The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
________________________________________________________________
JESSICA JONES, et al., )
)
Plaintiffs, )
)
v. )
) No. 20-cv-02892-SHL-tmp
VARSITY BRANDS, LLC, et al., )
)
Defendants. )
________________________________________________________________
ORDER DENYING PLAINTIFFS’ MOTION TO COMPEL DOCUMENTS WITHHELD BY
DEFENDANTS CHARLESBANK AND BAIN
________________________________________________________________
Before the court is plaintiffs’ Motion to Compel Documents
Withheld by Defendants Charlesbank Capital Partners LLC
(“Charlesbank”) and Bain Capital Private Equity (“Bain”), filed on
May 2, 2022. (ECF No. 290.) Defendants responded on May 16, 2022,
plaintiffs replied on May 20, 2022, and defendants filed a sur-
reply on May 24, 2022. (ECF Nos. 297, 310, 312.) For the reasons
below, the motion is DENIED.
I. BACKGROUND
The present case involves anti-trust claims brought against
Varsity Brands, LLC, its affiliated brands and companies, and its
prior and present owners.1 Charlesbank owned Varsity from 2014
1Two other related cases are currently proceeding before U.S.
District Judge Sheryl Lipman: Fusion Elite All Stars, et al. v.
Varsity Brands, LLC, et al., 2:20-cv-02600-SHL-tmp (W.D. Tenn.
Aug. 13, 2020) (“Fusion”) and American Spirit and Cheer Essentials
through June 2018, when it sold its interest to Bain, who remains
the majority owner. (ECF No. 102-1 at 3.) In brief, plaintiffs
allege that defendants conspired to and did in fact form a monopoly
over the cheerleading industry in the United States. Plaintiffs
filed their complaint on December 10, 2020, seeking class
certification, damages, and injunctive relief. (ECF No. 1.)
On March 12, 2021, Charlesbank and Bain filed motions to
strike the class allegations and motions to dismiss the complaint.
(ECF Nos. 55-60.) On March 26, 2021, plaintiffs served their
requests for production on Bain and Charlesbank. (ECF No. 290-1 at
4.) Both defendants filed objections and responses to the requests
on April 26, 2021. (ECF Nos. 111 at 2, 112 at 2.) In addition to
their specific objections to individual requests, both defendants
included a general privilege objection. (ECF Nos. 290-5 at 2, 290-
6 at 2) (“[Defendants] object[] to the Requests to the extent they
seek material that is subject to attorney-client privilege or the
work product doctrine.”).
Almost six weeks later, plaintiffs requested to meet and
confer regarding the disputed discovery. (ECF No. 111.) On July
28, 2021, the parties filed a joint motion to extend the deadline
to submit disputes regarding requests for production. (ECF No.
93.) Bain and Charlesbank each made initial productions on
Inc., et al. v. Varsity Brands, LLC, et al., 2:20-cv-02782-SHL-
tmp (W.D. Tenn. Jul. 24, 2020) (“American Spirit”).
September 11, 2021 and September 15, 2021, respectively. (Id.) On
September 18, 2021, plaintiffs filed motions to compel the
production of documents from Bain and Charlesbank. (ECF Nos. 101-
02.) An initial hearing on the motion was held before Magistrate
Judge Charmiane Claxton on October 28, 2021. (ECF No. 136.) During
this hearing, Judge Claxton noted that Bain and Charlesbank had
recently been dismissed from the American Spirit case and that a
similar motion was pending before Judge Lipman in this case. (ECF
No. 143 at 4-5.) Judge Claxton declined “to move forward either
way” on the present motions in light of Judge Lipman’s decision.
(Id. at 5.) The case was subsequently transferred to the
undersigned and another hearing was held on November 19, 2021.
(ECF No. 164.) At the November 19 hearing, the undersigned asked
Bain and Charlesbank whether they planned to file a motion to stay
discovery given the pending motions to dismiss. (ECF No. 174.) No
such motion was ever filed. The undersigned ultimately granted the
plaintiffs’ motions in part and denied them in part, ordering that
discovery would proceed regardless of any pending dispositive
motions. (Id.)
In an email sent on February 15, 2022, counsel for defendants
explained to plaintiffs’ counsel that the production of documents
was “large and burdensome and encompassed many privileged
documents that would need to be withheld in full or in part.” (ECF
No. 297 at 4.) In light of this, the parties agreed that
defendants’ production would be substantially completed by April
1, 2022. (ECF No. 297 at 4.) Bain and Charlesbank each made a
second production on February 24, 2022 and February 28, 2022,
respectively, and both defendants made the bulk of their production
on April 1, 2022. (ECF No. 290-1 at 4.) On April 14, 2022,
Charlesbank re-produced 111 documents that had been mistakenly
redacted for privilege. (Id.) Fact discovery closed on April 18,
2022. (ECF No. 175.) Bain produced a privilege log on April 19,
2022, and Charlesbank produced the same on April 20, 2022.2 (Id.)
The log and production showed that Charlesbank withheld 4,391
documents and redacted 3,523 documents, which constituted about
ten percent of their total production. (Id. at 2.) Bain withheld
826 documents and redacted 1,245 documents, which constituted
about eleven percent of their total production. (Id.) As of the
date of this order, the Rule 30(b)(1) depositions of current and
former employees of the defendants have already been completed.
(Id. at 5.)
2Bain and Charlesbank’s privilege logs were produced in the same
format as the Varsity defendants’ logs. (ECF No. 297 at 2.) In an
email accompanying one of Varsity’s privilege logs, counsel for
Varsity — who is also counsel for Bain and Charlesbank — wrote,
“[i]f there are any issues with the format of the log, please let
us know as soon as possible. As Varsity’s privilege review is
ongoing, we intend to utilize this format for future privilege log
installments unless we hear otherwise from you.” (ECF No. 297-1 at
13.) Plaintiffs did not raise any objections to the format of the
Varsity log. (ECF No. 297 at 2.)
On May 2, 2022, plaintiffs filed the present motion, seeking
all withheld documents. Plaintiffs argue that because defendants
failed to timely provide privilege logs, any and all claims of
privilege have been waived. (Id.)
II. ANALYSIS
The scope of discovery is defined by Federal Rule of Civil
Procedure 26(b)(1), which provides that “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to
any party's claim or defense and proportional to the needs of the
case[.]” A party that claims the protection of the attorney-client
privilege or the attorney work product doctrine to withhold
documents must not only expressly raise the claim, but also prepare
a privilege log that generally describes the nature of the
documents withheld so as to enable the other parties to assess the
merits of the claim. Fed. R. Civ. P. 26(b)(5)(A)(ii). The complete
failure of a party to provide a privilege log may result in a
waiver of the claimed privilege. Brown v. Tax Ease Lien Servicing,
LLC, No. 3:15-CV-208-CRS, 2017 WL 6939338, at *14 (W.D. Ky. Feb.
16, 2017). However, such a waiver is not automatic given the
harshness of such a sanction. Id. (citing First Savings Bank,
F.S.B. v. First Bank Sys., Inc., 902 F. Supp. 1356, 1361-63 (D.
Kan. 1995)); see also EEOC v. Safeway Store, Inc., No. C-00-3155
TEH(EMC), 2002 WL 31947153, at *2 (N.D. Cal. Sept. 16,
2002) (“Finding that a party has waived its right to assert a
privilege objection due to its conduct (or lack thereof) is a harsh
sanction utilized where the party has unjustifiably delayed
discovery.”). “Minor procedural violations, good faith attempts at
compliance, and other such mitigating circumstances militate
against finding waiver. In contrast, evidence of foot-dragging or
a cavalier attitude towards following court orders and the
discovery rules supports finding waiver.” Brown, 2017 WL 6939338,
at *14 (quoting Ritacca v. Abbott Lab., 203 F.R.D. 332, 334-335
(N.D. Ill. 2001)).
In support of their argument for waiver, plaintiffs rely on
the Ninth Circuit’s decision in Burlington Northern & Santa Fe Ry.
Co. v. Dist. Ct. of Mont., 408 F.3d 1142 (9th Cir. 2005). In that
case, the Ninth Circuit rejected “a per se waiver rule that deems
a privilege waived if a privilege log is not produced within Rule
34’s 30-day time limit.”3 Burlington Northern, 408 F.3d at 1149.
Instead, the court directed district courts to use the 30-day
period as a default guideline, but to make a case-by-case
determination that considers the following factors:
[1] the degree to which the objection or assertion of
privilege enables the litigant seeking discovery and the
court to evaluate whether each of the withheld documents
is privileged (where providing particulars typically
contained in a privilege log is presumptively sufficient
and boilerplate objections are presumptively
insufficient); [2] the timeliness of the objection and
3Federal Rule of Civil Procedure 34 requires that a written
response to a discovery request be served within 30 days of the
service of the request.
accompanying information about the withheld documents
(where service within 30 days, as a default guideline,
is sufficient); [3] the magnitude of the document
production; and [4] other particular circumstances of
the litigation that make responding to discovery
unusually easy . . . or unusually hard.
Id. The Ninth Circuit added that “[t]hese factors should be applied
in the context of a holistic reasonableness analysis . . . [and
that] the application of these factors shall be subject to any
applicable local rules, agreements or stipulations among the
litigants, and discovery or protective orders.” Id.
Plaintiffs argue that the Burlington Northern factors weigh
heavily in favor of waiver. (ECF No. 290-1 at 16.) When considering
the first factor, plaintiffs argue that defendants’ initial
boilerplate privilege objections provided nothing specific that
would allow plaintiffs to assess privilege claims. (Id. at 16.)
Further, plaintiffs claim that defendants’ privilege logs
themselves are deficient. (Id.) As to the second factor, plaintiffs
contend that defendants produced privilege logs thirteen months
after the initial requests for production were made, and after the
April 18, 2022 close of discovery. (Id. at 14.) Plaintiffs assert
that the third factor also weighs in favor of waiver because
defendants’ “productions are not extremely large.” (Id. at 20.)
Finally, plaintiffs argue that the fourth factor also weighs in
favor of waiver because “[t]here are no exceptional circumstances
which excuse this conduct.” (Id. at 21.)
Defendants argue that the Burlington Northern factors
demonstrate that waiver is inappropriate. First, the privilege
logs were not untimely; they were produced nineteen and twenty
days after the agreed production deadline of April 1, 2022. (ECF
No. 297 at 10.) Second, the “document productions were large and
undertaken on an extremely tight schedule of just over three
months.” (Id. at 11.) Finally, defendants disagree with
plaintiffs’ characterization of their privilege logs and claim
that the logs comply with the ESI Protocol and Rule 26. (Id. at
13.)
Although the Sixth Circuit has not expressly adopted the test
developed by Burlington Northern, district courts within the
circuit have applied it. See, e.g., Casale v. Nationwide Children’s
Hosp., 2:11-cv-1124, 2014 WL 1308748 (S.D. Ohio Mar. 28,
2014)(applying a modified version of the Burlington Northern
test); Hennigan v. Gen. Elec. Co., No. 09-11912, 2011 WL 13214444,
at *3 (E.D. Mich. June 1, 2011). Applying the Burlington Northern
factors, the undersigned finds that defendants have not waived
their privilege.
The first Burlington Northern factor, the degree to which the
objection or assertion of privilege is clear, weighs against
waiver. Plaintiffs’ focus on defendants’ general privilege
objections in their responses and objections to plaintiffs’
requests for production is misplaced. Defendants’ use of general
privilege objections early in the discovery process, especially
given the complexities of this case and large volume of document
production, was justified. See Fischer v. Forrest, 14 Civ. 1304
(PAE) (AJP), 2017 WL 773694, at *3 (S.D.N.Y. Feb. 28, 2017)
(“General objections should rarely be used . . . unless each such
objection applies to each document request . . . e.g., objecting
to produce privileged material[.]”). Defendants’ privilege
objections were made alongside several specific objections that
needed to be resolved before document review and production could
begin. It would have been unrealistic to expect defendants to
produce a privilege log before the scope of production had been
clearly defined.
Moreover, although defendants’ privilege logs could have been
more detailed, the logs provide the type of information that is
commonly included in a privilege log. See Cooey v. Strickland, 269
F.R.D. 643, 649 (S.D. Ohio 2010) (“The party asserting the
privilege must make “at least a minimal showing that the
communication contained legal matters,” but that showing need not
be “onerous and may be satisfied by as little as a statement in
the privilege log explaining the nature of the legal issue for
which advice was sought.”)(quoting In re Search Warrant Executed
at Law Offices of Stephen Garea, No. 97–4112, 1999 WL 137499, at
*2 (6th Cir. Mar. 5, 1999)). Here, the logs include the subject
matter of the documents, the privilege claimed, and the basis of
the privilege, as well as the names of individuals who sent and
received the documents. (ECF No. 290-11.) Further, Bain and
Charlesbank’s privilege logs are in the same format as the logs
produced by the Varsity defendants. (ECF No. 297 at 2.) Plaintiffs
did not raise any objections when asked if they had any issues
with the format of the Varsity defendants’ logs. (Id.)
The second factor, the timeliness of the objection, also
weighs against waiver. Although plaintiffs highlight the fact that
the privilege logs were produced thirteen months after the initial
request for production, they fail to acknowledge relevant
intervening events. The plaintiffs themselves sought extensions of
time to file their motion to compel. (ECF Nos. 93, 99.) When Judge
Claxton considered that motion, she declined to rule on it because
Bain and Charlesbank had recently been dismissed from a related
case and a similar motion was pending in the instant case. (ECF
No. 143 at 5.) The motions to compel were not decided until
December 13, 2021, at which point the April 18, 2022 discovery
deadline was only four months away. (ECF No. 174.) Plaintiffs and
defendants agreed that production would be substantially completed
by April 1, 2022, which it was. (ECF No. 290-1 at 2.) The privilege
logs were produced nineteen and twenty days later, less than thirty
days after the stipulated date of production. (Id.) Although they
were produced after the discovery deadline, this delay was minimal
considering the size of the production and the limited time
defendants had to complete it. See Brown, 2017 WL 6939338, at *14.
Additionally, the fact that a significant number of documents were
privileged should not have come as a surprise to plaintiffs because
defense counsel had represented over email that many of the deal-
related documents were privileged. (ECF No. 297-1 at 3.)
The third and fourth factor, the magnitude of the document
production and other relevant circumstances that make production
particularly difficult or easy, also do not support waiver.
Plaintiffs argue that defendants’ “productions are not extremely
large” and cite to Hennigan, in which the court found that the
“large” size of the document production did not excuse an almost
twelve month delay. 2011 WL 13214444, at *4; (ECF No. 290-1 at
20.) In Hennigan, the defendants, who had already failed to comply
with a previous court order ordering production, explained that
they did not provide a privilege log earlier because it was
difficult to respond to plaintiffs’ “general” requests and the
magnitude of the document production made it “unusually difficult”
to respond. Id. at 2-3. The court did not find this justification
convincing because specific documents, which were held in a
separate, smaller database “could be found without much effort.”
Id.
Here, unlike in Hennigan, defendants produced a large number
of documents on an extremely compressed schedule. Charlesbank
produced 76,568 total documents, while Bain produced 18,843
documents; the bulk of these productions were made within a three-
month period. (ECF No. 290-1 at 20.) Although part of this time
crunch is certainly due to Bain and Charlesbank’s reluctance to
engage in the discovery process, this conduct does not rise to the
level of non-compliance of the defendants in Hennigan.
Considering the case holistically, the court finds the
Burlington Northern factors do not support a waiver, therefore
plaintiffs’ motion is DENIED.
IT IS SO ORDERED.
s/ Tu M. Pham ____
TU M. PHAM
Chief United States Magistrate Judge
June 3, 2022 ___
Date