United States District Court, S.D. Georgia, Savannah Division
CHRISTOPHER L. RAY, UNITED STATES MAGISTRATE JUDGE
the Court is defendants' response, doc. 66, to this
Court's prior order, doc. 65, requiring the
supplementation of a privilege log and plaintiff's
objection to the prior order, doc. 68. After review of
the supplemental privilege log provided by defendants, the
Court concludes that they have supported their claim to the
privilege. To the extent this Order concludes the proceedings
relating to the discovery dispute before the undersigned, it
supersedes this Court's prior order. As a result,
plaintiff may-if he so desires-file an amended objection to
this Court's order within 14 days from the date of this
order for review by the assigned District Judge. Any amended
objections should be complete and may not incorporate any
prior objections by reference.
The Privilege Log Dispute
Court previously addressed a series of discovery disputes
between the parties. Doc. 65. It determined that
defendants' privilege log was inadequate to support its
assertions of attorney-client privilege and work-product
protection. Id. at 20-28. Accordingly, the Court
ordered defendants to show cause why they should not be
required to produce the documents for which they failed to
establish a viable privilege. Id. In response,
defendants supplemented their privilege log, and indicated to
the Court that they had produced additional documents
which-after review- they conceded were not privileged. Docs.
66, 66-1. Plaintiff objects that the Court should still
require the disclosure of the withheld documents listed in
the privilege log. Doc. 69. The Court now reviews that
privilege log and determines that defendants have established
their assertions of privilege, with one exception.
Court has stated previously, “[t]he party invoking the
attorney-client privilege bears the burden of proving that
(1) an attorney- client relationship existed, (2) that a
confidential communication was made to or from (3) an
attorney who had been retained for the purpose of securing
legal advice or assistance.” Mead, 250
F.Supp.3d at 1391. However, the attorney-client privilege
does not protect every communication between an
attorney and his client. See In re Vioxx Prods. Liab.
Litig., 501 F.Supp.2d 789, 799 n. 15 (E.D. La. 2007)
(“Neither the existence of an attorney-client
relationship nor the mere exchange of information with an
attorney make out a presumptive claim.”)
(quoting PAUL R. RICE, 2 ATTORNEY-CLIENT PRIVILEGE
IN THE UNITED STATES, § 11:9, pp. 78-79 (Thomson West 2d
ed. 1999)). Moreover, whether a meeting between a client and
attorney occurred and the general subject matter of that
meeting is likewise not privileged. In re Grand Jury
Proceedings, 689 F.2d 1351, 1352-52 (11th Cir. 1983)
(allowing subpoena for “records of dates, places or
times of meetings and communications”); Ramseur v.
Chase Manhattan Bank, 865 F.2d 460, 467 (2d Cir. 1989)
(“fact and date of the consultation” between an
attorney and a client is not privileged); Burton v. R.J.
Reynolds Tobacco Co., 170 F.R.D. 481, 484-85 (D.
Kan.1997) (“The subject matter of meetings with an
attorney, the persons present, the location of the meetings,
or the persons arranging the meetings are not protected by
logs, like responses in discovery, demand more than a mere
assertion of a privilege. Failure to provide sufficient
information to verify the privilege asserted can be grounds
for waiver. See, e.g., Harper v. Auto-Owners Ins.
Co., 138 F.R.D. 655, 664 (S.D. Ind. 1991) (requiring log
to list, “for each separate document, the authors and
their capacities, the recipients (including copy recipients)
and their capacities, the subject matter of the document, the
purpose for its production, and a detailed, specific
explanation of why the document is privileged or immune from
discovery”); Resolution Trust Corp. v.
Diamond, 137 F.R.D. 634, 641-42 (S.D.N.Y. 1991) (index
including date, addressor, addressee, document type, and
grounds for nondisclosure found insufficient). As in
discovery responses “[b]lanket and general objections
do not provide sufficient detail about the documents . . .
and [defendant] was obligated to provide a privilege log or a
more detailed response to the request for production to
satisfy Rule 26 and 34's requirements.”
Universal City Dev. Partners, Ltd. v. Ride & Show
Eng'g, Inc., 230 F.R.D. 688, 695 (M.D. Fla. 2005).
District courts regularly require “a detailed privilege
log stating the basis of the claimed privilege for each
document in question, together with an accompanying
explanatory affidavit from counsel.” Mead, 250
F.Supp.3d at 1393; see also Nat'l Union Fire Ins. Co.
v. Midland Bancor, Inc., 159 F.R.D. 562, 567 (D. Kan.
1994) (general allegation of privilege is insufficient; if a
privilege is not specified and substantiated, it may be lost)
privilege logs defendants originally provided were
insufficient because they 1) asserted a blanket privilege
rather than providing sufficient information to verify the
privilege, 2) failed to explain why certain communications,
which did not appear to contain privileged legal
conversations, were privileged, or 3) withheld emails sent to
non-attorneys (i.e., communications which could not
have been privileged because of the participation of
non-attorney third parties). The supplemental privilege log
defendants provided rectified those defects. It includes,
among other details, information on the purpose of several
disputed emails, see e.g., D021538 (explaining that
the email contained legal advice regarding harassment
training), D043068 (explaining that email solicited legal
advice on correspondence from opposing counsel), D056111
(explaining that email includes details of potential
settlement and preparation for negotiations). In short, the
amended privilege log contains more than enough information
to establish the privilege.
argues that the entirety of the new privilege log is unsworn
and therefore insufficient to support defendants' claims
based on language in United States v. Davita, 301
F.R.D. 676 (N.D.Ga. 2014) (noting than a claim of privilege
cannot be sustained purely on the basis of unsworn
information). Doc. 69 at 3. While Davita espouses
the standard that a privilege log should be underpinned by
evidentiary support, the Court notes that an affidavit alone
is not required. See, e.g., United States ex rel. Bibby
v. Wells Fargo Bank, N.A., 165 F.Supp.3d 1319, 1324
(N.D.Ga. 2015) (noting that burden may be satisfied through
privilege log, affidavits, “and by any of the
traditional ways in which proof is produced in pretrial
proceedings.”). However, Davita is inapposite
to the case at bar. Defendant's counsel did provide an
affidavit in support of their privilege log, doc. 64-3, which
contains more than sufficient information to support
defendants claims when combined with the supplemental
explanation in the privilege log. See e.g., Breland v.
Levada EF Five, LLC., 2015 WL 12995098, *7 (S.D. Ala.
April 30, 2015) (requiring disclosure of information when
there was not both an affidavit and a detailed
privilege log). Moreover, the privilege log was filed with
the Court and is therefore subject to Fed.R.Civ.P. 11 which
establishes that an attorney's signature on a filed
document, “certifies that to the best of the
person's knowledge, information, and belief, formed after
an inquiry reasonable under the circumstances: . . . the
factual contentions have evidentiary support.”
Likewise, plaintiff appears to acknowledge that Mr.
Herring's affidavit is sufficient-at least in some
respects-as he cites to it in his response to the amended
privilege log. See, e.g., doc. 69 at 2.
Accordingly, the Court concludes that the privilege log is
sufficient at this time.
plaintiff identifies four specific instances where he
believes the amended assertions of privilege remain factually
insufficient. The first relates to communications between
Meghan Dunn and Lois Adams (D072075, 072077, and 072078).
Defendants contend these communications are privileged as:
[d]iscussions between representatives of general and outside
counsel about the status of the Bowman investigation and
invoices for investigations. It is responsive to conversation
found in D071976.
in turn states:
[t]his communication between the Executive Director of the
Airport and Outside counsel is in reference to invoices to be
paid to Catherine Bowman.
Court concurs with plaintiff's position. There is no
indication in that these emails contain legal advice. Rather,
the facts proffered merely indicate a conversation regarding
invoices and such conversations are not privileged.
Cardenas v. The Prudential Ins. Co. Of America, 2003
WL 21302957, at *3 (D. Minn. May 16, 2003) (to support claims
of attorney-client privilege and work product protection an
attorney must state “that its billing records contain
narrative descriptions of conversations between clients and
attorneys, the subjects of legal research or internal legal
memoranda, and activities undertaken on the client's
behalf.”); Ehrich v. Binghampton City School
Dist., 210 F.R.D. 17, 22-23 (N.D.N.Y. 2002) (discussing
extent of attorney client privilege specifically in regards
to nature of legal services performed); Federal Trade
Comm'n v. Cambridge Exch., Ltd., 845 F.Supp. 872,
874 (S.D. Fla. 1993) (billing records are not protected by
the attorney-client privilege unless they describe the nature
of the legal services provided or the trial strategy).
Because the asserted privilege is inadequately supported,
these documents are not protected. Accordingly, defendants
are DIRECTED to disclose these documents to
plaintiff within ten days from the date of this Order.
also contends that D048539 is not protected merely because an
attorney is copied on the document. The entry for that