KENNETH G. GALE, Magistrate Judge.
Now before the Court is Defendant Universal's "Motion to Compel" (Doc. 282), regarding a third-party subpoena issued to Gauntlett & Associates, a law firm that previously represented Plaintiff AKH. For the reasons set forth below, the Court
The above-captioned matter is a declaratory judgment action based on a dispute concerning insurance coverage and the settlement of a trademark dispute involving Plaintiff AKH and a third party. (See Doc. 1; Doc. 75, sealed, at 5-6 (underlying litigation hereinafter referred to as "RT litigation" or "RT case).) The facts of the case were summarized by District Court in its Order (Doc. 75, sealed) denying Plaintiff AKH's Motion for Partial Summary Judgment (Doc. 7) and Defendant Universal's Motion to Bifurcate (Doc. 68). The Court incorporates that factual summary herein. (See Doc. 75, sealed, at 4-7.)
The case has, unfortunately, had a long and, in the Court's opinion, unnecessarily contentious history. (See e.g., Docs. 40, 61, 82, 117, 123, 144, 152, 158, 160, 163, 164, 168, 184, 215, 220, 264, 269, 282, 290.) The parties disagreements culminated in this Court's ruling on Defendant's "Motion to Compel Sufficient Written Responses and Production of Documents" (Doc. 123), in which the Court held that the facts presented by Defendant created a prima facie case of fraud sufficient to waive the attorney-client privilege as to certain documents Plaintiff argued were privileged and protected from discovery. Upon Plaintiff's Motion for Reconsideration (Doc. 163) the Court's prior Order (Doc. 158), the Court ordered an in camera inspection of the documents and ordered that certain of them be produced to Defendant Universal. Plaintiff complied with that Order.
The present motion was initially filled by Defendant Universal in the United States District Court for the Central District of California
Defendant Universal contends that responsive documents "are relevant to [its] claims regarding fraud, misrepresentation, and concealment, among others." (Id., at 6.) Universal argues that the information Gauntlett has produced is non-responsive and that the accompanying privilege log, which contains a single entry encompassing almost 2,000 documents, is insufficient. (Id.)
Gauntlett responds that it has produced all non-privileged documents and/or does not possess the documents Universal contends it is withholding. (Id., at 24-25.) Gauntlett argues that its privilege log is sufficient. It contends that because of the voluminous nature of documents sought, a document-by-document privilege log would be unreasonable and overly burdensome. (Id., at 28.) It further contends that "the documents withheld . . . are attorney-client communications and in-firm communications between attorneys in connection with the underlying litigation and, as such, are obviously protected by the attorney-client and work product privileges
Fed.R.Civ.P. 26(b) states that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." As such, the requested information must be both nonprivileged and relevant to be discoverable.
"`Discovery relevance is minimal relevance,' which means it is possible and reasonably calculated that the request will lead to the discovery of admissible evidence."
Universal enumerates its first issue as "whether Gauntlett must produce all responsive, non-privileged documents." (Doc. 283, at 7.) Gauntlett contends that the documents in its "possession consist of: (1) communications with Universal; (2) pleadings and other public documents (3) communications between Gauntlett, AKH, and other counsel representing AKH and (4) research and analysis that constitute Gauntlett's opinions, theories, conclusions." (Id., at 24.) Gauntlett continues that "[a]ll documents in [its] possession or control . . . which are in the first two categories of documents, none of which are claimed to be privileged, were produced" to Universal. (Id.)
In Universal's supplemental briefing, it references communications that Gauntlett has identified "`from RT's counsel to defense counsel or AKH [that] were sent to Gauntlett' pursuant to the attorney-client relationship." (Doc. 287, at 2.) Universal also discusses "communications with Universal from the relevant time period (September to December 2012)" that have not been produced. (Id., at 2-3.) Universal contends it has only received "communications relevant to [Gauntlett's] later role as counsel of record in the Kansas litigation (running from 2013 to 2014)." (Id., at 3.)
Finally, Universal contends that Gauntlett has "ignore[d] communications with parties other than Universal and AKH (or AKH's counsel) during the responsive time period." (Id.) As a specific example, Universal references "communications between Jesse Abrams of Gauntlett and counsel to RT on `concerns regarding insurance.'" (Id.) Universal also states that "other parties have produced communications with attorneys at the Gauntlett firm, including David Gauntlett, James Lowe, and Jesse Abrams, among others." (Id., at 4.)
Defendant Universal's motion is
Courts in this District, including the undersigned Magistrate Judge, have addressed the issue of privilege log sufficiency on numerous occasions. As stated by Magistrate Judge James O'Hara in
No. 08-2046-JWL, 2009 WL 2878446, at *1 (D.Kan. Sept. 2, 2009). The Court's analysis thus turns to what constitutes an adequate privilege log.
"A privilege log must provide sufficient information to allow the other party assess the claimed to privilege."
The Court agrees that, under certain circumstances, Gauntlett's privilege log would be sufficient, particularly given its involvement as a non-party in this litigation. The undersigned Magistrate Judge previously held in this litigation, however, that Defendant Universal has
(Doc. 158, at 42-43 (quoting
Given this context, the Court finds that there is sufficient need to require Gauntlett to provide additional, specific information addressing the documents implicated. The Court does not, however, find that a revised privilege log is the most efficient way to address the situation given the obviously privileged nature of communications between Gauntlett and Plaintiff AKH, Gauntlett's former client.
In the Court's previous Order requiring an in camera inspection of documents, Plaintiff AKH was ordered to provide to the Court all communications between itself and counsel (whether coverage counsel or litigating counsel) that were withheld on the basis of the attorney-client privilege or work product doctrine that occurred from the completion of the unsuccessful mediation in September 2012 until Defendant Universal received the final draft of the settlement agreement with RT in December 2012. (Doc. 158, at 43; Doc. 215, at 2.) The Court finds this procedure to best address the parties' concerns as well as serve the interests of justice and judicial economy. As such, Gauntlett is ordered to submit to the Court, for in camera inspection, all documents and communications between itself and Plaintiff AKH, other counsel (whether coverage counsel or litigating counsel), and/or any third parties, that were withheld on the basis of the attorney-client privilege or work product doctrine, that were created or occurred from the completion of the unsuccessful mediation in September 2012 until Defendant Universal received the final draft of the settlement agreement with RT in December 2012.
The documents shall be delivered to the Court within