Monday, August 6, 2012

(I Can't Get No) Cooperation!

Here's another fine Magistrate Judge Goodman order, this time on privilege logs.

Apparently you need to ask for responsive documents first before the other side has to list them on a privilege log:
Rule 26(b)(5)(A) requires a party to describe privileged documents “when a party withholds information otherwise discoverable.” A document is not “withheld” unless it was requested. The term “withholds” necessarily incorporates the threshold notion that a request for a document was made – otherwise, the document is not being “withheld.”
Makes sense.

But then why did the SEC offer up boilerplate privilege objections rather than state that there were no responsive documents?
In response to the document production request, the SEC interposed not only a general privilege objection (in the introduction section of its response) seemingly applicable to many of Merkin’s requests [ECF No. 55-2, p. 2, ¶ 4], but it also made privilege and work-product objections to nearly all of Merkin’s individual requests as well. These boilerplate objections suggested that privileged documents responsive to Merkin’s requests did, in fact, exist, and that the SEC was withholding those documents. Therefore, Merkin was certainly justified in concluding that the SEC should have provided a privilege log. After all, why else would a party assert a privilege if no responsive documents exist in the first place?
Because that's just what some litigants do?

Boilerplate boilerplate boilermaker.....

Generalized objections asserting attorney-client privilege or the work product doctrine do not comply with the Local Rules. Local Rule 26.1(g)(3)(B) requires that objections based upon privilege identify the specific nature of the privilege being asserted, as well as identifying details such as the nature and subject matter of the communication at issue, the sender and receiver of the communication and their relationship to each other. Parties must refrain from making vague, blanket objections in the form of: “Objection. This information is protected by attorney/client and/or work product privilege.”

Boilerplate objections, such as those made by the SEC, are inadequate, meaningless, and preserve nothing for the party making such objections. See Adelman v. Boy Scouts of Am., 276 F.R.D. 681, 689 (S.D. Fla. 2011); Benfatto v. Wachovia Bank N.A., No. 08-60646, 2008 WL 4938418, at *2 (S.D. Fla. Nov. 19, 2008). Nowhere is the accuracy of this principle more apparent than here.
But they feel so good!

Now comes the part about the aspirational hopes and dreams of the "best-practices litigator":
At a minimum, the SEC seems to have taken a discovery stance which is inconsistent with one of the basic tenets of the Discovery Practices Handbook: “Discovery in this District is normally practiced with a spirit of cooperation and civility.” (emphasis supplied).

To be sure, it was in the SEC’s strategic best interest to remain quiet and to permit the discovery deadline to expire before clearly articulating its position. And, on the other hand, Merkin did not begin his written discovery until late in the game and did not request the documents the SEC has not produced. Moreover, it is unlikely that Merkin would have been able to obtain the privileged documents had he timely and specifically asked for them (assuming the SEC would have then finally listed the privileged documents on a privilege log). Adopting a cooperative attitude would have caused the SEC to simply and timely advise Merkin that it was not providing a privilege log because the documents subject to the privilege claims had never been included on a document request. Or alternatively, the spirit of cooperation would have at least required the SEC to refrain from making confusing and arguably disingenuous objections in the first place.
Question:  is the "spirit of cooperation" alive and well in our District when it comes to discovery?


Anonymous said...

Judge Cooke doesn't seem to think so.

Anonymous said...

Love the video.