TERESA J. JAMES, Magistrate Judge.
This matter is before the Court on Plaintiff's Motion to Compel Discovery (ECF No. 57). Plaintiff requests an order compelling Defendant either to produce unredacted versions of emails from which Defendant previously redacted information, or alternatively, to produce a redaction log. Defendant objects because it claims the redacted information is confidential and/or irrelevant. Plaintiff also seeks an order compelling Defendant to produce documents that it has withheld as protected under the attorney-client privilege and/or work product doctrine, claiming that Defendant's privilege log is insufficient. Plaintiff alternatively requests that the Court conduct an in camera review of the documents withheld. For the reasons set forth below, the Court grants the motion in part and denies it in part.
Plaintiff filed this action on May 29, 2012, alleging sexual discrimination, harassment, hostile work environment, and retaliation stemming from alleged misconduct by a fellow officer, Justin Bever. On October 3, 2012, the Court entered the parties' Agreed Protective Order (ECF No. 17), which limits the parties' disclosure and use of confidential, non-public information designated as "Confidential Information."
On April 9, 2013, Plaintiff served her First Interrogatories and First Request for Production of Documents to Defendant.
On August 14, 2013, Defendant produced approximately 20,000 emails. Before producing the emails, Defendant reviewed the emails and eliminated those pertaining to another person with the same last name as Plaintiff and other false-positive emails. Defendant further reviewed the emails for privilege and withheld those emails it concluded contained attorney-client privileged information or constituted attorney work product. Defendant also redacted from the emails information that it determined to be confidential, third-party information and/or not relevant.
On August 15, 2013, Defendant served its privilege log for the first wave of production. This privilege log identified the documents Defendant withheld on the basis of attorney-client privilege and/or work product.
Plaintiff then asked Defendant to provide a log of the relevance and confidentiality-based redactions. On September 9, 2013, Defendant's counsel advised Plaintiff that the cost of producing a log for these redactions was prohibitive. Counsel further advised that the email redactions were generally focused on protecting irrelevant and third-party confidential information contained in the emails.
Defendant thereafter supplemented its privilege log with respect to the documents it withheld as attorney-client privileged and work product. The final version of Defendant's privilege log has 215 entries,
Plaintiff objects to Defendant's unilateral redaction of information that Defendant claims is confidential or irrelevant, from the approximately 20,000 emails it produced on August 14, 2013. Plaintiff argues that Defendant has not asserted any legal basis for the redactions, nor has it produced a log providing information about the redactions. Plaintiff also contends that the redactions are not necessary to protect confidential third-party information because, if that were truly the case, Defendant could have simply designated the materials as "confidential" under the parties' existing protective order. Plaintiff points out that it did not seek to increase the cost of litigation by forcing Defendant to review and redact thousands of pages of documents. Plaintiff maintains that if Defendant does not wish to produce a redaction log, it can simply produce the documents in their unredacted form. Because these redactions are not described in any privilege or redaction log, Plaintiff contends that Defendant should be compelled to produce the emails in their unredacted form, provide a log with information about the redactions, or produce the documents for an in camera review by the Court.
In the few cases in this district where the court has addressed the propriety of unilateral redactions of either irrelevant, non-responsive, or confidential information, unilateral redactions have been found to be inappropriate. In Williams v. Sprint/United Management Co.,
In HR Technology, Inc. v. Imura International U.S.A., Inc.,
The HR Technology court further quoted the summary of the redaction decisions set out by the Southern District of Ohio in Beverage Distributors, Inc. v. Miller Brewing Co.:
With respect to redactions based upon the confidentiality of the information, this was addressed in U.S. Fire Insurance Co. v. Bunge North America, Inc.
In this case, the Court finds that Defendant, as the party redacting information on otherwise discoverable documents, has the burden to show why its redactions are proper. Defendant explains that before producing the emails, it redacted numerous instances of information about private third parties, such as license plate, driver's license, social security numbers, birth dates, addresses, phone numbers, medical information, and other sensitive information obtained by law enforcement. It also redacted information, which it deemed not relevant to any claim or defense in the case. Defendant defends its failure to provide a redaction log by arguing that the sheer volume of redactions in the thousands of emails makes reviewing each and every document and preparing a redaction log particularly onerous and costly. Defendant further points out that many of the emails with redacted materials were not designated as "confidential" and therefore would not be subject to the terms of the protective order.
The Court has reviewed the five redacted emails provided by Defendant as examples of information that it redacted.
To the extent the information redacted from these or any other emails was redacted because Defendant deemed it irrelevant, Defendant has failed to convince the Court of any reason Plaintiff should not be permitted to review this information as allowed under Fed. R. Civ. P. 34. Defendant cites no authority to support its redaction of claimed irrelevant and/or sensitive confidential information.
To the extent Defendant redacted emails containing claimed third-party confidential information, Defendant could have designated these emails as "confidential" under the existing protective order, thus eliminating the need to redact each and every instance of third-party, non-public information. If Defendant was concerned that the existing protective order did not provide sufficient protection, then it could have sought further protections for this information in lieu of redacting the information. It could have informed Plaintiff of its particular concerns and perhaps sought an agreement with respect to the redactions, sought a supplemental protective order from the Court authorizing redactions of particularly sensitive information or particular types of information, or modified the existing protective order. Defendant made unilateral judgments about what might be relevant and/or confidential and redacted voluminous documents, which is inconsistent with the provisions of Rule 34.
The Court therefore grants Plaintiff's request for an order compelling Defendant to produce unredacted versions of all the emails from which it previously redacted claimed confidential third-party and/or irrelevant information. However, in lieu of producing unredacted emails, Defendant may elect to produce a redaction log for the redactions of the following particularly sensitive, confidential third-party information: license plate, driver's license, social security, and vehicle identification numbers; birth dates; addresses; phone numbers; medical information; and information about criminal suspects, witnesses, informants, or victims. Subject to any election to produce a redaction log for this information, Defendant is ordered to produce unredacted versions of all emails in which it previously redacted claimed confidential and/or irrelevant information, subject to the terms of the Agreed Protective Order. If Defendant believes the existing Agreed Protective Order does not provide sufficient protection, then it can confer with Plaintiff regarding a proposed protective order that will sufficiently protect the sensitive, confidential third-party information and submit that protective order to the Court for consideration.
The Court has taken into account the concerns Defendant has expressed regarding the potential costs associated with responding to Plaintiff's discovery requests. Defendant has already taken it upon itself, voluntarily, to incur the time and expense of redacting a significant number of documents. This Order should not cause Defendant to incur any significant additional expense in producing the unredacted versions of documents it has already gathered and produced in their redacted form. To the extent Defendant elects to produce those documents containing claimed confidential information designated in this Order, in their redacted form, then Defendant will have to prepare a redaction log for those documents. However, it will be up to Defendant to decide whether to incur those costs or instead to produce unredacted versions of those documents subject to the existing protective order or a supplemental protective order.
Plaintiff next requests that the Court order Defendant to produce documents that it has withheld as protected under the attorney-client privilege and work product doctrine. She argues that the privilege log produced by Defendant is deficient and does not sufficiently describe the nature of the documents or communications in a manner that will enable her to assess the claimed privilege. Plaintiff argues that the attorney-client privilege is narrowly construed and the party asserting it, Defendant, has the burden of proving its applicability. Plaintiff contends that Defendant's privilege log is inadequate because it does not identify which parties are attorneys or provide information demonstrating that the communications were actually made for the purpose of obtaining legal advice. Plaintiff asks the Court to compel Defendant to produce the documents withheld. The Court construes this to mean that Plaintiff is requesting the Court to deem Defendant's claim of attorney-client privilege waived as to these documents and compel production of the documents identified as attorney-client privileged on the log. Plaintiff alternatively asks that the Court compel defendant to submit those documents for an in camera review.
Defendant argues that its privilege log provides an adequate enough description of the attorney-client privileged communications in that it sets out the date of the communication, the sender, recipient, privilege asserted, and a summary of the subject of the correspondence. Defendant provides the Court with examples of the subjects of its correspondence, reproduced below:
Defendant argues that the descriptions of its privilege log entries, like those shown above, are adequate because these entries provide Plaintiff with basic information about the communications by stating the subject matter of the communication and the general reason for the privilege. In the alternative, Defendant reiterates its willingness to produce a supplemental privilege log if the Court deems more information is required.
The party withholding a document on the basis that it contains attorney-client privilege communications has the burden of establishing the privilege.
Here, most of Defendant's privilege log entries are adequate enough to demonstrate that Defendant made a good faith basis to comply with the technicalities involved in creating a privilege log. While many of the privilege log entries provide adequate information to assess the applicability of the privilege, some entries are lacking essential information.
The first deficiency is that the privilege log identifies the parties to the communications by name only. The log fails to specify which individual, the sender or recipient of any given communication, is an attorney. This is vital information to convey to Plaintiff in a privilege log. Without identifying which individual in a communication is the attorney, there is presumably no attorney-client privilege. Defendant shall prepare a roster of all individuals identified in the privilege log with their name, title, department, and whether the person is an attorney.
Defendant's privilege log also fails to identify the specific type of communication involved in each circumstance (e.g., email, letter, memo, transcript of a conversation, etc.). In context to the documents requested, they are presumably all emails, but Defendant must include that information somewhere on the privilege log, perhaps simply by including an additional column to the entire privilege log that identifies each communication by its type for every entry or otherwise specifying it within the description of the communication. For example, instead of describing the communication as "communication regarding lawsuit expenses," the privilege log could read "email regarding lawsuit expenses."
Plaintiff's motion to compel is therefore granted in part and denied in part. The Court denies Plaintiff's request for production of the documents withheld as protected by the attorney-client privilege. The Court denies Plaintiff's request for waiver of attorney-client privilege on the basis of an insufficient privilege log. The Court further denies the request for submission of the documents to the Court for an in camera review. The Court, however, grants Plaintiff's request for an order compelling Defendant to produce a supplemental privilege log.
Defendant is ordered to produce a supplemental privilege log commensurate with the changes set out above. Defendant must identify all individuals listed in the privilege log by providing a roster with their name, title, department, and whether the person is an attorney. Defendant must, in every entry of the privilege log except entry number 1, identify the type of communication involved.
Plaintiff also objects to Defendant withholding twenty-six documents under the attorney work product doctrine. More specifically, Plaintiff objects to privilege log entries numbered 21, 23, 46, 65, 69, 96, 117, 119, 124, 126, 132, 138, 144, 145, 149, 157, 173, 177, 179, 183, 187, 207, 209, 211, 213, and 215 because these entries describe the withheld documents only as "draft documents." Plaintiff argues this is a "bare description" and is insufficient to establish that they constitute protected attorney work product.
Plaintiff also argues that Defendant has the burden of establishing the applicability of the work product doctrine because Defendant's privilege log fails to describe the nature of the withheld documents in a manner that will enable Plaintiff to assess the claim. More specifically, Plaintiff contends that Defendant has not shown that the documents were prepared in anticipation of litigation by Defendant or its representatives, which is required to establish the documents constitute work product.
Defendant argues in response that a majority of the twenty-six work product assertions of "draft documents" are described in the immediately preceding entry. Defendant maintains that the descriptions above the descriptions of "draft documents" are sufficient to show that the document was properly identified as attorney work product. Defendant admits that some of the documentation on the privilege log may require further information and offers to provide a supplemental privilege log with more detail in lieu of producing the documents.
Plaintiff instead asks the Court to compel Defendant to produce the documents. Again, the Court construes this to mean that Plaintiff is asking for the Court to deem Defendant's assertion of work product as waived. Alternatively, Plaintiff asks that the documents be submitted to the Court for an in camera review.
The work product privilege, first established in Hickman v. Taylor,
Here, Defendant has explained that the twenty-six work product entries it only described as "draft documents" are primarily described in the preceding privilege log entry. Even taking into account the information in the preceding log entry, Defendant has failed to establish that the unspecified "draft document" meets all the required elements of work product. Although the preceding log entries commonly use "communication requesting legal advice," which is a component of attorney-client privilege, this is not one of the elements required to establish that a document is protected by the work product doctrine. Work product requires that the document "be prepared in anticipation of litigation or for trial by or for another party or its representative." Defendant's privilege log does not even make the mere assertion that any of the documents it withheld as work product were prepared in anticipation of litigation or for trial. Since the Court is allowing Defendant to supplement its privilege log with respect to its assertion of attorney-client privilege for many entries, the Court will also permit Defendant to supplement its privilege log for its work product entries as well. Another deficiency with the work product log entries is that they fail to identify the person who prepared the "draft document" as an attorney. However, because Defendant has been ordered to provide a roster listing all individuals named in the privilege log, this roster should also address this concern.
Plaintiff's motion to compel Defendant to produce documents withheld as attorney work product is denied. Instead, Defendant is ordered to identify all individuals listed in the privilege log by providing a roster with their name, title, department, and whether they are an attorney. Defendant is also ordered to supplement its privilege log for its work product entries to show the basis for its withholding of any documents on work product grounds.