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Certain Underwriters at Lloyd's v. National Railroad Passenger Corp.

United States District Court, E.D. New York

February 17, 2017

CERTAIN UNDERWRITERS at LLOYD'S et al., Plaintiffs,
v.
NATIONAL RAILROAD PASSENGER CORPORATION et al., Defendants.

          MEMORANDUM AND ORDER

          ROANNE L. MANN, CHIEF UNITED STATES MAGISTRATE JUDGE

         Currently pending before the Court, in this declaratory judgment insurance coverage action, are objections filed by plaintiffs London Market Insurers (“LMI”) to the Report and Recommendation of Special Master Peter Woodin (“Special Master”) dated January 20, 2017 (“R&R”).[1] See Motion for Discovery (Feb. 2, 2017) (“Objections”), Electronic Case Filing Docket Entry (“DE”) #568. LMI object to one narrow aspect of the R&R, which afforded defendant National Railroad Passenger Corporation (“Amtrak”) the opportunity to supplement its privilege log with respect to 54 log entries.[2] For the reasons that follow, the Court sustains LMI's objections.

         BACKGROUND

         I. November 2015 Motion to Compel

         In a motion to compel filed in November 2015, LMI challenged the original privilege log served by Amtrak, which was compiled in a categorical format encompassing over 5, 000 documents described in 39 log entries; LMI sought an order compelling Amtrak to produce, inter alia, an itemized privilege log listing each document withheld under claim of privilege. See Motion to Compel (Nov. 23, 2015) (“11/23/15 Motion to Compel”) at 4-9, DE #255; Exhibit B to 11/23/15 Motion to Compel, DE #255-3. Amtrak had also produced a log of metadata that it had exported from its electronic email discovery, which provided further information regarding approximately 3, 600 of the 5, 000 documents described in the categorical log. See Metadata Export (Dec. 17, 2015), DE #267-6.

         Following lengthy oral argument concerning Amtrak's privilege log, this Court directed Amtrak to produce “a more refined categorical privilege log[.]” See Minute Entry (Feb. 1, 2016) at 1, DE #304. Instead, on February 26, 2016, Amtrak produced an itemized document-by-document log and, on March 4, 2016, a revised itemized log (“3/4/16 Privilege Log”). See Declaration of Mark J. Leimkuhler (Apr. 4, 2016) ¶ 3, DE #342-1; 3/4/16 Privilege Log (Apr. 4, 2016), DE #342-4.

         II. April 2016 Motion to Compel

         On April 4, 2016, following discussions by the parties regarding LMI's claims that 3, 105 entries on the document-by-document log contained insufficient information, LMI filed a motion to compel the production of most of the withheld documents on the ground that Amtrak's itemized privilege log provided inadequate document descriptions. See Motion to Compel (Apr. 4, 2016) (“4/4/16 Motion to Compel”) at 1, DE #342; Response in Opposition (Apr. 14, 2016) (“4/14/16 Amtrak Opp.”) at 1, DE #360. Amtrak's submission opposing that motion attached a further revised itemized privilege log (“Revised Privilege Log”), with supplemental descriptions of the subject documents, which Amtrak argued mooted the issues raised in LMI's motion. See Revised Privilege Log (Apr. 14, 2016), DE #360-2; 4/14/16 Amtrak Opp. at 1-2. Amtrak also argued that LMI's motion was filed prematurely since LMI knew that Amtrak had been engaged in a review of the challenged documents. See 4/14/16 Amtrak Opp. at 1-2. In their reply, LMI requested that the Court strike the Revised Privilege Log since it had been produced after the filing of LMI's motion to compel, and advised that if the Revised Privilege Log were deemed to be the operative log, LMI would again move to compel “because even an initial, partial review shows that the new descriptions are mass produced, generic and do not support the privilege claims[.]” See Reply to Response to Motion (Apr. 20, 2016) at 2 n.3, DE #375.

         By order issued on June 10, 2016, this Court deemed the Revised Privilege Log “the operative log, ” and directed Amtrak not to “make any additions or further edits . . . while [LMI's] motion [to compel] is pending.” See Order (June 10, 2016) (“6/10/16 Order”) at 2, DE #392. In a further Memorandum and Order dated July 13, 2016, this Court expounded on the reasons for deeming the Revised Privilege Log to be the operative log and, inter alia, referred to the Special Master the adequacy of the privilege entries challenged by LMI in their Exhibits F and I (“Updated Exhibits F and I”), see Memorandum and Order (July 13, 2016) at 6-11, 33, DE #406; each of those two exhibits listed privilege log entries that LMI challenged as inadequate on a particular ground, see Letter Motion for Discovery (June 21, 2016) at 1-2, DE #396; Updated Exhibits F and I, DE #396-2, #396-5.

         III. Special Master's Report and Recommendation

         On January 20, 2017, the Special Master issued his well-reasoned and thorough Report and Recommendation. As relevant to the instant objections, the Special Master reviewed the log entries listed in Updated Exhibit F and found that “almost all of them, on their face, meet the requirements necessary to sustain a claim of privilege.” R&R at 6. However, the Special Master also determined that 12 log entries contained in Updated Exhibit F were insufficient “to even marginally support a claim of potential privilege” despite “whatever additional descriptive information may have been provided” in the Revised Privilege Log. Id. at 9, 17. As to those log entries listed in Updated Exhibit I (which includes the 12 log entries listed in Updated Exhibit F), the Special Master found that 55 of the log entries were similarly insufficient to “even marginally support a claim of potential privilege.” Id. at 16, 17.

         Turning to the appropriate remedy for Amtrak's failure to provide adequate privilege log entries for those documents, the Special Master determined that a finding of waiver would be “a harsh result” since there was nothing in the record to suggest that Amtrak “intentionally delay[ed] compliance with its privilege obligations.” Id. at 18. Moreover, the Special Master reasoned that the 55 entries he found to be inadequate were relatively few compared to the several thousands of documents withheld, and his in camera review of a sample of the universe of withheld documents had led him to conclude that only a few of the examined documents should have been produced. See id. As a result, the Special Master recommended that Amtrak be afforded an opportunity to supplement the entries for these documents with further information sufficient to support its claims of privilege. See id.

         IV. LMI's Objections to the Report and Recommendation

         By their objections to the R&R, LMI argue that the Special Master's legal conclusion regarding the appropriate remedy for Amtrak's failure to substantiate its privilege claims as to the 54 documents at issue is in error as a matter of law and will cause substantial prejudice to LMI. See Objections at 1. Specifically, LMI contend that if Amtrak is permitted once again to supplement its privilege log entries, further litigation will ensue and, by the time any of the withheld documents are ordered to be disclosed, LMI will likely be unable to use those documents in their summary judgment briefs and expert discovery. See id. Therefore, LMI seek the immediate production of the 54 documents as to which the Special Master found that Amtrak had failed to “even marginally support the claims of potential privilege.” See id. In response, and without having sought and obtained leave of the Court to do so, Amtrak has filed yet another revised log, which purports to supplement its descriptions for the log entries that the Special Master found to be inadequate. See Supplemental Descriptions Per Special Master's Report and Recommendation (Feb. 6, 2017) (“Supplemental Descriptions”), DE #577-1. ...


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