Box Elder Kids, LLC et al v. Anadarko E & P Onshore, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 20-cv-2352-WJM-JPO
BOX ELDER KIDS, LLC,
C C OPEN A, LLC, and
GUEST FAMILY TRUST, by its Trustee CONSTANCE F. GUEST, individually and on
behalf of themselves and all others similarly situated,
Plaintiffs,
v.
ANADARKO E & P ONSHORE, LLC,
ANADARKO LAND CORPORATION, and
KERR-MCGEE OIL AND GAS ONSHORE, LP,
Defendants.
ORDER OVERRULING DEFENDANTS’ OBJECTION TO
MAGISTRATE JUDGE’S DISCOVERY RULING
In this discovery dispute, Anadarko E & P Onshore, LLC, Anadarko Land
Corporation, and Kerr-McGee Oil and Gas Onshore, LP (collectively, “Defendants”)
object (ECF No. 182) to the Magistrate Judge’s Order (ECF No. 180) compelling
production of 19 documents to Plaintiffs Box Elder Kids, LLC, C C Guest A, LLC, and
the Guest Family Trust, by its Trustee Constance F. Guest, individually and on behalf of
themselves and all others similarly situated (collectively, “Plaintiffs”) on the ground that
Defendants waived any claimed privilege to these documents. Plaintiffs filed a
response to Defendants’ objection. (ECF No. 187.)
Although waiver is a harsh sanction for a discovery violation, and the Court may
not have found waiver had it been tasked with deciding this issue in the first instance,
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the Court nevertheless discerns no clear error in the Magistrate Judge’s ruling.
Consequently, the Court overrules Defendants’ objection to the Magistrate Judge’s
Order.
I. PERTINENT BACKGROUND
In August 2020, Plaintiffs sued Defendants for breach of contract. (ECF No. 1.)
In September 2021, the parties informed then-United States Magistrate Judge S. Kato
Crews of a discovery dispute with respect to approximately 200 documents. (ECF No.
80.) Over the next two years, Defendants submitted a total of six amended privilege
logs, which listed over 800 documents, including the 19 at issue here, that Defendants
claimed were protected by the attorney-client privilege and/or work product doctrine.
(ECF No. 180 at 3.)
In February 2023, Plaintiffs moved to compel production of 66 of these 800
documents. (ECF No. 155.) As relevant here, Plaintiffs argued that Defendants had
waived any privilege to 19 of these 66 documents—specifically, Entry Nos. 28, 40–42,
45, 47, 50, 51, 100, 112, 132, 133, 168, 169, 171, 174, 177, 197, and 198. (Id.) In
support of their waiver theory, Plaintiffs argued that Defendants failed to sufficiently
disclose the custodians, authors, dates of creation, subject matter, and other critical
details that would enable Plaintiffs or Judge Crews to reasonably assess the claimed
privilege. (Id.) Defendants disputed that they waived any privilege as to these
documents. (ECF No. 158.)
Judge Crews found that Defendants waived any claim of privilege as to these 19
documents. (ECF No. 180 at 6.) Judge Crews began by observing that Fed. Rule Civ.
P. 26(b)(5) requires a party “withholding responsive information” on a claim of privilege
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to “expressly make the claim,” and “describe the nature of the documents,
communications, or tangible things not produced or disclosed—and do so in a manner
that, without revealing information itself privileged or protected, will enable other parties
to assess the claim.” (Id. at 5.) Judge Crews further observed that a privilege log is
generally “adequate if it identifies with particularity the documents withheld, including
their date of creation, author, title or caption, addressee and each recipient, and general
nature or purpose for creation.” (Id. at 6 (quoting Zander v. Craig Hosp., 743 F. Supp.
2d 1225, 1232 (D. Colo. 2010)).)
With these principles in mind, Judge Crews found that “the circumstances of this
case warrant a finding of waiver as to these categories of documents.” (Id. at 7.) Judge
Crews emphasized that “Defendants are now on their sixth iteration of their privilege
log, and at least the third iteration since September 2021 containing the 66 disputed
documents.” (Id. at 7–8.) (emphasis in original). Judge Crews continued, “And yet, 19
of the 66 disputed entries still identify no recipient, no author, or both.” (Id. at 8.)
As to the documents Defendants claimed were covered by the attorney-client
privilege, Judge Crews remarked that Defendants’ descriptions of those documents
“perplexing[ly]” did not indicate who the recipient was of the claimed legal advice. (Id. at
8.) And as to the documents Defendants claimed were covered by the work product
doctrine, Judge Crews noted that Defendants either listed no author or identified the
author by a vague shorthand or acronym. (Id.) Judge Crews acknowledged that
Defendants included a “’Cast List’ to assist with review” of the sixth amended privilege
log but explained that the “list does not identify the person associated with these
references, rendering them meaningless.” (Id.) In Judge Crews’s view, “Neither the
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Court nor Plaintiffs should have to hunt and peck through the Sixth Log and review the
documents to determine how other entries somehow fill in the blanks for entries that
omit critical information. As mentioned, Defendants have had three tries since
September 2021 to supply complete privilege log entries and have failed each time.”
(Id. at 9.)
Given these circumstances, Judge Crews “decline[d] to review these 19
documents in camera to discern Defendants’ claims of privilege,” and found that
“Plaintiffs have made an adequate showing that Defendants have waived any claimed
privilege or protection.” (Id. at 10.) As a result, Judge Crews ordered that these
documents “be produced to Plaintiffs.” (Id.)
In August 2023, the Court denied Defendants’ Emergency Motion to Stay
Enforcement of Judge Crews’s order. (ECF No. 196.) That same month, Defendants
objected to Judge Crews’s order requiring production of the 19 documents. (ECF No.
182.) Plaintiffs filed a response (ECF No. 187).
II. APPLICABLE LAW
“Discovery is a nondispositive matter. . . .” Hutchinson v. Pfeil, 105 F.3d 562,
566 (10th Cir. 1997). When reviewing an objection to a magistrate judge’s non-
dispositive ruling, the Court must affirm the ruling unless it finds that the ruling is “clearly
erroneous or contrary to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A); Ariza v.
U.S. West Commc’ns, Inc., 167 F.R.D. 131, 133 (D. Colo. 1996). The clearly erroneous
standard “requires that the reviewing court affirm unless it on the entire evidence is left
with the definite and firm conviction that a mistake has been committed.” Ocelot Oil
Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (internal quotation marks
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omitted). The “contrary to law” standard permits “plenary review as to matters of law,”
see 12 Charles Alan Wright et al., Federal Practice & Procedure § 3069 (2d ed., Apr.
2016 update), but the Court will set aside a magistrate judge’s order only if it applied the
wrong legal standard or applied the appropriate legal standard incorrectly, see
Wyoming v. U.S. Dep't of Agric., 239 F. Supp. 2d 1219, 1236 (D. Wyo. 2002). In short,
“[b]ecause a magistrate judge is afforded broad discretion in the resolution of non-
dispositive . . . disputes, the court will overrule the magistrate judge’s determination only
if his discretion is abused.” Ariza, 167 F.R.D. at 133.
Federal Rule of Civil Procedure 26(b)(5)(A) requires a party opposing, on the
basis of privilege, production of items sought in discovery to expressly make a claim of
privilege and describe the nature of the documents and why they are protected.
Specifically, Rule 26 requires the party opposing production to “describe the nature of
the documents, communications, or tangible things not produced or disclosed—and do
so in a manner that, without revealing information itself privileged or protected, will
enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5). With respect to
privilege logs in particular, such logs are generally “adequate if [they] identif[y] with
particularity the documents withheld, including their date of creation, author, title or
caption, addressee and each recipient, and general nature or purpose for creation.”
Zander, 743 F. Supp. 2d at 1232. “[P]roduction of an inadequate privilege log may be
deemed a waiver of the privilege asserted.” Lee v. State Farm Mut. Auto. Ins. Co., 249
F.R.D. 662, 671, 683–84 (D. Colo. 2008).
III. APPLICATION
Defendants contend that Judge Crews’s order compelling production of the 19
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documents on waiver grounds “is clearly erroneous because it relies on a misstatement
of the relevant facts and because it misapplies the applicable law.” (ECF No. 182 at 1.)
Specifically, Defendants argue that, although the names of the attorneys purportedly
providing legal assistance may not have been listed in the “sender” and “recipient”
columns of the Sixth Amended Privilege Log, this identifying information was included
elsewhere—the “Attorney(s) Involved/Listed in Document” column of the log. (Id. at 3.)
According to Defendants, Judge Crews therefore clearly erred by applying a mechanical
framework in assessing whether the log sufficiently described the documents such that
the Court could adequately assess the claim. (Id. at 4 (citing United States v. Copar
Pumice Co., Inc., 2012 WL 12906523, at *5 (D.N.M. Oct. 24, 2012) (advising against “a
mechanistic determination of whether the information is provided in a particular
format”)).)
But like Judge Crews, the Court sees the inadequacies of Defendants’ claims of
privilege as they pertain to the 19 documents which Defendants maintain are protected
under the attorney-client privilege and/or work production doctrine. Several of the
entries in the privilege log do not identify any author or otherwise indicate that they are
entitled to protection pursuant to a privilege. (See ECF Nos. 28, 100, 132, 168.) And to
the extent the “Attorney(s) Involved/Listed in Document” column suggests an author of
the document, that column is not very illuminating. Indeed, some entries in that column
refer to the involved attorney as “lkg339,” “zei205,” “sbn361,” or simply, “Shawn.” (Entry
Nos. 45, 133, 169, 197, 198.) The Court agrees with Judge Crews that the log itself—
not “additional entries” or information located elsewhere—should allow the Court to
reasonably assess whether a privilege may apply to that document. Krenning v. Hunter
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Health Clinic, Inc., 166 F.R.D. 33, 35 (D. Kan. 1996) (“In camera procedures should be
a rare procedure in discovery disputes. Such a procedure requires a great deal of a
court’s time and energy; the party asserting the privilege should provide the justification
for withholding a document instead of handing over documents and waiting for the court
to do their work for them.”). (ECF No. 180 at 8–9.)
The Court also agrees with Judge Crews that the description section of the log is
not very helpful either. (Id. at 8.) Some of the descriptions assert that the document
“includes legal advice from company attorney” and that it was “prepared at the direction
of counsel at a time when company anticipated litigation.” (See e.g., Entry Nos. 169,
197, 198.) But these general, non-specific assertions do not enable Plaintiffs nor the
Court to reasonably assess whether the document is indeed entitled to protection.
Emps. Reinsurance Corp. v. Mid-Continent Cas. Co., 358 F.3d 757, 775 (10th Cir.
2004) (noting that the district court compelled a party to disclose documents because it
found the privilege log inadequate to enable the court to determine whether the
documents were privileged).
Hence, contrary to Defendants’ suggestion, Judge Crews did not find that the
logs were “inadequate merely because [they] provide[] information in Column I as
opposed to Column E.” (ECF No. 182 at 4.) Rather, Judge Crews found that the logs
were inadequate because they failed to include important details as to the claimed
privilege in Column I, E, or elsewhere in the log. Simply put, the Court does not
perceive clear error in Judge Crews’s finding that the Sixth Amended Privilege Log does
not comport with the requirements of Rule 26(b)(5).
Still, Defendants maintain that, even assuming the privilege log was inadequate,
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waiver was not the appropriate remedy here. (Id. at 6.) They point to several decisions
in which courts in this jurisdiction have declined to find waiver in circumstances where
the privilege log was inadequate, considering the remedy to be too harsh. See
Pandeosingh v. Am. Med. Response, Inc., 2014 WL 5488415, at *2 (D. Colo. Oct. 30,
2014) (explaining that “[t]he attorney client privilege . . . is sacrosanct” and “declaring a
waiver of privilege as an appropriate sanction for an inadequate privilege log is too
harsh”); see also Carlson v. Colo. Ctr. for Reprod. Med., LLC, 341 F.R.D. 266, 289 (D.
Colo. 2022) (“[T]he court finds that declaring a waiver of privilege as an appropriate
sanction for an inadequate privilege log is a disproportionate remedy.”); Am. Ins. Co. v.
Pine Terrace Homeowners Ass’n, 2021 WL 10256393, at *3 (D. Colo. Mar. 12, 2021)
(“[T]he attorney client privilege, in particular, is sacrosanct, and declaring a waiver of
privilege as an appropriate sanction for an inadequate log is too harsh a penalty at this
stage.”). Furthermore, Defendants suggest that a finding of waiver should be reserved
“only upon a showing of bad faith or otherwise egregious conduct.” (Id. at 7.) They
point to Skratch Labs LLC v. Delivery Native, Inc., 2022 WL 124753, at *3 (D. Colo. Jan.
13, 2022), wherein the undersigned perceived no abuse of discretion in the magistrate
judge’s finding of no waiver where “Plaintiff has not alleged that Defendant was acting in
bad faith.”
The Court recognizes that Judge Crews’s finding of waiver appears to go against
the grain of what some other courts have done in similar circumstances. See, e.g.,
Sprint Commc'ns Co. L.P. v. Big River Tel. Co., LLC, 2009 WL 2878446, at *1 (D. Kan.
Sept. 2, 2009) (“Because waiver is a harsh sanction, however, courts often reserve
such a penalty for those cases where the offending party unjustifiably delayed in
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responding to the discovery requests or acted in bad faith”); Jordan v. Wiley, at *3 (D.
Colo. Sept. 8, 2009) (explaining that waiver is not an appropriate sanction where
“Defendants did not unjustifiably delay or engage in any egregious conduct that would
require the court to filed that they waived applicable privileges”); In re Blue Cross Blue
Shield Antitrust Litig., 2018 WL 11425454, at *3 (N.D. Ala. Sept. 14, 2018) (“Waiver of
privilege is the most extreme sanction that a court can impose for failure to follow
required procedure and courts should reserve it for cases of unjustifiable delay,
inexcusable conduct, and bad faith in responding to discovery requests”). And the
Court acknowledges that a lack of a bad faith showing can support a finding of no
waiver.
But the Court also recognizes that Judge Crews’s ruling is not such an outlier
that it is on a jurisprudential island. See, e.g., U.S. v. Ary, 518 F.3d 775, 783 (10th Cir.
2008) (“When the party seeking protection fails to specifically identify the materials
protected, courts have uniformly found a waiver.”); Emps. Reinsurance Corp. v. Mid-
Continent Cas. Co., 358 F.3d 757, 775 (10th Cir. 2004) (acknowledging, but not
analyzing, the district court’s denial of privilege where the privilege log was “inadequate
to enable the court to determine whether the documents were privileged”); Lee, 249
F.R.D. at 671, 683–84 (adopting, in relevant part, the special master’s
recommendations of disclosure based on waiver for failure to submit a proper privilege
log). Moreover, the Court points out that neither the undersigned, nor any other court
(as best the Court can tell), has held that a bad faith showing is necessary to uphold a
finding of waiver under Rule 26. This Court, and others, have simply discerned no
abuse of discretion under circumstances different than those here—i.e., where the
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magistrate judge did not find waiver in the absence of bad faith.
Notably, Judge Crews acknowledged these contrary decisions in his Order and
nonetheless decided that the particular circumstances of this case warranted a finding
of waiver. (ECF No. 180 at 7 (citing Carlson v. Colo. Ctr. for Reprod. Med., LLC, 341
F.R.D. 266, 289 (D. Colo. 2022) (concluding waiver was a disproportionate remedy for
an inadequate privilege log)).) Important to Judge Crews’s decision appears to be the
facts that the parties had been litigating these various discovery disputes for years, and
that Defendants had submitted six privilege logs, each of which failed to include
complete descriptions of the documents at issue. (See ECF No. 180 at 9 (“Defendants
do not explain why, after at least three attempts, these log entries still identified no
recipients, no authors, or both.”)).) While the Court takes Defendants’ point that “[e]ach
iteration of the Privilege Log [was] not an ‘attempt’ to cure purported deficiencies in prior
versions,” the fact remains that Defendants had considerable time to ensure that the
logs comported with Rule 26(b)(5)’s requirements, and yet they did not do so. See
Jordan 2009 WL 2913231, at *3 (suggesting that a waiver finding may be appropriate
where the defendants engaged in “unjustifiably delay”); see also In re Blue Cross Blue
Shield Antitrust Litig., 2018 WL 11425454, at *3 (same).
In sum, while the Court might have ruled differently than Judge Crews had it
been tasked with deciding this issue in the first instance, the Court is nonetheless
mindful that the standard of review instructs the Court to leave the underlying ruling
undisturbed absent clear error. Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A); Ariza,
167 F.R.D. at 133. And, as discussed, the Court is not convinced that Defendants have
cleared that high bar.
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IV. CONCLUSION
For all these reasons, the Court OVERRULES Defendants’ objection (ECF No.
182) to the Magistrate Judge’s Order (ECF No. 180) compelling production.
Dated this 16 th day of August, 2024.
BY THE COURT:
______________________
William J. Martínez
Senior United States District Judge
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