Opinion
Civil Action 2:05-CV-744.
March 9, 2007
OPINION AND ORDER
This is an action under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., in which plaintiffs allege that UNUM Provident Corporation and its subsidiaries ("the corporate defendants") improperly terminated plaintiffs' benefits and that they violated RICO in their claims-handling practices and in pursuing what plaintiffs characterize as a "Bogus Trust Scheme." Plaintiffs also allege that the individual defendants mismanaged the claims of certain plaintiffs.
This matter is before the Court on Plaintiffs' Non-Dispositive Motion and Memorandum to Magistrate Judge Norah McCann King for an Order Rejecting the Corporate Defendants' Claim of Privilege Concerning Certain Documents (" Plaintiff's Motion to Compel"), Doc. Nos. 57, 70, and on the corporate defendants' motion to strike certain documents submitted by plaintiffs in support of their motion (" Corporate Defendants' Motion to Strike"), Doc. No. 78. For the reasons that follow, both motions are GRANTED.
Following the continued preliminary pretrial conference held on April 20, 2006, this Court directed the corporate defendants to produce, for in camera inspection, documents withheld from production on the ground of privilege. Doc. No. 55. On April 26, 2006, the corporate defendants submitted those documents and filed The Corporate Defendants' Memorandum in Support of Assertion of Privilege Claim, Doc. No. 56. On April 28, 2006, plaintiffs filed the Plaintiffs' Motion to Compel, Doc. No. 57. On May 19, 2006, the corporate defendants filed another memorandum, incorporating their Memorandum in Support of Assertion of Privilege Claim, Doc. No. 61. On August 25, 2006, plaintiffs filed a supplemental memorandum (" Plaintiffs' Supplement"), Doc. No. 70. On October 2, 2006, the corporate defendants filed The Corporate Defendants' Motion to Strike, which also supplements their Memorandum in Support of Assertion of Privilege Claim, Doc. No. 78.
I. THE CORPORATE DEFENDANTS' MOTION TO STRIKE
A. Standard for Motions to Strike
Rule 12(f) of the Federal Rules of Civil Procedure provides, "upon motion made by a party . . . the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). Such motions are generally viewed with disfavor and are rarely granted. AT T Global Information Solutions Co. v. Union Tank Car Co., Case No. C2-94-876, 1997 U.S. Dist. LEXIS 6090, *6-7 (S.D. Ohio Mar. 31, 1997) (J. Holschuh) (citing Brown and Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953)); Morrow v. South, 540 F. Supp. 1104, 1111 (S.D. Ohio 1982) (J. Rice).
B. Discussion
Attached as Exhibit A to Plaintiffs' Supplement, Doc. No. 70, are four (4) documents that plaintiffs contend are relevant to Plaintiffs' Motion to Compel, but which are not authenticated in any respect. The corporate defendants argue, inter alia, that these documents are inadmissible and should therefore be stricken and not considered by this Court in its resolution of Plaintiffs' Motion to Compel. The Corporate Defendants' Motion to Strike at 2. This Court agrees. See 2A Moore's Federal Practice, § 12.21[1] (striking inadmissible evidence)
Accordingly, The Corporate Defendants' Motion to Strike, Doc. No. 78, is GRANTED. This Court will not consider the documents attached as Exhibit A to Plaintiffs' Supplement in its consideration of Plaintiff's Motion to Compel.
II. PLAINTIFFS' MOTION TO COMPEL
A. Standard for Motions to Compel
Rule 37 of the Federal Rules of Civil Procedure authorizes an order compelling discovery if a party fails to respond to discovery requests, so long as the motion to compel includes a certification that the movant has in good faith conferred or attempted to confer with the party failing to respond to the requests. Fed.R.Civ.P. 37(a)(2)(A). The Court is satisfied this prerequisite has been satisfied in this case.
Determining the proper scope of discovery falls within the broad discretion of the trial court. Lewis v. ACB Business Services, Inc., 135 F.3d 389, 402 (6th Cir. 1998). Rule 34 of the Federal Rules of Civil Procedure provides for discovery of documents in the "possession, custody or control" of a party, provided that the documents "constitute or contain matters within the scope of Rule 26(b)." Fed.R.Civ.P. 34(a). In turn, Rule 26(b) provides that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . ." Fed.R.Civ.P. 26(b)(1).
B. Discussion
The corporate defendants claim the right to withhold certain documents under the work product doctrine or the attorney-client privilege and to withhold other documents in order to protect the privacy interests of non-parties. The corporate defendants have submitted the withheld documents for in camera inspection in accordance with this Court's April 21, 2006, Order.
1. Privacy interests of non-parties
The corporate defendants have redacted the names and/or social security numbers of non-parties from certain documents. Plaintiffs do not challenge the redaction of this information. However, it is unclear to the Court whether these documents were produced to plaintiffs in redacted form, or were instead withheld and referred to in the corporate defendants' privilege logs.
If the corporate defendants have not yet done so, they must produce these documents to plaintiffs in redacted form.
2. Attorney — Client Privilege
"Questions of privilege are to be determined by federal common law in federal question cases." Reed v. Baxter, 134 F.3d 351, 355 (6th Cir. 1998) (citing Fed.R.Evid. 501 ).
Rule 501 of the Federal Rules of Evidence provides that, except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.
a. The corporate defendants are not entitled to the protection of the attorney-client privilege in this instance.
The attorney-client privilege is properly invoked under the following circumstances:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.Id. at 355-56 (citing Fausek v. White, 965 F.2d 126, 129 (6th Cir. 1992) and United States v. Goldfarb, 328 F.2d 280, 281 (6th Cir. 1964)). "Claims of attorney-client privilege are `narrowly construed because [the privilege] reduces the amount of information discoverable during the course of a lawsuit.'" Tenn. Laborers Health Welfare Fund v. Columbia/HCA Healthcare Copr., 293 F.3d 289, 294 (6th Cir. 2002) (citing United States v. Collis, 128 F.3d 313, 320 (6th Cir. 1997)). The burden of establishing the protection of the attorney-client privilege rests with the person or entity asserting it. United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999) (citing In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 450 (6th Cir. 1983)).
In the case sub judice, plaintiffs challenge the applicability of the attorney — client privilege to any documents and argue that, in any event, the corporate defendants have waived that privilege. Additionally, plaintiffs contend that the fiduciary exception to the application of the attorney-client privilege requires the disclosure of the withheld documents. This Court agrees.
I. The waiver of the attorney — client privilege
The attorney-client privilege can be waived by disclosure of otherwise private communications to third parties. See In re Grand Jury Proceedings Oct. 12, 1995, 78 F.3d 251, 254 (6th Cir. 1996). "The confidentiality of communications covered by the privilege must be jealously guarded by the holder of the privilege lest it be waived. The courts will grant no greater protection to those who assert the privilege than their own precautions warrant." In re Lewis v Unum Corporation Severance Plan, 203 F.R.D. 615, 620 (D Kansas 2001).
Both plaintiffs and the corporate defendants cite this case as support for their respective positions on the attorney-client privilege.
In this action, it is the corporate defendants who carry the ultimate burden to establish that the communications are protected by the attorney — client privilege and it follows that it is the corporate defendants who bear the burden of establishing that they have not waived the privilege. See In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003) (proponent of privilege carries burden of showing no waiver); KW Muth Co. v. Bing-Lear Mfg. Group, LLC, 219 F.R.D. 554, 567-68 (E.D. Mich. 2003); Fidelity and Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516, 521 (E.D.Pa. 1996); Fox v. Massey — Ferguson, Inc., 172 F.R.D. 653, 671 (E.D. Mich. 1995); Edwards v. Whitaker, 868 F.Supp. 226, 229 (N. D. Tenn. 1994).
Plaintiffs argue that, even assuming privilege in the first instance, the corporate defendants waived the privilege because the documents "were exposed to all claims administrators as documentation of the claim handling process and were Bates numbered and included in the claim files." Plaintiffs' Motion to Compel at 6. Plaintiffs characterize the claims administrators employed by the corporate defendants as "third parties" for purposes of the privilege analysis in this action. See Lewis, supra, 203 F.R.D. at 620 (the administrators of an ERISA plan are fiduciaries acting on behalf of the beneficiaries of the plan and are not acting in their capacity as company representatives). According to plaintiffs, "All claims handlers are characterized as `administrators' under the Lewis analysis and therefore any claim of privilege has been waived. The claims handlers or administrators cannot be viewed as clients adverse to the ERISA beneficiaries for whom they are trustees. Therefore, no privilege is allowed." Plaintiffs' Motion to Compel at 7.
The Court finds plaintiffs' argument in this regard, which is unchallenged by the corporate defendants, persuasive. The Court concludes that the corporate defendants waived the attorney-client privilege when they disclosed the documents to the claims administrators.
ii. The withheld documents fall under the fiduciary exception to the attorney-client privilege.
Alternatively, plaintiffs contend that the documents fall under the fiduciary exception to the attorney-client privilege and must therefore be disclosed to plaintiffs. The corporate defendants recognize that a "fiduciary exception" to the privilege exists under certain circumstances:
[The corporate defendants] readily acknowledge that several courts have held that, in ERISA cases, there is a "fiduciary exception" to the attorney-client privilege by which an ERISA employer or plan administrator cannot assert the privilege against a beneficiary. See, e.g., Fishel v. Equitable Life Assurance, 191 F.R.D. 606 (N.D. Cal. 2000); Hudson v. General Dynamics, 186 F.R.D. 271 (D. Conn. 1999); United States v. Mett, 178 F.3d 1058 (9th Cir. 1999). Importantly, however, this "fiduciary exception" is limited. The attorney-client privilege will reassert itself to protect any advice a fiduciary obtains to protect itself from liability. Fishel, 191 F.R.D. at 609; Mett, 178 F.3d at 1065. "The attorney-client privilege does apply when an attorney advises a plan fiduciary regarding issues that do not involve actual administration of the plan." Lewis v. UNUM Corp. Severance Plan, 203 F.R.D. 615, 620 (D. Kan. 2001); see also Belluardo v. Cox Enter. Pension Plan, 2003 U.S. Dist. LEXIS 26829 (S.D. Ohio Nov. 10, 2003) . . . (following Lewis).The Corporate Defendants' Memorandum in Support of Assertion of Privilege Claim at 2-3. See also In re Allen, 106 F.3d 582, 600 (4th Cir. 1997) ("In the context of [ERISA], the fiduciary exception to the attorney/client privilege provides that `an employer acting in the capacity of ERISA fiduciary is disabled from asserting the attorney-client privilege against plan beneficiaries on matters of plan administration.'") (quoting In re Long Island Lighting Co., 129 F.3d 268, 272 (2d Cir. 1997)). Indeed, both plaintiffs and the corporate defendants acknowledge the general parameters of this exception to the attorney-client privilege.
In Mett, supra, 178 F.3d 1058, the United States Court of Appeals for the Ninth Circuit summarized cases analyzing the fiduciary exception to the attorney-client privilege:
On the one hand, where an ERISA trustee seeks an attorney's advice on a matter of plan administration and where the advice clearly does not implicate the trustee in any personal capacity, the trustee cannot invoke the attorney-client privilege against the plan beneficiaries. On the other hand, where a plan fiduciary retains counsel in order to defend herself against the plan beneficiaries . . ., the attorney-client privilege remains intact.Id. at 1064 (fiduciary exception inapplicable in a criminal appeal because, in large part, the privileged communications were effected to advise the plan trustees, who were the defendants in the criminal case). As the court in Mett explained, "the fiduciary exception is not an `exception' to the attorney-client privilege at all. Rather, it merely reflects the fact that, at least as to advice regarding plan administration, a trustee is not `the real client' and thus never enjoyed the privilege in the first place." Id. at 1063. "In comparison, `when an administrator is required to justify or to defend against a beneficiary's claims made because of an act of plan administration, the administrator does not act directly in the interests of the disappointed beneficiary but in his own interests or in the interests of the rest of the beneficiaries.'" Coffman v Metro. Life Ins. Co., 204 F.R.D. 296 (S.D. W. Va 2001) (citing Geissal v. Moore Medical Corp., 192 F.R.D. 620, 624 (E.D. Mo. 2000) and Mett, 178 F.3d at 1063). The corporate defendants agree with this articulation of the appropriate analysis, but they argue that, because the fiduciaries in this action sought legal advice for their own protection, the fiduciary exception to the privilege does not serve to require disclosure of the withheld documents. The Corporate Defendants' Memorandum in Support of Assertion of Privilege Claim at 2, 3.
Plaintiffs argue that none of the withheld communications were related to legal advice for the personal protection of the administrators. Instead, plaintiffs contend, the advice provided by attorneys addressed matters of plan administration rather than any issue of personal liability of any administrator. Plaintiffs' Motion to Compel at 7-8. In this regard, plaintiffs note that no trustee, manager, general counsel or outside litigation counsel was copied on the withheld communications, suggesting that the communications were limited to the attorneys essentially providing advice regarding how to handle the claims. Id. Thus, plaintiffs conclude that the withheld documents fall into the fiduciary exception.
After in camera review, the Court concludes that the documents withheld as privileged were not generated for a plan fiduciary "in order to defend herself against the plan beneficiaries." See Mett, supra. There is simply no legal advice given for the personal protection of the administrators in the withheld documents. The documents appear to be directed only at plan administration, rendering advice (if any) on the claims before the final denial of the claims. Under these circumstances, all documents withheld by corporate defendants under the asserted protection of the attorney-client privilege fall squarely into the fiduciary exception to the attorney-client privilege and must be produced to plaintiffs.
Accordingly, Plaintiffs' Motion to Compel as it relates to the documents withheld pursuant to the attorney-client privilege is GRANTED.
2. Work product doctrine
The "work product doctrine `is distinct from and broader than the attorney-client privilege.'" Id. (citing In re Antitrust Grand Jury, 805 F.2d at 163 quoting United States v. Nobles, 422 U.S. 225, 238 n. 11 (1975)). The doctrine is designed to allow an attorney to "assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference . . . to promote justice and to protect [his] clients' interests." Tenn. Laborers Health Welfare Fund v. Columbia/HCA Healthcare Corp., 293 F.3d 289, 294 (6th Cir. 2002) (citing Hickman v. Taylor, 329 U.S. 495, 510 (1947)). The burden of establishing the existence of the work product privilege rests with the person or entity asserting it. Dakota, supra, 197 F.3d at 825 (citation omitted).
In the instant action, the corporate defendants argue that certain documents are protected by the work product doctrine because they were drafted in anticipation of litigation. The Corporate Defendants' Memorandum in Support of Privilege Claim at 4. The work product doctrine, described in Hickman v. Taylor, 329 U.S. 495, has been codified in Rule 26 of the Federal Rules of Civil Procedure:
[The work product of an attorney produced in anticipation of litigation] may [be] obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. . . . The court shall protect against the disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
As this Court has previously instructed, "for the work product doctrine to apply, the materials in question must be
1. documents or other tangible things
2. prepared in anticipation of litigation or for trial
3. by or for a party or that party's representative."United States v. ARMCO, Inc., Case No. 2:95-CV-698, 1996 U.S. Dist. LEXIS 21049, *8 (S.D. Ohio September 27, 1996) (M.J. King) (citing Fed.R.Civ.P. 26(b)(3), Toledo Edison Co. v. G.A. Technologies, Inc., 847 F.2d 335 (6th Cir. 1988) and In re Grand Jury Investigation, 599 F.2d 1224, 1228 (3d Cir. 1979)).
In Toledo Edison v. G.A. Technologies, supra, the United States Court of Appeals for the Sixth Circuit set forth a four-step process for determining whether a party is entitled to production of documents prepared in anticipation of trial. First, the party seeking discovery must show that the documents sought are, in fact, relevant to the subject matter of the case and not privileged. Id. at 339. Next, the objecting party must show that the materials were prepared by counsel or counsel's agent in anticipation of litigation or trial. Id. If that burden is met, the party seeking discovery must then show that there is a substantial need for the materials and that the party cannot "obtain the substantial equivalent of the materials" without undue hardship. Id. at 340. Lastly, if the Court determines that the party seeking discovery has shown a substantial need, the Court shall, nevertheless, protect from discovery any "`mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of the party concerning the litigation.'" Id. at 340 (quoting Fed.R.Civ.P. 26(b)(3)).
In this action, the first step of the process for determining whether the protection of the doctrine applies is not contested. That is, all parties appear to agree that the withheld documents are relevant.
The second step of the analysis requires the corporate defendants to show that the withheld documents were prepared by counsel in anticipation of litigation. The corporate defendants contend that, with regard to the document stamped UACL80465 in the Carol LeBlanc Privilege Log,
"This showing can be made in any of the traditional ways in which proof is produced in pretrial proceedings such as affidavits made on personal knowledge, depositions, or answers to interrogatories" Toledo Edison v. G.A. Technologies, 847 F.2d at 339. The Court notes that the needed evidence from the corporate defendants is lacking. Nevertheless, the Court will analyze the corporate defendants' recitation of facts as they appear in The Corporate Defendants' Memorandum in Support of Assertion of Privilege Claim.
[t]he context in which the communication with counsel in that document was undertaken is clear — it involves attorney impressions on matters of strategy and planning for anticipated litigation, specifically with Plaintiffs' counsel.The Corporate Defendants' Memorandum in Support of Assertion of Privilege Claim at 4.
After in camera review of the document stamped UACL80465 in the Carol LeBlanc Privilege Log, the Court disagrees that the corporate defendants have met their burden of showing that this document was prepared in anticipation of litigation. The document refers to "re-appeals" and was apparently prepared prior to the final decision denying Ms. LeBlanc's disability claim. While litigation can result from any fiduciary act, any act of securing legal advice for an ERISA plan, "and the advice rendered, prior to the plan's decision regarding benefits cannot be said to be in anticipation of litigation." Lewis at 623 (citing Geissal v. Moore Medical Corp., 192 F.R.D. at 625). "Such acts occurred before the `objected to' decision was final and the divergence of interests occurred." Id. (citing Geissal, supra, and Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 662 (S.D. Ind. 1991)). The fact that litigation later resulted does not transform the ordinary business nature of the attorney's legal advice or information into advice or information rendered in anticipation of litigation. Id. (citing Geissal, supra, and Garfinkle v. Arcata Nat'l Corp., 64 F.R.D. 688, 690 (S.D. N.Y. 1974)). Thus, the Court concludes that the pre-decisional advice and opinions of counsel set forth within the document stamped UACL80465 are not protected from discovery by the work product doctrine.
With regard to the other documents withheld pursuant to the work product doctrine, the corporate defendants fail to explain with any specificity why the doctrine applies. Instead, the corporate defendants argue:
The rest of the documents in the Privilege Logs deserve similar protection [to that given the document stamped UACL80465 in the Carol LeBlanc Privilege Log].The Corporate Defendants' Memorandum in Support of Assertion of Privilege Claim at 4.
And, even should the "fiduciary exception" apply, the documents remain protected since the attorney-client consultations were either post-decisional or with a well grounded concern regarding potential litigation. Where documents are prepared in anticipated litigation, such documents would also be protected under the work product exemption from discovery.
. . . .
With respect to the five claim files at issue, it can be determined from the context that a claim either was contested or denied, and in some cases counsel for the claimant was involved, leading to the obvious prospect of potential litigation.The Corporate Defendants' Motion to Strike at 3, 4.
Defendants' assertions are insufficient for a number of reasons. First, denial of a claim for benefits does not in and of itself justify the assumption that litigation will necessarily follow. "The mere fact that a document is prepared when litigation is foreseeable does not mean the document was prepared in anticipation of litigation; rather, `the document must be prepared because of the prospect of litigation when the preparer faces an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation.'" Arkwright Mut. Ins. Co. v. National Union Fire Ins. Co., Case No. No. 93-3084, 1994 U.S. App. LEXIS 3828, *8 (6th Cir. Ohio Feb. 25, 1994) (citing National Union Fire Ins. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992) and C. Wright A. Miller, Federal Practice and Procedure § 2024, at 198 ("the test should be whether, in light of the nature of the document and the factual situation in a particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation."). The corporate defendants have not established that these documents were prepared because of prospective litigation.
Second, as stated supra, the parties asserting work product immunity, the corporate defendants in this case, bear the burden of establishing that the protection applies. See Boyer v. Board of County Comm'rs, 162 F.R.D. 687, 688 (D. Kan 1995). A "blanket claim" as to the applicability of the work product doctrine does not satisfy that burden. FDIC v. First Heights Bank, FSB, 1997 U.S. Dist. LEXIS 23321 (E.D. Mich. Mar. 12, 1997). See also Kelling v Bridgestone/Firestone, Inc., 157 F.R.D. 496, 497 (D. Kan. 1994) (same). A party's failure to meet this burden when the trial court is asked to rule upon the existence of the work product immunity is not excused because the document is later shown to be one that would have been privileged if a timely showing had been made. Peat, Marwick, Mitchell Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984) ("The applicability of the privilege turns on the adequacy and timeliness of the showing as well as on the nature of the document.").
After in camera review of the remaining documents withheld under the work product doctrine, this Court can ascertain only one fact with certainty, i.e., that all of the documents withheld under the work product doctrine were prepared more than one year before this litigation commenced. "Although the attorney work product doctrine extends to materials prepared before litigation actually commences, the scope of the protection is limited to that time during which a real and substantial possibility of litigation exists." Armco, supra, at *8 (citing In re Grand Jury Investigation, 599 F.2d at 1229; Home Ins. Co. v. Ballenger Corp., 74 F.R.D. 93, 101 (N.D. Ga. 1977); Stix Products, Inc. v. United Merchants Mfrs., Inc., 47 F.R.D. 334, 337 (S.D. N.Y. 1969)). The corporate defendants convey no information from which the Court can determine whether these documents were created during the relevant time period. Contrary to the corporate defendants' assertion, it is simply not clear from the context of the documents that the work product protection applies. Consequently, the corporate defendants have failed to meet their burden of establishing that the work product doctrine was properly invoked.
Defendant's failure to provide the court with information of sufficient specificity to permit the court to determine whether the privilege asserted applies to the withheld documents provides an independent ground for finding a waiver of any privilege or immunity.Carfagno v. Jackson Nat'l Life Ins. Co., Case No. 5:99cv 118, 2001 U.S. Dist. LEXIS 1768, *7-8 (W.D. Mich. Feb. 13, 2001) (citing United States v. Construction Prod. Research, Inc., 73 F.3d 464, 473-74 (2d Cir. 1996) and Smith v. Dow Chemical Co., 173 F.R.D. 54, 57-58 (W.D.N.Y. 1997)). The party invoking the protection "must also `describe in detail' the documents or information sought to be protected and provide `precise reasons' for the objection to discovery." McCoo v. Denny's Inc., 192 F.R.D. 675, 680 (D. Kansas 2000). Additionally, that party must also provide information sufficient to enable the court to determine whether each element of the asserted objection is satisfied. Jones v. Boeing Co., 163 F.R.D. 15, 17 (D. Kan. 1995). Failure to provide this information results in waiver of the work product doctrine. FDIC v. First Heights Bank, FSB, No. 95-CV-72722, 1997 U.S. Dist. LEXIS 23321 (E.D. Mich. Mar. 12, 1997) aff'd in part and rev'd in non-relevant part at 229 F.3d 528 (6th Cir. 2000) ("The court recognizes that Defendants have failed to provide detailed information regarding the allegedly privileged documents and that such a failure may be considered a waiver of the right to claim the privilege.")
The Court concludes that the descriptions and comments made on the privilege log, coupled with the corporate defendants' blanket assertion of the protection of the work product doctrine, are insufficient to enable this Court to determine whether the protection applies. See United States v. Construction Prod. Research, Inc., 73 F.3d 464, 473-74 (2d Cir. 1996) ("The descriptions and comments simply do not provide enough information to support the privilege claim, particularly in the glaring absence of any supporting affidavits or other documentation") (citing Bowne, Inc. v. AmBase Corp., 150 F.R.D. 465, 475 (S.D. N.Y. 1993) and Allendate Mut. Ins. Co. v. Bull Data Sys., Inc., 145 F.R.D. 84, 88 (N.D. Ill. 1992)).
Consequently, the corporate defendants are not entitled to the protection of the work product doctrine because they have failed to carry their burden of establishing the applicability of the work product doctrine. Accordingly, Plaintiffs' Motion to Compel, as it relates to the documents withheld under the work product doctrine, is GRANTED. WHEREUPON, in light of the foregoing, Plaintiff's Motion to Compel, Doc. Nos. 57, 70, is GRANTED and The Corporate Defendants' Motion to Strike, Doc. No. 78, is GRANTED. The corporate defendants are ORDERED to produce forthwith to plaintiffs the documents withheld and presented to this Court for in camera inspection.