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Echavarria v. Roach

United States District Court, D. Massachusetts

December 26, 2018

ANGEL ECHAVARRIA, Plaintiff,
v.
J. MICHAEL ROACH et al., Defendants.

          MEMORANDUM AND ORDER ON MOTION TO COMPEL

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

         This case involves allegations that, in 1994, police officers working for the City of Lynn and the Commonwealth of Massachusetts suppressed and fabricated evidence to build a case against Plaintiff Angel Echavarria for the murder of Daniel Rodriguez. Plaintiff was convicted, sentenced to life in prison, and incarcerated for more than twenty years. On April 30, 2015, the Superior Court of Massachusetts granted Plaintiff a new trial, and on June 15, 2015, the Commonwealth dropped all charges against Plaintiff. Plaintiff filed this lawsuit a year later, asserting civil rights and tort law claims against current and former police officers and the City of Lynn. Before the Court is the City of Lynn's motion to compel production of documents. [ECF No. 157]. For the reasons explained herein, the motion is GRANTED in part and DENIED in part.

         I. DISCUSSION

         The City of Lynn seeks an order compelling Plaintiff to: (1) label or organize produced documents to show which request they are responsive to, (2) serve a more detailed privilege log, (3) produce documents that are only partially privileged with redactions, and (4) produce various documents over which Plaintiff allegedly waived the attorney-client privilege.

         A. Organizing Documents for Production

         Federal Rule of Civil Procedure 34(b)(2)(E) requires that, unless a court order or stipulation between the parties provides otherwise, “[a] party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” The producing party may elect whether to produce the documents as they are kept in the usual course of business or to label and organize them. Enargy Power (Shenzhen) Co. v. Wang, No. CIV.A. 13-11348-DJC, 2014 WL 4687542, at *3 (D. Mass. Sept. 17, 2014) (citing Valeo Elec. Sys., Inc. v. Cleveland Die & Mfg. Co., No. 08-cv-12486, 2009 WL 1803216, at *2 (E.D.Mich. June 17, 2009)). The “usual course of business” option, “however, is only available when the documents' natural organization makes finding critical documents reasonably possible.” Id. (citing W. Holding Co., Inc. v. Chartis Ins. Co. of P.R., 293 F.R.D. 68, 71 (D.P.R.2013)). If a party elects to produce documents as they are kept in the usual course of business, that party bears the burden of showing that the natural organization of the documents makes finding critical documents reasonably possible. See id. For example, a party may meet this burden by showing that it produced emails as they are kept in the ordinary course of business by making family-complete productions that are either organized chronologically by custodian or by producing metadata that allows automated sorting. See Valeo Elec. Sys., 2009 WL 1803216, at *2. Non-email electronically stored information (“ESI”) may be produced with metadata showing the custodian and location of storage. See id.

         Here, Plaintiff maintains that he has properly produced documents as they were kept in the ordinary course of business. [ECF No. 158 at 7-8]. The City of Lynn identifies two examples that it claims demonstrate Plaintiff's non-compliance with the rules. First, the City of Lynn asserts that Plaintiff's initial response to its request for Plaintiff's case file “as maintained by [Plaintiff's] criminal defense attorney, Charles Robson, from 1994-1998, ” failed to adequately identify what that file contained. [ECF No. 157 at 4]. The issue, however, became moot when, at Robson's December 6, 2018 deposition, Plaintiff produced Robson's trial file. See [ECF No. 161 at 5] (“Although the issue now appears to be moot, it should be noted that Robson's file was produced from documents apparently now in Plaintiff's possession, thereby undermining [the] argument that he cannot label documents responsive to particular requests.”).

         The City of Lynn's second example is the response to its request for “presentment letters to the City of Lynn, as described in footnote 2 of [the] complaint, and all documents showing proof of service or delivery.” [ECF No. 157 at 4]. Plaintiff “produced those documents . . . in this litigation, by themselves, with an email that identified the bates range of those particular documents.” [ECF Nos. 158 at 9, 158-6]. The cover email for the production, however, offered no indication of what the production contained, and the files do not appear to have been produced with metadata or any other information regarding where or from whom they were collected. Plaintiff has therefore not met his burden to show that the files have a natural organization that makes finding critical documents reasonably possible.

         To comport with Rule 34(b)(2)(E), when a party to this litigation produces documents without accompanying metadata or other information that shows the organizational structure in which the documents were stored, including from whom the documents were collected, the producing party must state which request(s) the documents are responsive to. To the extent the parties have not complied with this requirement to date, their responses and productions must be amended.[1]

         B. Privilege Log Detail

         A party that withholds otherwise responsive documents under a claim of privilege must expressly assert the privilege claimed and produce a privilege log that “describe[s] the nature of the documents, communications, or tangible things not produced or disclosed” and provides enough information for “other parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A). “Although the rule does not spell out the sufficiency requirement in detail, courts consistently have held that the rule requires a party resisting disclosure to produce a document index or privilege log.” In re Grand Jury Subpoena (Custodian of Records, Newparent, Inc), 274 F.3d 563, 575 (1st Cir. 2001). “The party who invokes the privilege bears the burden of establishing that it applies to the communications at issue and that the privilege has not been waived.” XYZ Corp. v. United States (In re Keeper of Records), 348 F.3d 16, 22 (1st Cir. 2003); see also Burlington N. & Santa Fe Ry. Co. v. District Court, 408 F.3d 1142, 1147 (9th Cir. 2005) (“Rule 26 clarifies that a proper assertion of privilege must be more specific than a generalized, boilerplate objection.”). “Privilege logs do not need to be precise to the point of pedantry, ” but “a party who asserts a claim of privilege [is required] to do the best that he reasonably can to describe the materials to which his claim adheres.” In re Grand Jury Subpoena (Custodian of Records, Newparent, Inc), 274 F.3d at 576.

         Plaintiff's privilege logs contain numerous assertions of the attorney-client privilege. “The dimensions of the [attorney-client] privilege itself are reasonably well honed. The privilege protects only those communications that are confidential and are made for the purpose of seeking or receiving legal advice.” XYZ Corp., 348 F.3d at 22. The privilege may extend to a third party who “helps the lawyer give legal advice, ” if the third party is “‘necessary, or at least highly useful, for the effective consultation between the client and the lawyer.'” Lluberes v. Uncommon Prods., LLC, 663 F.3d at 24 (quoting United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961)); see Lynx Sys. Developers, Inc. v. Zebra Enter. Sols. Corp., No. 15-12297-GAO, 2018 WL 1532614, at *2 (D. Mass. Mar. 28, 2018) (holding that the third party must be “nearly indispensable or serve some specialized purpose in facilitating the attorney-client communications” and the communication must be “for the purpose of obtaining legal advice from the lawyer” (quoting Cavallaro v. United States, 284 F.3d 236, 247, 249 (1st Cir. 2002))).

         The privilege logs also assert common interest protection over a number of documents. The common interest protection is not itself a privilege, but rather a recognition that the attorney-client privilege will not be waived when confidential information is communicated with third parties who share a common legal interest, so long as all parties are represented by counsel, and the information is communicated among privileged persons for the purpose of their common legal enterprise. See Cavallaro v. United States, 153 F.Supp.2d 52, 62 (D. Mass. 2001), aff'd, 284 F.3d 236 (1st Cir. 2002) (citing Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 447 (S.D.N.Y. 1995)). Otherwise, when “privileged communications are disclosed to a third party, the disclosure destroys the confidentiality upon which the privilege is premised.” XYZ Corp., 348 F.3d at 22.

         Plaintiff also asserts work-product protection over numerous documents. “This protection encompasses ‘work done by an attorney in anticipation of . . . litigation from disclosure to the opposing party.'” Blattman v. Scaramellino, 891 F.3d 1, 4 (1st Cir. 2018) (quoting In re Grand Jury Subpoena (Custodian of Records, Newparent, Inc.), 274 F.3d 563, 574 (1st Cir. 2001)). “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).” Fed.R.Civ.P. 26(b)(3)(A); see Hickman v. Taylor, 329 U.S. 495, 511 (1947). “It is not enough to trigger work product protection that the subject matter of a document relates to a subject that might conceivably be litigated. Rather, as the Supreme Court explained, ‘the literal language of Rule 26(b)(3) protects materials prepared for any litigation or trial as long as they were prepared by or for a party to the subsequent litigation.'” United States v. Textron Inc. & Subsidiaries, 577 F.3d 21, 29 (1st Cir. 2009) (en banc) (emphasis in original) (quoting Federal Trade Commission v. Grolier Inc., 462 U.S. 19, 25 (1983)). “Depending on the circumstances, a document can contain attorney work product, and thus fall within the protection, even though a person other than an attorney, such as the attorney's client or agent, drafts the document.” Blattman, 891 ...


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