[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Craig v. Cornerstone Trading Grp., LLC, 2025 WL 1475428 (S.D. Ind. May 22, 2025), the court wrote: “The City’s objection that it did not understand the request [for production of documents] as phrased is disingenuous at best and frankly appears more likely to be intentionally obstructionist.”
After a fire in Richmond, Indiana, plaintiffs sued, among others, the City of Richmond. Plaintiffs served a request that the City produce any writings or documents generated from the investigation into the fire.
The City objected that the request was vague, ambiguous, overly broad, and not reasonably particular because it failed to define terms such as “any investigation.” It also raised privilege and other objections. Finally, it asserted that, “[a]s currently phrased, the City is unable to identify any additional responsive non-privileged documents that need to be produced, but to the extent the Plaintiffs provide more specificity on the documents requested the City will respond to such specific request pursuant to Trial Rule 34.” Presumably, “Trial Rule 34” meant Fed.R.Civ.P. 34.
As noted above, the Craig court did not accept the assertion that the City did not understand the request. Instead, it wrote that the case involves an April 11, 2023, fire and “there can be no question what fire and what recycling facility to which the request refers.” The court viewed the term “[a]ny investigation” as “self-explanatory….” It wrote:
The City is only required to produce documents within its possession or control, but if it had documents related to an investigation of the fire conducted by another entity, it was required to produce them or log them as being withheld as privileged…. The City did neither.
Craig v. Cornerstone Trading Grp., LLC, 2025 WL 1475428 (S.D. Ind. May 22, 2025).
Discussions among the parties to resolve disputes lasted for eight months. Although the City responded to the document request on July 11, 2024, it did not produce a privilege log until April 15, 2025. It asserted the law enforcement investigatory privilege. The court wrote that:
The log is wholly inadequate, however, as it does not “describe the nature of the documents… not produced… in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim,” as required by Federal Rule of Civil Procedure 26(b)(5)(A).
Id.
The Craig court rejected the City’s position that its minimalist log was sufficient. It also rejected the City’s “bizarre insistence that Plaintiffs had to request a privilege log in order for the City to be required to produce one.” It pointed out that the log was required by Fed.R.Civ.P. 26(b)(5)(A).
It is the insufficiency of the privilege log that required an in camera review of the documents at issue. In fact, the privilege log is so clearly insufficient that the Court would have been within its discretion to find that the City had waived the privilege and require all of the documents to be produced.
Craig v. Cornerstone Trading Grp., LLC, 2025 WL 1475428 (S.D. Ind. May 22, 2025).
The court wrote:
It is the insufficiency of the privilege log that required an in camera review of the documents at issue. In fact, the privilege log is so clearly insufficient that the Court would have been within its discretion to find that the City had waived the privilege and require all of the documents to be produced. The Court has not done so because, as discussed below, the law enforcement investigatory privilege exists to protect the public’s interest in the integrity of ongoing criminal investigations. In would not be in the interests of justice to allow that public interest to be thwarted because of counsel for the City’s failure to comply with their discovery obligations in this case. [Emphasis in original].
Id.
As to the sufficiency of privilege logs, see generally How Much Detail is Enough in a Privilege Log? (Apr. 9, 2024).
Despite errors on both sides of the “v.”, the Craig court understandably decided to reach the merits:
Following the filing of the instant motion to compel, the City produced a revised National Fire Incident Report System report. It is not clear why this clearly responsive and relevant document was not produced sooner. Also not clear is why Plaintiffs failed to file a motion to compel this discovery sooner and why Plaintiffs did not comply with Local Rule 37-1(a) prior to filing their motion to compel. In other words, neither party’s conduct has been beyond reproach with regard to the instant discovery dispute. The Court declines to parse who failed to do what with any more specificity. Instead, the Court will turn to the substantive issue of whether the City has properly withheld the documents on its privilege log.
Id.
The court then applied a ten-factor balancing test to evaluate the law enforcement investigatory privilege. Id. at *2-3. After an in camera review, it ruled on each document. Some were deemed protected and others were not. The court wrote:
The Court notes that, with a few exceptions, the withheld documents do not contain information that is of significant importance to the Plaintiffs’ case, given that the non-evaluative relevant information contained therein has been provided to Plaintiffs through other discovery. The City’s position in its brief that the evaluative information contained in the withheld documents is irrelevant to Plaintiffs’ claims, … is flatly wrong. The City seems to conflate whether documents are relevant with whether they are necessary to prove Plaintiffs’ case. Plaintiffs allege that Defendants failed to properly maintain the recycling facility and to properly store materials therein and that these failures “set in motion a chain of events resulting in a widespread fire which released noxious fumes and hazardous materials including asbestos into the air and ground water of the surrounding area.” …. Thus, documents that relate to the investigation into the cause and progression of the fire clearly are relevant to Plaintiffs’ claims. [Emphasis added].
Id.
In footnote 2, the Craig court wrote: “The City also argues in its brief that the deliberative process privilege applies to some of the documents…. Not only did the City fail to assert that privilege on its privilege log, but it also does not even attempt to satisfy the very specific and rather onerous requirements of demonstrating the applicability of that privilege.”
The City also argues in its brief that the deliberative process privilege applies to some of the documents…. Not only did the City fail to assert that privilege on its privilege log, but it also does not even attempt to satisfy the very specific and rather onerous requirements of demonstrating the applicability of that privilege.
Craig v. Cornerstone Trading Grp., LLC, 2025 WL 1475428 (S.D. Ind. May 22, 2025).
Additionally, “while the parties’ briefs focus on the documents withheld on privilege grounds, it is not entirely clear to the Court that Defendants have otherwise fully responded to the document request at issue. Accordingly, Defendants shall file a certification within seven days of the date of this Order that all documents responsive to Document Request No. 12 have been produced except for the specific documents listed in the table above as not having to be produced.” [Emphasis in original].
In Kyle Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. 2024), the court wrote that it “would prefer this case not go to the dark place where attorneys on one side demand that the attorneys on the other side provide declarations in which they swear they are telling the truth about complying with their discovery obligations.” See What Happens When Parties Fail to Negotiate a Privilege Log in Good Faith? (Apr. 8, 2024). Here, it seems that the court was forced into that situation.
Where did things “go off the rails?”
The court pointed to failings of both parties. However, because the public interest was involved, the court took the extra step of overlooking procedural defects.
Boilerplate objections and a referral to “Trial Rule 34,” may not have advanced the City’s cause. As to “boilerplate” objections, cf. E-Discovery 101 – – A Refresher on the Scope of Discovery + Boilerplate Objections Sustained (Sep. 16, 2024), with “Boilerplate” Objections Are Generally Condemned; Except When They’re Not (Oct. 9, 2024).
Taking the “bizarre” position that it need not produce a privilege log until asked to do so was, in my opinion, not well-founded. Do You Have to Ask an Opponent for a Privilege Log? (Jun. 25, 2024); Court Holds Privilege Was Waived by Failure to Timely Provide a Privilege Log (May 30, 2024); cf. No Privilege Log is Necessary in Limited Circumstances When Discovery Requests Are Overbroad (Apr. 5, 2025); Where Requests for Discovery were Overly Broad, No Privilege Log was Required (Oct. 12, 2024); No Privilege Log Is Needed While Scope of Discovery Objections Are Pending (Aug. 3, 2024); When is Failure to Provide a Timely Privilege Log Excusable? (Jun. 24, 2024).
Then, after taking that position, submitting an inadequate log compounded the issue. It is unclear why the City did not discuss and reach an agreement as to the type of privilege log that would be acceptable or, if an agreement could not be reached, seek a ruling before serving the log. See Privilege Logs: New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024); Agreement in ESI Protocol to Provide a “Metadata-Only” Privilege Log Was Enforced (Jul. 22, 2024); How to Create a “Metadata” or “Metadata Plus” Log Using a Litigation Review Platform (Aug. 7, 2024).
Everyone has seen discovery responses that seek to hide the ball. That may not be the best strategy. In Management and Constr. Svcs., LLC v. Sayers Constr., LLC, 2021 WL 981780 (D. Md. Mar. 16, 2021)(Coulson, J.), the Court wrote that accurate and complete responses provide a strategic advantage. See Accurate and Complete Discovery Responses Can Be Strategically Advantageous (May 13, 2024). Judge Coulson wrote:
Accurate and complete discovery responses are not only a responsibility of counsel and their client, but also an opportunity for counsel and their client. It is one of the rare times during the uncertainty of litigation where counsel can tell their client’s story in precisely the most persuasive way possible. Discovery also presents counsel with the opportunity to have frank discussions with their clients so as to assess what precise documents and testimony are available to support their case, and to surface challenges in the case that need to be addressed. [Emphasis added]
Management and Constr. Svcs., LLC v. Sayers Constr., LLC, 2021 WL 981780 (D. Md. Mar. 16, 2021)(Coulson, J.).
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