Episode 131: Can Failing to Produce a Privilege Log Lead to Waiver of Privilege and Sanctions?

In Episode 131, our CEO and Founder, Kelly Twigger discusses how the failure to produce a privilege log for withheld documents resulted in a waiver of privilege and sanctions under Rule 37(b)(2) in Coker v. Goldberg & Assocs. PC, 2024 WL 263121 (S.D.N.Y. 2024).

Introduction

Good morning and welcome to this week’s Case of the Week series brought to you by eDiscovery Assistant in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder at eDiscovery Assistant, your GPS for ediscovery knowledge and education. Thanks so much for joining me today.

Each week on the Case of the Week I choose a recent decision in eDiscovery and talk to you about the practical implications in that case. This week’s decision discusses the failure to produce data from WhatsApp and the ensuing sanctions levied for failure to provide a privilege log and to produce all relevant information.

First, before we dive in, a huge thank you to each one of you who came by to see us in our suite at LegalWeek. It is incredible to be back in person and to get to meet so many of you after only seeing you on Zoom. We had a great week in New York City and thanks to everyone. Now, there were some events of the week that are the subject of discussion — and that discussion is of paramount importance — but it’s not appropriate for today’s broadcast, so I’m going to gloss over that a little bit, but with no intention as to undermining the importance of that discussion.

A couple of additional announcements before we dive into this week’s case. The 11th Annual University of Florida eDiscovery Conference is coming up on February 28th and 29th in Gainesville, Florida. The conference is live streamed for free. I’ll be on our case law panel kicking off the conference following Judge Rodriguez’s keynote on AI and legal. It’s going to be an incredible two days of programming that we’ve been working on putting together for you since last May. Please join us. You can register here.

We will also be rolling out our 2023 annual Case Law Report from eDiscovery Assistant in advance of the UF conference which will discuss the key issues from last year. The Report will be distributed to everyone registered for the conference and available for download on our website as well. Huge thanks to Doug Austin at eDiscovery Today for collaborating with us on that report.

Let’s dive into this week’s decision. This week’s decision comes to us from Coker v. Goldberg & Assocs. PC. This is the decision from January 24, 2024, so just from about eight days ago, written by United States Magistrate Judge Barbara Moses. There are 79 decisions from Judge Moses in our database. She’s a very thoughtful and articulate judge in writing discovery decisions and this one is no exception.

As always, we tag each of the decisions in our database with our proprietary eDiscovery issues, and this week’s issues are numerous, including: bad faith, text messages, WhatsApp, possession custody control, audio, privilege log, attorney-client privilege, waiver, failure to produce, adverse inference, sanctions, default judgment, and instant messaging.

Facts

The underlying facts of the case here involve a claim under the Fair Labor Standards Act and New York labor laws alleging that the plaintiff, Sade Cooker, was not paid for her overtime hours working at a law firm and that she was fired after she asked for payment. The law firm, Goldberg & Associates, argues that Cooker was an exempt employee and not entitled to overtime and that they acted in good faith without the intent to violate the law and as such are shielded from liquidated damages. That good faith defense is really important, as it pertains to the discovery issues that we are going to discuss later on, so keep it in mind.

We are before the Court on a motion for sanctions that was brought by the plaintiff following the Firm’s incomplete production of relevant audio files from WhatsApp.

If you’re not familiar with WhatsApp, it’s an instant messaging platform that’s available for your mobile devices. It can also be put on your computer — on certain computers anyway — and allows for the exchange of phone calls, audio messages, and instant messages back and forth. So it’s a bit like a texting app, but it is instant messaging, not texting.

This motion follows a series of letter applications to compel discovery from the plaintiff, in which the plaintiff complained repeatedly to the Court that “defendants were dragging their feet” in discovery and identifying the various ways in which defendant’s discovery responses were incomplete. The defendant’s reply to these motions was repeatedly that they were working on it and they would comply as soon as they were able to. That’s a red flag moment that we like to discuss here on Case of the Week. I’m pretty sure that “as soon as they are able to” is not the timing for production under Rule 34, which requires production of documents 30 days within the date of a request absent a formal extension.

On March 27, 2023, the District Judge here ordered the defendants to produce the agreed upon items, including the WhatsApp messages, by April 7th, although it doesn’t specifically delineate those. Two weeks later, during a pretrial conference, the District Judge again ordered defendants to produce “all outstanding discovery by April 13th.” On April 12th, defendants asked the Court for an extension, and the Court granted it until April 17th. Per the Court, none of the District Court’s orders identified the specific documents, items, or categories of information that the defendants were required to produce. That’s important for one of our takeaways.

On April 21st — four days after the extension deadline had passed — plaintiff told the Court that she would be moving for sanctions for production deficiencies by the defendant and she filed that motion on April 20th. Interestingly, the filing was a six page letter attached to a one page appendix with 156 pages of exhibits. So the Court allowed a letter filing on a sanctions motion as opposed to a full briefing schedule.

The plaintiff complains in its motion about a number of things. For our purposes, we’ll focus on the alleged failure to provide audio files that were exchanged between the plaintiff and the Firm on WhatsApp, which plaintiff alleges could have a bearing on defendant’s good faith defense, including WhatsApp messages that may have been exchanged between and amongst HR, the executive team, and/or attorneys regarding exemption status.

The plaintiff sought Rule 11 sanctions, but did not specifically request sanctions under Rule 37. The defendant responded with a two page letter brief arguing that they did “the best they could to provide the extensive discovery that plaintiff has demanded” while protecting the confidentiality of their own clients, and stating that the plaintiff produced all of her own WhatsApp messages. So, in essence, arguing that the information has been provided by the plaintiff, so defendants did not need to provide the same information. That last statement had me a bit confused, because even the fact that the other side has provided information that may be duplicative does not relieve a party of its obligation to produce discovery. That’s not how it works.

Plaintiff did not reply to the motion for sanctions, but she did file a separate motion for summary judgment. The Court notes that in that summary judgment, nowhere did plaintiff argue that the alleged discovery deficiencies hampered her evidentiary showing on that motion. Instead, she actually argued that she had sufficient evidence from her own WhatsApp messages to prove her case.

Before we move to the Court’s analysis, understand that there are two distinct issues with the WhatsApp messages. There are messages that the Firm withheld on privilege grounds but did not provide a privilege log for, and there are messages withheld on the grounds of relevance that plaintiff believes are relevant to dispute defendant’s good faith defense.

Analysis

Let’s talk about the court’s analysis. The Court deals with the Rule 11 issue fairly quickly by acknowledging that the language of Rule 11(d), aptly titled Inapplicability to Discovery, states that it does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26-37.

The Court then notes that although plaintiff does not identify any other rule or statute under which she seeks sanctions, the Court will construe her motion under Rule 37(b)(2), which provides for sanctions for failure to obey a court order. So in essence, the Court looks at the sanctions motion here and says there’s no availability under Rule 11 — read that language — but you do have availability under Rule 37, and we’re going to take that into account even though you didn’t actually ask for it.

This part of the opinion addresses the WhatsApp messages that are withheld on privileged grounds. The Court notes first, really, as to both categories, that Rule 37(b)(2) requires only that there is an order “directing compliance with discovery requests and non-compliance with that order.” So, pretty simple to meet Rule 37(b)(2). Once those two elements are met, it is in the court’s discretion to determine the appropriate remedy, considering two things:

1. the willfulness or reason for noncompliance, and
2. whether the noncompliant party has been warned of the consequences.

The Court then applied the law to the facts of the case and found that, although the April 13th Order did not specifically require defendants to produce the audio files underlying the WhatsApp messages, it did direct them to complete all discovery. Defendants admitted in their opposition letter that they withheld portions of the WhatsApp communications on privilege grounds, but did not provide a privilege log or any basis as to why they failed to provide a log. According to the Court “A party has not completed all discovery if it has not withheld responsive documents on privilege grounds but has failed to produce a privilege log.”  In essence, the Court found that the defendants had violated the court order and that sanctions were warranted under Rule 37(b)(2)(a).

The Court then turned to identifying the appropriate sanction. It dismissed the notion that terminating sanctions or an adverse inference were appropriate, finding that there’s no indication that the files had been destroyed or that the plaintiff had suffered prejudice in any way as a result of not having them. Remember, the plaintiff argued that the WhatsApp files that she does have entitled her to summary judgment on that motion, and the Court, in essence, really used her subsequent filing against her. What the Court does next is to conclude that defendants have waived their privilege defense as to the remaining WhatsApp files and required them to be produced on an attorneys’-eyes only basis, instructing plaintiff that if she wants to use them as evidence, she must seek agreement from the defendant or a court order.

That’s pretty paramount here. The Court said you haven’t produced a privilege log, therefore, you have waived the privilege as it exists in these communications. The Court acknowledged that there was a potential confidentiality issue for the client and alleviated that by applying the attorneys’-eyes only designation to that information. But that waiver here is pretty key for failure to provide that log.

The Court next looked at the second category, which was the Firm’s failure to produce documents relevant to the good faith defense. The Court found that although it agreed from a review of the record that there may be internal communications at the Firm responsive to the plaintiff’s discovery demands, “the possibility that defendants have withheld discoverable documents is not a sufficient foundation for the dispositive sanctions that plaintiff requests.” This is the age old problem of, we know there’s more information out there, but they’re just telling us it doesn’t exist. And without seeing the information, we can’t actually tell you that it really does exist.

So how did the Court deal with that here? Well, the Court says if you haven’t produced this information, then you can’t subsequently use anything that comes up. And it issues a preclusion order preventing the defendants from using any information that has not been produced to supply evidence of the good faith defense on which they bear the burden of proof. So the Court grants the motion to produce the WhatsApp files that were sent to or received from plaintiff on an attorney’s-eyes only basis and orders that the defendants are precluded from using or relying on any previously undisclosed WhatsApp communications to support their good faith defense. The Court also declined to award costs to the plaintiff on the motion.

Takeaways

All right, with all that taken, what are our takeaways? There are so many important takeaways from this decision.

1. I love that some of the courts are foregoing a standard briefing process on discovery issues. The Court here doesn’t articulate it in its discussion, but it seems to allow a much more abbreviated filing process. And that kind of shortened process makes it much more cost effective to bring discovery issues to the court. If you’re a frequent viewer of our Case of the Week series, you know that I advocate for going to the court sooner than later when you’re not getting cooperation in discovery. There are just too many decisions and too many strategic plays that you miss out on in discovery by not raising those issues early enough in discovery to allow for court intervention.
2. You don’t need to have a specific list of what you have to produce articulated by the judge to violate an order for purposes of Rule 37(b)(2). It was sufficient here for the Court to say that all discovery must be produced by the date in order for sanctions to be awarded for failure to provide a privilege log for the withheld WhatsApp messages. That is key.
3. The Court sua sponte determined a sanctions analysis here under Rule 37. That’s important because it shows, first, that the courts are savvy enough to recognize when conduct triggers that analysis, even if it’s not argued. And second, because it alerts counsel that you are not off the hook for Rule 37, even if the other side doesn’t argue it.
4. Responding to the opposing party that you’ll produce information when you are able to is not going to get a favorable response from the court. I don’t think I have to pull a Gomer Pyle “surprise, surprise, surprise” there. It’s entirely likely that the conversations between the parties here were more specific, but here on Case of the Week, we only have the facts in the decision to go on and this language is not appropriate. Articulate to the other side why you are having a problem getting the data and what you’ve done to meet the discovery and court appointed deadlines. It’s highly possible that there is a lot more facts to this case than are articulated in the decision, and so our Monday morning quarterbacking here on Case of the Week isn’t taking those into account. But again, we can only deal with what we have in the four corners of the decision in front of us.
5. Do a privilege log. The Court ordering a waiver of alleged privileged information for which no log was provided could be drastic. We’ll follow this case to see if plaintiff finds something interesting in the new data that is to be turned over, even if it is for attorney’s-eyes only, and whether it results in additional discovery motions. Plaintiff’s strategic play of filing a summary judgment motion while this motion for sanctions is pending and essentially arguing that she has all of the data that she needs is going to severely undercut the value of that motion — as the Court has already noted. But it’ll still be interesting to see how it plays out.
6. Find out if your clients are using WhatsApp or other IM apps that are only available on the devices sent and received from, and have a plan for preservation, collection, and production. And for exit interviews when they leave. Here one of the issues that the Firm faced was that several of the employees who may have had responsive information had left the organization. There isn’t a detailed exchange of the facts as to who might have been involved in those discussions, which employees had left and which ones hadn’t, and because of the abbreviated briefing schedule, I don’t even know if it was submitted to the Court. But it really is important as we move more towards using devices or applications to create, send, store, and receive information that are only available on mobile devices — that are owned by the employee and not by the organization — that you have a plan in place for dealing with that data. There’s no discussion here of the former employees’ departure dates relative to when the duty to preserve arose, so it was not discussed by the Court. But there are tools out there now that allow for the collection of mobile device data quickly and inexpensively to be able to capture that information. If you’d like some of that information on those tools that we’re aware of, please feel free to message me for that.

Conclusion

That’s our Case of the Week for this week. Thanks so much for joining meme and tolerating this voice. We’ll be back again next week with another decision from our eDiscovery Assistant database. As always, if you have suggestions for a case to be covered on the Case of the Week, drop me a line. If you’d like to receive the Case of the Week delivered directly to your inbox via our weekly newsletter, you can sign up on our blog. If you’re interested in doing a free trial of our case law and resource database, you can sign up to get started.

Thanks so much. Have a great week.