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Neelon v. Krueger

United States District Court, D. Massachusetts

March 10, 2015

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

MEMORANDUM & ORDER

INDIRA TALWANI, District Judge.

I. Introduction

Currently before the court is Plaintiff Daniel P. Neelon's Objections to Magistrate Judge's Order on Defendants' Motion to Compel Production of Documents, A Privilege Log, or Waiver of the Privilege [#220]. After reviewing these objections, the court AFFIRMS the magistrate judge's finding that Plaintiff's privilege log was inadequate, AFFIRMS (with limited exceptions) the magistrate judge's Memorandum & Order on Defendants' Motion to Compel Production of Documents, Privilege Log, or a Finding or Privilege [#217] insofar as it compels Plaintiff to produce responsive documents as to which Plaintiff alone claims protection, VACATES the order insofar as it compels production of documents that Plaintiff contends are protected by his clients' privileges or protections, and ORDERS production of documents and further briefing as set forth herein.

II. Background[1]

In this action, Plaintiff brings claims for defamation, unfair and deceptive business practices, and tortious interference with business relations. See First Am. Compl. ΒΆΒΆ 85-122 [#18]. Plaintiff alleges that Defendants Blair Krueger and Desert Eagle Resources, Ltd. (collectively, "Defendants") made certain false statements in Canada suggesting that Plaintiff was facing criminal charges in Mongolia, and that these statements were published in the United States, harming Plaintiff's reputation and business prospects. See generally id.

On December 13, 2013, Plaintiff served objections to certain of Defendants' requests for production of documents, but included no privilege log with those objections. See Mem. & Order Def.s' Mot. Compel Production Docs., Privilege Log, Finding Privilege Waiver, 10 [#217] [hereinafter Discovery Order]. This case was subsequently stayed from March 7, 2014 to August 7, 2014. See id. at 11; Electronic Order [#89] (granting stay); Scheduling Order [#100] (setting deadline to lift stay).

On October 31, 2014, Defendants filed their Motion to Compel Production of Documents, Privilege Log, or a Finding of Privilege Waiver [#147], which this court referred to the magistrate judge. On November 5, 2014, Plaintiff served a privilege log on Defendants. See Pl.'s Opp'n Defs.' Mot. Compel Produc. Docs., Privilege Log, Finding Privilege Waiver, Ex. A [#165-1] [hereinafter Privilege Log].[2]

On December 19, 2014, the magistrate judge ruled on the motion, holding that Plaintiff had waived his claims of privilege and protection over nearly all responsive documents "by failing to produce an adequate privilege log." See Discovery Order at 11. The magistrate judge ordered Plaintiff to produce all responsive documents-except for communications between Plaintiff and his counsel in the instant litigation-by January 16, 2015. Id. at 7-8, 11.

Plaintiff filed timely objections to this order, which the parties have extensively briefed. See Pl.'s Objections Magistrate Judge's Order Defs.' Mot. Compel Produc. Docs., Privilege Log, Waiver Privilege [#220] [hereinafter Pl.'s Objections]; Defs.' Opp'n Pl.'s Objections Magistrate Judge's Order Defs. Mot. Compel Produc. Docs., Privilege Log, Finding Privilege Waiver [#224] [hereinafter Defs.' Opp'n]; Pl.'s Reply Mem. Supp. Objections Magistrate Judge's Order Defs.' Mot. Compel Produc. Docs., Privilege Log, Waiver Privilege [#230].

On January 15, 2015, while these objections were still pending, Plaintiff filed an emergency motion seeking a stay of the order requiring disclosure by January 16, 2015. See Emergency Mot. Stay Magistrate Judge's Order Waiving Privileges & Ordering Produc. Pending Ruling Fed.R.Civ.P. 72(A) Objections [#234]. The court referred this emergency motion to the magistrate judge, who granted the stay pending this court's ruling on Plaintiff's objections. See Electronic Order [#239] (referring motion); Electronic Order [#240] (granting stay).

III. Discussion

A. Standard of Review

If a party objects to a nondispositive order of a magistrate judge, "[t]he district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law." Fed.R.Civ.P. 72(a). The court reviews factual findings for clear error, Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir. 1999), and gives pure questions of law plenary review, PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010). Mixed questions of law and fact "invoke a sliding standard of review, " with "more fact intensive... question[s]" receiving "more deferential... review" and "more law intensive... question[s]" receiving less deference. In re IDC Clambakes, Inc., 727 F.3d 58, 64 (1st ...


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