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Grand River Enterprises Six Nations, Ltd. v. King

January 9, 2009

GRAND RIVER ENTERPRISES SIX NATIONS, LTD., PLAINTIFF,
v.
TROY KING, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John F. Keenan, United States District Judge

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff's objection to Magistrate Judge Douglas F. Eaton's April 18, 2008, discovery order (the "Discovery Order"). Plaintiff argues that Magistrate Judge Eaton erred in finding certain documents privileged since (1) Defendants' privilege logs were served in an untimely manner and were substantively deficient, (2) the documents are not in fact privileged, and (3) a document that the Arizona attorney general office inadvertently produced is not privileged. For the reasons outlined below, the Court affirms the Discovery Order in its entirety.

I. BACKGROUND

The Court assumes familiarity with its earlier opinions in this case and discusses only those facts related to the current discovery dispute. For a detailed summary of the facts, see Grand River Enterprises SiX Nations, Ltd. v. Pryor, No. 02 Civ. 5068, 2006 U.S. Dist. LEXIS 35614 (S.D.N.Y. May 31, 2006), and Grand River Enterprises Six Nations, Ltd. v. Pryor, No. 02 Civ. 5068, 2003 U.S. Dist. LEXIS 16995 (S.D.N.Y. Sept. 29, 2003).

Plaintiff served its first request for the production of documents on February 9, 2007. Defendants responded on the Court-imposed deadline of April 20, 2007, producing some documents but also objecting to Plaintiff's discovery demands as overbroad. The parties conducted two "meet and confer" teleconferences in the months that followed to discuss the scope of discovery. They were unable to resolve their differences, particularly those concerning privilege, and agreed to submit the matter to Magistrate Judge Eaton. By this point, late October 2007, thirteen Defendants had served privilege logs on Plaintiff, claiming, among other things, that the attorney-client privilege, the work product privilege, and the common interest rule protected certain documents from disclosure.

In a joint letter to Magistrate Judge Eaton dated January 18, 2008, Plaintiff argued that Defendants' assertion of privilege was improper and that numerous Defendants had waived privilege by failing to timely serve privilege logs or by serving deficient logs. On January 28, 2008, Magistrate Judge Eaton held an hour-long conference call with the parties. On the call, he told the parties that Defendants had timely opposed Plaintiff's discovery requests as being overly broad. He stated that he would therefore not require Defendants to complete their privilege logs until he ruled on their objection. At the time of the call, all but one or two of the Defendants had served a privilege log. According to Magistrate Judge Eaton, these Defendants were "early rather than late," making the sanction of waiver inappropriate. Grand River Enters. Six Nations, Ltd. v. Pryor, No. 02 Civ. 5068, at 2 (S.D.N.Y. Oct. 22, 2008).

Magistrate Judge Eaton also used the conference call to develop a plan to assess the merits of Defendants' assertion of privilege. He instructed Plaintiff to identify up to fifty documents from Defendants' privilege logs that Defendants would then provide to Magistrate Judge Eaton for in camera review. Magistrate Judge Eaton committed the plan to writing in an order dated February 5, 2008. In the order, he also requested that the Arizona attorney general produce for in camera review an allegedly privileged document that had been inadvertently produced to Plaintiff (the "Arizona Document").

Plaintiff served a list of forty-seven documents on Defendants in March 2008, and Defendants subsequently forwarded the requested material to Magistrate Judge Eaton. In Plaintiff's words, "Generally, the documents [requested] were received by, or sent to, [the National Association of Attorneys General] and are being withheld on the basis of attorney-client or work product privilege." (Pl.'s Br. Ex. B 2.) The Arizona attorney general also forwarded the Arizona Document to Magistrate Judge Eaton.

After conducting in camera review, Magistrate Judge Eaton ruled in the Discovery Order that Defendants properly withheld all but three of the requested documents. The three exceptions were documents concerning sales information of cigarette manufacturers not party to the Master Settlement Agreement at issue in this case. Magistrate Judge Eaton also found that the Arizona Document was still privileged despite being inadvertently produced and ordered Plaintiff to return it to the Arizona attorney general.

Plaintiff objects to the Discovery Order. Plaintiff argues that Magistrate Judge Eaton erred since (1) Defendants waived privilege by serving privilege logs in an untimely manner or by serving substantively deficient logs, (2) Defendants improperly asserted privilege, and (3) the Arizona Document is not privileged.

Following the filing of Plaintiff's objection, in an order dated October 14, 2008, the Court asked Magistrate Judge Eaton to consider Plaintiff's claim that Defendants had waived all privileges by serving privilege logs in an untimely manner or by serving substantively deficient logs. Magistrate Judge Eaton obliged, finding that the logs were not in fact untimely and that any deficiencies were "minor," e.g., the logs provided "names of authors and recipients but not their titles, [or offered] vague descriptions of the subject matter." Grand River Enters. Six Nations, Ltd. v. Pryor, No. 02 Civ. 5068, at 1 (S.D.N.Y. Oct. 22, 2008).

The Court now assesses Magistrate Judge Eaton's rulings.

II. DISCUSSION

A. Standard of Review

Discovery issues, including questions of privilege, are generally considered non-dispositive. See Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990); Eisai Ltd. v. Dr. Reddy's Labs., Inc., 406 F. Supp. 2d 341, 342 (S.D.N.Y. 2005). When a party files an objection to a magistrate judge's order on a non-dispositive matter, the district judge to whom the case is assigned must "modify or set aside any part of the order that is clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a). A decision is clearly erroneous when "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Surles v. Air France, 210 F. Supp. 2d 501, 502 (S.D.N.Y. 2002). In deciding discovery disputes, a magistrate judge is entitled to "broad discretion, which will be overruled only if abused." Dubin v. E.F. Hutton Group Inc., 125 F.R.D. 372, 373-74 (S.D.N.Y. 1989). Magistrate judges receive "substantial deference," particularly where they ...


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