United States District Court, S.D. Florida
ORDER DENYING PLAINTIFF'S EXPEDITED MOTION TO
COMPEL [DE 2591
WILLIAM MATTHEWMAN, UNITED STATES MAGISTRATE JUDGE.
CAUSE is before the Court on Plaintiff All-Tag Corp.'s
Expedited Motion to Compel Documents Withheld as Privileged
and Not Disclosed on a Privilege Log [DE 259]. This matter
was referred to the undersigned by United States District
Judge William P. Dimitrouleas. [DE 51]. The motion was filed
on October 4, 2019, and the Court expedited briefing of the
motion. [DE 261]. The motion is now fully briefed.
See DEs 259, 274');">274, 276, 277, 280. Thus, the motion is
ripe for review. For the reasons set forth below, the Court
DENIES the motion [DE 259].
stated in recent Orders, see DEs 263, 265, 276, the
Court is extremely frustrated and disappointed by the
parties' discovery conduct throughout this case. Even
though the discovery cutoff date was September 18, 2019, and
even though substantive motions are due tomorrow, October 11,
2019, this Court has had to put aside other cases and matters
in an effort to resolve the numerous and repeated
discovery-related disputes which have arisen throughout this
litigation. Even within the past several weeks-after the
September 18, 2019, discovery cutoff date-this Court has had
to issue a plethora of substantive and procedural
discovery-related orders based on last-minute motions filed
by the parties. This is not how the discovery process is
supposed to work.
motions are due tomorrow, October 11, 2019, and yet, despite
the extensive and time-consuming judicial labor the Court has
already devoted to this case, there still remains one pending
discovery-related motion, that is, Plaintiff All-Tag's
Expedited Motion to Compel Documents Withheld as Privileged
and Not Disclosed on a Privilege Log [DE 259], filed October
4, 2019. In light of the procedural status of this case, the
Court expedited briefing on this motion [DE 261], and the
Court has now had an opportunity to carefully review
Defendant's Response [DE 274');">274] filed October 8, 2019,
Plaintiffs Reply [DE 277] filed October 9, 2019, and
Plaintiffs sealed Exhibit A [DE 280] to its reply, filed
October 10, 2019.
that being said, the Court is now prepared to issue an
expedited ruling on Plaintiffs pending expedited motion.
Discussion and Analysis
dispute underlying Plaintiffs motion to compel [DE 203] is
straightforward. Under Fed.R.Civ.P. 26(b)(5) and S.D. Fla. L.
R. 26.1(e)(2)(D), litigants must, unless either they agree or
the Court orders otherwise, serve each other with a privilege
log listing documents responsive to the opposing party's
discovery requests that were withheld from production on the
basis of privilege "no later than fourteen (14) days
following service of: (i) any interrogatory response or
document production from which some information or documents
are withheld ...; or (ii) the response to the request for
production if all responsive documents are being
withheld[.]" Neither party did that here. Neither party
timely complied with the rules and law applicable to
to Defendant Checkpoint, Plaintiff All-Tag served its
privilege log on Defendant at 10:25 p.m. on September 18,
2019, the very last day of discovery. [DE 274');">274, p. 3].
Defendant, for its part, did not serve its privilege log on
Plaintiff until October 4, 2019-16 days after the close of
discovery and several hours after Plaintiff filed its motion
to compel. [DE 274');">274, p. 1].
Plaintiff, despite having served its own privilege log late
at night on the close of discovery, seeks an Order finding
Defendant has waived its right to assert privilege by filing
a late privilege log and compelling Defendant to produce all
documents withheld on privilege grounds. Defendant, of
course, opposes Plaintiffs motion, arguing that the motion is
essentially moot now that it has served its privilege log
and, further, that Plaintiffs own dilatory conduct in
producing its privilege log at the very last moment offsets
any potential prejudice to Plaintiff from Defendant's
untimely served privilege log.
argues in its motion (which was filed a short time before
Defendant produced its privilege log) that Defendant's
"failure to produce a privilege log, one week from the
deadline for Summary Judgment motions, is unfair and
prejudicial to [Plaintiffs] ability to draft [responses to],
and defend" against Defendant's anticipated motion
for summary judgment and pending motion for judgment on the
pleadings [DE 207]. Plaintiff also accuses Defendant of
trying to "suppress evidence" by failing to timely
produce documents and engaging in "deliberate"
delay through "months of expensive delay
tactics[.]" [DE 259, p. 5].
late date in this case, the Court is unpersuaded by
Plaintiffs arguments. The simple truth is that neither party
to this case complied with S.D. Fla. L. R. 26.1 (e)(2)(D) or
Fed.R.Civ.P. 26(b)(5). Both parties served their respective
privilege logs on each other well after 14 days from the date
they each withheld production. The Court believes both
parties did this in an effort to obtain some sort of
strategic advantage. Plaintiff may, in fact, as it claims, be
prejudiced by Defendant's untimely privilege log as
discovery has closed in this case and Plaintiff no longer has
time to challenge Defendant's assertions of privilege.
But this claimed prejudice applies equally to Plaintiffs
untimely disclosure of its privilege log and Defendant's
concomitant inability to challenge Plaintiffs assertions of
privilege as to withheld documents. The parties have only
themselves to blame for whatever prejudice they may suffer as
a result of their conduct.
both sides, in an apparent effort at gamesmanship, waited
until the very last minute to file privilege logs, they have
put the Court in an untenable position. That is because the
Court simply cannot possibly order an in camera
review of the numerous documents listed on Defendant's
lengthy privilege log, carefully review those documents,
determine whether Defendant's claims of privilege are
proper, and enter an appropriate Order by tomorrow, October
11, 2019, the deadline for filing substantive motions.
parties' course of conduct in this litigation was to
mutually not produce privilege logs until the very end of
discovery and then belatedly raise the issue with the
Court. Had the parties insisted upon the timely
filing of privilege logs months ago-and raised any alleged
deficiencies in them months ago by proper and timely
motion-the Court could have heard from the parties and
conducted an in camera review in a proper and
orderly manner. The Court has done ...