On January 14, 2011, more than a year after responses to Relators’ first document requests were due and more than six months after the close of discovery, State Farm disclosed the existence of another 8,000 pages of documents in three boxes labeled “McIntosh Zone Litigation File.” These Documents had been “discovered” in the office of Terry Blaylock, State Farm’s 30(b)(6) witness who was designated specifically to testify on matters related to State Farm’s document production and document retention practices.
State Farm acknowledges that the Documents were “brought . . . to the attention of the State Farm corporate legal department in December 2010” but the existence of the Documents was not disclosed to Relators at that time. Despite the fact that a hearing related to dispositive motions and trial scheduling was to occur on January 12, 2011 and despite the fact that State Farm was taking depositions in this case during the last week of December and the first week of January, State Farm chose not to disclose these Documents to the Relators or this Court. Instead, on January 14, 2011, two days after oral argument, State Farm gave Relators a three-line privilege log that identified these 8,000 pages of Documents simply as “Zone litigation file for
The January 14 “privilege log” in its entirety provides as follows:
As the Rigsbys point out, “…The “log” contained no description of any of the individual Documents, did not identify by whom the Documents were created or collected, did not identify to whom the Documents were addressed or distributed, and failed to identify any privilege or other protection applicable to any such document”. (Relators’ Memorandum in Support of Their Motion for an Order to Compel Complete and Prompt Production of Late-Disclosed Documents in Scribd’ format below)
Suprised? Not if you’ve followed Katrina litigation on SLABBED. State Farm has repeatedly claimed documents were protected and forced the Court into a costly, time-consuming examination of untold thousands of pages of documents. What makes these 8000 pages different is the Company can’t seem to keep its story straight.
State Farm has now taken three contradictory positions with respect to the Documents: (1) all 8,000 pages are responsive and privileged;10 (2) “nearly all” of the Documents are unresponsive11 and 14 pages of them are privileged;12 and (3) an unspecified number of the Documents are responsive but privileged in some unspecified way.13 In no instance has State Farm provided enough information to allow either Relators or the Court to make any determination as to the applicability of any claimed privilege.
The Rigsbys contend State Farm has “waived any privilege that might have attached to these Documents and should be ordered to produce them”.
First, State Farm produced two privilege logs that fail to provide basic information necessary to support privilege claims over these 8,000 pages of documents, including the identity of the author and recipient and the specific privilege asserted. Indeed, lumping all of these Documents into three entries makes the first log inadequate on its face. Second, the privilege log is nearly one year late. State Farm has provided no justification for failing to identify these Documents until more than a year after Relators’ requests were served and more than six months after the close of discovery. Third, the magnitude of the withheld Documents is significant relative to the total document production in this case. State Farm is withholding 8,000 pages of documents, which is equal to nearly half of the total number of documents produced. Finally, production of these three boxes will not be difficult for State Farm. The Documents at issue here were both already compiled from previous litigation and were “discovered” in the office of the
State Farm official designated to testify as to State Farm’s document retention policies.
State Farm’s status as a “sophisticated corporate litigant” and a “repeat player” in litigation makes its failure to comply with its discovery obligations even less excusable.
Less excusable, but par for the course charted by the “good neighbor”.
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