The opinion of the court was delivered by: Geraldine Soat Brown United States Magistrate Judge
Judge Rebecca R. Pallmeyer
Magistrate Judge Geraldine Soat Brown
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff's Second Motion to Compel the Production of Documents Being Withheld Under a Claim of Privilege ("Pl.'s Mot. Compel"). [Dkt 240.] After reviewing the plaintiff's motion and the defendants' revised privilege log, as well as conducting another in camera inspection of the documents the defendants withheld from discovery pursuant to a claim of attorney-client privilege, the court grants the plaintiff's motion for the following reasons.
The present dispute involves documents the defendants Target Corporation and Target National Bank (collectively, "Target") withheld from discovery under a claim of attorney-client privilege. The plaintiff argues, inter alia, that the privilege log is inadequate and requests an order compelling Target to produce the documents.
Those documents have been the subject of a prolonged discovery dispute. Following the plaintiff's fourth motion to compel production of documents [dkt 157], Target was ordered to produce a privilege log in compliance with Rule 26 as described in Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 145 F.R.D. 84 (N.D. Ill. 1992). (Order, Dec. 22, 2005.) [Dkt 187.]
In an attempt to comply with the December 22, 2005 Order, Target produced a privilege log identifying 89 documents ostensibly protected from disclosure under the attorney-client privilege. In response, the plaintiff filed her Motion to Compel Production of Documents Recently Disclosed as Being Withheld Under a Claim of Privilege [dkt 216], and the court directed Target to produce copies of the 89 documents identified on the privilege log for an in camera inspection [dkt 223.]
Even before the court conducted its in camera inspection, the inadequacies of Target's privilege log were apparent. Although the privilege log contained the requisite categories of information, the descriptions were void of factual detail. The entries failed to include even basic information such as the identity of an attorney claimed to have been part of the communication. In describing each document on its privilege log, Target merely cut and pasted the information contained in the subject line of the underlying documents -- most of which are copies of e-mail correspondence.
Notwithstanding the deficiencies of the privilege log, the court reviewed in camera the documents listed on Target's privilege log and concluded that Target had failed to satisfy its burden of providing the factual information necessary to sustain the privilege. (See November 28, 2006 Order.) As observed in the November 28, 2006 Order, the entries on Target's privilege log were "inadequate to establish the applicability of the privilege, and provide[d] the plaintiff and the court with little assistance in making that determination." (Id. at 6.) Because waiver of attorney-client privilege is not a favored result, however, Target was granted one more opportunity to demonstrate the privileged nature of the communications. (Id. at 12.)
The November 28, 2006 Order specified the information Target would need to provide in order to meet its burden. Specifically, Target was reminded of its obligation to establish both the identity of those individuals included in the chain of communication and the fact that their receipt of the communication did not compromise its privileged status. (Id. at 8, 9, 10 and 12.)
In response to the November 28, 2006 Order, Target produced the revised privilege log at issue here. [Dkt 239.] The log identifies 89 documents.*fn2 The documents at issue are chains of e-mail communications among Target employees.*fn3
Some include an attorney, while many do not. The major difference between this log and its predecessor is the inclusion of the job title of the author and recipient(s) of each communication and whether that individual is an attorney. Notably, Target did not submit an affidavit explaining the significance of the job titles. With respect to documents consisting of a string or chain of e-mail communications, Target simply identified those individuals who were party to the last message in time. In addition, Target recycled the same six to seven formulaic descriptions of the privileged nature of the document. (See Pl.'s Mot. Compel at 8-11.)
The plaintiff says that she filed the present motion "in light of the Defendants' continued failure to produce a privilege log that meets standards set forth in Fed. R. Civ. P. 26(b)(5), Allendale or this Court's very detailed memorandum opinion and order of November 28, 2006." (Id. at 1.)
At the hearing on the motion, the court gave Target an opportunity to file a response to the plaintiff's motion. Target declined, opting instead ...