Case 2:21-cv-02242-GGG-DPC Document 293 Filed 03/20/24 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF LOUISIANA
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`CIVIL ACTION
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`NO. 21-2242
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`SECTION “T” (2)
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` *
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` *
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`G.K.
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`VERSUS
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`D.M.
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`ORDER AND REASONS
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`Before me is Intervenors Fishman Haygood, LLP and its attorneys Michael Dodson,
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`Danielle Teutonico, and Monica Bergeron’s Motion to Compel. ECF No. 286. Plaintiff G.K.
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`timely filed an Opposition, entitled “Objections.” ECF No. 289. Intervenors filed a Reply. ECF
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`No. 290. No party requested oral argument in accordance with Local Rule 78.1, and the court
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`agrees that oral argument is unnecessary.
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`Having considered the record, the submissions and arguments of counsel, and the
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`applicable law, the motion to compel is GRANTED IN PART AND DENIED IN PART for the
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`reasons stated herein.
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`I.
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`BACKGROUND
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`Plaintiff originally filed suit alleging that Defendant falsely represented his HIV status to
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`induce Plaintiff to engage in unprotected sexual relations and infected him with HIV after a sexual
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`encounter on September 1, 2019. ECF No. 3, ¶¶ 5–13, at 8–9. The court entered a default
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`judgment against Defendant D.M. on May 24, 2023, and entered Judgment on November 21, 2023.
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`ECF Nos. 236, 273.
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`Intervenor filed a Complaint in Intervention asserting a statutory lien and privilege on any
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`recovery on July 26, 2023. ECF No. 249. In Plaintiff’s Answer to the Intervention, he asserted
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`various defenses including malpractice. ECF No. 265-1 ¶ 4. On November 30, 2023, Intervenors
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`issued discovery, two topics of which are at issue in this motion: (1) information regarding the
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`1
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`email address spark@gardilaw.com and (2) information and communications between Plaintiff
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`and California attorney Shiloh Bentacourt. ECF No. 286-1 at 4, 6. Movant contends Plaintiff
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`responded with boilerplate objections (specifically, “irrelevant, vague, ambiguous, overly broad,
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`calls for a legal conclusion, calls for speculation, is burdensome and harassing, and subject to
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`varying interpretations”), that he does not have possession of responsive documents, and attorney-
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`client privilege. Id. at 4-5. Movant argues relevance and waiver of the privilege. Id. at 5-9.
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`In Opposition, G.K. argues that he has not waived his attorney-client privilege as to his
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`communications with any attorneys other than intervenors. ECF No. 289-1 at 1. G.K. further
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`argues that he has no written or audio communications with Shiloh Bentacourt and that he has
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`never been associated with the email address about which Intervenor seeks information. Id. at 2.
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`Plaintiff contends the information sought is irrelevant and is simply harassment, subjecting movant
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`to penalties. Id. at 2-3.
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`In Reply, Intervenors assert that G.K. has repeatedly relied on advice from Bentacourt and
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`they are “entitled to demonstrate both that the basis for their withdrawal was well-founded and
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`that Plaintiff has long been relying on other attorneys to provide him legal advice.” ECF No. 290.
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`Intervenors further argue that G.K.’s blanket attorney-client privilege invocation and boilerplate
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`objections are inappropriate and thus should be stricken. Id. at 1-2, 5-6. Intervenors also cite two
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`Middle District of Louisiana cases wherein parties were compelled to produce information despite
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`invocation of the attorney-client privilege in order to establish when those parties learned certain
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`information.
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`Id. at 3.
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`Intervenors
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`further contend
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`that G.K.’s assertion
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`that
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`the
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`“spark@gardilaw.com” email was “made up” or a filing error should be tested through proper
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`discovery responses rather than ipse dixit in an opposition memorandum. Id. at 4.
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`II.
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`APPLICABLE LAW
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`A. Scope of Discovery
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`Under Rule 26, “[p]arties may obtain discovery regarding any nonprivileged matter that is
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`relevant to any party’s claim or defense and proportional to the needs of the case, considering the
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`importance of the issues at stake, the amount in controversy, the parties’ relative access to relevant
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`information, the parties’ resources, the importance of the discovery in resolving the issues, and
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`whether the burden or expense of the proposed discovery outweighs its likely benefit. Information
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`within this scope of discovery need not be admissible in evidence to be discoverable.” FED. R.
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`CIV. P. 26(b)(1).
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`Rule 26’s advisory committee comments make clear that the parties and the court have a
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`collective responsibility to ensure that discovery is proportional. The party claiming it would
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`suffer an undue burden or expense is typically in the best position to explain why, while the party
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`claiming the information is important to resolve the issues in the case should be able “to explain
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`the ways in which the underlying information bears on the issues as that party understands them.”
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`FED. R. CIV. P. 26 advisory committee’s notes to 2015 amendment. “The court’s responsibility,
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`using all the information provided by the parties, is to consider these and all the other factors in
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`reaching a case-specific determination of the appropriate scope of discovery.” Id.
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`B. Duty to Respond to Discovery
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`A party served with written discovery must fully answer each request to the full extent that
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`it is not objectionable and affirmatively explain what portion of an interrogatory or document
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`request is objectionable and why, affirmatively explain what portion of the interrogatory or
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`document request is not objectionable and the subject of the answer or response, and explain
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`whether any responsive information or documents have been withheld.1 Likewise, a party must
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`1 Lopez v. Don Herring Ltd., 327 F.R.D. 567, 580 (N.D. Tex. 2018) (citation omitted).
`3
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`provide full and complete responses to requests for production within thirty days after being served
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`same unless otherwise stipulated or ordered. FED. R. CIV. P.34(b)(2)(A).
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`A party responding to discovery must produce responsive documents not only that are
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`within that party’s actual, physical possession, but also documents that are within the party's
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`constructive possession, custody or control. FED. R. CIV. P. 26(a)(1)(A)(ii); 34(a)(1). For each
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`request, the respondent must either state that the inspection or production will be permitted or state
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`with specificity the grounds for objection, including the reason. FED. R. CIV. P. 34(b)(2)(B). If a
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`party fails to produce documents, respond that inspection will be permitted, or permit inspection,
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`the party seeking discovery may, on notice to other parties and certification that the parties
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`participated in a Rule 37 conference in good faith, move for an order compelling an answer,
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`designation, production, or inspection. FED. R. CIV. P. 37(a).
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`The Federal Rules of Civil Procedure take a “demanding attitude toward objections,”2 and
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`courts have long interpreted the rules to prohibit general, boilerplate objections.3 When a party
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`objects to a request for production, the “objection must state whether any responsive materials are
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`being withheld on the basis of that objection. An objection to part of a request must specify the
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`part and permit inspection of the rest.”4 Objections interposed without also indicating whether
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`any document or information is being withheld are improper.5 Responses must also clearly state
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`whether any responsive materials are being withheld and the specific basis for objecting and not
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`2 8B CHARLES WRIGHT & ARTHUR MILLER, Federal Practice and Procedure: Civil § 2173 (3d ed. 2021).
`3 See, e.g., Chevron Midstream Pipelines LLC v. Settoon Towing LLC, Nos. 13-2809, 12-3197, 2015 WL 269051, at
`*3 (E.D. La. Jan. 21, 2015) (noting that an objection is boilerplate and insufficient “when it merely states the legal
`grounds for the objection without: (1) specifying how the discovery request is deficient and (2) specifying how the
`objecting party would be harmed if it were forced to respond to the request.”) (citation omitted); see also McLeod,
`Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485–86 (5th Cir. 1990) (simply objecting to requests as
`“overly broad, burdensome, oppressive and irrelevant,” without showing “specifically how each [request] is not
`relevant or how each question is overly broad, burdensome or oppressive” is inadequate to “voice a successful
`objection.”) (citations omitted).
`4 FED. R. CIV. P. 34(b)(2)(C); Orchestrate HR, Inc. v. Trombetta, 178 F. Supp. 3d 476, 507 (N.D. Tex. 2016), objs.
`overruled sub nom. Orchestratehr, Inc. v. Trombetta, No. 13-2110, 2016 WL 5942223 (N.D. Tex. Oct. 13, 2016).
`5 See Chevron, 2015 WL 269051 at *4 (holding that objections fall short of party’s burden when party objected based
`on privilege but failed to state whether any documents were withheld or the nature of withheld documents).
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`producing same.6 Further, it is improper for parties responding to discovery to provide responses
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`with the caveat that they are given “subject to and without waiving” objections. Courts have
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`repeatedly recognized that such language is improper and inconsistent with the Federal Rules.7
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`III. ANALYSIS
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`In response to Intervenors’ discovery requests regarding G.K.’s communications with
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`attorney Bentacourt and the owner of the spark@gardilaw.com email address, G.K. lodged various
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`unexplained objections, including relevance, vagueness, ambiguity, overbreadth, speculation, and
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`undue burden; claimed that he has no responsive information in his possession; and asserted the
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`attorney-client privilege. ECF No. 286-9. In his Opposition Memorandum, G.K. reiterates his
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`attorney-client privilege invocations, insists that he has no written or audio communications with
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`Bentacourt, asserts that he does not know who owns the e-mail address at issue and has never been
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`associated with same, repeats his boilerplate objections, and seeks sanctions against Intervenors
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`for filing the motion to compel. ECF No. 289-1.
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`Intervenors argue that Plaintiff waived the attorney-client privilege by alleging an
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`affirmative defense of legal malpractice in his Answer to the Complaint in Intervention, “thereby
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`putting Intervenors’ legal representation of Plaintiff at issue.” ECF No. 286-1 at 1.
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`Initially, G.K.’s unsubstantiated boilerplate objections are improper and thus overruled.
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`Any responsive information withheld in reliance on these objections must be produced within
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`fourteen (14) days. Moreover, Plaintiff attempts to both argue that he never engaged Bentacourt
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`as counsel and has no association with the legal email address while at the same time arguing that
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`6 Id. (citation omitted) (“Objections that fail to provide an appropriate basis make it difficult for the parties to even
`informally discuss any alleged defects in a discovery request or response in hope of fixing the defects.”).
`7 Heller v. City of Dallas, 303 F.R.D. 466, 486 (N.D. Tex. 2014) (citations omitted) (“The practice of asserting
`objections and then answering ‘subject to’ and/or ‘without waiving’ the objections–like the practice of including a
`stand-alone list of general or blanket objections that precede any responses to specific discovery requests–may have
`developed as a reflexive habit . . . [but the practice] ‘manifestly confuses (at best) and mislead[s] (at worse), and has
`no basis at all in the Federal Rules of Civil Procedure.’”).
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`any communications with either attorney are subject to the attorney-client privilege. Both cannot
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`be true. Either G.K. has received legal advice from Bentacourt and/or other counsel and such
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`communications may potentially be protected by privilege or did not receive legal advice and thus
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`has no basis to assert attorney-client privilege. Further, G.K. insists that he has no documents
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`responsive to Intervenors’ requests. Of course, the court cannot compel someone to produce
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`something that does not exist. But should it become evident that documents do, in fact, exist, then
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`consideration of sanctions will be appropriate.
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`A. Waiver of the Attorney-Client Privilege
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`Intervenors argue that Plaintiff waived the attorney-client privilege by alleging an
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`affirmative defense of legal malpractice in his Answer to the Complaint in Intervention, “thereby
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`putting Intervenors’ legal representation of Plaintiff at issue.” ECF No. 286-1 at 1. Intervenors
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`contend that communications between G.K. and Bentacourt and/or other counsel obtained during
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`or after Intervenors’ representation of G.K. are relevant insofar as same could be used to dispute
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`G.K.’s contention that Intervenors abandoned him in the middle of litigation.
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`The attorney-client privilege is the oldest of the privileges for confidential communications.8 The
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`purpose of the attorney-client privilege is well-established: to encourage candid communications
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`between client and counsel.9 The applicability of the attorney-client privilege “is a question of
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`fact, to be determined in the light of the purpose of the privilege and guided by judicial
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`precedents.”10 Not all communications between a client and its attorney are protected by the
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`attorney-client privilege.11 While the attorney-client privilege extends to all situations in which
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`counsel is sought on a legal matter, it protects “only those disclosures necessary to obtain informed
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`8 Hodges, Grant & Kaufmann v. U.S. Gov’t, Dep’t of the Treasury, 768 F.2d 719, 720 (5th Cir. 1985).
`9 Upjohn Co. v. United States, 449 U.S. 383, 390–91 (1981).
`10 Hodges, 768 F.2d at 721.
`11 United States v. Pipkins, 528 F.2d 559, 562–63 (5th Cir. 1976) (stating that the attorney-client privilege “is not a
`broad rule of law which interposes a blanket ban on the testimony of an attorney.”).
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`legal advice which might not have been made absent the privilege.”12 The attorney-client privilege
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`therefore does not attach to every communication between a client and counsel, as the privilege
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`“does not embrace everything that arises out of the existence of an attorney-client relationship.”13
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`“What is vital to the privilege is that the communication be made in confidence for the purpose of
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`obtaining legal advice from the lawyer.”14 The attorney-client privilege “was intended as a shield,
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`not a sword.”15
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`Although the Federal Rules of Civil Procedure, not the Louisiana Code of Civil Procedure,
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`govern litigation in federal courts, under Rule 501 of the Federal Rules of Evidence, state law
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`governs privilege issues in a civil case for which state law supplies the rule of decision. FED. R.
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`EVID. 501. Thus, Louisiana law governs any objection based on the attorney-client privilege and
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`requires the proponent of the privilege claim to establish: (1) the holder of the privilege is or sought
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`to become a client; (2) the communication was made to an attorney or his subordinate in a
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`professional capacity; (3) the communication was made outside the presence of strangers; (4) the
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`communication was made to obtain a legal opinion or services; and (5) the privilege has not been
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`waived.16 While both the client and his lawyer or the lawyer’s representative may claim the
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`privilege, as the holder of the privilege, only the client may waive it.17 The party asserting the
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`privilege has the burden of proving its applicability and that a waiver has not occurred.18
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`12 Fisher v. United States, 425 U.S. 391, 403 (1976) (citations omitted).
`13 Pipkins, 528 F.2d at 563.
`14 United States v. El Paso Co., 682 F.2d 530, 538 (5th Cir. 1982) (internal quotations and citation omitted); see also
`Hodges, 768 F.2d at 720.
`15 Conkling v. Turner, 883 F.2d 431, 434 (5th Cir. 1989).
`16 Cacamo v. Liberty Mut. Fire Ins. Co., 1991-1421 (La. App. 4th Cir. 2001); 798 So. 2d 1210, 1216 (citation omitted);
`LA. CODE EVID. ART. 506 (2006); see also United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997) (citations
`omitted) (holding that a party invoking the attorney-client privilege bears the burden of demonstrating its applicability
`and must show: (1) that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary
`purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding).
`17 La. Code Evid. art. 506(D).
`18 Smith v. Kavanaugh, Pierson & Talley, 513 So.2d 1138, 1143 (La.9/9/87); accord Fremin v. Entergy New Orleans,
`Inc., 2006-1700 (La. 10/6/06); 938 So.2d 62, 63; Zydeco’s II, LLC v. Certain Underwriters at Lloyd’s, London, 18-
`604 (La. App. 5 Cir. 2/19/19), 2019 WL 692963, at *5 (“The Louisiana Supreme Court has recognized that waiver of
`the attorney-client privilege may occur when a party places privileged communications ‘at issue.’”) (citation omitted).
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`Despite Intervenors’ relevance arguments, however, a litigant’s pleading of a claim or
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`defense to which his attorney client communications are relevant does not by such pleading alone
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`waive his attorney-client privilege.19 Instead, the pleading must “inevitably require the
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`introduction of a privileged communication at trial to constitute a waiver.”20 “Thus, ‘placing at
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`issue’ waiver does not depend on the relevance of the privileged communications or on the
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`adversary's need, no matter how strong, for the privileged matters.”21 Rather, the privilege holder
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`must have “committed himself to a course of action that will require the disclosure of a privileged
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`communication.”22 This principle is rooted in fairness—“when the [privilege] holder places the
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`information at issue to his own benefit, allowing ‘the privilege to protect against disclosure of such
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`information would be manifestly unfair to the opposing party.’”23 Moreover, a party who makes
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`a pretrial partial disclosure of his attorney-client communications waives his privilege as to all
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`such communications on the same subject unless he stipulates that he will not introduce any such
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`communications at trial.24
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`To determine whether G.K. has waived any attorney-client privilege concerning his
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`communications with Bentacourt or another attorney (presumedly at the Gardi Firm), this Court
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`must consider (1) whether G.K. has already revealed privileged communications; and (2) G.K.’s
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`use of his protected communications with these attorneys, if any—i.e., whether G.K. has
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`“committed himself to a course of action that will require the disclosure of a privileged
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`19 Smith, 513 So.2d at 1141.
`20 Id.; accord State v. Jennings, 220-97 (La. App. 3 Cir. 7/15/20); 304 So.3d 494, 501 (citing McNeely v. Bd. of River
`Port Pilot Comm’rs, 534 So.2d 1255 (La. 1988)).
`21 Gibbens v. Quality Rental Tools, Inc., Nos. 13-6401, 14-288, 2014 WL 5432113, at *5 (E.D. La. Oct. 24, 2014)
`(citing Stumpf v. Stumpf, 613 So.2d 683, 685 (La. Ct. App. 5th Cir.1993) (citing Smith, 513 So.2d at 1146)).
`22 Id.
`23 Forever Green Athletic Fields, Inc. v. Babcock Law Firm, LLC, No. 11-633, 2014 WL 29451, at *6 (M.D. La Jan.
`3, 2014) (quoting Conkling v. Turner, 883 F.2d 431, 434 (5th Cir. 1989).
`24 Smith, 513 So.2d at 1141; see also Ocean Sky Int’l, L.L.C. v. Limu Co., L.L.C., No. 18-00528, 2019 WL 13177256
`(W.D. La. Dec. 9, 2019) (applying Louisiana privilege law and requiring production of all communications between
`defendant and its former counsel on certain topics absent defendant’s agreement to stipulate that it would not rely on
`advice of counsel or its communications with former counsel in its defense).
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`communication,” not the intervenors’ alleged need for the communications.25
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`Intervenors have not met this burden here. First, although G.K.’s deposition testimony
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`reflects the potential existence of an attorney-client relationship between himself and Bentacourt
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`whereby the attorney “consulted with” G.K. and “gave [him] pointers,” G.K. has not disclosed any
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`specific communications between himself and Bentacourt or another attorney. Likewise, as to the
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`second inquiry, there is no evidence at this time that G.K. has committed himself to a course of
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`conduct that will require the use of any privileged communication at trial in support of his legal
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`malpractice affirmative defense.
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`Moreover, Intervenors’ assertion that a finding of waiver is appropriate because G.K. put
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`his communications with Bentacourt and other attorneys at issue by raising a legal malpractice
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`affirmative defense falls short. Notably, in making their relevance and “at issue” arguments,
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`Intervenors cite the incorrect standard. Relying on Rowan Companies, Inc. v. Houston
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`Helicopters, Inc.,26 Intervenors assert that a party is considered to have waived the attorney-client
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`privilege where “(1) assertion of the privilege was the result of an affirmative act . . .; (2) through
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`the affirmative act, the asserting party put the protected information at issue by making it relevant
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`to the case; and (3) application of the privilege would deny the opposing party access to
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`information necessary to his defense.” The Rowan court cites Hearn v. Rhay, 68 F.R.D. 574, 581
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`(E.D. Wash. 1975) as the source of this test. The Louisiana Supreme Court, however, made clear
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`in Smith v. Kavanaugh, Pierson & Talley, 513 So.2d 1138, 1143 (La. 9/9/87), that it “[has] not
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`followed the Hearn v. Rhay test because it improperly undermines the legislatively established
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`attorney-client privilege by causing courts to reassess the privilege by weighing the individual
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`privilege-holder's interests against his opponent's need for evidence whenever the privilege is
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`25 Gibbens, 2014 WL 5432113, at *5.
`26 No. 06-10755, 2007 WL 9809155, at *2 (E.D. La. Oct. 5, 2007).
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`attacked.”27 Accordingly, under Louisiana law, Intervenors’ argument that the privileged
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`information is relevant and/or necessary to their defense of the malpractice claim does not bear
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`upon the waiver decision. Instead, the operative question under Louisiana law is whether the
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`privilege holder has committed himself to a course of action that would require the disclosure of a
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`privileged communication.28
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`Intervenors fail altogether to address whether G.K. “will be forced inevitably to draw upon
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`a privileged communication [with Betancourt or any other attorney] in trial in order to prevail.”
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`Further, Intervenors’ reliance on Blackmon v. Bracken Construction Co., Inc.29 and Forever
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`Green Athletic Fields, Inc. v. Babcock Law Firm, LLC30 is inapposite. In Blackmon, a party sought
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`discovery from plaintiffs’ former counsel regarding when and how plaintiffs learned about certain
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`insurance policies and their limits. The Court found that plaintiffs waived privilege as to this topic
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`because the question of when and how plaintiffs learned of the insurance policies was “not only
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`relevant but crucial to their causes of action for fraudulent omissions, material misrepresentations,
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`detrimental reliance, and the like,” which claims all required plaintiffs to show reliance on an
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`omission or misrepresentation of a material fact to his or her own detriment.31 The court further
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`noted that the plaintiffs, who listed their former attorneys as trial witnesses, could not
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`simultaneously claim that when and how they learned of the insurance policies was privileged but
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`then selectively disclose that they were not aware of the policies prior to executing the alleged
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`settlement agreement.32 In Forever Green, plaintiffs faced a peremption issue and argued that
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`they were not “put on notice” of defendant’s malpractice until a certain date. The court agreed
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`27 Smith, 513 So.2d at 1145.
`28 Id. at 1146.
`29 No. 18-142, 2020 WL 6065520 (M.D. La. Oct. 14, 2020), aff’d, No. 18-142, 2021 WL 2150694 (M.D. La. May 26,
`2021).
`30 No. 11-633, 2014 WL 29451, at *8-*9 (M.D. La. Jan. 3, 2014).
`31 Id. at *9
`32 Id.
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`with defendant that plaintiffs “sufficiently placed the running of the one year peremptive period at
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`issue by claiming they were not put on notice of [defendant’s] malpractice” until a certain point
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`and that attorney-client communications would be relied on by the parties and the factfinder to
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`establish when the plaintiff had actual or constructive knowledge of the malpractice claim.
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`This case involves neither fraudulent misrepresentation claims nor peremption issues. Nor
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`have Intervenors identified a single specific issue for which the contents of G.K.’s communications
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`with other attorneys would prove necessary for plaintiff to use. Accordingly, the record does not
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`reflect a factual basis to find a wholesale waiver of the attorney-client privilege as to any
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`communications with Bentacourt or other attorneys.
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`B. The Requirement for a Privilege Log
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`The party asserting privilege bears the burden of proof sufficient to substantiate its claims33
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`by proving that each document it has withheld is privileged, rather than relying on a blanket
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`assertion of privilege.34 G.K.’s blanket assertion of attorney-client privilege is wholly insufficient.
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`A party withholding information by claiming attorney-client privilege “must (i) expressly
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`make the claim; and (ii) describe the nature of the documents, communications, or tangible things
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`not produced or disclosed—and do so in a manner that, without revealing information itself
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`privileged or protected, will enable the other parties to assess the claim.” FED. R. CIV. P. 26(b)(5)
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`(emphasis added). The use of the word “must” indicates that production of a privilege log,
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`including the detail specified by Rule 26(b)(5)(A)(i) and (ii), is mandatory.
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`33 United States v. Newell, 315 F.3d 510, 525 (5th Cir. 2002) (citing In re Santa Fe Int’l Corp., 272 F.3d 705, 710 (5th
`Cir. 2001)); see Hodges, 768 F.2d 719, 721.
`34 Jordan v. Aries Marine Corp., No. 14-377, 2015 WL 151336, at *3 (E.D. La. Jan. 12, 2015) (citing In re Equal
`Emp't Opportunity Comm'n, 207 F. App'x 426, 431 (5th Cir. 2006); Woodard v. Andrus, No. 2:03–2098, 2008 WL
`2540600, at *3 (W.D. La. June 20, 2008) (citing High Tech Commc'ns, Inc. v. Panasonic Co., No. 94–1447, 1995 WL
`45847, at * 1 (E.D. La. Feb. 2, 1995) (citing Hodges, 768 F.2d at 721; In re Shell Oil Ref., 812 F. Supp. 658, 661 (E.D.
`La. 1993))).
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`Case 2:21-cv-02242-GGG-DPC Document 293 Filed 03/20/24 Page 12 of 13
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`The “privilege log’s description of each document and its contents must provide sufficient
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`information to permit courts and other parties to ‘test[ ] the merits of’ the privilege claim.”35 It
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`“should not only identify the date, the author, and all recipients of each document listed therein,
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`but should also describe the document's subject matter, the purpose for its production, and a
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`specific explanation of why the document is immune from discovery.”36 Satisfying Rule
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`26(b)(5)’s requirements as to each withheld document or communication may also require
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`affidavits or declarations to establish that the items or categories withheld and the reason for same,
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`with enough information for the requesting party to assess and the court to determine whether the
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`withheld documents or information are privileged or are work product.37
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`Should G.K. have withheld any responsive documents in reliance on attorney-client
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`privilege, each communication must be identified on a privilege log as detailed herein, which
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`privilege log must be produced to Intervenors within fourteen (14) days.
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`IV. CONCLUSION
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`G.K.’s discovery responses are evasive and insufficient. Although this Court finds that
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`movants have not established a wholesale waiver of any potentially applicable attorney-client
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`privilege under Smith, G.K. must properly substantiate his invocation of privilege through a proper
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`privilege log detailing any communication withheld from production. Further, while the court
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`must accept the plaintiff’s sworn responses reflecting that he has no responsive communications,
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`35 Equal Emp’t Opportunity Comm'n v. BDO USA, L.L.P., 876 F.3d 690, 697 (5th Cir. 2017) (citing United States v.
`El Paso Co., 682 F.2d 530, 541 (5th Cir. 1982); N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011)
`(“When a party relies on a privilege log to assert these privileges, the log must ‘as to each document . . . set[] forth
`specific facts that, if credited, would suffice to establish each element of the privilege or immunity that is claimed.’”)
`(quoting Bowne, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993))).
`36 See Peacock v. Merrill, No. 08-01, 2008 WL 687195, at *3 (M.D. La. 2008) (quoting Jones v. Hamilton County
`Sheriff’s Dept., 2003 WL 21383332, at *4 (S.D. Ind. 2003) and citing Compaq Comput. Corp. v. Packard Bell Elecs.,
`Inc., 163 F.R.D. 329, 338 (N.D. Cal. 1995)).
`37 Jolivet v. Compass Group USA, Inc., 340 F.R.D. 7, 21 (N.D. Tex. 2021) (citing Navigant Consulting, Inc. v.
`Wilkinson, 220 F.R.D. 467, 473-74 (N.D. Tex. 2004)).
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`Case 2:21-cv-02242-GGG-DPC Document 293 Filed 03/20/24 Page 13 of 13
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`should Intervenors discover any undisclosed evidence, sanctions may be imposed. Accordingly,
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`for the foregoing reasons,
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`IT IS ORDERED that Intervenor’s Motion to Compel (ECF No. 286) is GRANTED IN
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`PART AND DENIED IN PART. G.K. must provide supplemental responses that do not rely on
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`his boilerplate objections and must also produce a proper privilege log within fourteen (14) days.
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`New Orleans, Louisiana, this ________ day of March, 2024.
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`___________________________________
`DONNA PHILLIPS CURRAULT
`UNITED STATES MAGISTRATE JUDGE
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