There’s No Right or Wrong Answer – But There Are Mistakes

There’s No Right or Wrong Answer – But There Are Mistakes by Michael Berman
Image: Kaylee Walstad, EDRM.

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. Apr. 3, 2024), the court wrote that “it would be in the parties’ interest to reach a negotiated result. It should not be forgotten that a party could be ‘right,’ but find itself on the losing side of a court’s ruling.”[1]

A similar principle was stated in Fleury v. Un. Pac. R. Co., 2024 WL 1620613 (N.D. Ill. Apr. 15, 2024), where the court wrote:

Courts have vast discretion in resolving discovery disputes and that often means there’s no right or wrong answer. Still, in this instance, it would have been more helpful to have had a bit more solid ground on which to base a ruling one way or the other. [emphasis added].

Fleury v. Un. Pac. R. Co., 2024 WL 1620613 (N.D. Ill. Apr. 15, 2024).

The Fleury dispute centered on whether there was an agreement that post-complaint privileged communications need not be logged, i.e., a categorical privilege log. 

The Hon. Andrew Peck (ret.) has light-heartedly often referred to “Rule 1.1” which is “don’t piss off the Judge.”  This case appears to be a good example.

Michael Berman discussing Fleury v. Un. Pac. R. Co., 2024 WL 1620613 (N.D. Ill. Apr. 15, 2024).

The Fleury court noted: “Such agreements aren’t unheard of: some courts even have Local Rules stating that post-Complaint communications need not be listed in privilege logs….  So, the defendant isn’t coming completely out of left field with the idea, as the plaintiff’s consternation would suggest.” [citations omitted].[2]

However, the Fleury court’s opening comment was: 

It is well to remember at this point in this long, contentious litigation that this is (at least on one level) a seemingly uncomplicated case about whether truckers entering the defendant’s Illinois facilities put their thumbs into gate access scanners for identification purposes and whether they did so consensually. While it seems simple enough, it has engendered four tries at an operative Complaint and fairly regular and repeated court involvement in discovery. 

Fleury v. Un. Pac. R. Co., 2024 WL 1620613 (N.D. Ill. Apr. 15, 2024).

It added: 

In any event, as this case moved into its fifth year, the parties did not meet another fact discovery deadline – a deadline they had selected.    It was the sixth one they had missed and, at their behest, discovery was extended a final time for another 45 days to April 15, 2024…. We don’t know everything the parties have been doing with that extra time, but we do know that it has allowed them an opportunity to bring another discovery dispute to court. Actually, it allowed them the opportunity to bring two more discovery disputes to court, because no sooner had they finished briefing this one, they got into another one involving a deposition…. The return on investment of granting discovery extensions has been disappointing, to say the least….  Nonetheless, the plaintiff insists he has not received sufficient discovery — and wants more. The defendant insists the plaintiff has all he is entitled to and declines to produce more.

Fleury v. Un. Pac. R. Co., 2024 WL 1620613 (N.D. Ill. Apr. 15, 2024).

When it approached the privilege dispute, the court wrote: “Next, the plaintiff wants eleven documents that the defendant claims are privileged, arguing that the defendant shared those documents with third parties. The parties’ non-compliance with [the good faith meet and confer requirement of] Local Rule 37.2 as to this dispute is worse than their non-compliance with the common interest dispute.”

The Hon. Andrew Peck (ret.) has light-heartedly often referred to “Rule 1.1” which is “don’t piss off the Judge.”  This case appears to be a good example.

The court explained the lack of solid ground.

So, after about 170 pages of briefs and exhibits, maybe there was an agreement that the parties need not list post-Complaint communications on their privilege logs and maybe there wasn’t. The court – any court – would appreciate (and is entitled to) a bit more help than that. After all, “[a]n advocate’s job is to make it easy for the court to rule in his [or her] client’s favor ….”, Dal Pozzo v. Basic Mach. Co., 463 F.3d 609, 613 (7th Cir. 2006). See also Holmes, The Law, in Collected Speeches 16 (1931)(“Shall I ask what a court would be, unaided? The law is made by the Bar, even more than by the Bench.”).

Fleury v. Un. Pac. R. Co., 2024 WL 1620613 (N.D. Ill. Apr. 15, 2024).

In short, the court wrote that the parties’ “submissions raise questions rather than answer them.”

First, as to plaintiff, the court wrote: 

But, the plaintiff says there is no such [catalog privilege log] agreement. The odd thing about that is one would think the plaintiff would have immediately – and vehemently — denied that the parties agreed to any such thing after receipt of the defendant’s December 13, 2023 email….  If the issue was significant enough to inspire 30 pages of briefing and 120 pages of exhibits, why wait over a month to deny the defendant’s claim? And, when the denial finally comes, writing that the “ESI protocol has nothing to do with Defendant’s obligation to search for and either produce requested communications or identify them as being withheld on the basis of privilege” is a little wishy-washy, especially given the tenor of some of the plaintiff’s briefs.

Fleury v. Un. Pac. R. Co., 2024 WL 1620613 (N.D. Ill. Apr. 15, 2024)

Looking to the other side of the playing field, the court wrote:

Defendant’s position is certainly no better. Defendant claims it has “been operating under this [categorical privilege log] understanding of the parties’ agreement.” … [The court wrote that] [i]t doesn’t seem like it. If there was such an agreement, why then would the defendant list quite a number of post-complaint communications involving counsel – Melissa Siebert, for example – on its privilege log? … There also appear to be any number of documents listed involving in-house counsel, Reha Dallon.

Fleury v. Un. Pac. R. Co., 2024 WL 1620613 (N.D. Ill. Apr. 15, 2024).

The court explained:

The defendant, essentially, wants the court to enforce the parties’ purported agreement…. The court might want to but, we say “purported” because the court hasn’t seen it. One would think the defendant would have cited to it in its response brief, but it did not. So, the court does not know what terms are to be judicially approved.

Fleury v. Un. Pac. R. Co., 2024 WL 1620613 (N.D. Ill. Apr. 15, 2024)

Faced with plaintiff’s denial and defendant’s briefing, the court added:

So, does that mean there is no ESI agreement at all? Or that there is an ESI agreement, but it doesn’t have the terms the defendant claims it does. And, does that mean the agreement is oral? The plaintiff indicates as much in its reply brief, saying the parties “did not enter into a formal ESI protocol in this case” but “did discuss at length – and ultimately come to agreement on – specific ESI search terms and the custodians subject to Defendant’s ESI search.” … So, it looks as though there might be an informal, oral ESI agreement. The plaintiff might have said that in its opening brief.

Fleury v. Un. Pac. R. Co., 2024 WL 1620613 (N.D. Ill. Apr. 15, 2024).

In a terse passage, the court wrote: “Given the contentious history of this case, it takes a lot of imagination to believe these two sides had a deal.”

As to the parties efforts to cooperate or negotiate, the court wrote: “If two sides are battling over nine separate discovery issues for at least five months, a single phone call does not meet their Local Rule 37.2 obligations.” Id. at n. 5.  It added: “Chatting for a bit about a dispute…. is not engaging in a good faith meet and confer.” Id. [citation omitted].

As to whether an email exchange sufficed, the court wrote: “As far as compliance with Local Rule 37.2 goes, emails, of course, don’t count. The Rule specifically requires ‘consultation in person or by telephone….’”

The court added: “If these quarrels are not important enough for the attorneys (six for the plaintiff and four for the defendants) who have substantial resources at their disposal (four law firms from three cities) to actually sit down and negotiate in good faith more than once, one has to wonder exactly how important they are.”

The court cut the Gordian knot with a practical approach as follows:

I would ordinarily decline to rule on a such a purportedly significant dispute where the parties met just one time several months ago – and, seemingly, did not exactly do so in the required good faith and where the parties’ briefs have been less than helpful. But, because the defendant is asserting that the “common interest” doctrine covers its communications with [two non-parties], the defendant is definitely going to have to compile a privilege log for those exchanges whether they came before or after plaintiff filed its initial Complaint…. In other words, the subject matter of the exchanges will have to fit the common interest mold. It cannot be assumed, and it is, of course, the defendant’s burden to prove entitlement. 

Fleury v. Un. Pac. R. Co., 2024 WL 1620613 (N.D. Ill. Apr. 15, 2024).

For that reason, the court held: “That means [defendant] will have to compile a privilege log as to any such documents and produce it to the plaintiff as soon as possible, but not later than 30 days of the entry of this Order.”[3]


[1] For more on Kyle Rayome, please see What Happens When Parties Fail to Negotiate a Privilege Log in Good Faith? (Apr. 8, 2024).

[2] See also  Categorical Privilege Log Presented Interpretive Issues (Nov. 17, 2021); Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun (Mar. 25, 2021); How Much Detail is Enough in a Privilege Log? (Apr. 9, 2024); Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024).

[3] Interestingly, the court wrote that the “common interest” doctrine is not a privilege and “one wouldn’t expect to see ‘common interest’ in the ‘Type of Privilege’ column of a privilege log.” 

It added: “But, at the same time, if a party were claiming such documents were privileged, it should be listed on a privilege log and described properly. Fed.R.Civ.P. 26(b)(5)(A)(ii). And the recipients (or author) column would list the ‘common interest’ parties.”  

The court determined that the common interest doctrine must be asserted on a document-by-document basis.  “That means [defendant] will have to compile a privilege log as to any such documents….”


  • Michael D. Berman

    Mike is the owner of E-Discovery, LLC, and of counsel at Rifkin Weiner Livingston LLC, in Baltimore. He concentrates on commercial litigation and offers mediation services. He was the primary editor of Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), and he co-edited M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial (ABA 2011), and J. Baron, R. Losey, and M. Berman, eds., Perspectives on Predictive Coding (ABA 2016). Mike has litigated a number of cases in the trial and appellate courts in Maryland. He is an Adjunct Professor at the University of Baltimore School of Law where he co-teaches a three-credit discovery workshop that focuses on e-discovery. He has lectured at the Maryland Judicial College and he chaired the Bar committee that drafted the proposed ESI Principles for the District of Maryland. He is a past: co-chair of the Federal District Court Committee of the Maryland State and Federal Bar Associations; chair of the Litigation Section Council, Maryland State Bar Association; and, co-chair of the American Bar Association Litigation Section Book Publishing Board. He graduated from the University of Maryland School of Law and is also an Army veteran. He is admitted to the Maryland bar. The opinions expressed in this blog are not necessarily those of Rifkin Weiner Livingston LLC.

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