United States District Court, S.D. Indiana, Indianapolis Division
L. PRYOR UNITED STATES MAGISTRATE JUDGE
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). The motion was referred to the
Undersigned for ruling and, for the reasons that follow, is
hereby GRANTED IN PART and DENIED IN
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.
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.
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.
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
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.
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).
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.
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).
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