Filed: Nov. 26, 2019
Latest Update: Nov. 26, 2019
Summary: ORDER ALLISON CLAIRE , District Judge . The court has reviewed defendant Weeks' response (ECF No. 43) to the Order to Show Cause (ECF No. 42). The OSC addressed defendant's failure to file a privilege log as previously directed by the court in relation to a discovery dispute. See ECF No. 39 (Order on Plaintiff's Motion to Compel). Because the discovery at issue has been produced to plaintiff, see ECF No. 43, the OSC will be discharged as moot. However, the court notes that the response
Summary: ORDER ALLISON CLAIRE , District Judge . The court has reviewed defendant Weeks' response (ECF No. 43) to the Order to Show Cause (ECF No. 42). The OSC addressed defendant's failure to file a privilege log as previously directed by the court in relation to a discovery dispute. See ECF No. 39 (Order on Plaintiff's Motion to Compel). Because the discovery at issue has been produced to plaintiff, see ECF No. 43, the OSC will be discharged as moot. However, the court notes that the response ..
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ORDER
ALLISON CLAIRE, District Judge.
The court has reviewed defendant Weeks' response (ECF No. 43) to the Order to Show Cause (ECF No. 42). The OSC addressed defendant's failure to file a privilege log as previously directed by the court in relation to a discovery dispute. See ECF No. 39 (Order on Plaintiff's Motion to Compel). Because the discovery at issue has been produced to plaintiff, see ECF No. 43, the OSC will be discharged as moot.
However, the court notes that the response to the OSC stated incorrectly that defendant had been ordered to "prepare and submit a privilege log, `if applicable,'" and went on to explain that "because the documents were being produced, counsel assumed that no privilege [log] was necessary, and therefore, none was prepared." ECF No. 43 at 1 (citing ECF No. 39 at 13:1-2), 2. Defendant had not been ordered to "prepare and submit a privilege log. . . if applicable." Rather, defendant was expressly ordered to "file his privilege log and, if applicable, a supplemental response asserting the official information privilege and any affidavits required to support the privilege asserted." ECF No. 39 at 13:2-4. Defendant had affirmatively represented that a privilege log had been prepared and provided to plaintiff. See ECF No. 20 at 8:27-28, 9:11-12, 9:26, 10:8-9 (defendant's Responses to plaintiff's Requests for Production, referencing "attached privilege log"). Because that privilege log had not been provided to the court, and the assertions of privilege appeared pertinent to the discovery dispute, the undersigned unambiguously ordered that it be filed for review. See ECF No. 39 at 6-8, 13:1-4.
Counsel's most recent statement that no log was prepared because none was deemed necessary, is inconsistent with the previous representation that a privilege log had in fact been prepared. Because the underlying dispute is moot, the court will not require further clarification. However, counsel is cautioned that the discrepancy noted here suggests either a lack of care or a lack of candor, neither of which is acceptable.
In conclusion, IT IS HEREBY ORDERED that the Order to Show Cause, ECF No. 42, is DISCHARGED.
