United States District Court, E.D. Texas, Sherman Division
OGD EQUIPMENT CO. d/b/a OVERHEAD GARAGE DOOR, LLC, Plaintiff,
OVERHEAD DOOR CORPORATION and OVERHEAD DOOR COMPANY OF LUBBOCK, INC., Defendants.
MEMORANDUM OPINION AND ORDER
KIMBERLY C. PRIEST JOHNSON, UNITED STATES MAGISTRATE JUDGE.
October 24, 2019, counsel for OGD Equipment Co.
(“OGD”) contacted the Court regarding two
discovery disputes between the parties. On October 25, 2019,
the Court held a telephonic hearing regarding the discovery
disputes (the “Hearing”). See Dkt. 182.
During the Hearing, counsel for OGD argued that Defendants
Overhead Door Corporation and Overhead Door Company of
Lubbock, Inc.'s (collectively, “Defendants”)
privilege log was overbroad and deficient, as it contains
thousands of entries with insufficient descriptions. See
Id. Conversely, Defendants argued OGD has not produced
adequate discovery with regards to OGD's internet search
terms data and emails from a certain personal email account.
the fourth telephonic hearing the Court has held to address
discovery disputes in this case since July 2019. See
Dkts. 76, 146, 164, 182. The Court has expended significant
time and resources on this case over the course of almost two
years since it was filed on December 29, 2017. See
Dkt. 1. Pursuant to the Court's September 24, 2019,
Order, all discovery was to be completed by October 25, 2019.
See Dkt. 150. Further, this case is set for a Final
Pretrial Conference on December 6, 2019, and trial in January
2020. See Dkt. 96.
DEFICIENT PRIVILEGE LOG
the Hearing, OGD's counsel asserted that Defendants'
privilege log contained approximately 6, 100 entries, around
4, 500 of which OGD alleges only identify the document by
type, date, and a claim of privilege. See Dkt. 182.
While Defendants generally disputed this allegation,
Defendants' counsel acknowledged they were still in the
process of reviewing and supplementing the privilege log to
bring it into full compliance with Federal Rule of Civil
Procedure 26(b)(5), thereby admitting it was presently
overbroad and deficient under the Federal Rules. See
Federal Rule of Civil Procedure 26(b)(5)(A), a party
withholding information by claiming it is privileged or
subject to protection as trial-preparation material must
“(i) expressly make the claim; and (ii) describe the
nature of the documents, communications, or tangible things
not produced or disclosed-and do so in a manner that, without
revealing information itself privileged or protected, will
enable other parties to assess the claim.” Fed.R.Civ.P.
26(b)(5)(A). While the Rule does not “attempt to define
for each case what information must be provided, . . . a
privilege log's description of each document and its
contents must provide sufficient information to permit courts
and other parties to test the merits of the privilege
claim.” Equal Employment Opportunity Commission v.
BDO USA, L.L.P., 876 F.3d 690, 697 (5th Cir. 2017)
(quotations omitted). Continual failure to adhere to the
Rules' prescription may result in “waiver of the
privilege where a court finds that the failure results from
unjustified delay, inexcusable conduct, or bad faith.”
Hearing, Defendants acknowledged their privilege log likely
contains nonprivileged documents and needs additional
information to comply with the Federal Rules. Therefore, as
detailed below, the Court orders the following:
• Defendants shall revise their privilege log such that
it is fully compliant with Federal Rule of Civil Procedure
26(b)(5), and produce the revised log to OGD by
Friday, November 1, 2019, at 12:00 p.m.
• Lead counsel for Defendants shall file an affidavit
with the Court certifying that the revised privilege log
complies with Federal Rule of Civil Procedure 26(b)(5), and
that lead counsel has reviewed all documents listed on the
revised privilege log and confirmed that all such documents
are in fact privileged by Friday, November 1, 2019,
at 12:00 p.m.
• Defendants shall produce any documents removed from
the current privilege log by Friday, November 1,
2019, at 5:00 p.m.
• Defendants shall prepare a set of all privileged
documents with all privileged language highlighted by
Monday, November 4, 2019, at 5:00 p.m.
• OGD shall notify the Court of any remaining dispute
regarding Defendants' revised privilege log by
Monday, November 4, 2019, at 5:00 p.m.