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UNITED STATES OF AMERICA Ex Rel. et al., Plaintiffs, v. DAVITA, INC. et al., Defendants.
March 31, 2014, Filed
March 31, 2014, Decided
For Daniel D. Barbir, R.N., Plaintiff: Marlan Bradley Wilbanks, Tyrone M. Bridges, LEAD ATTORNEYS, Wilbanks & Bridges,LLP, Atlanta, Ga; Christopher E. Adams, Jeffrey D. Horst, Zahra S. Karinshak, Krevolin & Horst LLC, Atlanta, GA; Jonathan David Grunberg, L. Lin Wood , Jr., Stacey Godfrey Evans, Wood, Hernacki & Evans, LLC, Atlanta, GA.
For Alon J. Vainer, M.D., F.A.C.P., Plaintiff: Christopher E. Adams, Jeffrey D. Horst, Zahra S. Karinshak, Krevolin & Horst LLC, Atlanta, GA; Jonathan David Grunberg, Katherine V. Hernacki, L. Lin Wood , Jr., Stacey Godfrey Evans, Wood, Hernacki & Evans, LLC, Atlanta, GA.
For Davita, Inc., Defendant: Alison B. Prout, Christopher Todd Giovinazzo, Elizabeth Grace Eager, John H. Rains , IV, LEAD ATTORNEYS, Benjamin E. Fox, Homer Lamar Mixson, John Earl Floyd, Randi Engel Schnell, Bondurant Mixson & Elmore, LLP, Atlanta, GA; Brian T. Ross, LEAD ATTORNEY, Grant J. Harvey, LEAD ATTORNEY, PRO HAC VICE, Gibbs & Bruns, LLP, Houston, TX; Laura McLane, Mark W. Pearlstein, LEAD ATTORNEYS, PRO HAC VICE, McDermott Will & Emery, LLP-MA, Boston, MA; Bobby Lee Cook, Cook & Connelly, Summerville, GA.
For Gambro Healthcare, Inc., and their respective subsidiaries and affiliated companies, Defendant: Alison B. Prout, Christopher Todd Giovinazzo, Elizabeth Grace Eager, John H. Rains , IV, LEAD ATTORNEYS, Benjamin E. Fox, Homer Lamar Mixson, John Earl Floyd, Randi Engel Schnell, Bondurant Mixson & Elmore, LLP, Atlanta, GA; Brian T. Ross, LEAD ATTORNEY, Gibbs & Bruns, LLP, Houston, TX; Bobby Lee Cook, Cook & Connelly, Summerville, GA.
For Union County Dialysis, LLC, Vainer & Vainer Nephrology Consultants, Inc., Dialysis of Georgia, LLC, Movants: Stacey Godfrey Evans, Wood, Hernacki & Evans, LLC, Atlanta, GA.
JUSTIN S. ANAND, UNITED STATES MAGISTRATE JUDGE.
JUSTIN S. ANAND
Plaintiffs have challenged Defendants' withholding of approximately 2,000 documents on grounds of attorney-client privilege and/or attorney work product. Plaintiffs argue that Defendants' designations are inadequate and fail to establish the privileged nature of the withheld documents. Plaintiffs thus move to compel production . Defendants oppose Plaintiffs' Motion. See Def. Resp. . Defendants provided the Court with copies of the documents at issue for an in camera review along with ex parte copies [*680] of several declarations in support of certain claims of privilege.
The Court has completed its document-by-document in camera review, and hereby GRANTS IN PART and DENIES IN PART Plaintiffs' Motion to Compel  with regard to the documents Defendants have withheld as privileged.1 The Court attaches several tables that reflect its individual rulings on the contested items. The Court cannot and has not provided individualized discussion of every document. Rather, the Court will use the body of this Order to discuss certain overall legal standards that the Court applied and how the Court handled certain specific, repeating issues.2
The Court's summary treatment [**2] of the majority of the contested documents is necessitated by the sheer volume of the material in question. The Court reviewed approximately 2,000 documents held in over 20 binders that is described in several privilege and redaction logs totaling nearly 250 pages. Thus, it is not possible for the Court to articulate every consideration and every issue raised during its very lengthy and complicated in camera review. The Court has attempted to strike a balance between providing as much analysis as reasonably possible while at the same time efficiently accomplishing the review and rendering rulings so as to not further delay this case.
I. GENERAL LEGAL STANDARDS
A. The Attorney-Client Privilege, Generally
Under Federal Rule of Civil Procedure 26 , "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b) . "'The attorney-client privilege exists to protect confidential communications between client and lawyer made for the purpose of securing legal advice.'" In re Grand Jury Proceedings 88-9 (MIA), 899 F.2d 1039 , 1042 (11th Cir. 1990) (quoting In re Grand Jury Subpoena of Slaughter, 694 F.2d 1258 , 1260 (11th Cir. 1982)). Recognition of the attorney-client privilege is intended to encourage frank communication with an attorney. See Swidler & Berlin v. U.S., 524 U.S. 399 , 403 , 118 S. Ct. 2081 , 141 L. Ed. 2d 379 (1998).
The party claiming the privilege bears the burden of proving the existence of the privilege. See, e.g., In re Grand Jury Investigation (Schroeder), 842 F.2d 1223 , 1225 (11th Cir. 1987). The party claiming the privilege must generally establish the following elements: (1) the holder of privilege is a client; (2) the person to whom communication was made is a member of the bar and that person is acting as a lawyer in connection with the communication; (3) the communication relates to a fact of which attorney was informed by the client without the presence of strangers for the purpose of securing legal advice; and (4) the privilege is claimed and not waived by the client. See In re Grand Jury Proceedings 88-9 (MIA), 899 F.2d at 1042 .
B. Corporate Communications
The application of the attorney-client privilege to internal corporation communications [*681] is a subject of much litigation and is the crux of many of the legal issues before the Court on this motion. It has long been determined that corporations are entitled to invoke the attorney-client privilege. See Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343 , 348 , 105 S. Ct. 1986 , 85 L. Ed. 2d 372 (1985) ("It is by now well established . . . that the attorney-client privilege attaches to corporations as well as to individuals."). But the exact scope of that privilege is more controversial in certain scenarios, including where communications are copied to lawyers and non-lawyers within a corporation; where lawyer advice may be discussed among non-lawyers; or where an in-house (or outside) lawyer provides both legal and business advice. The Court discusses the standards it has applied in this case in the pages that follow.
C. In Camera Review
In camera review is not appropriate merely because a party objects to the assertions of privilege. See U.S. v. Zolin, 491 U.S. 554 , 571-572 , 109 S. Ct. 2619 , 105 L. Ed. 2d 469 (1989). And it is not a basis upon which any party can shift a burden to the Court [**3] that they should bear themselves. Nevertheless, where there is a sufficient evidentiary showing that an issue exists regarding the application of a privilege, the court must utilize its discretion as to whether in camera review is appropriate under the circumstances presented. See id .
Here, Plaintiffs make a prima facie showing, among other things, that Defendants have withheld many hundreds of communications among employees about medical, billing and financial issues, some of which communications do not involve attorneys at all, and many of which involve only in-house attorneys allegedly serving legal and non-legal functions. As discussed below, the Court disagrees with Plaintiff that entire categories of such documents can be denied privileged status as a matter of law, based solely on the descriptions. Rather, as discussed below, the only way to effectively review many of the assertions of privilege in this case is to undertake a document-by-document in camera review. The Court has done so, applying the legal standards identified herein.
A. Communications Among Non-Lawyers
First, to the extent Plaintiffs argue that an internal corporate communication is necessarily non-privileged because it was between non-attorney employees, see Pl. Brf. [437-1] at 12, the Court rejects that assertion. As a general matter,
simply because a communication is made between two corporate employees, neither of whom are attorneys, that fact is not determinative of whether that communication primarily involves business advice rather than legal advice for purposes of applying the attorney-client privilege to that correspondence.
To conclude otherwise would result in a somewhat absurd finding that a document generated for purposes of obtaining and/or assisting in the transmission of legal advice would not only lose its privileged character, but would be artificially viewed as primarily a business communication merely because the author and recipient were not attorneys.In re Denture Cream Products Liab. Litig., No. 09-2051-MD, [2012 BL 429265], 2012 U.S. Dist. LEXIS 151014 , 2012 WL 5057844 , at *13 (S.D. Fla. Oct. 18, 2012); see also In re Vioxx Products Liab. Litig., 501 F. Supp. 2d 789 , 811 (E.D. La. 2007) (finding that privilege applies not only to communications between corporate employees and corporation's counsel, but also to communications among corporate employees discussing or transmitting counsel's advice); Weeks v. Samsung Heavy Indus. Co., No. 93-C-4899, [1996 BL 811], 1996 U.S. Dist. LEXIS 8554 , 1996 WL 341537 , at *4 (N.D. Ill. June 20, 1996) ("A privileged communication does not lose its status as such when an executive relays legal advice to another who shares responsibility for the subject matter underlying the consultation. Management personnel should be able to discuss the legal advice rendered to them as agents of the corporation.") (internal citations omitted).
Thus, the lack of attorneys on either side of an otherwise confidential corporate communication is not fatal to a claim of privilege. The Court, rather, must examine the claims of privilege individually to ascertain whether the documents are entitled to attorney-client [*682] protection. Nevertheless, [**4] the Court has considered the lack of any lawyer involvement in any particular communication as a factor tending to weigh against Defendants in showing the privileged nature of that communication. The ultimate touchstone for application of the privilege as to these documents is whether the communication revealed advice from, or a request for advice made to, an attorney in some fashion.
A specific category of privilege designations to which Plaintiffs object reflect communications not directly involving attorneys, but rather requesting or transmitting information "at the direction of counsel." Pl. Brf. [437-1] at 15. For the reasons stated above, the Court declines to find that such documents are categorically non-privileged. Rather, the Court has individually reviewed these and other documents pursuant to the standards outlined herein. In reviewing such documents, the Court finds that the mere allegation in the privilege log that a document was prepared and transmitted "at the direction of counsel" does not in itself support a claim of privilege. Rather, the Court looked to the communication itself and other evidence provided to clearly show whether the communication was principally intended to gather facts for ultimate dissemination to a lawyer for that lawyer's legal advice. Where the only information presented was an allegation in the log itself that a document was prepared or transmitted "at the direction of counsel," the Court generally denied the claim of privilege. See, e.g., Nos. 68-70.
B. Communications with Corporate Lawyers
1. Primary Purpose To Relay Or Request Legal Advice
By the same token, a communication is not necessarily privileged simply because a company lawyer is copied. Rather, Defendants must show, irrespective of whether one or more lawyers sent or received the communication, that the communication was confidential and that the primary purpose of the communication was to relay, request or transmit legal advice. See, e.g., U.S. ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., 6:09-cv-1002-Orl-31TBS, [2012 BL 292080], 2012 U.S. Dist. LEXIS 158944 , [2012 BL 292080], 2012 WL 5415108 , at *4 (M.D. Fla. Nov. 6, 2012). Thus, "[w]here a lawyer provides non-legal business advice, the communication is not privileged." Wachtel v. Health Net, Inc., 482 F.3d 225 , 231 (3rd Cir. 2007). Similarly, because the privilege only applies to communications made in confidence, a communication loses its protection if made in the presence of third parties, see id ., or disseminated beyond the group of corporate employees "who have a need to know in the scope of their corporate responsibilities." In re Vioxx, 501 F. Supp. 2d at 796 .
"[C]ommunications between corporate client and outside litigation counsel are cloaked with a presumption of privilege." Baklid-Kunz, [2012 BL 292080], 2012 U.S. Dist. LEXIS 158944 , [2012 BL 292080], 2012 WL 5415108 at *3. "Communications between corporate client and corporate counsel," however, "involve a much different dynamic," and the party invoking the privilege must clearly show that the primary purpose of the communication was, in fact, for legal advice. Id .
Nevertheless, Defendants here operate in the heavily-regulated, closely-overseen world of health care services and billing for such under [**5] federal programs such as Medicare. The Court recognizes that
[b]usiness entities, like the [D]efendants, operating in today's labyrinthine legal and regulatory environments, routinely seek legal advice about how to deal with all sorts of matters . . . . There is nothing inherently suspicious about the officers of a corporation seeking such advice, and the attorney-client privilege exists to promote and protect those kinds of endeavors.In re Sulfuric Acid Antitrust Litig., 235 F.R.D. 407 , 424 (N.D. Ill. 2006).
As generally disclosed on Defendants' privilege log, many of the withheld documents discuss in some way the advisability and/or implementation and/or billing implications of certain medical practices. In some instances, as noted in the attached tables of rulings, the Court rejects the claim of privilege because it is not evident that the primary purpose of the communication was legal, as opposed to business, advice. However, if the primary purpose of the communication appeared to be a request or transmission of legal advice, the Court upheld the[*683] claim of privilege even if there were some incidental business advice discussed. Given the heavily-regulated nature of Defendants' business, the Court took "a broad view of legal advice in applying the privilege, in recognition of the unique role that an attorney brings to bear in imparting advice that may incidentally also involve business advice." U.S. Postal Serv. v. Phelps Dodge Refining Corp., 852 F. Supp. 156 , 160 (E.D.N.Y. 1994). In the end, the Court's determination required an individualized, document-by-document review as reflected in the attached tables.
2. Transmission of Business Records And Communication Of Facts To Attorneys
It is well-established that the attorney-client privilege applies only to communications, and does not protect disclosure of the underlying facts by those who communicated with the attorney. See Upjohn Co. v. U.S., 449 U.S. 383 , 395-396 , 101 S. Ct. 677 , 66 L. Ed. 2d 584 (1981). In other words:
[T]he protection of the privilege extends only to communications and not to facts.
A fact is one thing and a communication concerning that fact is an entirely different thing.
The client cannot be compelled to answer the question, 'What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.Id . (quoting City of Philadelphia, Pa. v. Westinghouse Elec. Corp., 205 F. Supp. 830 , 831 (E.D. Pa. 1962)).
While facts themselves are not privileged, a confidential attorney-client communication that includes or discusses facts may be privileged if it otherwise meets the necessary elements. See Oasis Int'l Waters, Inc. v. U.S., 110 Fed. Cl. 87 , 99 ("Underlying facts . . . are independently discoverable, but the facts that a client included in a request for legal advice to assist the attorney in providing legal services are privileged in the context of an attorney-client communication."). It remains, however, that the privilege applies to the communication (which may include discussions of fact) but not to the facts themselves.
Many of the items listed on Defendants' privilege logs [**6] are emails or other communications to or from lawyers that attach draft documents. The Court generally finds that the attorney-client privilege applies to confidential, non-public drafts of documents which were prepared by an attorney at the request of the client; communications attaching a draft to an attorney with a request for legal advice regarding its content; or communications that contain notes or comments of the attorney reflecting legal advice regarding a document's content. See United Food and Commercial Works Union v. Chesapeake Energy Corp., No. CIV-09-1114-D, [2012 BL 157175], 2012 U.S. Dist. LEXIS 86913 , 2012 WL 2370637 , at * 10-11 (W.D. Okla. June 22, 2012). Indeed, the proper drafting of sensitive business documents "is often the type of communication at the core of the attorney-client privilege," and attorney-client communications discussing and attaching such drafts should generally be entitled to a privilege. [2012 BL 157175], 2012 U.S. Dist. LEXIS 86913 , [WL ] at *10 (internal citations omitted). Thus, the Court in its in camera review has treated drafts of documents included within or attached to attorney-client communications discussing the contents of those drafts as part of the communication itself, and subject to a claim of privilege.
However, the Court in its in camera review generally rejected Defendants' claims of privilege where a copy of a draft business document was simply distributed to an attorney without a request for legal comment or advice; without comments or notes made by the attorney reflecting legal advice; or lacking other circumstances in which the distribution of the document reflected a request for legal advice.
From time to time, Defendants also withheld as privileged finalized, non-draft business documents that were transmitted to lawyers. The Court attempted to review these communications to determine whether the transmission of the business document was part of, or otherwise reflected, a request for legal advice. If so, the Court generally upheld the claim of privilege as to the communication as a whole, including the business document. If not, the Court generally overruled the claim of privilege.
[*684] It remains the communication that is potentially privileged, including, as appropriate, business documents attached to a communication. If the same business document exists apart from an attorney-client communication, it is not entitled to privileged status simply because the draft was at some point the subject of an attorney-client communication.
C. Defendants' Privilege Log
The mere assertion of attorney-client privilege is not enough; the party asserting the privilege bears the burden of establishing all of its essential elements. See U.S. v. BDO Seidman, 337 F.3d 802 , 811 (7th Cir. 2003). "A privilege log has become an almost universal method of asserting privilege under the Federal Rules." Caudle v. Dist. of Columbia, 263 F.R.D. 29 , 35 (D.D.C. 2009).
Whether by privilege log or otherwise, Rule 26 requires that
[w]hen a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make [**7] the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.Fed. R. Civ. P. 26(b)(5) .
A privilege log is not itself evidence of the existence of a privilege; rather, Fed. R. Civ. P. 26(b)(5) requires the withholding party to create a log to alert the opposing parties that documents have been withheld on grounds of privilege, and to provide enough information about the basis of the claim to "enable other parties to assess the claim." Fed. R. Civ. P. 26(b)(5)(A)(ii) . If a claim of privilege is challenged, including by way of an in camera review, the party asserting the privilege is obligated to establish the requisite factual predicate for the claim by "competent evidence." Zelaya v. UNICCO Serv. Co., 682 F. Supp. 2d 28 , 38 (D.D.C. 2010) (internal quotations omitted). A claim of privilege may be defeated by an inadequate log, but it cannot be sustained purely on the basis of unsworn information in a privilege log.
Plaintiffs argue that numerous entries on Defendants' privilege log are insufficient and thereby deny Plaintiffs the ability to assess the claim. The Court has reviewed the entries in question along with the content of the withheld documents, and where it has identified shortcoming in Defendants' log entries, the Court identifies those deficiencies in the attached table.
A specific issue Plaintiffs raised is the proper logging of email "strings." Many of Defendants' 2,000 withheld documents are emails, and many of those documents actually include multiple emails in a single "thread" or "string."3
In their log, Defendants made individual entries to reflect entire strings of emails, which strings included one or more emails allegedly constituting attorney-client communications. Generally, it appeared that any individual entry only listed the date, sender and recipient(s) of the last message in the string of emails constituting the document logged in that entry. Plaintiffs contend that Defendants were obliged to individually log every email within every string, and that any privilege should be deemed waived as to the email string documents not logged in this manner. Plaintiffs alternatively demand that Defendants be ordered to correct their log.
How email "strings" should be logged is the subject of emerging case law, and various courts have offered different positions. Compare Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 254 F.R.D. 238 , 240-241 (E.D. Pa 2008) (finding that each individual email within a string is a separate document that, if withheld, should be separately logged); In re Universal Serv. Fund Tel. Billing Practices Litig., 232 F.R.D. 669 , 671 (D. Kan. 2005) (same); Muro v. Target Corp., 250 F.R.D. 350 , 362-363 (N.D. Ill. 2007) (privilege can extend to the entire document, including forwarded emails in a string, depending on the content, and an entire string can[*685] be logged as one). No binding precedent exists in the Eleventh Circuit, at least insofar as the parties have identified or that the Court has found.
The emerging majority view appears to be that individual [**8] emails within a string should be separately logged in some fashion. See, e.g., BreathableBaby, LLC v. Crown Crafts, Inc., No. 12-CV-94, [2013 BL 410959], 2013 U.S. Dist. LEXIS 95508 , 2013 WL 3350594 , at *10 (D. Minn. May 31, 2013) ("Recently, however, courts are moving in the direction of requiring litigants to log separately each e-mail in a string.") (citing In re Vioxx Products Liab. Litig., 501 F. Supp. 2d 789 , 812 (E.D. La. 2007) ("Simply because technology has made it possible to physically link these separate communications (which in the past have been separate memoranda) does not justify treating them as one communication and denying the demanding party a fair opportunity to evaluate privilege claims raised by the producing party.")); Baxter Healthcare Corp. v. Fresenius Med. Care Holding, Inc., No. C 07-1359 PJH (JL), [2008 BL 229777], 2008 U.S. Dist. LEXIS 85180 , 2008 WL 4547190 , at *1 (N.D. Cal. Oct. 10, 2008) ("Each e-mail is a separate communication, for which a privilege may or may not be applicable. Defendants cannot justify aggregating authors and recipients for all e-mails in a string and then claiming privilege for the aggregated e-mails.").
The Court agrees with this more expansive approach. A string of emails, after all, is not just a single communication. It reflects a series of different communications that, because of the way in which it was printed or maintained, happens to exist as one document. Logging the details of only the ultimate, top, email would not accurately state how many separate communications are included in the withheld document, and who received which of those communications. Such an approach may deprive Plaintiffs, and a reviewing Court, of the ability to assess the claim of privilege. Thus, the Court agrees with Plaintiffs that, if Defendants wish to withhold emails as privileged, Defendants must disclose the details of those emails and the basis of the claim of privilege on the privilege log in some fashion. This is true of emails that exist solely within a "string" just as with any other withheld communication.
However, the Court is concerned with the potential of massive amounts of duplication. A typical email string may exist in multiple different forms as more and more communications are added. The initial email that begins a string may appear 10 or more times in different versions of the same string. The Court does not intend that this email be logged ten separate times, which in this case might turn Defendants' 250 pages of logs into 2,500 pages with little added benefit.
Thus, the Court simply requires that Defendants ensure that each withheld email within a string be logged in some fashion at least once. The Court notes that in many cases this appears to already be the case. It appears to the Court that Defendants logged many separate iterations of particular email strings as they continued to grow. To illustrate, Email A may have been logged in one entry; when Email A was forwarded via Email B, creating a "string," that string was separately logged; when the string was forwarded again via Email C, this new iteration of the string was separately logged; and so on and so on as the email string grew with various forwarding emails. In each of these illustrative log entries, only the [**9] details of the "top" email may have been logged. But in total, every email was ultimately logged because they each took their "turn" as the "top" email. Defendants also noted where emails strings were related to others. See, e.g., Log Entry 3358 (logging date, sender and recipient details as to the top email in a particular string of emails printed out as one document, but stating that "Portions of this email chain appear in entries 3360, 3361, 3362, 3363, 3364, 3365, 3374.").
Again, the Court cannot say that every individual withheld email within every string has been logged in this fashion. But to the extent emails were disclosed and logged at least once via the process described above-which appears to be the case in several instances-this Order does not require more.
Thus, the Court ORDERS Defendants to review their logs to verify and determine the extent to which all withheld emails within email strings are already separately disclosed. If any emails are not already described, Defendants are ORDERED to supplement their logs accordingly. Defendants must furnish an affidavit to Plaintiffs stating[*686] that, except for whatever documents are disclosed in any supplemental log, Defendants have determined after conducting their review that all other withheld emails are already disclosed. Defendants are ORDERED to provide this material within forty-five (45) days of the date of this Order subject to an extension on good cause shown.
D. Other Matters
1. Ex Parte Affidavits
Defendants in certain cases have relied on ex parte affidavits, not served on Plaintiffs, to support their claim of privilege. Defendants' privilege logs include a notation where an ex parte affidavit is relied upon, but the affidavits themselves have not been shared with Plaintiffs. Plaintiffs object to this approach.
"Ex parte proceedings are an exception to the rule in our judicial system and contrary to its adversarial nature." In re High Sulfur Content Gasoline Products Liab. Litig., 517 F.3d 220 , 231 (5th Cir. 2008). Nevertheless, there are certain situations in which the Court must exercise its discretion to consider ex parte submissions or hold an ex parte hearing. See, e.g., Nixon v. Sirica, 487 F.2d 700 , 721 , 159 U.S. App. D.C. 58 (D.C. Cir. 1973) (stating that after the assertion of a privilege, it may be appropriate, in addition to collecting documents and recordings for in camera inspection, to receive evidence ex parte). This is one of those instances. Defendants bear a burden to establish a claimed privilege, and in some cases, especially given the complicated nature of the matters at issue, the Court requires further context to understand the claim of privilege. An email or document, for example, may contain terms, short-hand, or references that the Court does not understand without further factual explanation of the context of that discussion. In this regard, it is appropriate to allow Defendants to attempt to meet their burden to establish a privilege, where necessary, via submission of additional evidence. Moreover, by definition, these affidavits may reveal privileged information to the extent that they help explain [**10] the context of particular communications. In this regard, the Court generally permits the filing and reliance on ex parte affidavits.
However, to the extent Defendants have shared no part of any of these affidavits with Plaintiffs, such withholding is over-broad. Not every paragraph of every one of these affidavits reveals the substance of confidential attorney advice or requests for such advice. Several of the paragraphs include nothing more than a very generalized statement of the subject matter and no disclosure of any actual substance of the attorney-client advice. For example, Paragraphs 48, 55 and 56 of Timothy Blanchard's May 28, 2013 Declaration offers nothing that could not be included in a privilege log. The same is true with regard to Paragraph 27 of James Baird's May 22, 2013 Declaration. These are mere examples, as the Court at this juncture has not endeavored to pore through all paragraphs of every declaration to make a separate in camera assessment of whether truly privileged material is revealed. Thus, the Court ORDERS Defendants to conduct a review of their ex parte declarations to determine what portions they truly believe warrant withholding on grounds of privilege, and to produce the remainder to Plaintiffs. Defendants are ORDERED to do so within thirty (30) days of the date of this Order, subject to extension upon good cause. The Court may, if Plaintiffs request, thereafter review whatever material Defendant continues to redact to determine whether it may be withheld on grounds of privilege.
2. Waiver Based On Summary Judgment Defenses
Long after filing their Motion to Compel , Plaintiffs on February 25, 2014 submitted a letter brief to the Court asserting a separate, newly-arisen ground by which they assert certain of Defendants' claims of privilege should be rejected. Specifically, Plaintiffs argue that certain defenses Defendants asserted in their pending Motions for Summary Judgment  have waived any privileged as to categories of documents because those defenses put Defendants' good faith interpretations of law at issue. Defendants have responded by letter brief dated February 28, 2014, arguing that Plaintiffs mischaracterized the nature of the summary judgment defenses; that those defenses do not put their subjective good faith at issue; and that they do not waive any privilege.
[*687] Because this issue is by definition newly-arisen in the context of the summary judgment briefing, this issue was not included in the original, pending Motion to Compel . The Court cannot resolve this issue in the context of the instant Order, which is intended to resolve the original, pending Motion . Thus, the Court will take this new, separate, issue under advisement and not delay the issuance of this Order while it contemplates the waiver argument. The Court is separately forwarding the letter submissions referenced above to the Clerk, and the Clerk is DIRECTED to file Plaintiffs' February 25, 2014 letter brief as a new Motion to Compel Production of Privileged Documents. [**11] The Clerk is DIRECTED to file Defendants' February 28, 2014 letters as their Response in Opposition to same.
Plaintiffs' Motion  is GRANTED IN PART AND DENIED IN PART.
The Court ORDERS Defendants to respond within thirty (30) days of the date of this Order to any action that the Court demands Defendants take in the attached tables.
The Court also ORDERS Defendants to review their privilege logs to verify the extent to which all withheld emails within email strings are already separately disclosed. If any emails are not already described (disclosed), Defendants are ORDERED to supplement their logs accordingly. Defendants must furnish an affidavit to Plaintiffs stating that, except for whatever documents are disclosed in any supplemental log, Defendants have determined after conducting their review that all other withheld emails have already been disclosed. Defendants are ORDERED to provide this material to Plaintiffs within forty-five (45) days of the date of this Order, subject to an extension on good cause shown.
The Court further ORDERS Defendants to conduct a review of their ex parte declarations to determine what portions they truly believe warrant withholding on grounds of privilege, and to produce the remainder to Plaintiffs. Defendants are ORDERED to do so within thirty (30) days of the date of this Order, subject to extension upon good cause.
The Clerk is DIRECTED to file Plaintiffs' February 25, 2014 letter brief as a new Motion to Compel Production of Privileged Documents and Defendants' February 28, 2014 letter as their Response in Opposition to same.
IT IS SO ORDERED this 31st day of March, 2014.
/s/ Justin S. Anand
JUSTIN S. ANAND
UNITED STATES MAGISTRATE JUDGE
The Court previously ruled on other matters raised in the Motion to Compel  by Order dated September 4, 2013 , but reserved ruling on the disputed assertions of privilege at that time. See Order  at 1.
Defendants submitted documents over time to the Court. The Court attaches different tables relating specifically to the various document productions that were submitted. For the sake of efficiency, the Court did not include every entry in these tables. The Court only included entries that required some discussion. To the extent an entry is not listed in the pertinent table, the Court is upholding the claim of privilege and denying relief to Plaintiffs.
The tables include the document number and other identifying information for each entry, as well as a column entitled "Ruling." The entry for this column in each case will be one of four options: "D" (indicating that Plaintiffs' motion is DENIED as to that particular document); "G" (indicating that Plaintiff's motion is GRANTED as to that particular document, and that the document must be produced); "R" (indicating that the Court is GRANTING IN PART the motion as to that document, but finding that some material within the document is privileged and may be or continue to be redacted); or "O" (indicating that the Court is issuing some other order relating to this entry, typically requesting more information). Unless otherwise stated, the Court ORDERS Defendants to respond to any action demanded of them by this Order or any of the entries in the attached tables within thirty (30) days of the date of this Order.
An email "thread" or "string" is an email message and a running set of all the subsequent replies pertaining to that original email as maintained by a recipient.