Smith v. Café Asia

256 F.R.D. 247, 2009 U.S. Dist. LEXIS 23195, 2009 WL 748624
CourtCourt of Appeals for the D.C. Circuit
DecidedMarch 23, 2009
DocketCivil Action No. 07-621 (RWR/JMF)
StatusPublished
Cited by7 cases

This text of 256 F.R.D. 247 (Smith v. Café Asia) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Café Asia, 256 F.R.D. 247, 2009 U.S. Dist. LEXIS 23195, 2009 WL 748624 (D.C. Cir. 2009).

Opinion

MEMORANDUM OPINION

JOHN M. FACCIOLA, United States Magistrate Judge.

Before me are Plaintiffs Motion to Compel and/or for Sanctions [# 52], Defendant’s Opposition to Plaintiffs Motion to Compel and/or for Sanction (“Def.Opp.”) [# 54], and Plaintiffs Reply to Opposition to Motion to Compel and/or for Sanctions (“Reply”) [# 61]. This case has been referred to me for the purpose of handling discovery.

I. Background.

The facts of this ease are briefly set out in Smith v. Café Asia, 246 F.R.D. 19, 20 (D.D.C.2007). The Court initially ordered that discovery would commence at the conclusion of mediation and would close 120 days thereafter. Scheduling Order [# 22]. The Court agreed to extend certain deadlines in light of the parties’ Consent Notice of Altered Deadlines [# 34]. Order (11/13/2007). Accordingly, the deadline for plaintiffs response to defendant’s pending written discovery was extended to November 21, 2007. Id. Additionally, the deadline for defendant’s response to plaintiffs pending written discovery requests was moved to November 28, 2007. Id. Discovery has closed. Plaintiff currently seeks a complete response to its discovery requests.

II. Analysis.

a. Plaintiff’s First Request for Production of Documents

Request No. 29.

In Plaintiffs First Request for Production of Documents Request No. 29, Plaintiff sought “[a]ny and all documents relating to the work schedule of Yu Sheon during the time of Andrei Smith’s employment.” Plaintiffs First Request for Production of Documents (“F.Req.Prod.Doc.”) at 10. Defendant initially responded that “Defendant incorporates all of its General Objections as though fully stated herein. Defendant further objects that Yu Sheon is not a party in this case, and his personal work schedules have no relevance to the issues in this ease.” Plaintiffs Memorandum in Support of Motion to Compel and/or for Sanctions (“PI. Mem.”) [# 52] at 2. Defendant supplemented this response by stating “[i]n addition, and subject to its original response, defendant supplements its response to this Request as follows: Defendant is not withholding any relevant, responsive documents on the basis of its objections because Mr. Sheon does not [250]*250have a written work schedule.” Id. Plaintiff argues that he is not only seeking Mr. Sheon’s written work schedule, but any documents related to his work schedule. Id. Plaintiff, therefore, requests that the Court order the defendant to provide a complete response to this document request. Id. at 1. However, Defendant again claims that “there simply are no documents responsive to this request.” Def. Opp. at 3. Because the Court finds no reason to disbelieve counsel’s representation, the Court denies plaintiffs request.

b. Lack of signature on interrogatory responses.

Plaintiff requested on May 20, 2008 and June 10, 2008 that defendant sign its interrogatory responses. PL Mem. at 5. Because defendant’s counsel provided plaintiff with signed interrogatory responses on August 4, 2008, this issue is now moot. Def. Opp. at 1.

c. Plaintiffs document request relating to alter ego theory.

In Plaintiffs Second Request for Production of Documents, plaintiff requested documents related to alter ego theory. Pl. Mem. at 4. Plaintiff currently states that he is willing to delay discovery on this issue subject to defendant’s agreement that this discovery can be conducted if plaintiff is successful at trial. Id. at 5. Because plaintiff is willing to hold the issue in abeyance, defendant states that “there is no dispute about this issue.” Def. Opp. at 3. As the parties have agreed to delay this discovery, the issue is now moot.

d. The Privilege Log.

In Plaintiffs First Request for Production of Documents Request No. 13, plaintiff requested “[a]ny and all documents related to any investigation conducted by you or your agent, servant and/or employee with regard to Mr. Smith and/or his complaints of discrimination, or any other type of complaint including those regarding mistreatment by co-workers or managerial staff.” F. Req. Prod. Doc. at 8. Plaintiff claims that defendant responded to Request No. 13 by stating that it “incorporates all of its General Objections as though fully stated herein. Defendant further objects that this demand invades the attorney-client privilege and seeks information protected by the attorney work-product doctrine.” PI. Mem. at 3. Plaintiff states that he requested a privilege log from defendant on May 20, 2008. Id. Plaintiff now requests that defendant produce a privilege log. Reply at 2. Plaintiff also asks the Court to find that defendant has waived privilege and order defendant to produce the privileged documents. Pl. Mem. at 3.

Additionally, Plaintiff alleges that during the deposition of Yu Sheon on April 29, 2008, plaintiff discovered that non-privileged investigative reports, responsive to Request No. 13, existed but had not been produced by defendant. Id. Accordingly, Plaintiff requested to hold the deposition open so that plaintiff could later question Sheon about the non-privileged reports. Id. Plaintiff has now received copies of a report that was prepared by an investigator, who was employed by defendant in response to plaintiffs complaints of discrimination. Id. Plaintiff alleges that because defendant produced the investigative report so late in discovery, that he was unable to depose the investigator. Reply at 2. Plaintiff requests that the Court (1) allow him to reopen the deposition of Sheon, PL Mem. at 3, (2) compel defendant to produce contact information for the investigator, and (3) grant leave to conduct a deposition of the investigator. Reply at 2-3.

Under Federal Rules of Civil Procedure Rule 26(b)(5)(A), in order for a party to withhold information on the basis that the information is privileged, the party must: 1) “expressly make the claim” and 2) “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.” Fed.R.Civ.P. 26(b)(5)(A). Filing a privilege log has become the “universally accepted mean[s] of asserting privileges in discovery in the federal courts.” Avery Den-nison Corp. v. Four Pillars, 190 F.R.D. 1 (D.D.C.1999). Additionally, the Court has discretion to determine that a party has waived privilege when that party fails to produce a privilege log. Id. at 2 (citing First Am. Corp. v. Al-Nahyan, 2 F.Supp.2d 58, 63 n. 5 (D.D.C.1998) (declining to find that a [251]*251party had waived privilege where the party failed to produce a privilege log, because the court believed that there were not a large number of withheld documents and preferred to make a decision on the merits of the case)).

Defendant fails to argue against any of plaintiffs contentions on this issue. See Def. Opp. Therefore, for the purposes of this motion to compel, the Court will consider the defendant to have conceded to plaintiffs version of the facts.

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256 F.R.D. 247, 2009 U.S. Dist. LEXIS 23195, 2009 WL 748624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-cafe-asia-cadc-2009.