United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION TO COMPEL
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
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.
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.
Organizing Documents for Production
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
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
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
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
Privilege Log Detail
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.
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))).
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.
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 ...