Leser v. Indianapolis Public Schools

          ORDER

          DORIS L. PRYOR UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on the Plaintiff's Motion to Compel Production of Documents, Request for In Camera Review, and Request for Sanctions (Dkt. 151)^[1]. The motion was referred to the Undersigned for ruling and, for the reasons that follow, is hereby GRANTED IN PART and DENIED IN PART.

         I. Background

         For the purposes of this Order, the Court assumes familiarity with the underlying facts of this case. On January 15, 2019, the Court conducted a discovery conference with the parties, wherein it was represented that the parties had ongoing issues related to discovery and the Defendants' privilege log. On January 22, 2019, the Plaintiff filed the instant motion for production of documents, in camera review, and for sanctions. The Defendants filed their response on January 28, 2019 and the Plaintiff filed her response on February 1, 2019.

         During the March 13, 2019 discovery dispute conference, the Plaintiff alerted the Court to two discrepancies in the privilege log, at which point the Court requested that the Plaintiff identify any other discrepancies, misrepresentations, or insufficiencies in the Defendants' privilege log through supplemental briefing. Specifically, the Court wanted the parties to address the sufficiency of the general description of the privileged entries in the log to assist the Court in determining whether the Defendants' documents could appropriately be withheld under attorney-client privilege.

         The parties appeared for a telephonic status conference on March 19, 2019 to address counsel for the Defendants' questions regarding the purpose of the supplemental briefing. The Court reemphasized the need for additional briefing to address the Plaintiff's allegations that the Defendants' privilege log contained numerous discrepancies and misrepresentations. The Plaintiff filed her additional briefing on March 21, 2019 and the Defendants filed their response brief on March 28, 2019. A reply was filed by the Plaintiff on April 3, 2019.

         The parties appeared in person before the Undersigned for oral argument on April 4, 2019, wherein the Plaintiff alleged that all 418 entries of the Defendants' privilege log in Leser and 543 out of 552 entries in Jensen contained insufficiencies, misrepresentations, or mistakes. After reviewing a small sample at oral argument, the Court concluded that while the general descriptions may have been sufficient on their face, the descriptions did not match up with the documents they allegedly described, and ordered the Defendants to submit a revised privilege log by Friday, April 5, 2019.

         On April 8, 2019, the parties returned for additional oral argument before the Undersigned. After reviewing the revised log to determine whether the attorney-client privilege was properly applied, the Court ordered the Defendants to produce 148 withheld documents for in camera review, which were provided to the Court on April 10 and 11, 2019.

         II. Legal Standard

         In discovery, parties are generally entitled to “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. Fed.R.Civ.P. 26(b)(1). Privileged matter may be withheld, but if a party believes that material has been improperly withheld, the party may move for the Court to compel production. S.D. Ind. L.R. 37-1; Fed.R.Civ.P. 26(b)(5)(A). The party opposing a motion to compel has the burden to show the discovery requests are improper. Cunningham v. Smithkline Beecham, 255 F.R.D 474, 478 (N.D. Ind. 2009).

         Attorney-client privilege is a federal common law doctrine that allows people to withhold relevant “confidential communications made for the purpose of facilitating the rendition of professional legal services.” US v. BDO Seidman, LLP, 492 F.3d 806, 815 (7th Cir. 2007). For a communication to be protected by attorney-client privilege, the communication must have been made (1) in confidence, (2) in connection with the provision of legal services; (3) to an attorney; and (4) in the context of an attorney-client relationship. Id. The party resisting production must expressly invoke the privilege and “describe the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A)(i)-(ii).

         Parties commonly comply with the requirements for asserting a privilege by providing a privilege log that contains: 1) the name and job title or capacity of the author/originators; 2) the names of all persons who received the document or a copy of it and their affiliation (if any) with the producing party; 3) a general description of the document by type (e.g., letter, memo, report); 4) the date of the document; and 5) a general description of the subject matter of the document. In re Bridgestone/Firestone, Inc., 129 F.Supp.2d 1207, 1218-1219 (S.D. Ind. 2001).

         Privilege is typically asserted on a document-by-document basis. Indianapolis Airport Auth. V. Travelers Prop. Cas. Co. of Am., No. 1:13-cv-01316-JMS-TAB, 2015 WL 4715202 (S.D. Ind. Aug. 7, 2015) (citing Long v. Anderson University, 204 F.R.D. 129, 134 (S.D. Ind. 2001). The inquiry into whether documents are subject to a privilege is a highly fact-specific one. “Only when the district court has been exposed to the contested documents and the specific facts which support a finding of privilege under the attorney-client relationship for each document can it make a principled determination as to whether the attorney-client privilege in fact applies.” In re Grand Jury Proceedings, 220 F.3d 568, 571 (7th Cir. 2000) (citing Holifield v. United States, 909 F.2d 201, 204 (7th Cir. 1990)).

         III. ...