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All-Tag Corp. v. Checkpoint Systems, Inc.

United States District Court, S.D. Florida

October 10, 2019

All-Tag Corp., Plaintiff,
Checkpoint Systems, Inc., Defendant.



         THIS 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].

         I. Background

         As 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.

         Substantive 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.

         With that being said, the Court is now prepared to issue an expedited ruling on Plaintiffs pending expedited motion.

         II. Discussion and Analysis

         The 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 privilege logs.

         According 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].

         Now, 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.

         Plaintiff 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].

         At this 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.

         Because 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.

         The 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.[1] 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 ...

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