United States District Court, W.D. Pennsylvania
ORDER OF COURT RE: DEFENDANTS' OBJECTIONS TO THE COURT'S FEBRUARY 2, 2015 ORDER REQUIRING DEFENDANTS TO PRODUCE DOCUMENTS FOR IN CAMERA REVIEW; AND NOTICE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 53(B)(1) OF INTENTION TO APPOINT A SPECIAL MASTER RE: IN CAMERA REVIEW OF ATTORNEY-CLIENT PRIVILEGE AND ATTORNEY WORK PRODUCT DISPUTE
ARTHUR J. SCHWAB, District Judge.
The proceedings in this "exceptional" case have been fraught with disagreements over the most basic discovery matters. See Doc. No. 106. On November 3, 2014, the Court entered default judgment as to liability against Defendants and struck their Answer and Counterclaims because of Defendants' "persistent refusal" to comply with this Court's Orders and "defiance of their Court-ordered discovery obligations" for over four months. Doc. No. 106, 13.
On November 19, 2014, the Court set the jury trial on damages only, to commence on April 27, 2015, and entered a Case Management Order and Pretrial Order, which provided deadlines for pretrial processes, including discovery, which is scheduled to be completed by February 20, 2015. Doc. Nos. 126, ¶ 2 and 127.
Plaintiff has moved this Court on three occasions to compel Defendants to comply with their discovery obligations as to damages:
Motion to Compel Damages Discovery (Doc. No. 138)-December 5, 2014;
Second Motion to Compel Damages Discovery (Doc. No. 150)-January 12, 2015; and
Third Motion to Compel Damages Discovery (Doc. No. 158)-January 29, 2015
B. Current Discovery Dispute
Presently, the Parties are at loggerheads over whether: (i) Defendants have waived any privilege by allegedly failing to produce privilege logs in a timely manner and (ii) whether Defendants have improperly withheld documents based upon purported attorney-client privilege and alleged attorney work product ("privilege"). Doc. Nos. 158, 161, 164. The issue was raised by Plaintiff in its Third Motion to Compel Damages Discovery. Doc. No. 158. In this Motion, Plaintiff set forth that Defendants had allegedly not timely produced complete privilege logs in contravention of the Federal Rules of Civil Procedure and this Court's Orders and have "broadly assert[ed] privilege to conceal communications with third parties...." Doc. No. 158, 3-4. Defendants' privilege logs were attached to Defendants' Response to Plaintiff's Third Motion to Compel, dated January 29, 2015. Doc. No. 161, Attachments 2-5.
C. Initial Protocol to Analyze Privilege Assertions
The Court was unable to ascertain whether privilege had been improperly asserted, as claimed by Plaintiff, and as such, on February 2, 2015, the Court ordered Defendants to provide the Court with the documents set forth in privilege logs. The Court further ordered that portions of the documents, which Defendants contend contain privileged matters, be highlighted. Doc. No. 164. Defendants have provided these documents to the Court, in five (5) binders, with an accompanying cover letter. In this cover letter, Defendants set forth that their review of documents for in camera inspection revealed that 44 previously documents may not include privileged information and would be provided to Plaintiff that afternoon.
On February 3, 2015, fifteen minutes prior to the 3:30PM deadline to deliver the highlighted documents, Defendants filed Objections to the Court's Order on Plaintiff's Third Motion to Compel. Doc. No. 165. Defendants contend that in camera review of the provided documents was not appropriate because Plaintiff allegedly did not object to the appropriateness of withholding the documents. Id . Rather, Defendants argue that Plaintiff's sole objection is the alleged untimeliness of their production of privilege logs. Id . Thus, the Court ordered that Plaintiff file a Response to Defendants' ...