DAVID A. KATZ, District Judge.
Currently before the Court is Plaintiff Michael McCloskey's FED. R. CIV. P. 60(b) motion for reconsideration of this Court's December 20, 2011 Memorandum Opinion and Order, ("December 20 Order"), which, inter alia, ordered Defendant Village of Ottawa Hills ("Ottawa Hills") to produce any surveillance evidence in its possession not protected by the work product doctrine. (Doc. 170 at 4-6). Plaintiff argues this Court erred by ordering Ottawa Hills to produce unprotected surveillance evidence without also ordering Ottawa Hills to produce a FED. R. CIV. P. 26(b)(5) privilege log for surveillance evidence over which it continues to assert work product protection.
For the reasons that follow, Plaintiff's motion for reconsideration is denied. Additionally, however, Ottawa Hills is hereby ordered to serve on Plaintiff a privilege log as required by FED. R. CIV. P. 26(b)(5). Ottawa Hills shall serve any required privilege log within one week of this Order.
While Plaintiff highlights Ottawa Hills' affirmative responsibilities under FED. R. CIV. P. 26(b)(5), Plaintiff fails to cite any authority requiring this Court to recite those responsibilities when issuing a discovery-related order, let alone authority suggesting that a failure to do so is grounds for relief under FED. R. CIV. P. 60(b). Accordingly, Plaintiff's motion for reconsideration is denied.
While it is not the responsibility of this Court to articulate the parties' discovery duties at every turn, it is clear that FED. R. CIV. P. 26(b)(5)(A) imposes an affirmative duty on Ottawa Hills. Specifically, "[w]hen a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party
Despite this, Ottawa Hills maintains that its response to Plaintiff's request for surveillance evidence is exempt from FED. R. CIV. P. 26(b)(5) under the current circumstances. Specifically, Ottawa Hills contends that the factual existence of surveillance in this case is protected by the work product doctrine, and therefore contends it cannot be required to disclose the existence of surveillance in a privilege log. (Doc. 183 at 9) ("[T]he mere
The Court is not persuaded by Ottawa Hills' arguments.
To be clear, the Court does not agree with Plaintiff that Ottawa Hills' responses to Plaintiff's request for surveillance—including its failure to provide a privilege log—were deceitfully designed to mislead Plaintiff or the Court.
For the reasons stated herein, Plaintiff's motion for reconsideration is denied. (Doc. 180). Further, Ottawa Hills is hereby ordered to serve on Plaintiff a privilege log as required by FED. R. CIV. P. 26(b)(5). Ottawa Hills shall serve any required privilege log within one week of this Order.
IT IS SO ORDERED.
The protective order granted by the Court's December 20 Order only involved a request for non-party Ohio State Highway Patrol's LEADS reports. (Doc. 170 at 1-4). Plaintiff's motion for reconsideration, however—as well as the rest of his reply brief—only involves privilege log issues related to Ottawa Hills' assertion of work product protection for putative surveillance evidence. Thus, notwithstanding aj reference to the protective order, the Court construes the instant motion as involving only the surveillance-related privilege log issues.
Shelton is likewise inapposite. The Shelton court did not hold that the existence of documents amounts to protected work product per se. Rather, Shelton held that in-house counsel's knowledge of the existence of certain documents is protected, because "requiring [counsel] to testify that she is aware that documents exist concerning a certain issue is tantamount to requiring her to reveal her legal theories and opinions concerning that issue." 805 F.R.D. at 1328. Moreover, the Shelton court noted that while the defendant maintained that counsel's knowledge is work product, the defendant also "indicated that it would be willing to answer these questions through the deposition of [defendant's] officials who were not attorneys in its Litigation Department." Id. at 1327. Further, the Shelton court notably restricted its holding to "cases that involve reams of documents and extensive document discovery," because "the selection and compilation of documents [in such cases] is often more crucial than legal research." Id. at 1329.