Owen v. Audubon Field Solutions, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVID OWEN,
Plaintiff,
v. 	No. 2:24-cv-0215 MLG/DLM
AUDUBON FIELD SOLUTIONS, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff David Owen’s Motion to Compel
Discovery. (Doc. 78.) The Court held a motion hearing on February 23, 2026. (See Doc. 102.)
Having fully considered the parties’ arguments and the relevant law, the Court grants in part
Owen’s motion as outlined below.
I. 	Relevant History
Owen originally filed a Class Action Complaint in New Mexico state court. (See Doc. 1-
1.) He alleges that Audubon’s shift rate inspectors regularly worked more than 40 hours a week
but were not paid overtime in violation of the New Mexico Minimum Wage Act. (See Doc. 1-1
¶¶ 3–4, 106.) Audubon removed the case to federal court based on diversity. (Doc. 1 at 3.) Owen
no longer seeks class certification. (Doc. 15.)
The Court has held several formal and informal discovery hearings in this matter and
extended discovery deadlines a number of times. (See, e.g., Docs. 16; 18–19; 24, 27; 33; 43; 46;
57; 61–62; 74–75.)
On December 15, 2025, Owen filed a Motion to Compel Discovery. (Doc. 78.) Owen
contends that Audubon has not supplemented its discovery responses as it is required to under
Federal Rule of Civil Procedure 26(e). (See id.) Audubon asks the Court to deny the motion both
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because it is untimely and because it lacks merit. (See Doc. 79.) On February 5, 2026, the Court
ordered Audubon to submit a privilege log and the underlying documents to the Court for an in
camera review. (See Docs. 94–95.) Audubon submitted the privilege log and 640 pages of
documents as ordered.
II. 	Legal Standards
A. 	Discovery and Objections
The Federal Rules allow discovery on “any nonprivileged matter that is relevant to any
party’s claim or defense [that is] proportional to the needs of the case . . . .” Fed. R. Civ. P. 26(b)(1).
The Rules require that parties timely supplement or correct previous discovery disclosures or
responses “if the party learns that in some material respect the disclosure or response is incomplete
or incorrect, and if the additional or corrective information has not otherwise been made known to
the other parties during the discovery process or in writing[] or . . . as ordered by the court.” Fed.
R. Civ. P. 26(e)(1). “Generally speaking, the scope of discovery in Federal Rule of Civil Procedure
26 is broad” so that parties may “‘obtain the fullest possible knowledge of the issues and facts
before trial.’” Garcia v. State Farm Mut. Auto. Ins. Co., No. 1:24-cv-1286 KK/KRS, 2025 WL
2966364, at *3 (D.N.M. Oct. 21, 2025) (quoting Hickman v. Taylor, 329 U.S. 495, 501 (1947))
(subsequent citation omitted).
Interrogatories are governed by Rule 33, which provides: “Each interrogatory must, to the
extent it is not objected to, be answered separately and fully in writing under oath.” Id. (quoting
Fed. R. Civ. P. 33(b)(3)). The bases for any “objection[s] ‘must be stated with specificity.’” Id.
(quoting Fed. R. Civ. P. 33(b)(4)). A party that fails to timely object waives its objections. See id.
(citing Fed. R. Civ. P. 33(b)(4)). Moreover, a party’s “unilateral declaration that no objections are
waived will not be allowed to displace the command of Rule 33 that the party either answer fully
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or object.” Id. (quoting D.J. Simmons, Inc. v. Broaddus, 2001 WL 37125080, at *3 (D.N.M. July
10, 2001)).
Requests for production are governed by Rule 34, which requires the responding party to
“state with specificity the grounds for objecting to the request, including the reasons.” Id. (quoting
Fed. R. Civ. P. 34(b)(2)(B)). Because objections must be stated with specificity, “[b]oilerplate,
generalized objections are inadequate and tantamount to not making any objection at all.” Id.
(quoting Broaddus, 2001 WL 37125080, at *3).
B. 	Attorney-Client Privilege
The scope of discovery is limited by attorney-client privilege and the work-product
doctrine. See Anaya v. CBS Broadcasting, Inc., 251 F.R.D. 645, 650 (D.N.M. 2007) (citation
omitted). The purpose of the attorney-client privilege “is ‘to encourage clients to make full
disclosure to their attorneys.’” Id. (quoting Fisher v. United States, 425 U.S. 391, 403 (1976)).
Under Federal Rule of Evidence 501, “state law supplies the rules concerning attorney-client
privilege in diversity cases.” Id. (citing Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d
695, 699 (10th Cir. 1998)).
“Under 	New 	Mexico 	law, 	the 	attorney-client 	privilege 	applies 	to 	‘confidential
communications made for the purpose of facilitating the rendition of professional legal services to
the client.’” Id. (quoting Bd. of Comm’rs of Dona Ana Cnty. v. Las Cruces Sun News, 76 P.3d 36,
44 (N.M. Ct. App. 2003); N.M.R.A. 11-503(B)). The party claiming the privilege has the burden
to show “that it applies and that it has not been waived.” Id. (citations omitted). It is not enough
that a party offers a “bald assertion” of privilege; rather, the party must “clarify and explain its
objections and . . . provide support therefor.” Id. (quoting United Nuclear Corp. v. Gen. Atomic
Co., 629 P.2d 231, 293 (1980)).
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“[T]he mere fact that an attorney was involved in a communication does not automatically
render the communication subject to the attorney-client privilege.” Id. (quoting Motley v.
Marathon 	Oil 	Co., 	71 	F.3d 	1547, 	1550–51 	(10th 	Cir. 	1995)). 	“An 	in-house 	counsel’s
communications regarding business matters, management decisions, and business advice, which
neither solicit [n]or predominantly deliver legal advice, are not privileged.” Id. (citation omitted).
Moreover, a party may not claim the privilege by simply “[c]hanneling work through a lawyer
rather than having non-legal personnel perform it” or by copying an attorney on an interoffice
email sent to multiple people. See id. (citations omitted).
C. 	Work-Product Doctrine
Rule 26(b)(3) governs issues regarding the work-product doctrine in diversity cases. See
id. (citation omitted). The rule provides:
[A] party may obtain discovery of documents and tangible things otherwise
discoverable under ... this rule and prepared in anticipation of litigation or for trial
by or for another party or by or for that other party's representative (including the
other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon
a showing that the party seeking discovery has substantial need of the materials in
the preparation of the party’s case and that the party is unable without undue
hardship to obtain the substantial equivalent of the materials by other means. In
ordering discovery of such materials when the required showing has been made,
the court shall protect against disclosure of the mental impressions, conclusions,
opinions, or legal theories of an attorney or other representative of a party
concerning the litigation.
Id. at 650–51 (quoting Fed. R. Civ. P. 26(b)(3)). This “doctrine shelters the mental processes of
the attorney, providing a privileged area within which he can analyze and prepare his client’s case.”
Id. at 651 (quotation omitted).
Work product can include “materials that are gathered at the request of an attorney in
anticipation of litigation.” Id. (citation omitted). Such materials “receive[] less protection than
opinion work product[,]” which is defined as “the mental impressions of the attorney.” Id. (citation
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omitted). A party claiming work-product protection “must show that the documents or materials
were prepared in anticipation of litigation by or for a party or that party’s representative.” Id. (citing
Fed. R. Civ. P. 26(b)(3)). “Litigation need not necessarily be imminent as long as the primary
motivating purpose behind the creation of the document was to aid in possible future litigation.”
Id. (citation omitted). “If the party . . . establishes entitlement to the protection,” production of
work-product material is only allowed “‘upon a showing that the party seeking discovery has
substantial need of the materials in the preparation of the party’s case and that the party is unable
without undue hardship to obtain the substantial equivalent of the materials by other means.’” Id.
(quoting Fed. R. Civ. P. 26(b)(3)).
D. 	Privilege Log
Rule 26(b)(5) governs privilege logs and requires that a party withholding information
under a claim of attorney-client privilege or the work-product doctrine “shall make the claim
expressly and shall describe the nature of the documents, communications, or things not produced
or disclosed in a manner that, without revealing information itself privileged or protected, will
enable other parties to assess the applicability of the privilege protection.” Id. (quoting Fed. R. Civ.
P. 26(b)(5)). “The law is well settled that failure to produce a privilege log or production of an
inadequate privilege log may be deemed waiver of the privilege.” Id. (quotation omitted).
E. 	Motions to Compel
When a “party improperly fails to respond to another party’s discovery requests, the
requesting party may move to compel disclosure and for appropriate sanctions.” Saiz v. ADD
Express, Inc., No. 1:23-cv-0660 MLG/GBW, 2024 WL 264051, at *1 (D.N.M. Jan. 24, 2024)
(citing Fed. R. Civ. P. 37(a)(3)(A)). “[A]n evasive or incomplete disclosure, answer, or response
must be treated as a failure to disclose, answer, or respond.” Id. (quoting Fed. R. Civ. P. 37(a)(4)).
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The Local Rules provide that a party seeking relief under Rule 37 “must proceed . . . within
[21] days of service of an objection unless the response specifies that documents will be produced
or inspection allowed.” D.N.M. LR-Civ. 26.6. Rule 26.6 further provides that “[f]ailure to proceed
within this time period constitutes acceptance of the objection[,]” but the Court may change the
21-day period for good cause. See id.
“Ultimately, the Court ‘is afforded broad discretion in the resolution of non-dispositive
discovery disputes,’ and its determination of whether to compel discovery will be ‘overrule[d] only
if this discretion is clearly abused.’” Garcia, 2025 WL 2966364, at *3 (quoting Alsaadi v.
Saulsbury Indus., Inc., No. 2:23-cv-0291 KG/KRS, 2024 WL 1617639, at *2 (D.N.M. Apr. 15,
2024)); see also Murphy v. Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1163 (10th Cir.
2010) (noting that “Rule 26 vests the trial judge with broad discretion to tailor discovery
narrowly”) (quoting Crawford-El v. Britton, 523 U.S. 574, 598 (1998)). “Finally, and in any event,
D.N.M. LR-Civ. 1.7 provides that ‘[t]hese rules may be waived by a Judge to avoid injustice.’”
See Garcia, 2025 WL 2966364, at *7 (quoting D.N.M. LR-Civ. 1.7).
III. 	Rulings
Owen moved to compel the following discovery requests: Interrogatories 3, 7, 10, 15, 17;
Requests for Production (RFPs) 11, 24, 25, 8, 13; Interrogatory 20; RFPs 29; 32–39.1 During the
hearing, counsel for Owen withdrew the following requests: Interrogatories 10, RFP 13, and
Interrogatory 20. The Court will deny the motion as moot with respect to those three requests.
For reasons stated on the record, the Court rules as follows on the remaining requests:
Interrogatories 3, 7, 15 and RFPs 11, 8
The Court denies Interrogatories 3, 7, and 15 and RFPs 11 and 8 as untimely. Audubon
1 The Court addresses the discovery requests in the same order the parties discussed them.
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originally responded to these requests on June 24, 2024. (See Doc. 78 at 1 n.1 (citing Docs. 78-C–
F).) Because Owen failed to file a motion to compel within D.N.M. LR-Civ. 26.6’s 21-day deadline
and did not establish that the parties continued to confer about the discovery requests as required
to stop the clock from running, the Court finds that the motion is untimely and will be denied with
respect to these requests.
Interrogatory 17 and RFPs 24, 25, 29, 32–39
The Court grants in part the motion to compel these discovery requests. Audubon objected
to these requests, in relevant part, on the basis that they seek information protected by attorney-
client privilege and/or the work-product doctrine.2 (See Docs. 78-D at 2–3; 78-E at 4.) However,
Audubon never provided a privilege log as required by Rule 26(b)(5)(A) and as directed by the
undersigned at the December 1, 2025 informal discovery conference. (See Doc. 74 at 3.) While the
law is clear that the Court may find that Audubon waived any claim of privilege by failing to
produce a privilege log, see Anaya, 251 F.R.D. at 651 (citation omitted), the Court declines to
impose such a harsh penalty. Instead, having reviewed the 640 pages of documents provided by
Audubon and the accompanying privilege log, the Court finds that the following Bates-stamped
pages are not protected by attorney-client privilege or the work-product doctrine and must be
turned over to Owen:
• 	1–3
• 	8–9
• 	11
• 	13
2 Audubon did not object to RFPs 29 or 32–39 on the basis of privilege. (See Docs. 78-H at 2; 79-I.) At the hearing,
however, counsel for Audubon confirmed that any documents responsive to these requests were included in the
privilege log provided for the Court’s in camera review.
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• 	29–30
• 	38–39
• 	21–27
• 	550–60
• 	562–63
• 	565
• 	574–75
• 	576–88
• 	589
• 	591–93
• 	598
• 	603
• 	605
• 	608–09
• 	614–15
• 	621–28
• 	631–32
• 	635–36
• 	640
IT IS THEREFORE ORDERED that Owen’s Motion to Compel Discovery (Doc. 78) is
GRANTED IN PART and DENIED IN PART as outlined herein.
IT IS FURTHER ORDERED that no later than March 10, 2026, Audubon may either
file a motion for protection on those documents it believes are still privileged or turn the documents
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over to Owen.3 If documents are turned over, Audubon must contemporaneously file a notice
stating which pages were turned over.
IT IS FURTHER ORDERED that the Court DENIES the parties’ requests for an award
of attorneys’ fees.
_______________________________________
DAMIAN L. MARTINEZ
UNITED STATES MAGISTRATE JUDGE
3 Some pages may require redaction, due to the way that the documents are formatted.
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