JACQUELINE SCOTT CORLEY, Magistrate Judge.
Now pending before the Court is a discovery dispute regarding the production of ESI by Defendants SCI and SCI California (together, "SCI"). (Dkt. No. 150.) In an Order dated October 17, 2016 addressing a number of discovery disputes, the Court directed Plaintiff to reconsider his outstanding discovery requests to SCI to limit them to discovery necessary to respond to SCI's pending summary judgment motions, due to be heard on January 19, 2017.
Plaintiff now contends that SCI has withheld emails responsive to Plaintiff's proposed search terms and custodians that are relevant to the joint employer question at issue in SCI's pending motion for partial summary judgment and has waived attorney-client and attorney work product privilege by producing only a belated and insufficient privilege log. Plaintiff asks the Court to order SCI to produce all documents responsive to Plaintiff's search terms forthwith. SCI, for its part, urges that (1) it has produced all relevant, non-privileged responsive documents so any production of further documents is duplicative and not proportional to the needs of the case; and (2) Plaintiff has waived any argument about privilege by making no effort to meet and confer on that issue.
After protracted discovery detailed in the joint letter brief that the Court will not repeat here, SCI agreed to run Plaintiff's proposed search terms on its ESI despite its position that the terms were overly broad.
The four emails at issue indicate that SCI has withheld relevant discovery. First, Exhibit C (Dkt. No. 150-4) is a March 2016 email from Serenity's CEO to Mia Keys at SCI. The email provides contact information for Serenity and states that all Serenity drivers would complete a packet that would go to the holding facility, which is relevant to the joint employer analysis as it touches on SCI's control over drivers and its maintenance of employment records. The email is relevant and should not have been withheld. Although the forms themselves have already been produced and discussed in multiple depositions (Dkt. No. 151 ¶ 11(a)), a defendant does not have discretion to decide to withhold relevant, responsive documents absent some showing that producing the document is not proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1). SCI has made no such showing.
The same is true of Exhibits D (Dkt. No. 150-5) and E (Dkt. No. 150-6). Exhibit D is an email from the manager of an SCI-owned mortuary expressing the mortuary's intent to stop using Serenity drivers and use their own or another company's. Exhibit E is an email from SCI mortuary indicating that it will call Serenity to get a driver when other drivers are unavailable. These emails are relevant to the joint employer analysis as they touch on whether the services the drivers render are integral to the employer's business, whether the drivers' responsibilities pass from one contractor to another, and whether the drivers' work is part of SCI's usual business. SCI contends that the emails are duplicative and not particularly valuable, as the fact that SCI usually uses its own staff as drivers before calling Serenity is well established as it has been the subject of depositions and declarations. (See Dkt. No. 151 ¶ 11(b).) But, as explained above, absent a showing of burden—and SCI has made none—it does not have discretion to decide to withhold relevant documents.
A fourth email SCI appears to concede is relevant but did not produce: Exhibit F (Dkt. No. 150-7) is an email from SCI mortuary regarding an SCI policy to prohibit Serenity drivers from transporting more than one decedent at a time. SCI argues that Plaintiff produced a forwarded version of the email and SCI produced Serenity's response to it, and that somehow waives SCI's requirement to produce this document. (Dkt. No. 151 ¶ 11(d).) It does not. A party cannot unilaterally decide that there has been enough discovery on a given topic.
SCI's withholding of these four relevant documents—emails that are responsive to the search terms and say either "Serenity" or "Friedel"—without any showing of burden that would render production out of proportion to the needs of the case was improper. These four emails suggest that SCI may be withholding other relevant ESI. Accordingly, the Court ORDERS SCI to produce all non-privileged, relevant documents that include the search terms "Serenity" or "Friedel"—by
Defendant has only provided a privilege log for three emails, and did so only belatedly. (Dkt. No. 150-1 ¶ 11; Dkt. No. 150-3.) Moreover, that privilege log is patently inadequate as it does not contain enough information to permit Plaintiff or the Court to evaluate whether the privilege applies. Instead, the log states that all three emails are "protected by the attorney-client privilege and attorney work product protections[,]" includes dates (where applicable) and names— which may be the sender and recipient, but that is not clear either—and no further information. (Dkt. No. 150-3 at 2.) There is no indication of the content of the emails or whether either the sender or recipient is an attorney. (Id.)
Plaintiff asks the Court to deem SCI to have waived privilege over its ESI for having failed to produce a sufficient log for these three emails, or a log at all for the remainder of ESI documents withheld since production began. (Dkt. No. 150 at 3-4.) Courts have discretion to deem failure to produce a timely privilege log as a complete waiver of privilege. See Coalition for a Sustainable Delta v. Koch, No. 1:08-CV-00397 OWW GSA, 2009 WL 3378974, at *3 (E.D. Cal. Oct. 15, 2009) (citing Burlington No. & Santa Fe Ry. Co. v. United States, 408 F.3d 1142, 1149 (9th Cir. 2005). The Court declines Plaintiff's invitation to find waiver here, where the dispute appears to turn on an insufficient log regarding only three documents and where it appears that the parties have not yet met and conferred on this issue, contrary to the requirements of the Court's Standing Order. Instead, the Court ORDERS SCI to produce an adequate privilege log by
For the reasons discussed above, the Court GRANTS IN PART Plaintiff's request to compel production of all documents responsive to the search terms that SCI ran. Specifically, the Court ORDERS SCI to produce all non-privileged documents responsive that include "Serenity" or "Friedel"—by