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Bellamy v. Wal-Mart Stores Texas, LLC

United States District Court, W.D. Texas, San Antonio Division

August 19, 2019

DORA BELLAMY, Plaintiff,



         On this day came on to be considered Defendant's Motion to Abate or Strike Plaintiff's Second Motion for Sanctions (docket no. 49) and Plaintiffs' Motion for Sanctions (docket no. 50).


         This is a slip and fall case. Plaintiff alleges that on November 11, 2016, she was shopping at the Wal-Mart located at 1515 N Loop 1604 E in San Antonio, Texas. She tripped over a pallet while walking through sliding doors into the garden center. Plaintiff alleges that she sustained severe injuries to her knees and ankles. On November 22, 2017, Plaintiff had surgery on her right knee. Plaintiff filed her lawsuit on January 4, 2018 in state court and the case was removed based on diversity jurisdiction.

         There have been several discovery disputes that have arisen in this case. The Magistrate Judge presided over the first round of disputes and eventually ordered that the Plaintiff's [First] Motion for Sanctions be dismissed without prejudice to allow for the deposition of a Wal-Mart employee who may have been responsible for leaving the pallet unattended. The Magistrate Judge further ordered that Defendant supplement its disclosures and discovery responses, amend its objections, and provide Plaintiff with a privilege log as to any withheld documents. See Docket No. 39.

         This latest round of disputes centers on what happened next. In responding to the Magistrate Judge's Order, a paralegal in counsel for Defendant's office inadvertently produced documents that Defendant claims are privileged under the attorney-client privilege or work product. Plaintiff responds that some documents are not privileged. With regard to documents that are privileged, Plaintiff argues that these documents nonetheless demonstrate that Defendant's counsel has acted in bad faith and engaged in discovery abuse.


         A. Fed.R.Evid. 502(d)

         This Court encourages parties to enter into a Rule 502(d) Order[1], which states: “A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court.” Fed.R.Evid. 502(d). Despite this Court's encouragement, the Defendant did not request such an Order.[2] This was the first of many mistakes by Defendant's counsel in this case. In the absence of a 502(d) Order, the Court then turns to an analysis under Rule 502(b).

         B. Fed.R.Evid. 502(b)

The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.
(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

         1. What documents are covered by the attorney-client privilege or work-product protection?

         Defendant contends that documents Bates Nos. 345-399, 400-406 and 436-480[3] are privileged because they are emails between Defendant and its employees and counsel. The Court has reviewed these documents in camera.

         Because Plaintiff concedes the documents are privileged, the Court will not dwell on this issue. However, the Court notes that despite being given a “do over” by the Magistrate Judge, the privilege log that was tendered is deficient.

         “The proponent of the attorney-client privilege bears the burden of showing the applicability of the privilege to the particular information in question.” Hernandez v. Frazier, No. SA-11-CA-9-FB, 2012 WL 12895537, at *5 (W.D. Tex. May 11, 2012). “[C]ursory descriptions are not sufficient to support a claim of privilege.” Id. “[W]hen practicable, the privilege log should generally include a document number (‘Bates number'), author or source, recipient, persons receiving copies, date, document title, document type, number of pages, and any other relevant nonprivileged information.” Id.

         In this case the privilege log was woefully deficient. Specifically, the Court is unable to ascertain the identities of various recipients of the emails in question. “Because the privilege protects only confidential communications, the presence of a third person while such communications are made or the disclosure of an otherwise privileged communication to a third person eliminates the intent for confidentiality on which the privilege rests. The privilege is not, however, waived if a privileged communication is shared with a third person who has a common legal interest with respect to the subject matter of the communication.” Hodges, Grant & Kaufmann v. U.S. Gov't, Dep't of the Treasury, I.R.S., 768 F.2d 719, 721 (5th Cir. 1985).

         But as stated above, because Plaintiff concedes that the documents are privileged, the Court will not disturb the concession that the documents are covered by the attorney-client privilege.

         2. Was the disclosure inadvertent?

         On April 8, 2019, counsel for Defendant's paralegal sent supplemental responses to Plaintiff's discovery requests as ordered by the Magistrate Judge. The paralegal mistakenly sent a folder labeled “Privilege Log Docs” along with the supplemental responses. The disclosure was inadvertent.

         3. Did Defendant take reasonable steps to ...

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