Garcia v. E.J. Amusements of New Hampshire, Inc.

89 F. Supp. 3d 211, 2015 U.S. Dist. LEXIS 26977, 2015 WL 996443
CourtDistrict Court, D. Massachusetts
DecidedMarch 5, 2015
DocketCivil Action No. 13-12536-PBS
StatusPublished

This text of 89 F. Supp. 3d 211 (Garcia v. E.J. Amusements of New Hampshire, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garcia v. E.J. Amusements of New Hampshire, Inc., 89 F. Supp. 3d 211, 2015 U.S. Dist. LEXIS 26977, 2015 WL 996443 (D. Mass. 2015).

Opinion

MEMORANDUM AND ORDER

SARIS, District Judge.

Non-Party Centro de los Derechos del Migrante, Inc. (CDM), which describes itself as a non-profit legal services organization, objects in part to the magistrate judge’s order requiring the organization to produce privilege logs for documents sought by Defendants E.J. Amusements of New Hampshire, Inc., et al. (Docket Nos. 122, 125). Defendants issued a subpoena to CDM seeking three categories of information: research materials referring to Plaintiff Jorge Garcia that were used to prepare a report on the abuse of migrant workers in the fair and carnival industry (Category 1); CDM’s communications with Garcia regarding his employment by defendants (Category 2); and CDM’s correspondence relating to Garcia’s attendance at a meeting with labor officials from the United States and Mexico (Category 3). CDM moved to quash the subpoena and sought a protective order on the grounds of attorney-client privilege, academic researcher privilege, attorney work product, and undue burden. (Docket No. 64). The magistraté judge denied the motions without prejudice and ordered CDM to produce a privilege log for all the documents sought. (Docket Nos. 122,125).

CDM now objects in part to the magistrate judge’s order. The organization does not object to producing a privilege log for Category 2, CDM’s communications with Garcia regarding his employment by defendants. But it argues that producing a, responsive privilege log for Category 1 will itself reveal privileged information, and producing- the logs for Categories 1 and 3 will be an undue burden. The magistrate judge stayed the order pending the out[214]*214come of these objections. (Docket Nos. 177, 178). CDM’s Objections to Magistrate Judge’s Ruling (Docket No. 137) are OVERRULED.

I. LEGAL STANDARDS

A district judge may reconsider a pretrial ruling of a magistrate judge only “where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a). Under the “clearly erroneous” standard, the Court will accept the magistrate judge’s findings of fact and conclusions drawn therefrom unless “after scrutinizing the entire record, we form a strong, unyielding belief that a mistake has been made.” Phinney v. Wentworth Douglas Hasp., 199 F.3d 1, 4 (1st Cir.1999) (quotation marks omitted). Under the “contrary to law” standard, the district court’s review is plenary. See PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15 (1st Cir.2010) (“[F]or questions of law, there is no practical difference between review under Rule 72(a)’s ‘contrary to law1 standard and review under Rule 72(b)’s de novo standard.”).

II. DISCUSSION

A. Category 1 — Research Materials Referring to Garcia Used to Prepare a Report on Abuse of Migrant Workers in Carnival Industry

CDM first objects to the magistrate judge’s order because it requires the organization to create a privilege log with respect to certain research materials referring to Plaintiff Garcia. These materials were allegedly used for a report on the abuse of migrant workers in the fair and carnival industry, which was coauthored by CDM and a clinic at the Washington College of Law at American University. CDM argues that the people they interviewed for the report agreed to do so on the condition of anonymity. As a result, producing a privilege log responsive to defendants’ subpoena, CDM says, would necessarily require them to disclose whether Garcia participated in the report.

With respect to the discovery of confidential information compiled by academic researchers, the First Circuit has instructed courts to apply a multi-factor balancing test:

Each party comes to this test holding a burden. Initially, the movant must make a prima facie showing that his claim of need and relevance is not frivolous. Upon such a showing, the burden shifts to the objector to demonstrate the basis for withholding the information. The court must then place those factors that relate to the movant’s need for the information on one pan of the scales and those that reflect the objector’s interest in confidentiality and the potential injury to the free flow of information that disclosure portends on the opposite pan.

Cusumano v. Microsoft Corp., 162 F.3d 708, 716 (1st Cir.1998) (citing Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 597-98 (1st Cir.1980)). “[Concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs.” Id. at 717.

At this threshold stage, the Court does not need to determine whether CDM qualifies for this academic privilege, or how to balance the competing interests with respect to the research materials sought by defendants. The magistrate judge’s order does not definitively rule on whether CDM’s materials are protected by attorney-client privilege, attorney work product, or an academic researcher privilege. Rather, the order simply requires CDM to briefly describe the nature of each [215]*215document involving a plaintiff in litigation so that the parties and the court can assess the claims of privilege. This is consistent with Federal Rule of Civil Procedure 26(b)(5)(A)(ii), which requires a party claiming privilege to “describe the nature of the documents, communications, or tangible things not produced or disclosed — and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” “Whatever quantum of proof is necessary to satisfy this obligation, a blanket assertion of privilege is generally insufficient.” In re Grand Jury Subpoena (Mr. S.), 662 F.3d 65, 71 (1st Cir.2011) (citations omitted). “Determining whether documents are privileged demands a highly fact-specific analysis — one that most often requires the party seeking to validate a claim of privilege to do so document by document.” Id. The “universally accepted means” of claiming that documents are privileged is the production of a privilege log. In re Grand Jury Subpoena, 274 F.3d 563, 576 (1st Cir.2001) (quoting Avery Dennison Corp. v. Four Pillars, 190 F.R.D. 1, 1 (D.D.C.1999)).

The Court recognizes that creating a privilege log in these circumstances may necessarily require CDM to disclose whether Garcia was one of the anonymous contributors to its report. But CDM’s interest in protecting Garcia’s identity is diminished here. CDM has already agreed to create a privilege log for Category 2, which functionally discloses Garcia as one of CDM’s clients in the advocacy arm of the organization.

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Bluebook (online)
89 F. Supp. 3d 211, 2015 U.S. Dist. LEXIS 26977, 2015 WL 996443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garcia-v-ej-amusements-of-new-hampshire-inc-mad-2015.