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OGD Equipment Co. v. Overhead Door Corp.

United States District Court, E.D. Texas, Sherman Division

October 25, 2019

OGD EQUIPMENT CO. d/b/a OVERHEAD GARAGE DOOR, LLC, Plaintiff,
v.
OVERHEAD DOOR CORPORATION and OVERHEAD DOOR COMPANY OF LUBBOCK, INC., Defendants.

          MEMORANDUM OPINION AND ORDER

          KIMBERLY C. PRIEST JOHNSON, UNITED STATES MAGISTRATE JUDGE.

         On 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. See id.

         I. BACKGROUND

         This is 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.

         II. DEFICIENT PRIVILEGE LOG

         During 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 id.

         Under 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.” Id.

         At the 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.

         III. DOCUM ...


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