Court Accepts Privilege Log Created by Combination of Technology-Assisted Review and Manual Review
In Portland Pipe Line Corp. et. al. v. City of South Portland et. al., Case No. 15-00054 (D. Maine, Sept. 8, 2016), Plaintiff brought suit against the Defendant municipality seeking declaratory and injunctive relief regarding an ordinance prohibiting the loading of crude oil in Portland Harbor, Maine. Plaintiff alleged that the ordinance had prevented Plaintiff from transporting oil by pipeline from north to south. During discovery, Defendant’s disputed aspects of Plaintiff’s privilege log regarding electronically stored information (ESI). The court conducted a teleconference, and the parties submitted letter briefs, which the court treated as Defendant’s Motion to Compel and Plaintiff’s response.
Plaintiff produced its privilege log on the day discovery closed. Defendant argued that it “diligently attempted” to resolve its issues with the privilege log. The parties exchanged Letters in the month following production of the log, but Plaintiff, according to Defendant, “stonewall[ed]” and forced the issue to the court. Further, Plaintiff’s production of the log on the close of discovery delayed Defendant’s action. Plaintiff, however, asserted that it had produced a privilege log two weeks previously in hard copy, and Defendant raised no objection thereto. Plaintiff also argued that Defendant did not define the scope and nature of its complaints about the privilege log.
The court agreed with Plaintiff and noted that the parties had been advised by the court on multiple occasions that discovery in the case should move quickly. The court found that Defendant was not prompt in its attempts to resolve its issues. The hard copy privilege log first produced by Plaintiff contained the same categories of information as the ESI log Defendant now disputed. Thus, Defendant was on notice of the privilege being claimed, and when Plaintiff sought clarification of the disputed documents, Defendant listed nearly every item on the log and failed to address Plaintiff’s other concerns. Defendant then waited another two weeks before seeking court intervention.
The court found that the burden of reviewing the documents in camera were not outweighed by prejudice to Defendant. The court considered Plaintiff’s counsel’s representation that an eDiscovery vendor had conducted a technology-assisted review for privileged documents and then also a manual review, and found Plaintiff’s representations sufficient. The court thus denied Defendant’s request.