The magistrate judge, however,
granted defendants' motion to compel the desired discovery and
subsequently denied Emerson's motion for reconsideration. Emerson now asks that I set aside the magistrate judge's order,
asserting that he erred: (1) in interpreting certain New
Hampshire evidentiary principles to exclude the communications at
issue from the attorney-client privilege; and (2) in finding,
alternatively, that Emerson waived the privilege by failing to
serve defendants with a privilege log pursuant to Fed. R. Civ. P.
26 (b) (5) .
I. BACKGROUND
In the suit underlying the instant action, developer CMB
Construction Co. sued Emerson and another party, Weil-McLain,
Inc., for manufacturing defective heating systems. Emerson made
the igniters and Weil-McLain the overall heating systems for The
Links, a CMB Construction condominium development in Lincoln, New
Hampshire. In December 1988 and January 1989, the heating
systems in several condominiums failed. Pipes froze and burst
causing extensive damage to half the condominium units. Repairs
were not completed until May 1989, after the prime winter-selling
season had ended. Although CMB Construction sold all the damaged
units the next winter, it could not command the same sales price
for the units that it had during the winter of 1988-89 because of
changed market conditions. CMB Construction sought to recover its economic losses and repair costs in its suit against Emerson
and Weil-McLain.
Emerson's assistant general counsel, Michael Keating,
retained Ouellette and his firm to prepare what proved to be an
unsuccessful defense. The jury returned a verdict against both
Emerson and Weil-McLain, finding Emerson liable for repair costs
and $1.4 million in economic-loss damages. Emerson retained new
counsel, James Crawford, to work with Ouellette in arguing
Emerson's post-verdict motions. After the court entered final
judgment against Emerson, it unsuccessfully appealed the decision
represented by Crawford alone.
Emerson argues in the instant action that Ouellette failed
to adeguately address the issue of economic-loss damages at trial
and failed to preserve crucial issues for consideration on
appeal. In response, defendants have sought to discover
Emerson's post-verdict communications with Crawford and any post
verdict communications between Keating and other Emerson
employees.1 Defendants assert that such discovery will help them
establish that Emerson failed to take reasonable steps to avoid
1 Defendants also sought to discover communications between Emerson and Weil-McLain and between Weil-McLain and Crawford. Emerson does not challenge the magistrate judge's rulings with respect to these communications.
- 3 - or limit its damages on appeal, and that its appellate counsel's
negligence was a superseding cause of Emerson's injuries.
Emerson has declined both to produce the reguested communi
cations and to allow Keating and Crawford to testify about them,
asserting that communications between Keating or Crawford and any
Emerson employees taking place after June 7, 1994 (the date of
the jury verdict) are protected by the attorney-client privilege.
The magistrate judge disagreed, interpreting certain New
Hampshire evidentiary principles to exclude the communications
from the attorney-client privilege. Alternatively, the
magistrate judge found that Emerson waived the privilege by
failing to serve defendants with a privilege log, pursuant to
Fed. R. Civ. P. 26(b)(5), describing how each communication at
issue was privileged.
II. STANDARD OF REVIEW
Emerson asks me to set aside the magistrate judge's order
granting defendants' motion to compel discovery. A district
court's review of discovery-related decisions made by a
magistrate judge is governed by Fed. R. Civ. P. 72(a), which
provides: "'The district judge to whom the case is assigned shall
consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly
erroneous or contrary to law.'" Weeks v. Samsung Heavy Indus.
C o ., 126 F.3d 926, 943 (7th Cir. 1997) (guoting Fed. R. Civ. P.
72(a)); accord 28 U.S.C.A. § 636(b) (1) (A) (West 1993); see also
Commodity Futures Trading Comm'n v. Standard Forex, Inc., 882 F.
Supp. 40, 42 (E.D.N.Y 1995) (stating that pre-trial matters
involving discovery, even of privileged materials, are subject to
clearly-erroneous or contrary-to-law standard).
Pursuant to this highly deferential standard, a magistrate
judge is afforded broad discretion in resolving discovery
disputes, and reversal is ordinarily appropriate only if that
discretion is abused. Commodity Futures Trading Comm'n, 882 F.
Supp. at 42; Ellison v. American Nat'l Red Cross, 151 F.R.D. 8,
9-10 (D.N.H. 1993). When the determination in dispute is purely
legal, however, the district court exercises plenary review. See
Cooter & Cell v. Hartmarx Corp., 496 U.S. 384, 402 (1990)
(reviewing court may set aside findings based on "incorrect view
of relevant law"), superseded by rule on other grounds as stated
in Photocircuits Corp. v. Marathon Agents, Inc., 162 F.R.D. 449,
452 (E.D.N.Y. 1995); Mace v. Van Ru Credit Corp., 109 F.3d 338,
340 (7th Cir. 1997) (pure legal determinations reviewed de novo);
United States v. Adlman, 68 F.3d 1495, 1499, 1502 (2d Cir. 1995) (abuse of discretion found where court applied incorrect legal
standard in deciding whether to allow discovery of attorney "work
product"). Similarly, in considering mixed guestions of law and
fact, where the meaning of an applicable legal principle is in
dispute, "the reviewing court is not bound by the clearly
erroneous standard," but has a "duty to look carefully" at the
findings to "detect infection from legal error." LoVuolo v.
Gunning, 925 F.2d 22, 25 (1st Cir. 1991) . I review Emerson's
objection in light of these standards.
III. DISCUSSION
Emerson contends that the magistrate judge erred: (1) in
interpreting certain New Hampshire evidentiary principles to
exclude the communications at issue from the attorney-client
privilege; and (2) in finding, alternatively, that Emerson waived
the privilege by failing to serve defendants with a privilege log
pursuant to Fed. R. Civ. P. 26(b)(5). I examine each contention
in turn.
_____A. New Hampshire Evidentiary Exceptions to __________ Attornev-Client Privilege
Rule 501 of the Federal Rules of Evidence provides in civil
actions such as this, where state law supplies the rule of
decision, that guestions of privilege "shall be determined in accordance with State law." Accordingly, I apply New Hampshire's
law of attorney-client privilege to resolve the instant dispute.
New Hampshire has codified its law of attorney-client
privilege as Rule 502 of the New Hampshire Rules of Evidence.
See Reporter's Notes to N.H.R. Evid. 501 ("These Rules of
Evidence include all presently known New Hampshire common-law
evidentiary privileges."). Rule 502(b) sets forth the general
rule regarding the privilege, stating:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client and his or her representative and the client's lawyer or the lawyer's representative, (2) between the client's lawyer and the lawyer's representative, (3) by the client or the client's representative or the client's lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives ofthe client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.
N.H.R. Evid. 502 (b) .
The privilege described by Rule 502(b), however, is not
absolute. See N.H.R. Evid. 502(d) & Reporter's Notes thereto;
see also McGranahan v. Dahar, 119 N.H. 758, 764 (1979) (attorney-
client privilege may not be absolute when "there is a compelling
need for the information and no alternative source is avail
- 7 - able"); c f . Nelson v. Lewis, 130 N.H. 106, 109 (1987) (patient
partially waives physician-patient privilege by putting medical
condition at issue in medical-negligence suit). Two related
exceptions potentially are germane to the communications at issue
here. Rule 502(d)(3) creates an exception with respect to
communications "relevant to an issue of breach of duty by the
lawyer to his client or by the client to his lawyer." N.H.R.
Evid. 502(d)(3). In addition, the New Hampshire Supreme Court
has held that a client waives the privilege when he places his
communications with his attorney "at issue." See Aranson v.
Schroeder, 140 N.H. 359, 369-70 (1995) . I examine the
applicability of each exception to the contested communications.
(1) Rule 502(d)(3)
Defendants contend, and the magistrate judge held, that Rule
502(d)(3) excludes communications from the attorney-client
privilege where the assertion of the privilege results from an
affirmative act on the part of the privilege-holder, such as
filing a malpractice lawsuit, and where the application of the
privilege would deny the opposing party information relevant to
its case. I reject this argument, because it is based upon an
overly broad reading of the exception. Rule 502(d)(3) is modeled on a proposed but never adopted
federal rule of evidence. Rule 503(d) (3), and is "consistent
with" Disciplinary Rule 4-101(C) (4) of the Model Code of
Professional Responsibility ("CPR"). See Reporter's Notes to
N.H.R. Evid. 502(d)(3). There are "no New Hampshire cases
asserting this exception." See id. Nevertheless, interpreta
tions of similar provisions adopted by other states and
interpretations of CPR Disciplinary Rule 4-101(C)(4) provide
guidance as to how the New Hampshire Supreme Court would
interpret Rule 502(d)(3). These sources indicate that a New
Hampshire court would narrowly interpret the exception to apply
only to communications between the client and the attorney
charged with wrongdoing.
Section 958 of the California Evidence Code, Cal. Evid. Code
§ 958 (West 1997), served as a principal model for proposed Fed.
R. Evid. 503(d)(3), the rule on which N.H.R. Evid. 502(d)(3) was
based. See Advisory Committee Notes to Supreme Court Standard
503(d)(3), reprinted in 3 Jack B. Weinstein & Margaret A. Berger,
Weinstein's Federal Evidence § 503App.01(2), at 5 03App.-6 (Joseph
M. McLaughlin ed., 1997); 24 Charles A. Wright & Kenneth W.
Graham, Jr., Federal Practice and Procedure § 5471, at 53-54 &
n.42 (1986) (California evidentiary code provisions, including
- 9 - section 958, "were influential in the drafting of Rejected
[Federal] Rule 503"). The California rule reads similarly to the
New Hampshire rule at issue here, stating that "[t]here is no
privilege under this article as to a communication relevant to an
issue of breach[] by the lawyer . . . of a duty arising out of
the lawyer-client relationship." Cal. Evid. Code § 958. In
interpreting such language, the California courts have held that
"section 958 was not intended to abrogate the [attorney-client]
privilege as to communications between the client and the lawyer
representing the client when suit is filed against a former
lawyer for malpractice. The exception is limited to
communications between the client and the attorney charged with
malpractice." Schlumberger Ltd. v. Superior C t ., 171 Cal. Rptr.
413, 416-17 (Cal. C t . A p p . 1981).
Proposed Fed. R. Evid. 503(d)(3) served in turn as a model
for numerous state provisions, including, for example, section
905.03(4)(c) of the Wisconsin evidentiary code, Wis. Stat. Ann. §
905.03(4)(c) (West 1997). See 24 Wright & Graham, supra, § 5471,
at 56-57 & n.48. The Wisconsin provision contains identical
language to the New Hampshire rule at issue here, stating that
"[t]here is no privilege . . . [a]s to a communication relevant
to an issue of breach of duty by the lawyer to the lawyer's
- 10 - client." Wis. Stat. Ann. § 905.03(4) (c) . Like the California
courts, the Wisconsin courts have construed such language
narrowly, holding that "a waiver of the lawyer-client privilege
by maintaining a legal malpractice action cannot be inferred from
the language of sec. 905.03(4) (c) . . . . [That section] excepts
from the privilege only communications between the client and the
lawyer who is accused of a breach of duty." Dyson v. Hempe, 413
N.W.2d 379, 386-87 (Wis. C t . App. 1987).
Finally, commentators interpreting CPR Disciplinary Rule 4-
101(C)(4), another rule on which N.H.R. Evid. 502(d)(3) was
based, see Reporter's Notes to N.H.R. Evid. 502(d)(3), have also
construed the scope of the eguivalent language narrowly.
Disciplinary Rule 4-101(C)(4) states that a lawyer may reveal
" [c]onfidences or secrets necessary to establish or collect his
fee or to defend himself . . . against an accusation of wrongful
conduct." Model Code of Professional Responsibility DR 4-
101(C)(4), reprinted in Charles W. Wolfram, Modern Legal Ethics
App. B, at 1049 (1986). The commentary to the rule construes
such language to mean that "[an] attorney may disclose
information received from the client when it becomes necessary
for his own protection, as if the client should bring an action
against the attorney for negligence or misconduct . . . . [T]he
- 11 - rule as to privileged communications does not apply when
litigation arises between attorney and client to the extent that
their communications are relevant to the issue." Model Code of
Professional Responsibility DR 4-101(C)(4) n.19 (emphases added),
reprinted in Wolfram, supra, App. B, at 1050.
Moreover, Section 116 of the Restatement (Third) of Law
Governing Lawyers, which was modeled on Disciplinary Rule 4-
101(C)(4), see Reporter's Note cmt. b to Restatement (Third) of
Law Governing Lawyers § 116 (Proposed Final Draft No. 1, 1996),
contains language similar to that rule and interprets such
language similarly. Section 116 states that "[a] lawyer may use
or disclose confidential client information when and to the
extent that the lawyer reasonably believes it necessary in order
to defend the lawyer . . . against a charge . . . [of having]
acted wrongfully in the course of representing [a] client." Id.
§ 116. The comments to section 116 construe such language to
mean that an attorney may "reveal information confidentially
acquired by him in the course of his agency in the protection of
a superior interest of himself." Id. § 116 cmt. b (emphasis
added).
Based on interpretations of similar provisions adopted by
other states and interpretations of CPR Disciplinary Rule 4-
- 12 - 101(C)(4), I conclude that a New Hampshire court would construe
the language of Rule 502(d)(3) narrowly to apply only to
communications between the client and the attorney the client has
charged with wrongdoing. Conseguently, because the communi
cations at issue here did not occur between Emerson and the
defendants, defendants cannot take advantage of Rule 502(d)(3) in
seeking production of those communications.2
(2) At-Issue Waiver
Although the parties do not expressly address whether the
at-issue waiver rule applies to the communications at issue,
defendants' brief implies that the waiver should apply to
otherwise privileged communications where, as here, the party
asserting the privilege has initiated the lawsuit and the
communications are relevant to the opposing party's case. In
contrast, Emerson's brief impliedly advocates for a more limited
application of the exception wherein communications would lose
the protection of the privilege only where the privilege-holder
2 This reading of Rule 502(d)(3) is consistent with the New Hampshire Supreme Court's privilege-protective interpretation of the at-issue waiver rule. See Aranson, 140 N.H. at 369-70. As I explain below, the court has determined that a litigant waives the attorney-client privilege by placing confidential communications "at issue" only to the extent that the client "injects the [sought-after] privileged material itself into the case." Id. at 370.
- 13 - itself injects the privileged material into the case. Because
the New Hampshire Supreme Court has already adopted an inter
pretation consistent with Emerson's view of the exception, see
Aranson, 140 N.H. at 369-70, I must reject the interpretation
proffered by defendants.
In determining when the at-issue waiver applies, courts
employ one of three approaches. See Frontier Refining, Inc. v.
Gorman-Rupp Co., 136 F.3d 695, 699-700 (10th Cir. 1998). The
"automatic-waiver" rule provides that a litigant automatically
waives the attorney-client privilege upon assertion of a claim,
counterclaim, or affirmative defense that raises an issue to
which otherwise privileged material is relevant. See Independent
Prods. Corp. v. Loew's Inc., 22 F.R.D. 266, 276-77 (S.D.N.Y.
1958). A second approach provides that a litigant only waives
the privilege when the sought-after material is both relevant to
the issues raised in the case and either vital or necessary to
the opposing party's defense. See Hearn v. Rhav, 68 F.R.D. 574,
581 (E.D. Wash. 1975). Finally, "several courts have recently
concluded that a litigant waives the attorney-client privilege
if, and only if, the litigant directly puts the attorney's advice
at issue in the litigation." Frontier Refining, Inc., 136 F.3d
at 699-700; see, e.g., Rhone-Poulenc Rorer, Inc. v. Home Indem.
- 14 - C o ., 32 F.3d 851, 863-64 (3d Cir. 1994) ("The advice of counsel
is placed in issue [only] where the client asserts a claim or
defense, and attempts to prove that claim or defense by
disclosing or describing an attorney client communication.").
In Aranson, the New Hampshire Supreme Court adopted the last
of these three approaches. See 140 N.H. at 369-70. Specifi
cally, the court limited the waiver to "circumstances in which
the privilege-holder injects the [sought-after] privileged
material itself into the case" such that "the information is
actually reguired for the resolution of [an] issue." Id. at 370
(internal guotations omitted).
Applying the Aranson test to the facts of the instant case,
I hold that the at-issue waiver exception does not apply to
communications between Emerson and either Keating or Crawford
that occurred after the jury verdict. First, defendants have
failed to show that Emerson has injected its post-verdict
communications with either Keating or Crawford into the
litigation as a means of establishing that Ouellette was
negligent. See Greater Newburvoort Clamshell Alliance v. Public
Serv. C o . of N .H ., 838 F.2d 13, 20 (1st Cir. 1988) (holding that
the party seeking privileged information bears the burden of
establishing that access to the information is reguired for the
- 15 - resolution of a claim). Although the communications defendants
seek to discover may well be relevant, " [ r ] e l e v a n c e is not the
standard for determining whether or not evidence should be
protected from disclosure as privileged . . . even if . . . the
facts to be disclosed are vital, highly probative, directly
relevant[,] or even go to the heart of an issue." Rhone-Poulenc
Rorer, Inc., 32 F.3d at 864. Accordingly, because Emerson has
disavowed any intention of relying on confidential post-verdict
communications between it and Crawford or Keating in proving its
case, it has not waived the privilege with respect to such
communications by bringing its claim against trial counsel.3
3 Defendants' reliance on Johnson v. Shaines & McEachern, P.A.. No. Civ. 93-238-L, 1994 U.S. Dist. LEXIS 16276 (D.N.H. Oct. 4, 1994), and Inserra v. Hamblett & Kerrigan, P.A., No. Civ. 94- 454-M, 1995 WL 54402 (D.N.H. Jan. 31, 1995), as precedent for ordering Emerson to turn over its post-verdict communications is misplaced. Both cases were decided before Aranson and, conseguently, articulated the at-issue waiver rule differently from Aranson. Nevertheless, both courts reached results consistent with Aranson, allowing discovery only because the sought-after communications had been placed directly at issue by the plaintiffs. See Johnson, 1994 U.S. Dist. LEXIS 16276, at *2 (where plaintiff placed at issue reasonableness of his reliance on defendant attorney's advice, plaintiff waived attorney-client privilege as to communications with another attorney who had previously represented plaintiff in a number of similar matters); Inserra, 1995 WL 54402, at * 1-2 (where plaintiff placed at issue reasonableness of his reliance on defendant attorney's advice, plaintiff waived attorney-client privilege as to communications with another attorney who simultaneously represented plaintiff in same transaction). Defendants also rely on a number of decisions from other
- 16 - Defendants also have failed to satisfy the Aranson test
because they cannot establish that the information they seek is
"actually required for the resolution of [an] issue." Aranson,
140 N.H. at 370. Defendants have raised two related defenses in
response to Emerson's negligence charge, namely that Emerson
failed to take reasonable steps to amend or limit its damages on
appeal and that its appellate counsel's negligence was a super
seding cause of Emerson's injuries. Such defenses ordinarily are
evaluated using an objective test. See Flanagan v. Prudhomme,
jurisdictions. I choose not to follow the cases, however, because they either are inapposite, in that the sought-after communications had been placed directly at issue by the plaintiffs, or they employ an at-issue waiver test that the New Hampshire Supreme Court has expressly rejected. See, e.g., Kavlawongsa v. Moffett, 105 F.3d 283, 290-91 (6th Cir. 1997) (where plaintiff contested reasonableness of defendant attorney's fees, plaintiff waived attorney-client privilege as to communications with another attorney who simultaneously represented plaintiff in same transaction); Bieter Co. v. Blomguist, 156 F.R.D. 173, 176-79 (D. Minn. 1994) (where plaintiff placed at issue reasonableness of his reliance on defendant attorney's advice, plaintiff waived attorney-client privilege as to communications with another attorney who simultaneously represented plaintiff in same transaction); National Excess Ins. Co. v. Civerolo, Hansen & Wolf, P.A., 13 9 F.R.D. 398, 400-01 (D.N.M. 1991) (where plaintiff brought malpractice suit against attorney for, inter alia, negligent appeal of unfavorable jury verdict, plaintiff waived attorney- client privilege as to communications with another attorney who simultaneously offered advice to plaintiff regarding the appeal); Byers v. Burleson, 100 F.R.D. 436, 438-40 (D.D.C. 1983), criticized in Rhone-Poulenc Rorer, Inc., 32 F.3d at 864, as applying the Hearn relevancy test.
- 17 - 138 N.H. 561, 575 (1994) ("As a general rule, plaintiffs may not
recover damages for harm that could have been avoided through
reasonable efforts or expenditures." (emphasis added));
Restatement (Second) of Torts § 918 (1977) (same); Burns v.
Bradley, 120 N.H. 542, 545 (1980) ("The test for negligence is
whether [a] reasonably prudent person under the circumstances
should recognize and foresee an unreasonable risk or likelihood
of harm to others." (emphasis added)); Restatement (Second) of
Torts § 283 cmt. c (1964) (Negligence is measured by "an
objective and external [standard], rather than that of the
individual judgment, good or bad, of the particular
individual.") .
Defendants can prove both defenses solely by reference to
the appropriate standard of care and to Crawford's and Keating's
actions, the outcomes of which are matters of public record.
Conseguently, although the communications at issue may be
relevant to defendants' mitigation and superseding-cause-of-
injury defenses, because the privileged information is not
reguired for the resolution of either defense, defendants cannot
take advantage of the at-issue waiver exception. See Aranson,
140 N.H. at 370; see also Rhone-Poulenc Rorer, Inc., 32 F.3d at
864 .
- 18 - B. Failure to Serve Privilege Log as _____ Waiver of Privilege
Emerson also contends the magistrate judge erred in finding
that Emerson waived the attorney-client privilege as to the
communications at issue by failing to serve defendants with a
privilege log, pursuant to Fed. R. Civ. P. 26(b)(5).
Rule 26(b)(5) provides that when a party claims materials
are exempt from disclosure because of a privilege, the party must
describe the nature of the withheld materials in a manner that
will enable other parties and the court to assess the applica
bility of the privilege. Fed. R. Civ. P. 26(b)(5). The scope of
the description necessary to satisfy Rule 26(b)(5) need only be
so broad as to permit this assessment. 8 Charles A. Wright et
al.. Federal Practice and Procedure § 2016.1, at 234-35 (2d ed.
1994) (warning that rigid insistence on certain logging
procedures "may go well beyond" what Rule 26(b)(5) reguires);
accord Advisory Committee Notes to Fed. R. Civ. P. 26(b)(5) ("The
rule does not attempt to define for each case what information
must be provided when a party asserts a claim or privilege
. . . ."). Nevertheless, a blanket claim of privilege is
generally an inadeguate response to a discovery reguest. See
- 19 - Obiaiulu v. City of Rochester, 166 F.R.D. 293, 295 (W.D.N.Y.
1996).
A different principle applies, however, where, for the
purposes of its motion to compel discovery, the party seeking
discovery concedes that the materials at issue are privileged and
asks the court only to determine whether the privilege-holder has
waived the privilege as to a whole category of materials. See
Jackson v. County of Sacramento, 175 F.R.D. 653, 656 (E.D. Cal.
1997) ("[T]he duty to provide the description reguired by Rule
26(b) (5) is flexible and does not arise until there is a good
faith challenge to the privilege claim."); First Fidelity
Bancorp, v. National Union Fire Ins. Co., No. Civ.A.90-1866, 1992
WL 55742, at *2 (E.D. Pa. Mar. 13, 1992). Under such circum
stances, a statement asserting that the privilege protects
various categories of documents will satisfy Rule 26(b) (5) until
such time as the court decides the waiver issue. See Jackson,
175 F.R.D. at 656; see also Durkin v. Shields (In re Imperial
Corp. of Am.), 174 F.R.D. 475, 477 (S.D. Cal. 1997) (holding that
"nowhere in Fed. R. Civ. P. 26(b)(5) is it mandated that a
document-by-document privilege log is reguired"); SEC v .
Thrasher. No. 92 Civ. 6987 (JFK), 1996 WL 125661, at *1 (S.D.N.Y.
Mar. 20, 1996) ("[I]n appropriate circumstances, the court may
- 20 - permit the holder of withheld documents to provide summaries of
the documents by category . . . .
Here, defendants have never contested Emerson's claim that
the communications at issue are privileged. Rather, they have
asserted that by filing the instant suit, Emerson waived its
attorney-client privilege as to the broad categories of
communications defendants seek. Under such circumstances, until
such time as he decided the waiver issue, the magistrate judge
should have allowed Emerson to satisfy its Rule 26(b)(5) burden
through an assertion of privilege as to each category of
documents sought. See Jackson, 175 F.R.D. at 656; Durkin, 174
F.R.D. at 477. Because the magistrate judge failed to do so, I
must set his decision aside. See LoVuolo, 925 F.2d at 25.
Instead, because Emerson timely provided both the reguired
statement of privilege by category (in response to defendants'
discovery reguest) and a more detailed privilege log (immediately
following the magistrate judge's ruling on the waiver issue), I
hold that Emerson satisfied its Rule 26(b)(5) burden and has not
waived its privilege as to the communications at issue with
respect to that rule.
- 21 - IV. CONCLUSION
For the foregoing reasons, I conclude that the otherwise
privileged communications defendants seek to discover are not
exempt from the attorney-client privilege either pursuant to
N.H.R. Evid. 502(d)(3) or based on a common law at-issue waiver.
Further, I conclude that Emerson did not lose the right to claim
that the sought-after communications are privileged by failing to
produce a privilege log. To the extent that the magistrate
judge's order is inconsistent with these conclusions, the order
is reversed.4
SO ORDERED.
Paul Barbadoro Chief Judge
May 12, 1998
cc: Russell F. Hilliard, Esg. Michael B. Powers, Esg. Henry A. Pierce, Esg.
4 I reach no conclusion with respect to any particular privilege claim. The only issue I decide in this order is that Emerson did not waive its claim of privilege as to the contested categories of communications either by placing those communications at issue or by failing to provide a privilege log.
- 22 -