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 JUDGE
October 25, 2019, the Court issued an Order regarding
Defendant Overhead Door Corporation's
(“Overhead”) privilege log after holding a
telephonic hearing with the parties (the
“Hearing”). See Dkt. 184. On October 28,
2019, Defendant Overhead filed its Motion to Reconsider, and
Objection to, the Magistrate Judge's Memorandum Opinion
and Order Regarding Privilege Logs (“Motion to
Reconsider”) (Dkts. 195). On October 30, 2019, Overhead
filed an Amended Motion to Reconsider (Dkt. 198). The Court
has reviewed the Motions to Reconsider and hereby issues this
Order to clarify the October 25, 2019, Order.
Hearing was the fourth telephonic hearing the Court has held
to address discovery disputes in this case since July 2019.
See Dkts. 76, 146, 164, 182. Since the Court does
not allow parties in any case to file motions to compel
without leave, the Court allows parties to address their
positions on discovery matters during telephonic hearings.
See Dkt. 74. Only if the Court feels that written
briefing is required to resolve the dispute may parties file
any motions or briefing addressing discovery matters. See
id. Despite knowing this procedure-and using it to
address numerous discovery disputes in this Court-Overhead
argues in the Motion to Reconsider that the Court entered the
Order “without any motion, briefing, or
evidence.” Dkt. 198 at 1.
noted in the Court's October 25, 2019, Order, 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
Hearing, Overhead's counsel acknowledged their privilege
log contains nonprivileged documents and needs additional
information to comply with the Federal Rules. Overhead cannot
on one hand refuse to participate in meaningful discovery
(See e.g., Dkts. 166, 170) and then complain when it
is put to proof by the Court on its admittedly overbroad
designation of privileged materials in efforts to further
delay discovery, the resolution of pending motions, and
preparation for trial. 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. While
Overhead argues that it served its privilege log in a timely
fashion, Overhead admits that when a privilege log is
inadequate-as is the case here-an appropriate remedy is to
require a supplemental privilege log. See Dkt. 198
at 4. As OGD is required to respond to Defendants' Motion
for Partial Summary Judgment (Dkt. 104) by November 6, 2019,
deadline set by the Court to provide an updated privilege is
necessary so that all relevant nonprivileged documents are
exchanged before OGD must respond. See Dkt. 150. If
Overhead needs an extension of time to revise its privilege
log, Overhead may file a motion proposing a later but
reasonable extension of time to do so.
• Lead counsel for Overhead 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 assured himself that all documents listed on the
revised privilege log are in fact privileged and can attest
to the Court that all such documents are privileged
by Friday, November 1, 2019, at 12:00
p.m. This affidavit is to ensure to the Court
that lead counsel is involved in the designation of privilege
and has a good faith basis for such designation. As stated in
Eastern District of Texas Local Rule CV-11(a), lead counsel
is “responsible in that action for the party.”
Local Rule CV-11(a)(2). The pattern of delay by Defendants on
discovery matters has occasioned this requirement to expedite
this matter toward trial and to narrow any basis for
disputes. If Overhead needs an extension to revise its
privilege log and prepare this affidavit, Overhead may file a
motion proposing a later but reasonable extension of time to
• Defendants shall produce any documents removed from
the current privilege log by Friday, November 1,
2019, at 5:00 p.m. Overhead argues that “the
mere fact that [Overhead] removes a document from a privilege
log . . . should not amount to a waiver of any objection that
[Overhead] maintains to the document's production (e.g.
it is both irrelevant and privileged).” Dkt. 198 at 5.
However, under the Federal Rules, parties are only required
to list withheld materials with “information
otherwise discoverable” on privilege logs.
Fed.R.Civ.P. 26(b)(5) (emphasis added). Irrelevant documents
do not fall within the scope of permissible discovery.
See id. at 26(b)(1). If Overhead objects to the
documents on a basis other than privilege or relevance, the
Court will allow Overhead to maintain that objection. If
Overhead needs an extension of time to produce removed
documents, Overhead may file a motion proposing a later but
reasonable extension of time to do so.
• Defendants shall prepare a set of all privileged
documents listed on the revised privilege log with language
that makes the document privileged highlighted by
Monday, November 4, 2019, at 5:00 p.m. Overhead
notes that requiring all privileged language to be
highlighted could require counsel to highlight “nearly
every page of . . . 25, 000-plus printed pages.” Dkt.
198 at 1. By Overhead's own admission at the hearing and
in the Motion to Reconsider, the number of documents listed
in the revised log will be substantially less than the more
than 6, 000 listed in its original deficient privilege log.
See Dkts. 182, 198 at 2. The Court merely wants
Overhead to have language highlighted which it could use to
defend its privilege designation if it is challenged. This
will allow the Court to quickly adjudicate any disputes of
privilege as close to the discovery deadline as possible. If
Overhead needs an extension of time to complete this set of
privileged documents, Overhead may file a motion proposing a
later but reasonable extension of time to do so.
• OGD shall notify the Court of any remaining dispute
regarding Defendants' revised privilege log by
Monday, November 4, 2019, at 5:00 p.m.
Overhead argues that the Court is “imposing
sanctions” on Overhead, this claim rings hollow.
Overhead has continuously hindered the discovery process
(See e.g., Dkts. 166, 170), and these measures allow
the Court to timely and fairly resolve pretrial matters of
discovery and claims of privilege. Given the circumstances
and late hour of this case, the Court believes these measures
are necessary for the management and preparation of the case,
and any burden imposed on Overhead is not unfair or punitive.