eDiscovery Daily Blog

• October 4, 2016

In Portland Pipe Line Corp. et. al. v. City of South Portland et. al., No. 15-00054 (D. Maine, Sept. 8, 2016), Maine Magistrate Judge John H. Rich, III denied the defendants’ motion to compel the production of documents withheld or redacted on claims of attorney-client privilege by the plaintiff, finding that the plaintiffs “undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor” and then undertaking a “painstaking manual review to verify the privileged status of every ESI document marked as privileged”.

Case Background

In this case where the plaintiff sued the defendant seeking declaratory and injunctive relief regarding an ordinance prohibiting the loading of crude oil, the defendant brought instant disputes to the court’s attention regarding perceived inadequacy with the plaintiff’s privilege log.  The defendants indicated that they diligently attempted to resolve the instant disputes, emailing letters to the plaintiffs on August 10 and 22, 2016, to which the plaintiffs, in letters emailed on August 15 and 24, 2016, “offered no meaningful response”, forcing them to take the issue to the court.  On August 10, the defendants also advised that, absent further detail, they suspected that the privilege was improperly claimed as to four categories of documents and eventually demanded that the plaintiffs produce all documents withheld on the first three categories within the remaining three categories for the court’s in camera review in determining whether to order that additional detail be provided in the ESI log or documents be produced.

The plaintiffs countered that the defendants pursued a “dilatory and burdensome approach” and raised no concern about the adequacy of a similar hard-copy document privilege log that the plaintiffs had produced on July 14, and that they also failed to define the scope and nature of their complaints about the ESI privilege log sufficiently to enable a particularized response, asserting that the defendants, as the parties pressing discovery disputes, bore the burden of defining the scope of those disputes in such a manner as to permit the plaintiffs an adequate opportunity to respond and the court to rule.  They also flatly declined to undertake a wholesale review of their privilege log, decrying the undue burden of the request in light of the costly and time consuming efforts already taken to create the log and standing by both its adequacy and the viability of their claims of privilege.

Judge’s Ruling

With regard to the argument over the production of the privilege log and noting that the defendants waited until August 30 to seek the court’s aid, Judge Rich stated that “The plaintiffs have the better argument.”  In denying the defendant’s motion, he stated:

“I appreciate that the defendants cannot be certain, in the absence of the requested in camera review, whether documents have or have not been properly withheld. However, I take into consideration the plaintiffs’ counsel’s representation, as officers of the court, that the plaintiffs undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor and then, following the production of more than 100,000 pages of ESI to the defendants on July 29, immediately undertaking a painstaking manual review to verify the privileged status of every ESI document marked as privileged and draft appropriate descriptions for the ESI log. The plaintiffs’ counsel further represent that the plaintiffs executed targeted searches of documents as to which privilege had been claimed to identify those less likely to have been privileged. As a result of those efforts, when the plaintiffs produced their ESI log on August 2, they not only made new claims of privilege as to previously produced documents but also withdrew claims of privilege as to a number of other documents.”

So, what do you think?  Should the in camera review have been allowed?  Please share any comments you might have or if you’d like to know more about a particular topic.

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