United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ, UNITED STATES DISTRICT JUDGE.
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.
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
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.
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
Court encourages parties to enter into a Rule 502(d)
Order, 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. 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
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).
What documents are covered by the attorney-client privilege
or work-product protection?
contends that documents Bates Nos. 345-399, 400-406 and
436-480 are privileged because they are emails
between Defendant and its employees and counsel. The Court
has reviewed these documents in camera.
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.
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.”
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).
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
Was the disclosure inadvertent?
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
Did Defendant take reasonable steps to ...