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Smith v. Café Asia

March 23, 2009

ANDREI SMITH, PLAINTIFF,
v.
CAFÉ ASIA, DEFENDANT.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

Before me are Plaintiff's Motion to Compel and/or for Sanctions [#52], Defendant's Opposition to Plaintiff's Motion to Compel and/or for Sanction ("Def. Opp.") [#54], and Plaintiff's Reply to Opposition to Motion to Compel and/or for Sanctions ("Reply") [#61]. This case has been referred to me for the purpose of handling discovery.

I. Background

The facts of this case are briefly set out in Smith v. Café Asia, 246 F.R.D. 19, 20 (D.D.C. 2007). The Court initially ordered that discovery would commence at the conclusion of mediation and would close 120 days thereafter. Scheduling Order [#22]. The Court agreed to extend certain deadlines in light of the parties' Consent Notice of Altered Deadlines [#34]. Order (11/13/2007). Accordingly, the deadline for plaintiff's response to defendant's pending written discovery was extended to November 21, 2007. Id. Additionally, the deadline for defendant's response to plaintiff's pending written discovery requests was moved to November 28, 2007. Id. Discovery has closed. Plaintiff currently seeks a complete response to its discovery requests.

II. Analysis

a. Plaintiff's First Request for Production of Documents Request No. 29

In Plaintiff's First Request for Production of Documents Request No. 29, Plaintiff sought "[a]ny and all documents relating to the work schedule of Yu Sheon during the time of Andrei Smith's employment." Plaintiff's First Request for Production of Documents ("F. Req. Prod. Doc.") at 10. Defendant initially responded that "Defendant incorporates all of its General Objections as though fully stated herein. Defendant further objects that Yu Sheon is not a party in this case, and his personal work schedules have no relevance to the issues in this case." Plaintiff's Memorandum in Support of Motion to Compel and/or for Sanctions ("Pl. Mem.") [#52] at 2. Defendant supplemented this response by stating "[i]n addition, and subject to its original response, defendant supplements its response to this Request as follows: Defendant is not withholding any relevant, responsive documents on the basis of its objections because Mr. Sheon does not have a written work schedule." Id. Plaintiff argues that he is not only seeking Mr. Sheon's written work schedule, but any documents related to his work schedule. Id. Plaintiff, therefore, requests that the Court order the defendant to provide a complete response to this document request. Id. at 1. However, Defendant again claims that "there simply are no documents responsive to this request." Def. Opp. at 3. Because the Court finds no reason to disbelieve counsel's representation, the Court denies plaintiff's request.

b. Lack of Signature on Interrogatory Responses

Plaintiff requested on May 20, 2008 and June 10, 2008 that defendant sign its interrogatory responses. Pl. Mem. at 5. Because defendant's counsel provided plaintiff with signed interrogatory responses on August 4, 2008, this issue is now moot. Def. Opp. at 1.

c. Plaintiff's Document Request Relating to Alter Ego Theory

In Plaintiff's Second Request for Production of Documents, plaintiff requested documents related to alter ego theory. Pl. Mem. at 4. Plaintiff currently states that he is willing to delay discovery on this issue subject to defendant's agreement that this discovery can be conducted if plaintiff is successful at trial. Id. at 5. Because plaintiff is willing to hold the issue in abeyance, defendant states that "there is no dispute about this issue." Def. Opp. at 3. As the parties have agreed to delay this discovery, the issue is now moot.

d. The Privilege Log

In Plaintiff's First Request for Production of Documents Request No. 13, plaintiff requested "[a]ny and all documents related to any investigation conducted by you or your agent, servant and/or employee with regard to Mr. Smith and/or his complaints of discrimination, or any other type of complaint including those regarding mistreatment by co-workers or managerial staff." F. Req. Prod. Doc. at 8. Plaintiff claims that defendant responded to Request No. 13 by stating that it "incorporates all of its General Objections as though fully stated herein. Defendant further objects that this demand invades the attorney-client privilege and seeks information protected by the attorney work-product doctrine." Pl. Mem. at 3. Plaintiff states that he requested a privilege log from defendant on May 20, 2008. Id. Plaintiff now requests that defendant produce a privilege log. Reply at 2. Plaintiff also asks the Court to find that defendant has waived privilege and order defendant to produce the privileged documents. Pl. Mem. at 3.

Additionally, Plaintiff alleges that during the deposition of Yu Sheon on April 29, 2008, plaintiff discovered that non-privileged investigative reports, responsive to Request No. 13, existed but had not been produced by defendant. Id. Accordingly, Plaintiff requested to hold the deposition open so that plaintiff could later question Sheon about the non-privileged reports. Id. Plaintiff has now received copies of a report that was prepared by an investigator, who was employed by defendant in response to plaintiff's complaints of discrimination. Id. Plaintiff alleges that because defendant produced the investigative report so late in discovery, that he was unable to depose the investigator. Reply at 2. Plaintiff requests that the Court (1) allow him to reopen the deposition of Sheon, Pl. Mem. at 3, (2) compel defendant to produce contact information for the investigator, and (3) grant leave to conduct a deposition of the investigator. Reply at 2-3.

Under Federal Rules of Civil Procedure Rule 26(b)(5)(A), in order for a party to withhold information on the basis that the information is privileged, the party must: 1) "expressly make the claim" and 2) "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). Filing a privilege log has become the "universally accepted mean[s] of asserting privileges in discovery in the federal courts." Avery Dennison Corp. v. Four Pillars, 190 F.R.D. 1 (D.D.C. 1999). Additionally, the Court has discretion to determine that a party has waived privilege when that party fails to produce a privilege log. Id. at 2 (citing First Am. Corp. v. AlNahyan, 2 F. Supp. 2d 58, 63 n.5 (D.D.C. 1998) (declining to find that a party had waived privilege where the party failed to produce a privilege log, because the court believed that there were not a large number of withheld documents and preferred to make a decision on the merits of the case)).

Defendant fails to argue against any of plaintiff's contentions on this issue. See Def. Opp. Therefore, for the purposes of this motion to compel, the Court will consider the defendant to have conceded to plaintiff's version of the facts. Because defendant has withheld documents on the basis of the attorney-client privilege and the work-product doctrine, the Court orders defendant to provide plaintiff with a privilege log. The Court declines to deem that defendant has waived privilege because defendant's discovery violation does not justify such a sanction. United States v. Phillip Morris, Inc., 347 F.2d 951, 954 (D.C. Cir. 2003) (waiver because of failing to file a privilege log is a serious sanction most suitable for cases of unjustified delay, inexcusable conduct and bad faith). Compare Victor Stanley, Inc v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008). The Court grants the plaintiff leave to reopen the Sheon deposition as the parties have already agreed to reopen this deposition. Joint Status Report and Proposed Order Re Discovery [#60] at 1-2. Finally, the Court orders the defendant to provide the plaintiff with the investigator's last known contact information and grants the plaintiff leave to depose the investigator to alleviate any claimed prejudice because of the defendant's withholding of this responsive document. If it has not already done so, defendant will, within 15 days of the date of this opinion, provide plaintiff with a privilege log. Defendant will have 10 days, from the date of this opinion, to provide plaintiff with the investigator's last known contact information. Plaintiff will, within 30 days of the date of this opinion, depose Sheon and the investigator, if he has not already done so.

e. Identification of ...


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