Williams v. Sprint/United Mgmt. Co.

245 F.R.D. 660, 2007 U.S. Dist. LEXIS 58345, 2007 WL 846522

• Court: District Court, D. Kansas
• Decided: March 19, 2007
• Docket: No. 03-2200-JWL-DJW
• Status: Published

Opinion

MEMORANDUM AND ORDER

WAXSE, United States Magistrate Judge.

Pending before the Court is Plaintiffs’ Second Motion to Declare Invalid Defendant Sprint’s Assertions of Privilege where Legal Counsel Was Not Involved (doc. 3595). For the reasons stated below, Plaintiffs’ Motion will be granted in part and denied in part.

I. Relevant Procedural Background

On or about August 25, 2005, Defendant provided to Plaintiffs an updated privilege log. At the September 1, 2005 status conference, Plaintiffs submitted to the Court a document entitled “List of Documents Withheld by Defendant Despite No Involvement of Legal Department or Counsel” (the “List”). The List identifies 426 documents in Defendant’s August 25, 2005 privilege log that were withheld from production “despite the fact that the log itself shows there to have been no involvement of Sprint legal department or counsel.” For these reasons, Plaintiffs requested that Defendant’s assertion of any privilege be overruled with regard to these documents.

The Court ultimately construed Plaintiffs’ “List” as a Motion to Compel (doc. 3203) and ordered Defendant to submit a pleading explaining “the basis upon which it is claiming attorney-client privilege for those documents identified in any privilege log where no attorney is listed.” Defendant submitted the pleading as directed and, in conjunction with this pleading, submitted a paper copy of the August 25, 2005 privilege log to the Court.

After the Motion to Compel was fully briefed, the Court requested Defendant submit a copy of Defendant’s August 25, 2005 privilege log in electronic format.¹ On January 25, 2006, a legal assistant for the law firm representing Defendant sent two privilege logs to the Court’s law clerk as attachments to an e-mail.² The first attachment was designated by Defendant as the “8/12/05 Privilege Log” and consisted of a 133-page privilege log entitled “Williams vs. Sprint Privilege Log for 8/12/2005 Production.” The second attachment was designated by Defendant as the “KC Privilege log” and consisted of a 288-page privilege log entitled “SprintWilliams Collective Action Amended and Supplemental Privilege Log.” Notably, the electronic privilege logs included many entries not included in the August 25, 2005 paper privilege log previously submitted.

On February 1, 2006, the Court issued a Memorandum and Order (doe. 3549) finding that

• Defendant successfully met its burden to establish attorney-client privilege protection for a portion of the 426 entries in the August 25, 2005 privilege log and included on the List; but

• Defendant failed to establish the elements required to invoke the attorney-client privilege for the balance of the 426 entries in the August 25, 2005 privilege log and included on the List.

On February 16, 2006, approximately two weeks after the Court issued its Memorandum and Order, Plaintiffs filed a “Second Motion to Declare Invalid Defendant Sprint’s Assertions of Privilege where Legal Counsel Was Not Involved.” This second motion is purportedly based on new entries included within the “8/12/2005 Privilege Log” and “KC Privilege Log” that were not included in the privilege log dated August 25, 2005. Specifically, Plaintiffs seek the following relief in conjunction with this Motion³:

• Declare no privilege exists and compel Defendant to produce the 661 documents listed by bates number in Exhibits 1 and 2 to Plaintiffs’ Motion; and

• Compel Defendant to produce 165 documents that Defendant acknowledges are not privileged but instead claims are not responsive to any request.

Defendant opposes this motion on substantive grounds as well as for Plaintiffs’ alleged failure to confer before filing the Motion. The Court will address the duty to confer before addressing the parties’ substantive arguments.

II. Duty to Confer

As a preliminary matter, Defendant asks the Court to deny Plaintiffs’ Motion to Compel based on Plaintiffs’ alleged noneompliance with their duty to confer. Defendant claims that Plaintiffs’ efforts to resolve this dispute fail to meet the requirements of federal and local rule, as well as specific directives from the Court.

Federal Rule of Civil Procedure 37 requires the movant to make a good faith attempt to resolve the discovery dispute before filing a motion to compel discovery responses. The motion to compel must include a certification of the effort to resolve the dispute.⁴ In conjunction with Fed.R.Civ.P. 37, District of Kansas Rule 37.2 provides:

The court will not entertain any motion to resolve a discovery dispute pursuant to Fed.R.Civ.P. 26 through 37 ... unless counsel for the moving party has conferred or made reasonable efforts to confer with opposing counsel concerning the matter in dispute prior to the filing of the motion. A “reasonable effort to confer” ... requires that the parties in good faith converse, confer, compare views, consult and deliberate, or in good faith attempt to do so.⁵

The purpose of the local rule is to encourage the parties to satisfactorily resolve their discovery disputes prior to resorting to judicial intervention.⁶ Meet and confer requirements are not satisfied “by requesting or demanding compliance with the requests for discovery.”⁷ The parties must determine precisely what the requesting party is actually seeking; what responsive documents or information the discovering party is reasonably capable of producing; and what specific, genuine objections or other issues, if any, cannot be resolved without judicial intervention.⁸

The Court has reviewed the parties arguments regarding Defendant’s allegation that Plaintiffs have failed to meet their duty to confer. For the reasons stated in Plaintiffs’ Reply Brief,⁹ the Court finds that Plaintiffs have satisfied their meet and confer obligations required by D. Kan. Rule 37.2 and Federal Rule of Civil Procedure 37.

III. Discussion

A. Plaintiffs’ Request for the Court to Declare No Privilege Exists and Compel Defendant to Produce the 661 Documents Listed by Bates Number in Exhibits 1 and 2 to Plaintiffs’ Motion

Plaintiffs request the Court compel Defendant to produce 511 documents identified in Defendant’s “8/12/2005 Privilege Log” and 150 documents identified in Defendant’s “KC Privilege Log.” In support of this request, Plaintiffs assert Defendant fails to provide sufficient information in the privilege log to establish the elements required to invoke the attorney-client privilege or the work product doctrine for the referenced documents.

Given the sheer quantity of the privilege log entries at issue here, the Court finds it necessary for purposes of this discussion to group the privilege log documents at issue into the following eight (8) discrete categories:

1. Documents listed by bates number in Plaintiffs’ Exhibits 1 and 2 but not included within the “8/12/2005 Privilege Log” or the “KC Privilege Log”;

2. Documents listed in Exhibit 2 by page number and date only;

3. Documents described as consisting of, or transmitting, adverse impact analyses;

4. Documents described as “legal” in nature;

5. Documents described as pertaining to WARN;

6. Documents designated as “from” or “to” a Sprint attorney or Legal Assistant;

7. Documents described as related to “litigation”; and

8. Remaining Documents.

1. Documents listed by bates number in Plaintiffs’ Exhibits 1 and 2 but not included within the “8/12/2005 Privilege Log” or the “KC Privilege Log”

Plaintiffs’ Motion states that privilege log entries for the 661 documents they seek are listed by bates number in Exhibits 1 and 2 and can be found in either the “8/12/2005 Privilege Log” or the “KC Privilege Log.” Plaintiffs state in their Motion that “[b]e-cause Judge Waxse already has these two lengthy privilege logs in electronic format as e-mailed to him by Defendant, Plaintiffs are not attaching the logs to this Motion.”¹⁰ Plaintiffs specifically note that the logs were e-mailed to the Court on January 25, 2006.¹¹

Plaintiffs are correct. A legal assistant for the law firm representing Defendant sent two privilege logs to the Court’s law clerk as attachments to an e-mail dated January 25, 2006.¹² The first attachment was designated by Defendant as the “8/12/05 Privilege Log” and consisted of a 133-page privilege log entitled “Williams vs. Sprint Privilege Log for 8/12/2005 Production.” The second attachment was designated by Defendant as the “KC Privilege log” and consisted of a 288-page privilege log entitled “Sprint/ Williams Collective Action Amended and Supplemental Privilege Log.”

To that end, there are literally thousands of documents listed in the two electronic privilege logs sent to the Court by e-mail on January 25, 2006. Due to the overwhelming number of disputed privilege log entries in Plaintiffs’ Motion, this Court extracted the 661 privilege log entries listed by bates number in Exhibits 1 and 2 to create a Privilege Log consisting of only those bates numbers at issue in Plaintiffs’ Motion (“Extracted Privilege Log”).¹³

In compiling the Extracted Privilege Log, it came to the Court’s attention that there are 176 documents listed by bates numbers in Exhibits 1 and 2 that are not included in either the “8/12/2005 Privilege Log” or the “KC Privilege log” electronically sent to the Court on January 25, 2006. The Court identifies these 176 documents by bates number in Appendix 3 to this Memorandum and Order. Because these documents cannot be found within the privilege log provided to the Court in conjunction with this Motion, the Court is not in a position to determine whether Defendant has provided sufficient information to establish the elements required to invoke the attorney-client privilege or the work product doctrine for the referenced documents. Accordingly, Plaintiffs’ Motion will be denied with respect to these 176 documents.

2. Documents Listed in Exhibit 2 by Page Number and Date Only

Fifty-one (51) of the 150 documents listed by Plaintiffs in Exhibit 2 to their Motion are not identified by bates number, but instead are identified by the page number of the privilege log and the date of the document. In attempting to extract these fifty-one (51) privilege log entries from the 288-page “KC Privilege Log,” the Court discovered that many of the page numbers designated by Plaintiffs include multiple entries for documents bearing the specific date identified by Plaintiffs. Given these circumstances, it is impossible for the Court to determine which of the entries Plaintiffs intended to be at issue in their Motion. Because the Court is unable to determine which privilege log entries are at issue, the Court is not in a position to determine whether Defendant has provided sufficient information to establish the elements required to invoke the attorney-client privilege or the work product doctrine for the referenced documents. Accordingly, Plaintiffs’ Motion will be denied with respect to these fifty-one (51) documents referenced only by privilege log page numbers and document date.

3. Adverse Impact Analyses Documents

Many of the documents Plaintiffs seek to have produced are described in Defendant’s privilege logs as consisting of, or transmitting, adverse impact analyses documents. The Court has identified these adverse impact analyses documents in Appendix 4. Defendant designates all of these adverse impact documents as protected from disclosure by the attorney-client privilege¹⁴ and some as protected from disclosure by both the attorney-client privilege and the work product doctrine. Because the Court finds all of the adverse impact documents are protected from disclosure by the attorney-client privilege, the Court will not address whether these documents are protected from disclosure by the work product doctrine.

The arguments presented by the parties in support of their positions with regard to the adverse impact analyses documents are essentially identical to the arguments presented in prior briefing. Plaintiffs argue that without a showing of involvement by legal counsel, the adverse impact documents at issue here cannot be protected by the attorney-client privilege. In response, Defendant maintains it adequately has shown the adverse impact documents to be communications made in confidence for the primary purpose of obtaining legal advice, regardless of whether or not an attorney was listed as part of the communication on the privilege log.

Notably, the Court already has resolved this issue. In its February 1, 2006 Memorandum and Order, this Court held that “although written communication between corporate management employees is not necessarily protected by the attorney-client privilege, a party may be able to successfully demonstrate applicability of privilege by establishing that the communication was made in confidence for the primary purpose of obtaining legal advice.”¹⁵ Relying on Judge Lungstrum’s previous rulings with regard to adverse impact and related analyses, the Court further found Defendant had met its burden with regard to a claim of protection based on the attorney-client privilege for those documents in the privileged log containing one of several specified descriptive “adverse impact analyses” phrases.¹⁶

Upon review of the February 1, 2006 ruling, as later clarified,¹⁷ and in the context of the privilege log at issue here, the Court finds no reason to depart from its earlier holding with regard to the adverse impact analyses documents. Thus, the Court finds Defendant has met its burden of proof with regard to a claim of protection based on the attorney-client privilege for adverse impact analyses documents listed in the “8/12/2005 Privilege Log” and the “KC Privilege Log.” Accordingly, Plaintiffs’ Motion with respect to the adverse impact analyses documents identified by bates number in Appendix 4 to this Memorandum and Order will be denied.

4. Documents Described in the Log as Legal in Nature

Many of the documents Plaintiffs seek to have produced are described in Defendant’s privilege log as documents related to “legal advice,” “instructions from legal,” “legal review,” “notes from legal,” “action required from legal,” “decision from legal,” “explanation from legal,” “notes from legal,” and “legal review changes.” A listing of these documents is attached to this Memorandum and Order at Appendix 5. Defendant designates some of these “legal” documents as protected from disclosure by the attorney-client privilege, some as protected from disclosure by the work product doctrine and some as protected from disclosure by both the attorney-client privilege and the work product doctrine. The Court will discuss applicability of the attorney-client privilege and then the work product doctrine to these “legal” documents.

a. Attorney-Client Privilege — Documents Described as Legal

The purpose of the attorney-client privilege “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”¹⁸ The privilege serves the client’s need for legal advice, but it also serves the attorney’s need to receive complete information in order to give the proper advice. “Not every communication between an attorney and client is privileged, only confidential communications which involve the requesting or giving of legal advice.”¹⁹ “The focal point of the protection afforded by the attorney-client privilege lies with ‘communications’ between attorneys and their clients” related to legal advice.²⁰ Legal advice must predominate for the communication to be protected.²¹

The party asserting the privilege bears the burden of establishing its existence.²² The asserting party must make a “clear showing” that the asserted objection applies.²³ To carry that burden, the asserting party must “describe in detail” the documents or information sought to be protected and provide “precise reasons” for the objection to discovery.²⁴ In addition, the asserting party must provide sufficient information to enable the court to determine whether each element of the asserted objection is satisfied; a “blanket claim” as to the applicability of the privilege does not satisfy the burden of proof.²⁵ Defendant’s failure to meet this burden when the trial court is asked to rule upon the existence of the privilege is not excused because the document is later shown to be one that would have been privileged if a timely showing had been made.²⁶

Upon review of entries in the Extracted Privilege Log for documents described as legal in nature, the Court finds that Defendant has met the burden of proof with regard to a claim of protection based on the attorney-client privilege with respect to documents bearing the following bates numbers:

1050810-1050877 1353281-1353281 184886-184887

1062353-1062353 1428015-1428015 191591-191593

1070298-1070299 184644-184645 192608-192611

1070514-1070514 184646-184647 192613-192615

1140360-1140364 184648-184649 192664-192669

1352537- 1352537 184650-184651 184652-184653

1352538- 1352538 184655-184657 184908

The Court makes this finding on grounds that these documents are all adequately described in Defendant’s privilege log as documents consisting of or transmitting communications made in confidence for the primary purpose of obtaining legal advice or services. Thus, Plaintiffs’ Motion will be denied with respect to these twenty-one (21) documents.

Conversely, the Court finds Defendant has failed to meet its burden of proof with regard to a claim of protection based on the attorney-client privilege for “legal” documents bearing the following bates numbers:

191263 191313-318 191696

191264 191319-340 192621

191265 191435-442 192710

Although these particular documents are also described as including legal advice of some sort, Defendant fails to identify either an author or a recipient for these communications. Because both the author and recipient of these documents are designated as “unknown,” the Court finds Defendant has failed to meet its burden of demonstrating that the information transmitted involved the requesting or giving of legal advice.

Notably, eight (8) out of nine (9) of these documents are designated in the privilege log as being protected by both the attorney-client privilege and the work product doctrine. Accordingly, and because the Court has found that Defendant has failed to establish that these documents are protected from disclosure by the attorney-client privilege, the Court will discuss in the next subsection whether the work product doctrine protects documents bearing bates numbers 191263, 191264, 191265, 191313-318, 191319-340, 191435-442, 191696, and 192621. With regard to the documents bearing bates stamp 192710, however, Plaintiffs’ Motion will be granted. This is because Defendant only claimed protection for this document based on the attorney-client privilege.

b. Work Product — Documents Described as Legal

With regard to the “legal” documents identified in the privilege log as attorney-work product, Plaintiffs argue again that, without a showing of involvement by legal counsel, the documents at issue cannot be protected by the work product doctrine.

To establish work product protection, a party must show that “(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party.”²⁷ Because there does not appear to be a dispute that the materials sought are documents or that they were prepared by or for Defendant or a representative of Defendant, the Court will address only whether the privilege log adequately describes the documents as being prepared in anticipation of litigation.

The work product doctrine, which is embodied in Rule 26(b)(3) of the Federal Rules of Civil Procedure, protects from discovery documents, things and mental impressions of a party or his representative, particularly his attorney, developed for or in anticipation of litigation or trial.²⁸ The purpose of the doctrine is to permit attorneys to prepare for litigation with a “certain degree of privacy,” and without undue interference or fear of intrusion or exploitation of one’s work by an adversary.²⁹ In other words, the doctrine is not intended to protect investigative work unless done so under the supervision of an attorney in preparation for the real and imminent threat of litigation or trial. Work prepared in the ordinary course of business and inserted into a protected document may still be subject to disclosure after redaction of any privileged material.

Thus, the work product doctrine only applies to those documents and tangible things prepared in anticipation of litigation, and in order for the discovery limitation to apply, there must be a substantial probability that litigation will ensue at the time the documents were drafted.³⁰ “Certainly by implication the ... rule precludes any idea of extending the work product doctrine to reports or statements, even if written, obtained by the client or his investigators which are not prepared under the supervision of an attorney in preparation for trial.”³¹

The issue of whether documents were prepared in anticipation was extensively analyzed by Judge Rushfelt in Marten v. Yellow Freight System, Inc32 The court stated:

The work product standard has two components. The first is what may be called the “causation” requirement. This is the basic requirement of the Rule that the document in question be produced because of the anticipation of litigation, i.e., to prepare for litigation or for trial. The second component is what may be termed a “reasonableness” limit on a party’s anticipation of litigation. Because litigation can, in a sense, be foreseen from the time of occurrence of almost any incident, courts have interpreted the Rule to require a higher level of anticipation in order to give a reasonable scope to the immunity.

The court looks to the primary motivating purpose behind the creation of the document to determine whether it constitutes work product. Materials assembled in the ordinary course of business or for other non-litigation purposes are not protected by the work product doctrine. The inchoate possibility, or even the likely chance of litigation, does not give rise to work product. To justify work product protection, the threat of litigation must be “real and imminent.” To determine the applicability of the work product doctrine, the court generally needs more than mere assertions by the party resisting discovery that documents or other tangible items were created in anticipation of litigation.³³

Upon review of entries in the Extracted Privilege Log for documents described as legal in nature, the Court finds that Defendant has failed to meet its burden of proof with regard to a claim of protection based on the work product doctrine for the seventy-one (71) documents bearing the following bates numbers:

1020580-1020581 1239589-1239589 1352209-1352209

1021371-1021371 1245979-1245981 1352572-1352573

1064240-1064240 1248189-1248190 1352576-1352576

1130395-1130397 1262713-1262713 1352594-1352595

1156910-1156911 1263210-1263210 1352597-1352598

1157358-1157359 1263511-1263511 1352761-1352765

1158389-1158389 1263524-1263531 1353434-1353435

1188926-1188927 1263883-1263885 1353747-1353749

1205502-1205503 1263990-1263995 1353750-1353752

1205511-1205512 1264033-1264037 1356298-1356300

1211720-1211722 1264038-1264042 1356847-1356847

1211900- 1211900 1264082-1264082 1356858-1356861

1211901- 1211902 1264121- 1264121 1365825-1365825

1211905-1211906 1264122- 1264124 1365891-1365891

1211907-1211908 1265326-1265328 1426858-1426858

1232869-1232870 1295946-1295948 191263

1232929-1232930 1296358-1296358 191264

1233017-1233018 1296532-1296532 191265

1233134- 1233134 1315187-1315188 191313-191318

1233135- 1233135 1330048-1330049 191435-191442

1233205-1233205 1340119-1340119 191696

1236839-1236839 1351972-1351974 192621

1237576-1237580 1352048- 1352048 191319-191340

1238065-1238066 1352049- 1352050

Although the referenced documents are described as including “legal advice” of some sort or another, there is no assertion by Defendant in either the privilege logs or in the briefs that the primary motivating purpose behind the creation of the referenced documents was in anticipation of litigation, i.e., to prepare for litigation or for trial. As noted above, the Court needs more than mere assertions by the party resisting discovery that the documents were created in anticipation of litigation.³⁴ For these reasons, Plaintiffs’ Motion with respect to the documents identified by bates number immediately above will be granted.

5. Documents Described as Pertaining to WARN

Thirteen (13) of the 661 documents Plaintiffs seek to have produced are described in Defendant’s privilege log as documents related to WARN compliance or WARN notification. Defendant claims four (4) of these thirteen (13) documents are protected from disclosure by the attorney-client privilege and nine (9) are protected from disclosure by the work product doctrine.

a. Attorney-Client Privilege — WARN Documents

Defendant claims it satisfactorily has met the burden of proof with regard to a claim of protection based on the attorney-client privilege for the following “WARN” documents:

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The Court agrees. As a preliminary matter, there is no dispute between the parties that Jill Ferrel and Donna Crosswhite are both Sprint attorneys. Moreover, “WARN” is an acronym that refers to the Worker Adjustment and Retraining Notification Act, a federal statute that obligates certain employers to give workers or their union 60 days’ notice before a plant closing or mass layoff.³⁵ Based on these three entries as written, the Court finds Defendant adequately has shown these three WARN documents to be communications made in confidence for the primary purpose of obtaining legal advice. Thus, the Court deems them protected from disclosure by the attorney-client privilege.

b. Work Product — WARN Documents

As opposed to attorney-client privilege, Defendant claims it satisfactorily has met the burden of proof with regard to a claim of protection based on the work product doctrine for the following “WARN” documents:

Although the referenced documents are described as relating to the requirements of, and compliance with, a federal statute, there is no assertion by Defendant in either the privilege logs or in the briefs that the primary motivating purpose behind the creation of these WARN documents was in anticipation of litigation, i.e., to prepare for litigation or for trial. As noted above, the Court needs more than mere assertions by the party resisting discovery that the documents were created in anticipation of litigation. For these reasons, Plaintiffs’ Motion with respect to the nine (9) documents identified by bates number immediately above will be granted.

6. Documents Designated as “From” or “To” a Sprint Attorney

Fifty-seven (57) of the 661 documents Plaintiffs seek to have produced are described in Defendant’s privilege log as being sent “from” or “to” a Sprint attorney. A listing of these documents is attached to this Memorandum and Order at Appendix 6. Of the fifty-seven (57) entries, Defendant claims protection from disclosure by the attorney-client privilege for forty-three (43) of these documents, protection from disclosure by the work product doctrine for six (6) of these documents, and protection from disclosure by both the attorney-client privilege and the work product doctrine for eight (8) of these documents.

a. Attorney-Client Privilege — “From” or “To” a Sprint Attorney

The issue presented here is whether a document that was “sent from” or “sent to” a Sprint lawyer automatically protects that document from disclosure by the attorney-client privilege. The Court, as it has done in the past, rejects this position. “Not every communication between an attorney and client is privileged, only the requesting or giving of legal advice.”³⁶ Minutes of meetings attended by attorneys are not automatically privileged, and business documents sent to attorneys are not automatically privileged.³⁷ Likewise, the privilege does not apply where legal advice does not predominate the communication or where legal advice is merely incidental to business advice.³⁸

Here, the Court finds that, as described, the documents at issue fail to establish any connection between the subject of the communication and the rendering of legal — as opposed to, for example, business-related— advice.³⁹ Because the documents in this category are not described in the privilege log as related in any way to legal advice, the Court finds the Defendant has failed to establish the elements required to invoke the attorney-client privilege for such documents.

b. Work Product — “From” or “To” a Sprint Attorney

Although the referenced documents are described as having been “sent from” or “sent to” a Sprint attorney, there is no assertion by Defendant in either the privilege logs or in the briefs that the primary motivating purpose behind the creation or transmission of these documents was in anticipation of litigation, i.e., to prepare for litigation or for trial. As noted above, the Court needs more than mere assertions by the party resisting discovery that the documents were created in anticipation of litigation. For these reasons, the Court finds Defendant has failed to establish the elements required to invoke work product protection.

7. Documents Described as Related to “Litigation”

The following six (6) privilege log entries are at issue in this category:

a. Attorney-Client Privilege — “Litigation” Documents

The Court finds that the descriptions for the documents in this category fail to establish any connection between the subject of the communication and the rendering of legal advice. That the documents are described as relating to litigation, or the notice of litigation, does not mean that the communications are related to legal advice. Thus, the Court finds the Defendant has failed to establish the elements required to invoke the attorney-client privilege for such documents.

b. Work Product — “Litigation” Documents

As noted above, to establish work product protection, a party must show that “(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party.”⁴⁰ To that end, the Court finds that the privilege log describes the materials sought to be protected as documents that were prepared in anticipation of litigation. Thus, the only issue is whether the documents were prepared by or for a party or a representative of that party. Given the “sent from” and “sent to” columns fail to identify any person for five (5) of the six (6) documents, the Court cannot find that those five (5) documents were prepared by or for a party or a representative of that party. Conversely, the document bearing bates stamps 191223-191227 designates a Sprint employee in both the “sent from” and “sent to” columns. The Court finds this description adequately indicates that the documents were prepared by or for Defendant or a representative of Defendant. Accordingly, the Court holds that in this category, the document bearing bates stamp 191223-191227 is the only document adequately described as being protected from disclosure by the work product doctrine.

8. Remaining Documents

Eighty-one (81) of the 661 documents do not fit into any of the categories described above. These documents are listed in Appendix 7 to this Memorandum and Order. Upon individual review of each of these eighty-one (81) entries, the Court finds Defendant has failed to establish the elements required to invoke the attorney-client privilege or the work product doctrine. This is because

• none of the entries indicate that the documents are related in any way to obtaining legal advice; and

• none of the entries indicate the documents were prepared in anticipation of litigation.

Thus, Plaintiffs’ Motion will be granted with respect to these eighty-one (81) documents.

B. Plaintiffs’ Request for the Court to Compel Defendant to produce 165 Documents for which Defendant Allegedly Withdrew a Privilege Objection

Plaintiffs ask the Court to compel Defendant to produce 165 documents that Defendant claims are not responsive to any discovery request. The parties agree that these 165 documents were never listed in any privilege log provided to Plaintiffs.

By way of background, Defendant asserts it mistakenly placed these 165 documents on the privilege log as it was being assembled. Defendant states that upon later review, Defendant determined the documents were not actually privileged and were not actually responsive to any request. Thus, Defendant removed the 165 documents from the privilege log before the log was sent to Plaintiffs. Defendant states it did not subsequently produce the documents to Plaintiffs on grounds that the documents were not actually responsive to any request.

The removal of the documents from the log left gaps in the bates numbering. In order to explain the gaps in bates numbering, Defendant states it sent a cover letter to Plaintiffs attaching a list of the missing bates numbers and noting that documents had been included in the original log by mistake. Defendant also noted in this cover letter that it would not be producing these 165 documents because the documents were not actually responsive to any request.

Notably, many of the 165 documents are so-called “demographic documents.” Defendant states it did not produce these demographic documents because at the time Plaintiffs’ Motion was filed, Plaintiffs had not requested the “demographic documents.” Notwithstanding this fact, Defendant voluntarily allowed Plaintiffs to view a sample of the 165 documents at issue as part of a meet and confer process regarding whether the documents were responsive to any of Plaintiffs’ document requests. After this viewing, Plaintiffs propounded to Defendant their 13th Request for Production of Documents, which included a formal request for the demographic documents.⁴¹

On December 22, 2006, Plaintiffs filed a Motion to Compel, which included a request to compel the demographic documents.⁴² That Motion was referred to the Special Master. In response to Plaintiffs’ Motion, Defendant agreed to produce all of the demographic documents, subject to its objection, in a nonnative format redacting all information other than age, which is all Plaintiffs allegedly requested. Taking into account this agreement, the Special Master then resolved all other issues relating to the 13th Request for Production of Documents on January 18, 2007.⁴³ The demographic documents were subsequently produced to Plaintiffs and, on March 6, 2007, Defendant filed a second supplemental brief informing the Court that the demographic documents had been produced.⁴⁴

In light of the fact that the demographic documents have now been produced, it appears the remaining issue for resolution by the Court is whether Defendant should be compelled to produce non-demographic documents that were part of the 165 documents removed from the privilege log by Defendant before the privilege log was transmitted to Plaintiffs. Defendant maintains it should not have to produce the documents because they are not responsive to any document request. Plaintiffs maintain that it does not matter whether a document request was submitted because the documents are relevant on grounds that Defendant has failed to explain how it is that each one of these documents was considered responsive at the time it was designated as privileged, but subsequently considered non-responsive when the privilege is withdrawn.

Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery. It provides that

[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.⁴⁵

Relevancy is broadly construed, and a request for discovery should be considered relevant if there is “any possibility” that the information sought may be relevant to the claim or defense of any party.⁴⁶ When the discovery sought appears relevant on its face, the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery does not come within the broad scope of relevance as defined under Rule 26(b)(1), or is of such marginal relevance that the potential harm the discovery may cause would outweigh the presumption in favor of broad disclosure.⁴⁷ Conversely, when relevancy is not apparent on the face of the interrogatory or request, the party seeking the discovery has the burden to show the relevancy of the information or documents sought.⁴⁸

Here, the Court is unable to engage in a relevancy analysis because (1) there is no pending request upon which to assess such relevancy; and (2) the parties have failed to submit to the Court any description of the non-demographic documents at issue. That the referenced documents were initially placed on a privilege log and then subsequently removed from a privilege log before the privilege log was produced to the opposing party is — in and of itself — insufficient to establish relevancy. There must be some indicia that the documents sought are relevant to the claim or defense of any party or some indicia that the documents are reasonably calculated to lead to the discovery of admissible evidence. Because there is no pending request and because the parties have failed to submit to the Court any description of the non-demographic documents, the Court finds the parties have failed to present any legal or factual issue for determination. Thus, Plaintiffs’ Motion will be denied with respect to these 165 documents.

IV. Sanctions

The Court will now consider the issues of sanctions. Federal Rule of Civil Procedure 37(a)(4) governs the imposition of sanctions in connection with motions to compel. Subsection (a)(4)(A) provides that when a motion to compel is granted, “the court shall, after affording an opportunity to be heard, require the party ... whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion including attorney’s fees, unless the court finds that ... the opposing party’s ... response or objection was substantially justified, or that other circumstances make an award of expenses unjust.”⁴⁹ Moreover, Federal Rule of Civil Procedure 37(a)(4)(C) allows a court to impose sanctions where, as here, a motion to compel is granted in part and denied in part. Under that rule, the court may “apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.”⁵⁰

Upon consideration of the circumstances presented here, the Court finds that an award of expenses to either party in conjunction with this Motion would be unjust. Although many portions of Plaintiffs’ Motion were granted, many portions of Plaintiffs’ Motion were denied. Simply put, the Court finds that each of the parties here contributed to the need for Court intervention: Plaintiffs by failing to submit a request for designated categories of documents after the meet and confer and Defendant by failing to properly justify its assertion of privilege for various documents. For these reasons, the Court declines to impose sanctions.

V. Summary of Ruling

Based on the discussion above, it is hereby ordered that Plaintiffs’ Motion to Compel is granted in part and denied in part. More specifically, Plaintiffs’ Motion is

• granted with respect to the one (1) document described as “legal” in nature and bearing bates number: 192710

• granted with respect to the following seventy-one (71) documents described as “legal” in nature and bearing bates numbers:

1020580-1020581 1232869-1232870 1263524-1263531

1021371-1021371 1232929-1232930 1263883-1263885

1064240-1064240 1233017-1233018 1263990-1263995

1130395-1130397 1233134- 1233134 1264033-1264037

1156910-1156911 1233135- 1233135 1264038-1264042

1157358-1157359 1233205-1233205 1264082-1264082

1158389-1158389 1236839-1236839 1264121- 1264121

1188926-1188927 1237576-1237580 1264122- 1264124

1205502-1205503 1238065-1238066 1265326-1265328

1205511-1205512 1239589-1239589 1295946-1295948

1211720-1211722 1245979-1245981 1296358-1296358

1211900- 1211900 1248189-1248190 1296532-1296532

1211901- 1211902 1262713-1262713 1315187-1315188

1211905-1211906 1263210-1263210 1330048-1330049

1211907-1211908 1263511-1263511 1340119-1340119

1351972-1351974 1353434-1353435 191263

1352048- 1352048 1353747-1353749 191264

1352049- 1352050 1353750-1353752 191265

1352209-1352209 1356298-1356300 191313-191318

1352572-1352573 1356847-1356847 191435-191442

1352576-1352576 1356858-1356861 191696

1352594-1352595 1365825-1365825 192621

1352597-1352598 1365891-1365891 191319-191340

1352761-1352765 1426858-1426858

• granted with respect to the following nine (9) WARN documents bearing bates numbers

1365434-1365435

1365440-1365440

1366215-1366216

1366217-1366218

1366219-1366220

1366233-1366234

1366235-1366236

1366238-1366239

1406965-1406965

• granted with respect to the fifty-seven (57) documents “sent to” or “received from” a Sprint attorney as identified in Appendix 6;

• granted with respect to the following five (5) documents described as related to “litigation” bearing bates numbers

191081-191083

191186

191218-191220

191221

191229

• granted with respect to the eighty-one (81) “remaining” documents as identified in Appendix 7;

• denied with respect to the 176 documents listed by bates numbers in Exhibits 1 and 2 that are not included in the privilege logs sent to the Court on January 25, 2006, as identified by bates number in Appendix 3;

• denied with respect to the fifty-one (51) documents identified by page number of privilege log and date of the document only, as set forth in Exhibit 2 to Plaintiffs’ Motion;

• denied with respect to the 184 adverse impact analyses documents identified by bates number in Appendix 4;

• denied with respect to the following twenty-one (21) documents described as “legal” in nature and bearing bates numbers

1050810-1050877

1062353-1062353

1070298-1070299

1070514-1070514

1140360-1140364

1352537- 1352537

1352538- 1352538

1353281-1353281

1428015-1428015

184644-184645

184646-184647

184648-184649

184650-184651

184655-184657

184886-184887

191591-191593

192608-192611

192613-192615

192664-192669

184652-184653

184908

• denied with respect to the following one (1) document described as related to “litigation” and bearing bates number

191223-191227

• denied with respect to the following four (4) WARN documents bearing bates numbers

1263918-1263918

1157292-1157292

1353419-1353419

1366240-1366240

• denied with respect to those non-demographic documents within the pool of 165 documents initially placed on a privilege log and then subsequently removed from a privilege log before the privilege log was produced

IT IS SO ORDERED.

APPENDIX 1

< Krista.Embree@Husch” >

< Melissa Taylor Standridge@ksd. uscourts.uscourts.gov>

01/25/2006 04:23 PM

Subject 8-12-05 and KC Privilege Logs

If these don’t come thru, please let me know and I will e-mail them separately.

Thanks,

Krista Embree

-Original Message'--

From: MelissaJTaylor_Standridge@ ksd.uscourts.gov [mailto:MelissaJTaylor_Standridge@ ksd.uscourts.gov] Sent:

Wednesday, January 25, 2006 4:22 PM

To:

krista.embree@husch.com Subject: test Melissa Taylor Standridge Law Clerk to Judge Waxse 219 United States Courthouse 500 State Avenue Kansas City, Kansas 66101(913)551-5435

Circular 230 Disclosure: In compliance with requirements imposed by the IRS pursuant to IRS Circular 230, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

This e-mail message from the law firm of Husch & Eppenberger, LLC is intended only for named recipients. It contains information that may be confidential, privileged, attorney work product, or otherwise exempt from disclosure under applicable law. If you have received message in error, are not a named recipient, or are not the employee or agent responsible for delivering this message to a named recipient, be advised that any review, disclosure, use, dissemination, distribution, or reproduction of this message or its contents is strictly prohibited.

Please notify us immediately at 314.480.1500 or at helpdesk@husch.com that you have received this message in error, and delete the message. Thank you.

Message from “Embree, Krista” < Krista. Embree@Husch.com> on Wed, 25 Jan 2006 16:12:24 -0600

To: “ ‘MelissaJ3tandridge@ksd.uscourts. gov’ ” <Melissa_Standridge@ksd.uscourts. gov>

cc: < sdennis@pophamlaw.com >, “(dhubbard@kh-law.com)” < dhubbard@khlaw.eom>, Steve Dennis “‘mmyers@ myerslaw.com’ ” <s=»mmyers@myerslaw. eom>

Subject: Williams v. Sprint, 03-2200, Privilege Logs attached

Melissa:

Pursuant to Judge Waxse’s request, I am attaching the two privilege logs discussed at the status conference last Thursday, January 19, 2006. If you have any questions or problems with the attachments, please do not hesitate to let me know and other arrangements will be made to get the documents to the Court.

< <KC Privilege Log.pdf> > < <8-12-

05 privilege log.pdf> >

Very Truly Yours,

Krista Embree Legal Assistant

Husch & Eppenberger, LLC 1200

Main Street, Suite 2300 Kansas

City, Missouri 64105-2122 Direct

Dial: 816-329-4724 Toll Free:

1-877-539-3450

Fax: 816-421-0596

Krista.Embree@Husch.com

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APPENDIX 3 - DOCUMENTS LISTED BUT NOT IN PRIVILEGE LOSS

1083544-1D63548

1064812-1064616

1065219_

1069223_

1070737_

1070738-1070768

1113498-1113500

1139825-1139825

1139918-1139919

1140239-1140241

1140279- 1140279

1140280- 1140282

1140349-1140351

1140356-1140356

1140408-1140410

1140633-1140635

1140636-1140637

1140863-1140864

1141501-1141601

1141564_

1141636-1141637

1141657*1141659

1141696-1141698

1144951-1144951

1156827-11S6B31

1158630-1158664

1158665-1158823

1189183-1189224

1205558-1205560

1205561-1205561

1211274-1211274

1226861-1226861

1237586-1237S99

1248254-1248254

1263405-1263407

1263554-1263554

1263881-1263882

1263945-1263946

1265288-1265292

12653291265329

1265345-1265346

1269330-1269330

1281614

1281618

1281619-1261621

1281622

1281642_

1281647

1281662

1261663_

1281666-1281669

1281670-1281673

1281674_

1281675-1261679

1291540-1291541

1292137

1292139

1292142-1292146

1295185-1295187

1295188_

1295190-1295192

1295662

1295663

1295664

1295665-1295666

1295667_

1296666-1295669

1295670_

1295671-1295673

1295674

1295675

1295676

1295677

1295678

1295706

1295978

1295979

1296328-1296329

1296370-1296372

1296819-1296835

1296836-1296842

1297155-1297156

1297226-1297227

1302305_

1302310_

1315204-1315205

1315232-1315233

1315244-1315245

1315643-1315643

1315796-1315797

1315822-1315823

1329468-1329469

1329537-1329540

1329639-1329642

1329643

1329644-1329648

1329649-1329655

1329710-1329713

1329722-1329726

1329937

1330064

1330066-1330069

1330070-1330071

1330072

1330074-1330076

1330230-1330233

1335367-1335375

1338636-1338639

1338640

1338641-1338645

1340448-1340460

1341617-1341619

1351231

1351257-1351258

1351618-1351624

1351825-1351631

1352105-1352106

1353283

1353291

1353363-1353364

1353633-1353536

1365361-1335363

1365364-13B536S

1365339-1365400

1365403-1365404

1365511-1366512

1365664-1365865

1365946

1413049

1413087-1413068

1413094

1413121

1413158

1413185

1413188

1413181

1413200

1413229

1413236

1413265-1413266

1413269

1413284-1413285

1413286

1427662-1427063

1427065-1427066

1427722

1427740

1428098

1428099-1428100

1428117-142B118

1428271-1428272

1428273

1428274-1428276

1428536-1428539

14503B7

1454498-1454500

1455666-1455687

1455923

1456008

1456009

1456011

1456013

1460854

1460859

1460881

1460882

1460883

1460894

1460910-1460911

1460999-1461000

1461022

1461023-1461025

1461033-1461034

1461095-1461096

1461164-1461105

1461253-1481303

APPENDIX 4 - ADVERSE IMPACT ANALYSIS DOCUMENTS

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KC Privilege Log 164594-184555 Faith Palmer, Kip Downey a-maiAdven* Impact* -D3G, 7-15 A/C; WP; Al analysis gathered at «quest of bgel dept 184508-184500 e-mail Advera* Impact • D3CD A/C: WP: Al analysis preparad at request of legal dept. 184800-184801 e-mail Adverse Impact - Mac Da well -D3CD. A/C; WP; Al analysis gathered at request of leflti dept 194806-184806 Faith Palmer, Kip Downey e-mail Adverse Impact * • 03Q, 7-15 A/C; WP: Al analysis prepared at request of legal dept 164807-184608 Faith Palmer. Kip Downey e-mail Advaree Impact % • D3TJ, 7-16 A/C: WP; Al analyala gathered at requaetof bgal dept

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APPENDIX 5 - “LEGAL" DOCUMENTS

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APPENDIX 6 - “TO” OR «FROM» SPRINT ATTORNEYS

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APPENDIX 7 - REMAINING DOCUMENTS

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1 . Transcript of January 19, 2006 Status conference (doc. 3546-2 at p. 86).

2 . See Appendix 1 for a copy of this e-mail.

3 . Plaintiffs also sought to compel Defendant to provide privilege log entries showing the bases for withholding 113 documents previously withheld and then produced on January 24, 2006 and nine (9) documents previously withheld and now produced with redactions, Plaintiffs, however, recently advised the Court that they are withdrawing those two requests. See Plaintiffs' Supplemental Reply (doc. 4582).

4 . Fed.R.Civ.P. 37.

5 . D. Kan. Rule 37.2 (2006).

6 . Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 456, 459 (D.Kan.1999).

7 . Id.

⁸

9 . Plaintiffs' Reply Memorandum (doc. 3743) at pp. 1-5.

10 . Plaintiffs’ Motion to Compel (doc. 3595) at p. 5, fn. 2.

11 . Id. atp. 4.

12 . A copy of this e-mail is attached to this Memorandum and Order as Appendix 1.

13 . The Extracted Privilege Logs are attached to this Memorandum and Order as Appendix 2.

14 . Defendant describes some of the documents in the "Reason for Privilege” column as "Adverse Impact Analysis” instead of "Attorney-Client Privilege." Given the Court's previous ruling that adverse impact analyses are protected from disclosure by the attorney-client privilege in this case, the Court understands Defendant to be claiming that the attorney-client privilege is the reason Defendant will not produce the adverse impact analysis documents.

15 . February 1, 2006 Memorandum and Order (doc. 3549) at p. 16.

¹⁶

17 . See December 13, 2006 Memorandum and Order clarifying February 1, 2006 Memorandum and Order (doc. 4467).

18 . Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).

19 . Burton v. R.J. Reynolds Tobacco Co., 175 F.R.D. 321, 327 (D.Kan.1997) (citing Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); United States v. Olano, 62 F.3d 1180 (9th Cir.1995)).

20 . IMC Chemicals, Inc. v. Niro, Inc., No. 98-2348, 2000 WL 1466495, at *8-9 (D.Kan. July 19, 2000) (quoting Upjohn Co., 449 U.S. at 395-96, 101 S.Ct. 677).

21 . Burton v. R.J. Reynolds Tobacco Co., Inc., 170 F.R.D. 481, 484 (D.Kan.1997) (citation omitted).

²²

23 . Ali v. Douglas Cable Comm., Ltd. Partnership, 890 F.Supp. 993, 994 (D.Kan.1995).

24 . McCoo v. Denny’s, Inc., 192 F.R.D. 675, 680 (D.Kan.2000) (citing Nat’l Union Fire Ins. Co. v. Midland Bancor, Inc., 159 F.R.D. 562, 567 (D.Kan.1994)).

25 . Id. (citing Jones v. Boeing Co., 163 F.R.D. 15, 17 (D.Kan.1995) and Kelling v. Bridgestone/Firestone, Inc., 157 F.R.D. 496, 497 (D.Kan.1994)).

26 . Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir.1984).

27 . Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D.Kan.2000) (citations omitted).

28 . Fed.R.Civ.P. 26(b)(3).

29 . Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947).

30 . Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 427, 997 P.2d 681 (2000); Alseike v. Miller, 196 Kan. 547, 558, 412 P.2d 1007 (1966).

31 . Alseike, 196 Kan. at 558, 412 P.2d 1007.

32 . No. 96-2013-GTV, 1998 WL 13244, at *10 (D.Kan. Jan.6, 1998).

33 . Id. (citations and quotations omitted).

³⁴

35 . 29U.S.C. § 2101 et seq.

36 . In re Universal Sen. Fund Tel. Billing Practices, 232 F.R.D. 669, 674 (D.Kan.2005). (quoting Burton v. RJ. Reynolds Tobacco Co., 175 F.R.D. 321, 327 (D.Kan.1997)).

³⁷

³⁸

39 . Burton v. R.J. Reynolds Tobacco Co., 200 F.R.D. 661, 669 (D.Kan.2001) (court found documents written or prepared by attorneys for client were not protected by attorney-client privilege because they did not relate to seeking or giving legal advice but to public relations and public image issues); see, also, Linde Thomson Lang-worthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508 (D.C.Cir.1993) (no privilege if what is sought is not legal advice but insurance advice).

40 . Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D.Kan.2000) (citations omitted).

41 . See Doc. 4369.

42 . Docs. 4488-89.

43 . Doc. 4534.

44 . Doc. 4580.

45 . Fed.R.Civ.P. 26(b)(1).

46 . McCoy v. Whirlpool Corp., 214 F.R.D. 642, 643 (D.Kan.2003) (citation omitted).

47 . Id. (citation omitted).

⁴⁸

49 . Fed.R.Civ.P. 37(a)(4)(A) (emphasis added).

50 . Fed.R.Civ.P. 37(a)(4)(C).