Federal Motion to Compel Sample

On ____________, after Defendant’s counsel had spent much of three days with the Court in hearings and had received very clear directives from the Court, Defendant filed its responses to Plaintiff’s _th ROGS, _th RFAs, and _th RPDs.   Those responses failed to identify a single useful fact, or make a single unqualified admission, or produce a single document.  The responses included boiler-plate “general objections” which totally preclude any determination whether Defendant is withholding or concealing facts or documents.   To every inquiry, Defendant interposed “attorney-client privilege”, “work-product protection”, and a “confidential and proprietary information” objections, without identifying any fact or document withheld based on such objections, without making any showing whatsoever that any fact or document was subject to such objection and without providing any kind of privilege log.  Thus did Defendant presume to don the judicial robs and ‘rule’ that certain unspecified facts and documents are privileged or work product or confidential so that Defendant did not have to disclose the same.  Defendant’s responses make it impossible to determine, with respect to every paragraph of Plaintiff’s discovery, whether facts or documents do or do not exist.  Thus do Defendant’s responses totally defeat the primary object of “discovery” – to determine what does and what does not exist.

After failing to produce a single document by the deadline imposed by the rules – February __, and despite having not asked Class Counsel or the Court for more time – Defendant simply changed the rules, and decided, for itself, that it was not required to produce documents except when and if it chose so to do.  On March _, 2007, defense counsel ______ sent a letter to Class Counsel enclosing some documents (merely those documents which are publicly available), in which letter ______refused to identify which paragraph of Plaintiff’s discovery that production was responsive to, and in which letter ______stated that Defendant would “produce additional documents on a rolling basis”, that is, if and when Defendant so chooses.  That is the well known “dribbling” technique, whereby Defendant dribbles out documents over time to prevent a plaintiffs’ counsel from obtaining all the evidence which exists so that he/she may assimilate it, plan and take depositions using the entire body of documentary evidence, and prepare for trial.  This is a well-known and universally rejected tactic of discovery abuse.  ______ also refuses to provide (a) a written response to Plaintiff’s RPD, so that Class Counsel can know what paragraph thereof produced documents pertain to, or (b) an index, which makes it difficult for Class Counsel to ever establish that Defendant has failed to produce documents.

{from prayers for relief]

4. Defendant’s “privilege”, “work product”, and “confidential and proprietary” objections should be overruled and rejected, on the grounds that Defendant has made no attempt to prove the applicability of those objections, has given Plaintiff no opportunity to contest those claimed objections by filing a privilege log, all contrary to law, but has instead arrogated unto itself the ‘right’ to decide its own objections; and that

C. Defendant has waived any “privilege”, “work product”, “confidential or proprietary” or similar “objections”.

The party resisting discovery bears the burden of proving “specific matters are indeed subject to privilege or protection.”  Williams v. General Motors Corp., 147 F.R.D. 270, 273 (S.D. Ga. 1993); see United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir.1991) (“The party invoking the attorney-client privilege has the burden of proving that an attorney-client relationship existed and that the particular communications were confidential”) (citing In re Grand Jury Proceedings in Matter of Freeman, 708 F.2d 1571, 1575 (11th Cir.1983)); Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir.2003) (same); Hodges, Grant & Kaufmann v. United States Gov’t, Dep’t of the Treasury, Internal Revenue Serv., 768 F.2d 719, 721 (5th Cir.1985) (“The burden of establishing that a document is work product is on the party who asserts the claim”).  A party must do more than simply recite the terms “privilege” or “work product” to properly preserve an objection:

When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

A party must assert and support a privilege by (1) raising the privilege in a timely objection that identifies with particularity what is being withheld, pursuant to what privilege; and (2) substantiating the privilege claim with evidence.  See General Motors Corp. v. Conkle, 226 Ga. App. 34, 47, 486 S.E.2nd 180, 192 (1997) (“Stating a privilege claim and meeting the burden of showing by evidence that privilege applies are not the same”).  “An unsupported claim of privilege does not meet the proponent’s burden of showing the privilege applies.” Tyson v. Old Dominion Freight Line, Inc.,  270 Ga. App. 897, 899, 608 S.E.2d 266, 269 (2004); Freiermuth v. PPG Industries, Inc.  218 F.R.D. 694, 698 (N.D.Ala. 2003).

Defendant has made “general objections” to each and every one of Plaintiff’s discovery requests claiming “privilege”, “work-product protection” and that information is “confidential or proprietary.”  That is “totally unsatisfactory.”  Interland, Inc. v. Bunting, 2005 WL 2414990, * 6 (N.D.Ga. March 31, 2005).  First, “global objections are improper and the Court will ignore them unless Defendant specifically asserts them in response to an interrogatory” or document request.  Id. at *5.  Second, by use of non-specific, unsupported privilege and work product objections, Defendant has essentially “created a boilerplate objection that does not satisfy the duty of candor imposed by the Rules.”  Id. at *6.

Courts uniformly require a privilege log that identifies particular documents withheld, including the nature of the document (memo, email, letter, etc.), its date, length, author(s), recipient(s), and subject matter. See Order, Cameron v. General Motors Corp., CV 6:93-1278-3 (D. S.C., Jan. 4, 1994); Order, Six Flags Over Georgia LLC v. Time Warner Entertainment Co., CV 97-A-01939-1 (Superior Court of Gwinnett County, Georgia, Sept. 27, 1998); Order, Bampoe-Parry v. General Motors Corp., CV 98VS0138297J (State Court of Fulton County, Georgia, Feb. 9, 1999); Order, Gibson v. Ford Motor Co., 00-CV-0111 (State Court of Clarke County, Georgia, October 3, 2001); Order, Bishop v. General Motors Corp., CV-94-286-B (E.D. Okla., Feb. 17, 1995); Order, Fowler v. Trinity Outdoor, LLC, et al., 04-C-03310-3 (State Court of Gwinnett County, Georgia, Aug. 19, 2005).  Defendant failed to produce a privilege log specifically so that Plaintiff would have no way to contest Defendant’s “privilege” claims even if there was any way for Plaintiff to know what those claims were, which of course there is not, since Defendant has willfully failed to identify the facts or documents claimed to be “privileged” and support those claims with any evidence

Failure to timely articulate and support privilege objections results in a waiver.  As the 1993 Advisory Committee Notes to Rule 26 state:

A party must notify other parties if it is withholding materials otherwise subject to disclosure…pursuant to a discovery request because it is asserting a claim of privilege or work-product protection.  To withhold materials without such notice is contrary to the rule, subjects the party to sanctions under Rule 37(b)(2), and may be viewed as a waiver of the privilege or protection.

Id.; see Safeco Ins. Co. of Am. v. Rawstrom, 183 F.R.D. 668, (C.D. Calf. 1998); Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540 (10th Cir.1984), cert. dismissed, 469 U.S. 1199, 105 S.Ct. 983 (1985); Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir.1981); Mackey v. IBP Inc., 167 F.R.D. 186 (D. Kansas, 1996).  Indeed, “the number of cases that hold there is a waiver where a responding party fails to timely and specifically plead and prove a privilege are legion.”  Ford Motor Co. v. Ross, 888 S.W.2d 879, 893 (Tex. Ct. App. 1994).

For example, in Peat, Marwick, the defendant served a timely response “in which it objected generally that certain unspecified materials sought were subject to the attorney-client privilege, work-product protection, or were in other protected categories.”  748 F.2d at 541.  The defendant, however, waited until long after the period allowed by Fed. R. Civ. P. 34(b) for response and even until after the trial court had granted the plaintiff’s motion to compel before serving a privilege log substantiating its privilege claims.  The court concluded defendant had waived any privilege claims.  Id. at 542.

A party should assert a privilege objection in its response or it is waived.  Hoglund v. Limbach Constructors, Inc., 1998 WL 307457, *4 (S.D.Fla., March 30, 1998) (“failure to identify” a privilege in discovery response, “or at anytime before Defendant filed its Motion to Compel, constitutes a waiver of such privilege”).  First, the text of Rule 34 requires a response within a specified period of time and further requires that the ‘reasons’ for any objection be stated in that response.  Second, the discovery period is meant to be finite and ordered. Ignoring the time limits imposed by the rules runs afoul of that policy.  Third, allowing a defendant to constantly interpose objections impedes the discovery process and is likely to result in numerous motions to compel.  Fourth, a defendant has a good faith obligation to promptly look for responsive documents and allowing serial objections permits a party to avoid that responsibility.