Gainesville Attorneys Contemplate Motion to Compel

Today, our Gainesville lawyers contemplated filing a Motion to Compel. The gist of the motion is as follows:
Paragraph 12 of the Court’s Scheduling and Mediation Order (Doc. 16) refers to the parties to The Court’s American College of Trial Lawyers U.S. Code of Pretrial Conduct and Code of Trial Conduct.  Page 5(c) of that resource (titled Document Requests) provides as follows:
(4) If any responsive documents are withheld, then at the time of production,
the producing lawyer should give notice of that fact and should explain
the reason for withholding them. The producing lawyer should timely
provide, in accordance with applicable rule, a log of all documents withheld,
including, for each document: (a) its date; (b) the author’s name; (c) a general
description; (d) the addressee, if any; (e) its current location; (f) the basis
for withholding it; and (g) any other information that may be required by applicable rules of procedure.
See also Fed.R.Civ.P. 26(b)(5); See, e.g., Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 664 (S.D.Ind.1991) (requiring the log to list, for each separate document, the authors and their capacities, the recipients (including copy recipients) and their capacities, the subject matter of the document, the purpose for its production, and a detailed, specific explanation of why the document is privileged or immune from discovery).
Failure to timely articulate and support privilege objections results in a waiver.  As the 1993 Advisory Committee Notes to Rule 26 state:
A party must notify other parties if it is withholding materials otherwise subject to disclosure…pursuant to a discovery request because it is asserting a claim of privilege or work-product protection.  To withhold materials without such notice is contrary to the rule, subjects the party to sanctions under Rule 37(b)(2), and may be viewed as a waiver of the privilege or protection.
Id.; see Safeco Ins. Co. of Am. v. Rawstrom, 183 F.R.D. 668, (C.D. Calf. 1998); Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540 (10th Cir.1984), cert. dismissed, 469 U.S. 1199, 105 S.Ct. 983 (1985); Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir.1981); Mackey v. I.B.P. Inc., 167 F.R.D. 186 (D. Kansas, 1996).  Indeed, “the number of cases that hold there is a waiver where a responding party fails to timely and specifically plead and prove a privilege are legion.”  Ford Motor Co. v. Ross, 888 S.W.2d 879, 893 (Tex. Ct. App. 1994).  See also See T.I.G. Ins. Corp. of Am. v. Johnson, 799 So. 2d 339 (Fla. 4th D.C.A. 2001) and cases cited therein.
1.  Defendant Outright Refuses to Produce a Privilege Log
“The party invoking the attorney-client privilege has the burden of proving that an attorney-client relationship existed and that the particular communications were confidential. In order to show that communications made to an attorney are within the privilege, it must be shown that the communication was made to him confidentially, in his professional capacity, for the purpose of securing legal advice or assistance.’ `The key question in determining the existence of privileged communication is “whether the 798*798 client reasonably understood the conference to be confidential.”‘” United Stales v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir.), cert. denied 502 U.S. 1005, 112 S.Ct. 640, 116 L.Ed.2d 658 (1991) (internal citations omitted)
The attorney-client privilege does not apply when the attorney is asked for business advice rather than for legal advice. United States v. Rowe, 96 F.3d 1294, 1297 (9th Cir.1996); In re Walsh, 623 F.2d 489, 494 (7th Cir.), cert denied 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980); Olender v. United States, 210 F.2d 795, 806 (9th Cir.1954); United States v. Loll ten, 507 F.Supp. 108, 112 (S.D.N.Y.1981). See also In re Grand Jury Investigation, 842 F.2d 1223 (11th Cir.1987) (information taxpayer gave to his attorney for purposes for preparing tax returns was not privileged); United States v. Davis, 636 F.2d 1028, 1044 (5th Cir., Unit A), cert denied 454 U.S. 862, 102 S.Ct. 320, 70 L.Ed.2d 162 (1981) (attorney who acts as his client’s business advisor is not acting in a legal capacity and information is not privileged).
There are many other circumstances where a Plaintiff should be appraised of the information required by the above (including the date and general description of the communication) – even for alleged attorney/client communications. For example, in Abbott Point of Care, Inc. v. Epocal, Inc., No. CV-08-S-543-NE, 2012 WL 1339982, at *11 (N.D. Ala. Apr. 18, 2012), the  court noted that a defendant’s choice to rely on the advice of counsel defense would open the door to otherwise protected communications and concluding that “if Abbott prefers for attorney communications to remain protected by the privilege, it should rely upon some other defense.”
Here, as referenced in the Defendant’s response to Plaintiff’s 57th request for admission, the Defendant has voluntarily raised the notion that it relied upon the “advice of an attorney.”  Thus, not only has Defendant lost the privilege as to these documents because it refused to provide a privilege log, but it also has lost the privilege by virtue of its defense of relying on the advice of an attorney regarding the “lay off” of Plaintiff.
2. Defendant Has Waived any claimed “Privileges”.
The party resisting discovery bears the burden of proving “specific matters are indeed subject to privilege or protection.”  Williams v. General Motors Corp., 147 F.R.D. 270, 273 (S.D. Ga. 1993); see United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir.1991) (“The party invoking the attorney-client privilege has the burden of proving that an attorney-client relationship existed and that the particular communications were confidential”) (citing In re Grand Jury Proceedings in Matter of Freeman, 708 F.2d 1571, 1575 (11th Cir.1983)); Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir.2003) (same); Hodges, Grant & Kaufmann v. United States Gov’t, Dep’t of the Treasury, Internal Revenue Serv., 768 F.2d 719, 721 (5th Cir.1985) (“The burden of establishing that a document is work product is on the party who asserts the claim”).
A party must do more than simply recite the terms “privilege” or “work product” to properly preserve an objection:
When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make a claim expressly. It shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
Rule 26(b)(5), Fed. R. Civ. P. (emphasis supplied); In re E.I. DuPont De Nemours & Co. – Benlate Litig., 99 F.3d 363, 372 n.9 (1996);
A party must assert and support a privilege by (1) raising the privilege in a timely objection that identifies with particularity what is being withheld, pursuant to what privilege; and (2) substantiating the privilege claim with evidence.  See General Motors Corp. v. Conkle, 226 Ga. App. 34, 47, 486 S.E.2nd 180, 192 (1997) (“Stating a privilege claim and meeting the burden of showing by evidence that privilege applies are not the same”).  “An unsupported claim of privilege does not meet the proponent’s burden of showing the privilege applies.” Tyson v. Old Dominion Freight Line, Inc.,  270 Ga. App. 897, 899, 608 S.E.2d 266, 269 (2004); Freiermuth v. PPG Industries, Inc.  218 F.R.D. 694, 698 (N.D.Ala. 2003).
Courts uniformly require a privilege log that identifies particular documents withheld, including the nature of the document (memo, email, letter, etc.), its date, length, author(s), recipient(s), and subject matter. See Order, Cameron v. General Motors Corp., CV 6:93-1278-3 (D. S.C., Jan. 4, 1994); Order, Six Flags Over Georgia L.L.C. v. Time Warner Entertainment Co., CV 97-A-01939-1 (Superior Court of Gwinnett County, Georgia, Sept. 27, 1998); Order, Bampoe-Parry v. General Motors Corp., CV 98VS0138297J (State Court of Fulton County, Georgia, Feb. 9, 1999); Order, Gibson v. Ford Motor Co., 00-CV-0111 (State Court of Clarke County, Georgia, October 3, 2001); Order, Bishop v. General Motors Corp., CV-94-286-B (E.D. Okla., Feb. 17, 1995); Order, Fowler v. Trinity Outdoor, L.L.C., et al., 04-C-03310-3 (State Court of Gwinnett County, Georgia, Aug. 19, 2005).
Defendant refused to produce a privilege log specifically so that Plaintiff would have no way to contest the Defendant’s “privilege” claims even if there was any way for Plaintiff to know what those claims were.  Notably, the Defendant has even refused to provide the date of the alleged privileged communications, something relevant to its answer to Plaintiff’s 57th Request for Admission.  Defendant has willfully failed to identify the facts or documents claimed to be “privileged” and support those claims with any evidence.
WHEREFORE, Plaintiff respectfully requests that Defendant’s asserted privileges be waived for its refusal to provide a privilege log.


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