The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:
Monday, 07 May, 2012 09:34:05 AM Clerk, U.S. District Court, ILCD
This matter comes before the Court on Plaintiff Dunnet Bay Construction Company's (Dunnet Bay) Motion to Compel Production by Governor Quinn and the Office of the Governor (d/e 58). Dunnet Bay sent a subpoena duces tecum to Illinois Governor Pat Quinn and the Office of the Governor (collectively the Governor). In response, the Governor produced certain documents and withheld other documents under claims of privilege. Dunnet Bay moves to compel the Governor to produce the withheld documents. The Court has inspected the documents at issue in camera. After careful review and consideration of the submissions of Dunnet Bay and the Governor, and the in camera inspection, the Motion is ALLOWED in part and DENIED in part.
Dunnet Bay brings this action under 42 U.S.C. §§ 1981, 1983, 2000d, 740 ILCS 23/5 against the Defendant Illinois Department of Transportation (Department) and Illinois Transportation Secretary Gary Hannig for alleged racial discrimination in awarding highway construction contracts in Illinois. Second Amended Complaint (d/e 19). On January 7, 2011, Dunnet Bay mailed a subpoena duces tecum (Subpoena) to the Governor by certified mail return receipt requested. On April 12, 2011, counsel for the Governor notified Dunnet Bay's counsel that documents were being collected. The Governor produced documents along with a privilege log of withheld documents on October 26, 2011. Dunnet Bay objected to the adequacy of the privilege log by letter dated October 28, 2011. Counsel for the Governor was delayed in responding to the October 28, 2011, letter because of the birth of his child and subsequent complications with the health of the child. Motion, Exhibit H, Letter from Counsel for Governor, dated December 1, 2011.
On December 1, 2011, counsel for the Governor responded with some additional documents and a revised privilege log. Dunnet Bay filed this Motion on January 19, 2012.
A party to an action, such as Dunnet Bay, may subpoena documents from a third party, such as the Governor. Fed. R. Civ. P. 45(a)(1)(D). The Governor must raise objections to the subpoena in writing. Fed. R. Civ. P. 45(c)(2)(B). The Governor, further, must provide a privilege log for any documents withheld under the claims of privilege. Fed. R. Civ. P. 45(d)(2). Dunnet Bay may then seek an order compelling production of any withheld documents. Fed. R. Civ. P. 45(c)(2)(B)(ii).*fn1
Initially, both parties argue that the other waived its position. Dunnet Bay argues that the Governor waived its right to raise its claims of privilege because the response to the Subpoena was not timely. The Governor argues that Dunnet Bay waived its right to compel production because the Motion was untimely. The Court rejects both parties' arguments.
Dunnet Bay argues that the Governor failed to assert claims privilege within fourteen days of service of the Subpoena. See Fed. R. Civ. P. 45(c)(2)(B). Rule 45(c)(2)(B) states the party served with a subpoena must serve objections in writing within fourteen days after the subpoena was served. Dunnet Bay, however, failed to properly serve the Subpoena. Subpoenas must be served personally. Fed. R. Civ. P. 45(b)(1); York Group, Inc. v. Wuxi Taihu Tractor Co., Ltd., 632 F.3d 399, 402 (7th Cir. 2011); Murray v. Nationwide Better Health, 2011 WL 2293376, at *1 (C.D. Ill. June 9, 2011). Dunnet Bay improperly mailed the Subpoena to the Governor. The Court will not require the Governor to respond within fourteen days of service when proper service was never made.*fn2
Dunnet Bay also argues that Governor waived the claims of privilege because the original privilege log was inadequate. This Court should not find a blanket waiver of privilege from an insufficient privilege log as long as the party subject to the subpoena acts in good faith to resolve deficiencies in the log. American National Bank and Trust Co. of Chicago v. Equitable Life Assurance Society of the United States, 406 F.3d 867, 879-80 (7th Cir. 2005). The Court finds that both parties have been acting in good faith, and so, waiver on this basis is not proper.
The Governor argues that Dunnet Bay waived its right to compel production because it waited too long to bring the Motion. The Scheduling Order (d/e 33) states that motions to compel must be brought within sixty days of the event that is the subject of the motion. Scheduling Order ¶ 5. The Governor argues that Dunnet Bay was required to bring the Motion within sixty days of the October 26, 2011, production. In this case, however, a significant portion of any delay was attributable to the family emergency of the counsel for the Governor. The delay associated with the birth of counsel's child and the subsequent complications is understandable and entirely proper. The Court, however, will not penalize Dunnet Bay for a commensurate delay in the filing of this Motion.
The Governor also argues that Dunnet Bay's Motion should be denied because Dunnet Bay did not meet and confer with the Governor to attempt to resolve this dispute before resorting to the Court. Rule 37 requires the moving party to certify that it attempted to meet and confer with the non-disclosing person or party to resolve the difficulties before filing a motion to compel; Rule 45 does not. Compare Fed. R. Civ. P. 37(a) with Fed. R. Civ. P. 45(c)(B)(i). The authors of the Rules chose not to include a meet and confer requirement in Rule 45, ...