United States District Court, N.D. Illinois, Eastern Division
MOTOROLA SOLUTIONS, INC. Plaintiff,
HYTERA COMMUNICATIONS CORP, et al, Defendants.
MEMORANDUM OPINION AND ORDER
Jeffrey Cole Magistrate Judge.
defendants' have filed a motion to compel production of
documents and witnesses, set for hearing on Thursday, January
11, 2018. The current discovery dispute between the parties
focuses on the plaintiffs assertion of the attorney-client
privilege over hundreds of documents and refusal to produce
those documents in discovery, as well as witnesses refusing
to answer deposition questions on the same grounds. Initial
review of the plaintiff s privilege log in advance of
Thursday's scheduled hearing reveals that the log is
woefully inadequate. Rather than go through with the
scheduled hearing under such circumstances, there will be a
one-week postponement to allow the plaintiff a final chance
to submit a log that is compliant with Rule 26(b), Federal
Rules of Civil Procedure, and long established case law
relating to privilege logs. Failure to do so will result in
waiver of any claimed privilege.
26(b)(5) requires that a party who withholds otherwise
discoverable information must "describe the nature of
the documents, communications, or 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." As discovery disputes
often wind up in court - especially disputes over privilege
-judges must be able to use privilege logs to assess claims
of privilege. After all, they and not the inevitably partisan
litigants decide claims of privilege. Courts have required
that a privilege log identify "for each
separate document the following information: the date, the
author and all recipients, along with their capacities, the
subject matter of the document, the purpose for its
production and a specific explanation of why the document is
privileged." RBS Citizens, N.A. v. Husain, 291
F.R.D. 209, 218 (N.D. Ill. 2013)(collecting cases). Here, the
plaintiffs privilege log describes scores of documents as
"reflecting legal advice or opinions from in-house
counsel" - a description most courts reject as
impermissibly vague. See, e.g., RBS Citizens, 291
F.R.D. at 218; Nucap Indus. Inc. v. Robert Bosch
LLC, 2017 WL 3624084, at *1 (N.D. Ill. 2017);
Surgery Ctr. at 900 N. Michigan Ave., LLC v. Am.
Physicians Assurance Corp., Inc., 317 F.R.D. 620, 633
(N.D. Ill. 2016); In re: Fluidmaster, Inc., 2016 WL
6599947, at *6 (N.D. Ill. 2016); Cornejo v. Mercy Hosp.
&Med. Ctr., 2014 WL 4817806, at *2 (N.D. Ill. 2014).
Moreover, for many if not most documents, the log identifies
neither the author nor the recipient of the documents. That
is unacceptable. It should also be pointed out that, unlike
the parties who are intimately involved with this drama on a
daily basis, the court is not and a playbill would be not
only appreciated, but necessary. Without it, who are people
like Kevin He, David Wiatrowski, Thomas Bohn, Greg Feeney,
Dipendra Chowdhary, etc.? They could be in-house counsel or
they could be non-lawyers. They could be anyone. One further
concern about the plaintiffs conclusory claims of privilege
that is apparent even from an initial review is the massive
distribution of some documents. Document No. 6 went to over
200 recipients. Documents like Nos. 624 through 627 went to
more than four dozen recipients. Of course, none of these
recipients are identified. Was confidentiality over whatever
was revealed actually maintain with so wide a distribution to
recipients who, based on the inadequate log, had no need for
the information? It would certainly seem not. And finally, a
number of documents are listed as "withdrawn from
log." If no privilege is asserted for these documents,
they should not be listed at all. The privilege log is
unwieldy enough as it is without surplusage.
privilege logs are a significant and all-too-frequent problem
in federal litigation. See e.g., United States exrel.
McGeev. IBMCorp., 2017' WL 1232616, at *2 (N.D. Ill.
2017); Slaven v. Great Am. Ins. Co., 2014 WL
4470723, at *2 (N.D. Ill. 2014)(" Baxter failed to
identify or justify a claim of privilege in many instances
and identified each document in such summary fashion that
hundreds of hours have been required to evaluate Baxter's
claims."). Under Rule 34 of the Federal Rules of Civil
Procedure a party generally has 30 days to respond to a
document request, including the production of a privilege
log. Compliance with Rule 26(b)(5)(A) is not optional,
Cormack v. UnitedStates, 118Fed. CI. 39, 42-43
(2014), and noncompliance can, in the discretion of the
court, have serious consequences, including a finding that
the claim of privilege has been waived or forfeited. See
Equal Employment Opportunity Comm'n v. BDO USA,
L.L.P., 876 F.3d 690, 697 (5th Cir. 2017);
Burlington N. & SantaFeRy. Co. v. U.S. Dist.
CourtforDist. of Mont, 408 F.3d 1142, 1149 (9th Cir.
2005); Kannaday v. Ball, 292 F.R.D. 640, 647 (D.
Kan. 2013). A court must make a "case-by-case
determination" of whether privilege should be waived;
that is, a holistic reasonableness analysis, intended to
forestall needless waste of judicial time and resources, as
well as tactical manipulation of the rules and the discovery
process is required. Holifield v. United States, 909
F.2d 201, 204 (7th Cir. 1990); In re Subpoena to Produce
Documents of Clapp, Moroney, Bellagamba, Vucinich, Beeman
&Scheley, 2014 WL 3784112, at *3 (N.D. Cal. 2014).
the plaintiffs privilege log in this case is obviously
inadequate, waiver will not be found at this point. However,
if the plaintiff does not cure the deficiencies described
herein by the rescheduled hearing date of January 18, 2018, a
finding of waiver would not be inappropriate.
assertions of privilege needlessly sap the necessarily
limited time of judges, forcing parties with substantial
disputes to wait in a longer queue and condemning them to
receive less judicial attention when their cases finally are
heard. This is a significant problem on which the Seventh
Circuit in other contexts has spoken. See Szabo Food
Service, Inc. v. Canteen Corp.,823 F.2d 1073, 1077
(7th Cir. 1987); Channell v. Citicorp Nat.
Services, Inc.,89 F.3d 379, 386 (7th Cir.
1996). These concerns apply equally in a privilege context,
where courts have consistently expressed the same underlying
frustration. As the court in Puckett v. Ocwen Loan
Servicing, LLC, 2016 WL 6828609, at *7 (S.D.W.Va. 2016),
"gamesmanship must be discouraged so as to avoid the
waste of valuable and limited judicial ...