United States District Court, E.D. Texas, Sherman Division
ROBERT A. HORNE, ERIC RICHARDS, and VICTOR CARRELL, Plaintiffs,
TEXAS DEPARTMENT OF TRANSPORTATION Defendant.
MEMORANDUM OPINION AND ORDER
KIMBERLY C. PRIEST JOHNSON UNITED STATES MAGISTRATE JUDGE
December 12, 2019, the Court was notified of multiple
discovery disputes between the parties. Pursuant to the
Court's December 13, 2019, Order (Dkt. 32), Plaintiffs
Robert A. Horne, Eric Richards, and Victor Carrell
(collectively, “Plaintiffs”) submitted a letter
brief regarding their discovery disputes (Dkt. 34), to which
Defendant Texas Department of Transportation
(“TxDOT”) filed a response (Dkt. 36). TxDOT also
filed a letter brief regarding its discovery disputes (Dkt.
33), to which Plaintiffs filed a response (Dkt. 35). On
December 18, 2019, and continuing on December 20, 2019, the
Court held a telephonic hearing regarding the disputes (the
“Hearing”). See Docket Entries on
December 18, 2019, and December 20, 2019.
DEFENDANT'S DISCOVERY DISPUTE
letter brief, TxDOT argues Plaintiffs' privilege log is
insufficient because it “does not indicate who the
witness is, how many messages occurred, or the nature of the
communications in a manner that would enable TxDOT to assess
the claim of privilege.” Dkt. 33. TxDOT also argues
that text messages are not considered work product, and
therefore, the text exchanges with witnesses identified on
Plaintiffs' privilege log should be produced. See
id. Plaintiffs respond that communications by counsel
with witnesses are protected work product because disclosure
could disclose Plaintiffs' litigation strategy.
See Dkt. 35.
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)
may claim information is protected under the work product
doctrine if it constitutes “mental impressions,
conclusions, opinions, or legal theories of a party's
attorney or other representation concerning the
litigation.” Fed.R.Civ.P. 26(b)(3)(B). “The
work-product doctrine provides qualified protection of
documents and tangible things prepared in anticipation of
litigation, including . . . memoranda of witnesses'
statements.” United States v. Ocwen Loan Servicing,
LLC, 2016 WL 1031157, at *2 (E.D. Tex. March 15, 2016)
reviewing Plaintiffs' privilege log, the Court agrees
with TxDOT that the privilege log needs additional
information to comply with the Federal Rules. Specifically,
Plaintiffs must provide enough information to allow TxDOT to
assess Plaintiffs' claims of privilege. See Fed.
R. Civ. P. 26(b)(5)(A).
TxDOT specifically argues Plaintiffs must disclose the
identities of the witnesses who sent or received text
messages to Plaintiffs' counsel, the Court finds this
information constitutes work product, as it tends to reveal
Plaintiffs' litigation strategy. See In re Harwood
P- G, Inc., 403 B.R. 445, 470 (W.D. Tex. 2009)
(citing Electronic Data Systems Corp. v.
Steingraber, 2003 WL 21653405, at *2 (E.D. Tex. July 9,
2003)). Therefore, while Plaintiffs are required to provide
additional information to bring their privilege log into
conformity with the Federal Rules, the Court declines to
require Plaintiffs to provide names of the witnesses with
whom Plaintiffs' counsel communicated.
detailed below, the Court orders Plaintiffs to produce a
revised privilege log by January 3, 2020. The Court further
orders the parties to file any objections to privilege logs
with the Court by January 10, 2020. If objections are filed,
the parties shall be required to file responses to those
objections and produce the objectionable documents for in
camera review by January 17, 2020.
PLAINTIFFS' DISCOVERY DISPUTES
argue TxDOT has failed to produce responsive documents to
Plaintiffs' Request for Production (“RFP”)
39, 42, 43, 45, 46, 47, and 28. See Dkt. 34. TxDOT
maintains these RFPs seek irrelevant information and are
harassing to TxDOT. See Dkt. 36.
AGREED REQUESTS FOR PRODUCTION
their letter briefing and at the Hearing, the parties
represented agreements as to RFP 43 and 45. See Dkt.
34. Regarding RFP 42, Plaintiffs agreed to TxDOT's
production of one-hundred forty-two (142) documents
potentially responsive to RFP 42.
RFP 28, the Court previously ordered TxDOT to produce
documents responsive to RFP 28, for the period of July 2015,
through September 2015. See Dkt. 28. In their letter
brief, Plaintiffs claim they have not been provided with any
such documents and request they be granted access to the
Sulphur Springs yard to inspect a book Defendants believe
contain the requested documents. See Dkt. 34 at 2.
In response, TxDOT offered to produce the book for inspection
“at a mutually agreeable time and location.”
See Dkt. 36 at 3. At the Hearing, TxDOT reversed its
position and opposed allowing Plaintiffs to conduct an onsite
inspection of the book. Based on TxDOT's agreement to
Plaintiffs' inspection of the book in its briefing to the
Court, the Court finds that inspection of the book responsive
to Plaintiffs' RFP 28, has been agreed to, and should
proceed at a mutually agreeable time.
REQUESTS FOR PRODUCTION ...