Discovery disputes often result in strong judicial rebukes. Then there are the judges who work in a good Star Wars reference in an opinion. This case has both.
Judge Richard Jones must have felt he was dealing with a phantom menace of discovery disputes, because most of the issues in the case could have been solved if the parties actually had a meaningful a meet and confer. Instead, the Court dressed down the attorneys on their meet and confer efforts:
This discovery dispute has quickly transformed into a behemoth, replete with competing and disputed descriptions of at the Parties’ efforts to meet and confer. This is not the cooperative discovery contemplated by the Federal Rules of Civil Procedure (the “Rules”) and this Court does not look kindly on the Parties’ behavior, especially when even a quick a review of the record reveals that many of the disputes have since been resolved and would have been resolved even without judicial intervention.
Cedar Grove Composting, Inc. v. Ironshore Specialty Ins. Co. (W.D.Wash. Dec. 23, 2015, No. C14-1443RAJ) 2015 U.S. Dist. LEXIS 171576, at *2-3.
The first issue was a motion for fees by the Plaintiff to recover costs for a motion to compel. The Court denied the motion, holding that the “that Plaintiff did not attempt in good faith to obtain the requested discovery prior to filing its Motion to Compel.” Cedar Grove, at *5. Judge Jones explained that the Plaintiff’s effort to confer with the Defendant over a discovery production could “hardly” be described as done in good faith to resolve issues. Cedar Grove, at *6.
The parties had a telephone meet and confer that had two very different stories, depending on which party was telling the story. The Defendants offered three attorney declarations that recounted the call, which the Plaintiff’s attorney did not dispute. The Court found that “unacceptable.” Cedar Grove, at *7.
In summarizing the dueling meet and confers, the stated the “Plaintiff has given the meet and confer requirement short shift.” Cedar Grove, at *8. Moreover, the Plaintiff never discussed the only remaining discovery dispute between the parties regarding an attorney retained to assess insurance coverage. Id. Furthermore, the motion to compel pertained to amending the Defendant’s privilege log, which was produced before the briefing on the motions had even been finished. Cedar Grove, at *9.
This is right up there with Admiral Kendal Ozzel coming out of light speed directly above Hoth. Unlike Vader, the Court took this moment as a learning opportunity, stating:
The Court will take the opportunity to advise the Parties of the necessity of meaningfully cooperating in discovery. What this means is actively meeting and conferring regarding discovery issues before bringing any concerns to the attention of the Court. In order for the Parties to engage in meaningful, cost-effective discovery, they must cooperate in accordance with the spirit and purposes of the Rules. The Court strongly encourages the Parties to promptly meet their respective discovery obligations without resort to motion practice and advises them that “it would be wise for the parties to consider the letter and spirit of the Rules regarding discovery and engage in open, cooperative, meaningful and efficient discovery practices.”
Cedar Grove, at *10-11, citations omitted.
The next issue addressed whether the attorney-client privilege or work product doctrine applied to communications from an attorney retained to analysis possible liability and its renewal policy. Cedar Grove, at *13. What followed was beautiful analysis of what was protected by the attorney-client privilege and what was protected by the work product doctrine. Effectively summarizing the work product doctrine, for a document to be protected, it must: “1) be ‘prepared in anticipation of litigation or for trial’ and (2) be prepared “by or for another party or by or for that other party’s representative.” Cedar Grove, at *18.
The review of the subject communications sought for production revealed they were covered by the work product doctrine. Cedar Grove, at *18-19.
The Plaintiff argued that the Defendant was not producing written claims files improperly withheld behind the work product doctrine, taking the position that the files “simply must exist.” Cedar Grove, at *19.
The Court addressed the Plaintiff’s argument in footnote 4, stating:
In addressing this argument, the Court is tempted to simply invoke Occam’s razor — “that in explaining anything, no more assumptions should be made than necessary.” See ACLU v. Clapper, 804 F.3d 617, 624 n.2 (2d Cir. 2015) (quoting Oxford English Dictionary (3d ed. 2004)). Perhaps it is too much of an assumption to think that Defendant seriously trying to mislead both Plaintiff and the Court by simply waving its hand and stating that “these aren’t the droids you’re looking for.” Star Wars: Episode IV — A New Hope (Lucasfilm 1977). A simpler explanation is that many of those documents do exist — and Plaintiff has received them (and would have received them) without this Court’s intervention.
Cedar Grove, at *20, footnote 4, emphasis added.
The Court ultimately held that the subject documents were protected by the work product doctrine and likely covered by attorney-client privilege under state law. Cedar Grove, at *21-22.
Bow Tie Thoughts
There are many Federal Judges who masterfully explain Civil Procedure and enjoy Star Wars. It is good to know Judge Richard Jones can discuss the work product doctrine and make an Obe-Wan Kenobi reference.
Conducting privilege review often is reduced to attorneys simply checking a box that an email, document, or Excel file is “privileged.” The term “privilege” cannot be an all-encompassing term to be used in a privilege log. What is the actual privilege being asserted? If it is an attorney-client communication, it has to be a communication from the client to a lawyer seeking legal advice, or a communication from the lawyer to the client giving legal advice.
Lawyers should define the privileges in their case and set-up document review to reflect those privileges. If privilege issue tagging is done, coupled with notes stating the claimed privilege, the reviewing attorneys are building their privilege logs as they conduct document review. This is far easier then trying to later use the Force to construct an effective privilege log as a later step.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.