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Thomas Botell, et al v. United States of America

September 18, 2012

THOMAS BOTELL, ET AL., PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiffs' motion to compel further discovery responses was originally noticed for hearing on August 23, 2012. Based on the parties' failure to comply with E.D. Local Rule 251 and in particular defendant's failure to comply with discovery rules in general, the court vacated the hearing, and directed the parties to meet and confer in person and file a joint statement that complied with the Local Rules. The matter was continued, and after an extension of time, was heard on September 13, 2012. Steven Campora appeared for plaintiffs. Earlene Gordon represented defendant. After reviewing the joint statement filed September 7, 2012, and having heard oral argument, the court now issues the following order.

BACKGROUND

This is a wrongful death and personal injury action, filed June 8, 2011. Plaintiffs are the Botell family, who allege that while visiting Lassen Volcanic National Park ("LAVO") on July 29, 2009, children Tommy and K.B. Botell were sitting on a mortared rock wall to rest during a hike, when it gave way and rolled downhill, causing Tommy's death and injuring K.B. Plaintiffs are K.B., her sister B.B., through their guardian ad litem, Jennifer Botell, who were present and their parents, Thomas and Jennifer Botell, who were also present at the incident. The complaint alleges wrongful death, personal injury - negligence, and negligent infliction of emotional distress.

DISCUSSION

Plaintiffs seek further responses to sets one and two of their Requests for Production of Documents ("RFPs"). The parties have now filed a joint statement.*fn1 Plaintiffs claim that even though there have been further meet and confers, defendant has still failed to provide a complete production, and has not provided any declaration outlining the effort taken to locate and preserve the requested discovery.

Defendant, on the other hand, claims that in the last two weeks, since their (belated) in-person meeting on August 23, 2012, defendant has produced more than 2000 pages of additional documents and videos requested by plaintiffs. Defendant maintains that its objections to plaintiffs' broad and overreaching requests are appropriate. Defendant also represents that an updated privilege log would be produced prior to the hearing.

I. Boilerplate Objections Based on Privilege and Privilege Log As a preliminary matter, many of defendant's original responses in regard to privilege were clearly inadequate. Boilerplate objections based on overbreadth and privilege are not permissible. Examples of responses to many of the RFPs are: "Defendant objects that this request is overbroad as to time, and seeks information protected by both the attorney-client and work product privileges. Without waiving its objections, Defendant states that no non-privileged documents responsive to this request have been found;" "without waiving its objection, Defendant states that it is producing the requested documents," or "without waiving its objections, Defendant states it is producing all non-privileged responsive documents, but with redactions of Privacy Act material."

This type of response gives no indication as to which documents have been withheld on the basis of privilege, which documents have been withheld on the basis of other objections, and does not identify any privileged documents.

If defendant has an objection based on overbreadth, for example, defendant must make such an objection, stand on it, and in so doing define in specific terms why the RFP is overbroad.*fn2 Documents for which a privilege is claimed must be identified at the time the privilege is made so that the opposing party can determine what has not been produced. Without such identification, it cannot be determined whether defendant has responded in full.

It is somewhat of an urban legend that good lawyering always requires an introductory, general assertion that information/materials subject to a privilege (whatever that unidentified information or those materials may be) are not being utilized or produced. Counsel then believe they have protected their client by making the response unclearly based such that additional information can later be produced, or have protected their client from having to produce privileged information/material. In fact, and in law, the opposite is true. Unless there really exists some information subject to privilege, which should be then identified in a privilege log, one may not make the privilege assertion "just in case." The party receiving such a response is in the dark as to what may, or may not, actually have been withheld. Assertion of privilege is a serious matter. If there is indeed no identifiable, privileged information/material, it is an abuse of discovery process to suggest that such exists. Counsel may well be limited at trial to the information contained in a response, and belated, attempted introduction of new information heretofore not produced under some rubric of "privileged" will not be permitted. On the other hand, assuming that some identifiable, privileged information exists, one does nothing to preserve the privilege by simply setting forth a generalized, i.e., boilerplate, objection. If the privilege is worth preserving, it is worth being identified in a privilege log -- and the Federal Rules require such. Fed. R. Civ. P. 26 (b)(5). See also Eureka Financial v. Hartford Accident and Indemnity, 136 F.R.D. 179 (E.D. Cal. 1991). A specific log entry is necessary because there is no realistic way of setting about to challenge on their merits mistaken, blunderbuss, unidentified assertions of privilege.

Furthermore, privilege logs are due at the time a discovery response is made. See Fed. R. Civ. P. 26(b)(5) (requiring privilege log for withheld documents), and Fed. R. Civ. P. 34(b) (objections are due within 30 days). While not many litigants will be overly incensed about a privilege log not delivered until actual document production, at the very latest, privilege logs should be delivered, or at least promised forthwith during the meet and confer process of a discovery dispute. Eureka v. Hartford Ins., 136 F.R.D. 179, 184 (E.D. Cal. 1991). Under federal law, improper assertions of privilege in the privilege log, or an untimely privilege log, may (but not necessarily) result in waiver. Burlington Northern & Santa Fe etc. v. U.S.D.C. Montana (Kapsner), 408 F.3d 1142 (9th Cir. 2005). The court has discretion in this regard. United States

v. Construction Products Research, Inc. 73 F.3d 464, 473 (2nd Cir. 1996). Privilege logs should contain the following information: general nature of the document, the identity and position of its author, the date of authorship, identity and position of recipients, location of the document, and reason document was withheld. W.W. Schwarzer, A.W. Tashima & J. Wagstaffe, Federal Civil Procedure Before Trial § 11:1919.

Defendant made the representation at hearing that there were no documents withheld by the United States or its Agency on the basis of attorney-client privilege or work product immunity that pre-date the filing of the administrative tort claim, which was in about October, 2010. Defendant also represented that other than the three additional documents identified in the most recently updated privilege log, dated September 12, 2012, no ...


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