L-3 Communications Corporation et al v. Jaxon Engineering & Maintenance, Inc. et al
Filing
576
ORDER denying 573 Plaintiffs' Motion for Leave to File Oversized Motion and for Expedited Consideration. By Magistrate Judge Kathleen M. Tafoya on 3/6/2013. (klyon, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 10–cv–02868–MSK–KMT
L-3 COMMUNICATIONS CORPORATION, and
L-3 SERVICES, INC.,
Plaintiffs,
v.
JAXON ENGINEERING & MAINTENANCE, INC.,
JONI ANN WHITE,
RANDALL K. WHITE,
SCOTT WHITE,
SUSAN RETTIG,
CHARLES RETTIG,
JAMES YOUNGMAN,
JERRY LUBELL,
KELLY RICE,
JOHN MCCLURE, and
JOHN DOES 1-25, said names being fictitious as such names are unknown at this time,
Defendants.
ORDER
This matter is before the court on “Plaintiffs’ Motion for Leave to File Oversized Motion
and for Expedited Consideration” [Doc. No. 573] filed March 5, 2013. The Defendants
responded on March 6, 2013 [Doc. No. 575].
The motion concerns the contents of the Defendants’ “Modified Privilege Log.” The
subject log was produced to Plaintiffs by Defendants upon this court’s order in an attempt to
determine if there were items on the list as to which Plaintiffs might stipulate to privilege and
thus reduce the time required of the Special Master for review. The Modified Privilege Log was
not provided to the Plaintiffs in anticipation that they would file objections to documents listed
prior to the Special Master’s ex parte review and order.
Chief Judge Marcia S. Krieger’s November 19, 2012 Order [Doc. No. 416] (“MSK
Order”) provided that Defendants alone would make an initial determination of attorney-client
privilege or requested withholding based on intensely personal and irrelevant subject matter.1
After designation, this court or the Special Master were tasked to review each of Defendants’
duly designated documents and make a determination either in support of or contrary to the
initial designation of Defendants.
This court is aware that the Defendants’ log and documents submitted for review, while
comporting in a general sense with some of Judge Krieger’s language in the MSK Order, is far
more expansive than what was ultimately ordered by the court. In determining which documents
would be considered for possible removal from the previously imaged Defendants’ computer
hard drives, Judge Krieger first stated, “[u]pon a determination [after review by the Magistrate
Judge or the Special Master] that certain documents are subject to attorney-client privilege, those
specific documents can be removed from the hard drives . . . .” Id. In addition to attorney-client
1
Judge Krieger began her holding by stating, “the burden will be on the Defendants to
review the contents of the hard drives, to identify each document that they believe to contain
privileged information, and to submit both a privilege log and copies of the identified documents
to the Magistrate Judge [or Special Master] for an in camera determination of privilege.” MSK
Order at 4.
2
privileged documents, Judge Krieger added, “. . . the Court is permitting the designation (and
potential withholding) of only those documents or files that both: (i) are so intensely personal
that disclosure of them to only the Plaintiffs’ counsel and technical advisor would constitute a
severe intrusion upon personal privacy; and (ii) lack any arguable relevance whatsoever to the
claims at issue in this case.” MSK Order at 5-6 (emphasis in original). Judge Krieger ultimately
ordered,
[T]he Defendants shall file a complete privilege log, listing (and attaching) all
documents on any of the hard drives that the Defendants contend are either: (i)
subject to the attorney-client privilege or (ii) so intensely personal and so utterly
irrelevant that they should be withheld from production. The Magistrate Judge (or
such Special Master as she may direct) shall promptly consider whether the listed
documents should be produced and, if necessary, direct that specific documents
be removed from the drives before they are produced to the Plaintiffs.
Id. at 6-7 (emphasis added).
The log eventually produced by Defendants to the court greatly expanded the number and
kind of documents for which Defendants sought review and removal in that it included
documents designated as privileged pursuant to the work product doctrine and spousal and
accountant-client privileges, among others.2 This over-inclusion, however, has not interfered
with the ex parte review ordered by Judge Krieger. The Special Master is proceeding according
to the MSK Order – as he must – and is, therefore, only reviewing those documents designated
2
This court infers that the surplus designations were included by the Defendants in their
massive log as potentially helpful regarding trial objections or for other purposes; however,
Judge Krieger’s order did not direct that any documents other than attorney-client privileged or
those involving intensely personal and private information which was also completely and
wholly irrelevant, would be subject to ex parte review and potential removal from the imaged
hard drives.
3
by Defendants as attorney-client privileged and those documents designated by the Defendants
as so intensely personal that even limited disclosure of them would constitute a severe intrusion
upon personal privacy and which lack any arguable relevance whatsoever to the claims at issue
in this case.3 Documents which have been designated as subject to other privileges are irrelevant
to the Special Master’s review.
Given this clarification, the court finds that Plaintiffs, 1) do not need more than the
allotted fifteen pages to raise whatever issues they feel compelled to argue regarding the contents
of the Modified Privilege Log, and more importantly, 2) are not entitled at this stage to argue the
merits of Defendants’ designation of documents as attorney-client privileged or intensely
personal and private as well as wholly irrelevant, the only two categories upon which documents
may be held removable from the computer hard drives. Such determinations are currently the
province of the Special Master and the whole basis and reason for his ex parte review.
3
The second category of documents appear to be generally described by the Defendants
in the log as “personal,” “private” or “confidential.”
4
It is therefore ORDERED
“Plaintiffs’ Motion for Leave to File Oversized Motion and for Expedited Consideration”
[Doc. No. 573] is DENIED.
Dated this 6th day of March, 2013.
5
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