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Neelon v. Krueger

United States District Court, D. Massachusetts

December 19, 2014

DANIEL P. NEELON, Plaintiff,
v.
BLAIR KRUEGER, DESERT EAGLE RESOURCES, LTD., f/k/a GARRISON INTERNATIONAL, LTD., Defendants

For Daniel P. Neelon, Plaintiff: Paul J. Andrews, Jr., LEAD ATTORNEY, Paul J. Andrews, Esq., Braintree, MA; Daniel P. Neelon, Boston International Law Group LLC, Braintree, MA.

For Blair Krueger, Desert Eagle Resources, Ltd., formerly known as Garrison International, Ltd., Defendants: Damian R. LaPlaca, LEAD ATTORNEY, Nelson Kinder & Mosseau P.C., Boston, MA; Robert F. Callahan, Jr., Nelson Kinder & Mosseau PC, Manchester, NH.

For Desert Eagle Resources, Ltd., Blair Krueger, Counter Claimants: Damian R. LaPlaca, LEAD ATTORNEY, Nelson Kinder & Mosseau P.C., Boston, MA.

For Daniel P. Neelon, Counter Defendant: Paul J. Andrews, Jr., LEAD ATTORNEY, Paul J. Andrews, Esq., Braintree, MA.

Page 468

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS, PRIVILEGE LOG, OR A FINDING OF PRIVILEGE WAIVER (#147)

ROBERT B. COLLINGS, United States Magistrate Judge.

After the defendants filed their motion to compel (#147), the plaintiff did produce

Page 469

a privilege log. See #165-1. Accordingly, the essential dispute, which was argued before the Court on December 2, 2014, is whether the privilege log comports with the requirements of Rule 26(b)(5)(A)(ii), Fed. R. Civ. P., and if not, whether the plaintiff will be deemed to have waived any claims of privilege.

The plaintiff has the burden of establishing his entitlement to claim the privilege. In re Grand Jury Subpoena (Mr. S.), 662 F.3d 65, 71 (1st Cir. 2011) (citing In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003), cert. denied, 133 S.Ct. 43, 183 L.Ed.2d 680 (2012)). The burden is codified in Rule 26(b)(5)(A), Fed. R. Civ. P., which requires that a party invoking the privilege to " expressly make the claim" and further to:

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)(ii).

Case law has further refined these requirements. As the First Circuit has written:

It is clear beyond hope of contradiction that the party seeking to invoke the attorney-client privilege must carry the devoir of persuasion to show that it applies to a particular communication and has not been waived. See In re Keeper of the Records, 348 F.3d at 22. Whatever quantum of proof is necessary to satisfy this obligation, a blanket assertion of privilege is generally insufficient. See In re Grand Jury Proceedings, 616 F.3d 1172, 1183 (10th Cir. 2010); In re Grand Jury Matters, 751 F.2d 13, 17 n. 4 (1st Cir. 1984); United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983). Determining whether documents are privileged demands a highly fact-specific analysis--one that most often requires the party ...

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