Ninth Circuit Denies Writ of Mandamus: Privilege Objections Waived by Failure to Provide Privilege Log at Time Discovery Responses Served

Burlington Northern & Santa Fe Railway Co. v. United States District Court for the District of Montana, 2005 WL 730193 (9th Cir. 2005)

Brian and Ryann Kapsner (“the Kapsners”) brought suit against Burlington Northern & Santa Fe Railway Co. (“Burlington”) on July 12, 2002, alleging that Burlington had dumped diesel oil and toxic solvents on their land resulting in contamination. The discovery process was fraught with controversy. The Kapsners filed their first request for production on November 6, 2002. Burlington responded on December 9, 2002, but without a privilege log despite both parties intending and expecting its production.

On April 7, 2003 the Kapsners filed a motion to compel alleging that Burlington had produced documents in impermissible form, withheld responsive documents, and made no assurance that production was complete. Before a ruling on the motion was issued, Burlington produced a privilege log which the Kapsners allege “…made it difficult” to determine whether Burlington was producing documents as required and whether it was asserting privilege in good faith. The Magistrate Judge ordered Burlington to reorganize its production and produce responsive documents.

The controversy over privileged documents continued for another fourteen months. The Kapsners continued to assert that Burlington was not producing documents as required. Burlington modified its privilege log on several occasions, including removing some documents entirely from the log which had been designated as responsive but privileged.

The Kapsners filed a second motion compel, asking for all responsive documents withheld based on privilege. The Magistrate Judge granted the motion, and the District Court of Montana upheld this decision. Burlington then petitioned the Ninth Circuit for a writ of mandamus to overturn this order.

The district court held that privilege objections were waived by not providing a privilege log at the time that responses were served. The 9th Circuit reads into this decision that a boilerplate assertion of privilege submitted with responses does not satisfy Rule 26(b)(5) and Rule 34, and “untimeliness in not properly asserting privilege” constitutes waiver. The 9th Circuit rejects the per se rule that failure to timely provide a privilege log constitutes waiver, but affirms the district court’s order in these circumstances.

Rule 34 addresses the timeliness of discovery responses but does not prohibit boilerplate assertions of privilege. Rule 26(b)(5) requires claims of privilege to describe the nature of the undisclosed materials in a way that enables other parties to assess the applicability of the privilege. However, Rule 26(b)(5) is not clearly linked to the timeliness requirement in Rule 34 nor does it explicitly indicate waiver as a potential sanction.

District Courts should use the 30 day period of Rule 34 as a default guideline and make determinations on a case-by-case basis taking into account the four factors listed below as part of a “…holistic reasonableness analysis, intended to forestall needless waste of time and resources, as well as tactical manipulation of the rules and the discovery process. [The factors] should not be applied as a mechanistic determination of whether the information is provided in a particular format.”

-the relative specificity of the objection or assertion of privilege (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient)

-the timeliness of the objection and accompanying information about the withheld documents (where service within 30 days, as a default guideline, is sufficient)

-the magnitude of the document production; and

-other particular circumstances of the litigation that make responding to discovery unusually easy (such as, here, the fact that many of the same documents were the subject of discovery in an earlier action) or unusually hard.

Burlington filed its privilege log five months after the 30 day Rule 34 time limit. Burlington is a sophisticated, experienced corporate litigant. It has environmental litigation experience and has dealt with regulatory action in connection with the site at issue. Many of the documents had been produced in a prior lawsuit. The untimely logs themselves were insufficient because they “failed to correlate [specified] documents with specific discovery requests.” Even after producing the privilege log, Burlington made substantial changes, removing documents.

The district court’s order is not clearly erroneous, and thus the writ of mandamus is denied.

A copy of the opinion can be found here.