[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Singleton v. Mazhari, 2024 WL 4644644 (D. Md. Oct. 30, 2024)(Austin, J.), non-party TEDCO’s blanket privilege and work product objections to a subpoena were denied; however, it lived to fight another day because the denial was without prejudice to file supported objections after a “meet and confer.”
One core principle set out in Singelton is that a party cannot shift to the Court the work of determining what is or is not privileged. Specific objections are required.
The plaintiff, Ms. Singleton, issued several non-party subpoenas, including one to ImpactHR. That entity was the in-house human resources department for non-party TEDCO. TEDCO asserted that it stood in ImpactHR’s shoes.
While TEDCO may have had notice, it did not receive a courtesy copy of the subpoenas before ImpactHR responded. And, ImpactHR responded without objection.
Several disputes arose. TEDCO asserted that the subpoena was overbroad. Ms. Singleton disagreed. TEDCO also asserted privilege. Ms. Singleton sequestered the materials.
Ms. Singleton asked TEDCO to identify what material was privileged and also offered to put TEDCO in contact with ImpactHR so that TEDCO could obtain a copy of what had been produced. Then, TEDCO could conduct a post-production privilege review. It is not clear to me why Ms. Singleton could not have provided that copy to TEDCO.
However, instead of agreeing to get a copy of (and reviewing) what had been produced, TEDCO “responded to Plaintiff’s request, stating that ‘emails and attachments between TEDCO, directly or via ImpactHR, and the Office of the Attorney General [(‘OAG’)] and/or Kollman & Saucier, P.A.’ and ‘a Workplace Study by Kollman & Saucier, P.A. conducted in 2019 was covered by [ ] attorney-client privilege.’”
Ms. Singleton retorted that the assertion was too general. TEDCO responded with another broad description. Id. at *2. TEDCO also made an offer of compromise that was rejected. Oversimplifying, TEDCO offered to withdraw the objection if plaintiff told it which documents she intended to use.
Ms. Singleton sought judicial relief and TEDCO made two representations.
- First, it stated that “some (not all)” of the material was protected by privilege or work product.
- Second: “TEDCO insists that it ‘cannot’ reasonably assert privilege with particularity unless and until Plaintiff provides advance notice and copies of the documents she intends to use in this litigation.”
TEDCO’s arguments did not prevail.
The Court wrote: “The core dispute is the applicability, if any, of the claims of privilege or another basis for non-disclosure.”
The Court provided a detailed description of privilege and work product protection in the District of Maryland. Id. at *3.
It then determined that TEDCO failed to properly assert privilege. TEDCO argued that it would be unduly burdensome to prepare a privilege log. The Court wrote:
The fundamental flaw in TEDCO’s attorney-client privilege assertions is their blanket nature. TEDCO states that privileged documents include “emails (and any attachments thereto) by and between TEDCO—either directly or via its confidential human resources contractor, ImpactHR—and: (i) the TEDCO unit of the Maryland [OAG]…and/or (ii) Kollman & Saucier, P.A., an outside employment law firm” retained to perform a study involving legal advice….
Id. at *4 (emphasis added).
The Court wrote that not all communications with an attorney are privileged and: “The Rules and the courts require more” detail to assert privilege.
By making only a blanket assertion, the Court wrote that TEDCO was asking the Court to “take on, without much assistance, the proponent’s burden of demonstrating the privilege’s applicability.” Id. at *4. I would add, in my view, that TEDCO’s admission that “some (not all)” documents were privileged was very significant.
Whatever course TEDCO chooses, shifting its work and burden to the Court—rather than making affirmative assertions consistent with the process described in Victor Stanley[2] and other opinions—is not appropriate at this juncture.
Singleton v. Mazhari, 2024 WL 4644644 (D. Md. Oct. 30, 2024)(Austin, J.) (emphasis added).
TEDCO also failed to carry its burden to show work product protection:
Nor can the Court accept that the mostly unspecified documents are work product immune from disclosure and, as in this case, subject to recall. Nowhere does TEDCO identify the “pending or impending litigation” necessary to sustain a work product doctrine claim.
Id. (emphasis added).
It wrote that the “most generous read” of TEDCO’s argument was that there were concerns about the potential litigation, and not that litigation was pending or impending. Id.
The Court also rejected TEDCO’s confidentiality and privacy arguments because they were not privilege issues and they should have been raised in a motion for protective order or to quash the subpoena. Id. at *5.
While the Court did not grant non-party TEDCO relief – – due to these shortcomings – – it determined to reach a proper result.
The Singleton Court wrote that it “does not agree with all of Plaintiff’s assertions either.” It found that some of the documents “may” be privileged or work product.
Therefore, the Court’s denial of relief was “without prejudice to TEDCO to support, in accordance with the applicable rules and jurisprudence, any claims of privilege or other bases for recall and non-disclosure.” It then provided some illustrative examples of how to do that.[1]
The Court concluded: “Whatever course TEDCO chooses, shifting its work and burden to the Court—rather than making affirmative assertions consistent with the process described in Victor Stanley[2] and other opinions—is not appropriate at this juncture.” [emphasis added]. It directed a “meet and confer” and submittal of a status report.
Please note that some courts have held that No Privilege Log Is Needed While Scope of Discovery Objections Are Pending (Aug. 3, 2024); Where Requests for Discovery were Overly Broad, No Privilege Log was Required (Oct. 12, 2024). That argument was not presented in Singleton.
Notes
[1] Cf., e.g., Court Holds Privilege Was Waived by Failure to Timely Provide a Privilege Log (May 30, 2024); General Objections, Dracula, and “Whac a Mole” (Apr. 16, 2024); When is Failure to Provide a Timely Privilege Log Excusable? (Jun. 24, 2024), with Court Excused Party From Waiver by Failure to Provide Specific Objections (Aug. 7, 2022).
[2] See Historical ESI Highlights – Part VI – Victor Stanley and Keyword Searching (May 29, 2022).
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