Response to Document Request Must Identify Which Previously-Produced Documents Are Responsive — Non-Specific = Evasive — When Failure to Timely Provide Privilege Log Effects Waiver of Privilege (Good Quote)

From USF Ins. Co. v. Smith’s Food & Drug Ctr., Inc., 2011 U.S. Dist. LEXIS 63926 (D. Nev. June 16, 2011):

Smith's first response to Request Nos. 5, 6 and 9-25 consisted solely of a repeated boilerplate objection. Its supplemental responses to each of these requests likewise consisted of a substantially similar, repeated response:

Objection. This Request is overbroad, ambiguous and unduly burdensome. Further, this Request seeks documents which are protected under the attorney/client and attorney work product privileges. Without waiving said objections, all non-privilege (sic) documents have been produced pursuant to LR 26-1 and supplements thereto. Defendant/Counterclaimant reserves its right to supplement its response to this Request with non-privilege documents, if necessary. See Defendant/Counterclaimant's First Supplemental Disclosure of Witnesses and Documents Pursuant to LR 26-1; Defendant/Counterclaimant's Second Supplemental Disclosure of Witnesses and Documents Pursuant to LR 26-1, with privilege log; and Defendant/Counterclaimant's Third Supplemental Disclosure of Witnesses and Documents Pursuant to LR 26-1, with 1st Amended Privilege Log. See also, list of non-privilege documents responsive to Request Nos. 1, 2, 3, 4, 5, 6, 7 and 8. Defendant/Counterclaimant reserves its right to supplement its response to this Request with nonprivilege documents, if necessary.

While this response refers USF to documents previously produced by Smith's, it doesn't indicate which of the documents, specifically, were responsive. Such a response is evasive or non-responsive within the meaning of Rule 37(a)(4). See Walker v. Lakewood Condominium Owners Assoc., 186 F.R.D. 584, 587 (C.D. Cal. 1999) (explaining that a party's boilerplate or generalized objection is "tantamount to not making an objection at all."). Smith's must supplement its responses to indicate by bates stamp number the specific documents which are responsive to the requests. Additionally, Smith's must pay the reasonable costs and attorney's fees incurred by USF in bringing the motion (#15) and reply (#24).

USF argues that Smith's has waived all objections, including attorney-client privilege and work product doctrine, because its responses were not timely. A "failure to object to discovery requests within the time required constitutes a waiver of any objection." Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992); see also Rule 34(b)(2). Even where the untimely objection is based on privilege, the court may find a waiver. See Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981). However, waiver does not automatically result from noncompliance with Rule 25(b)(5). See e.g. Burlington N. & Santa Fe Ry. Co. v. United States District Court, 408 F.3d 1042, 1049 (9th Cir. 2005) (holding that boilerplate objections are insufficient to assert a privilege, but "reject[ing] a per se waiver rule that deems a privilege waived if a privilege log is not produced within Rule 34's 30-day time limit"); Cunningham v. Conn. Mut. Life Ins., 845 F.Supp. 1403, 1409 (S.D. Cal. 1994) ("Courts distinguish between a 'slothful' and 'arguable' failure to properly assert a privilege."); EEOC v. Safeway Store, Inc., 2002 WL 31947153 at *2 (N.D. Cal. Sept. 16, 2002) (finding waiver of attorney-client privilege or work-product privilege not appropriate where defendant's privilege log, filed six months late, cured inadequate blanket objection to discovery request). Rather, waiver of the attorney-client privilege is a harsh sanction reserved generally for unjustified, inexcusable, or bad faith conduct, and a waiver may be unnecessary where other remedies are available. Moe v. System Transport, Inc. 270 F.R.D. 613, 623 (D. Mont. 2010) (citing Safeway Store, Inc., 2002 WL 31947153 at *2-3).

The circumstances here do not support a finding of waiver of the attorney-client privilege or work product doctrine. There was no complete surprise attendant to the delay nor was the risk of prejudice to USF severe. Safeway Store, Inc., 2002 WL 31947153 at * 2-3. Prince repeatedly explained that his office was processing documents provided by Smith's shortly before the responses were originally due, and that his office was working to prepare an appropriate privilege log. Smith's responses were supplemented with the privilege log prior to full briefing on the motion. See id.; accord Burlington N., 408 F.3d at 1149 n.3 (recognizing that "compiling a privilege log within 30 days may be exceedingly difficult, even for counsel who are sophisticated, experienced, well-funded, and acting in good faith"). Accordingly, while the court could in its discretion find a waiver, given the harshness of the sanction relative to at least some degree of diligence on the part of Smith's, it will not do so here.

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