ROYAL PARK INVESTMENTS SA/NV, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, Defendant 14-CV-04394 (AJN) (BCM) United States District Court, S.D. New York Signed September 28, 2018 Counsel Arthur C. Leahy, Pro Hac Vice, Steven W. Pepich, Pro Hac Vice, Darryl J. Alvarado, Jeffrey James Stein, Pro Hac Vice, Joseph Marco Janoski Gray, Lucas F. Olts, Juan Carlos Sanchez, Pro Hac Vice, Kevin S. Sciarani, Robbins Geller Rudman & Dowd LLP, San Diego, CA, Samuel Howard Rudman, Robbins Geller Rudman & Dowd LLP, Melville, NY, Christopher M. Wood, Pro Hac Vice, Robbins Geller Rudman & Dowd LLP, San Francisco, CA, for Plaintiff. Bernard J. Garbutt, III, Michael Stephan Kraut, Bryan P. Goff, Close Grant R. MacQueen Dockets:10 Cases:28 Appellate Court Documents:1 See Full Profile Grant R. MacQueen, John Michael Vassos, Jonathan Herman Levy, Nathan Todd Shapiro, Regina Schaffer-Goldman, Kevin James Biron, Morgan, Lewis and Bockius LLP, New York, NY, Ashley Anelcha Krupski, Rollin Bernard Chippey, Tera Marie Heintz, Cristina Ashba, Joseph Edward Floren, Phillip J. Wiese, Morgan, Lewis & Bockius LLP, Elizabeth Allen Frohlich, Sheppard Mullin Richter & Hampton LLP, San Francisco, CA, Motty Shulman, Boies, Schiller & Flexner LLP, Paul Fattaruso, II, Robin Ann Henry, Boies, Schiller & Flexner LLP, Armonk, NY, for Defendant. Moses, Barbara, United States Magistrate Judge ORDER *1 Now before the Court is plaintiff's letter-application for an order compelling defendant Deutsche Bank National Trust Company (Deutsche Bank) to amend its “metadata” privilege log and to produce documents that plaintiff claims it has improperly logged as privileged on its “traditional” privilege log, see Pl. Ltr. dated Nov. 13, 2017 (Pl. Ltr.) (Dkt. No. 506), at 1. After carefully reviewing plaintiff's application, defendant's opposition letter-brief, Def. Ltr. dated November 17, 2017 (Def. Ltr.) (Dkt. No. 510); and plaintiff's reply, Pl. Ltr. dated November 20, 2017 (Pl. Reply Ltr.) (Dkt. No. 512), the Court will GRANT the application IN PART for the reasons set forth below.[1] Analysis Under Local Civil Rule 26.2(a) and (b), a privilege log must identify the nature of the privilege being claimed and, for documents withheld as privileged, must provide: (i) the type of document; (ii) the “general subject matter” of the document; (iii) the date of the document; (iv) the author of the document, the addressees of the document, and any other recipients, “and, where not apparent, the relationship of the author, addressees, and recipients to each other.” Local Civil Rule 26.2(a)(2)(A). The party asserting privilege must provide “sufficient detail” in its log “to permit a judgment as to whether the document is at least potentially protected from disclosure.” United States v. Constr. Prod. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996); see also NXIVM Corp. v. O'Hara, 241 F.R.D. 109, 130 (N.D.N.Y. 2007) (“Without an adequately detailed privilege log, the courts are hamstrung in attempting to decipher the presence and extent of the claimed privilege.”). 1. Metadata Log Many of the entries in Deutsche Bank's “metadata” privilege log (Pl. Ltr. Ex. 8) do not provide sufficient detail regarding the subject matter of the documents as to which privilege is claimed. The Court understands in this log, Deutsche Bank simply “exported” various metadata fields into the log, including the subject line of emails and the file name of other documents, rather than draft a description for each entry. In some instances this technique produces an acceptable result, but in other instances it does not. For example, the “subject” of entry 3 is described as “Security Origination Information I.” Entry 1374 is described as “Privileged Confidential Items.” The subject of entry 6660 is “Per your request,” while entries 7510-7514 are described simply as “Global Policies.” These descriptions are insufficient to permit even a facial evaluation as to what the document is about, which is part of the calculus in determining whether it was properly withheld from disclosure. See, e.g., Constr. Prod. Research, 73 F.3d at 473 (vague descriptions such as “Fax Re: DOL Findings” with “comment ‘cover sheet’ ” did not “provide enough information to support the privilege claim”) (internal quotation marks omitted). Deutsche Bank must therefore revise its metadata log to include a meaningful subject matter description, for each document, so as to permit plaintiff (and the Court) to determine “whether the document is at least potentially protected from disclosure.” Id. at 473. 2. Traditional Log *2 Several entries in Deutsche Bank's “traditional” log fail (Pl. Ltr. Exs. 13, 14) to identify the authors, recipients, or dates of the documents listed in the log, all of which are expressly required by Local Civil Rule 26.2(a)(A). The entries in Exhibit 13 fail to identify the author, addressee, or any other recipient of the documents as to which privilege is claimed – even though the documents are described as reports, or as draft letters, affidavits, and agreements, all of which should have one or more identifiable authors. The entries in Exhibit 14 list authors (in some instances, institutional authors like the “Anti-Predatory Lending Committee”), but do not provide the name of any addressee or recipient – although many of these documents are also reports, which presumably went to some identifiable person or group. Not only is this information required by the Local Rule; it may be crucial to determining the legitimacy of the privilege objection, particularly where (as in entries 241-314), the claim of privilege is based upon the assertion that the document “reflect[s]” legal advice from one or more of Deutsche Bank's attorneys. Absent some understanding of the universe of persons to whom that advice was disclosed, plaintiff cannot assess whether the privilege has been waived. See Scott v. Chipotle Mexican Grill, Inc., 94 F. Supp. 3d 585, 598 (S.D.N.Y. 2015) (“A corporate entity's attorney-client privilege may, however, be waived by disclosure of the communication to employees of the corporation who are not in a position to act or rely on the legal advice contained in the communication.”). In addition, many of the entries in Exhibits 13 and 14 are missing the date the document was created. As to these documents, plaintiff seeks an order requiring defendant to produce them for failing to comply with the Local Civil Rule 26.2. Pl. Ltr. at 3. While a court may deem a party's assertion of privilege waived where its privilege log is inadequate, see A.I.A. Holdings, S.A. v. Lehman Bros., 2002 WL 31385824, at *8 (S.D.N.Y. Oct. 21, 2002) (“failure to list privileged documents on the required log of withheld documents in a timely and proper manner operates as a waiver of any applicable privilege”), the Court finds that such a remedy is unwarranted at this juncture. Some of the challenged entries, while inadequately logged at present, provide enough information to suggest that the document may be “potentially protected from disclosure.” Constr. Prod. Research, 73 F.3d at 473. For example, entries 241-310 on Exhibit 14, discussed above, are reports “prepared in the course of litigation reflecting legal advice from [a named attorney] regarding responding to subpoena.” If this description is accurate – and if the privilege was not waived by over-disclosure – the document may well be privileged from disclosure in this action.[2] Deutsche Bank will therefore be given another opportunity to amend the challenged entries on its traditional log. With respect to the entries in Exhibit 14 and Exhibit 13, Deutsche Bank must disclose the author, the addressees and any other recipients of the document indicated in the entry, as well as the date of the document. See Local Civil Rule 26.2(a)(A)(iii), (iv). If the author of a document cannot be identified by name (for example, because the document was group-authored), Deutsche Bank must so indicate on the log. Conclusion *3 For the foregoing reasons, it is hereby ORDERED that Deutsche Bank shall serve revised privilege logs, in accordance with this Order no later than November 1, 2018. It is further ORDERED that promptly after the revised privilege logs are served, the parties shall meet and confer in good faith to identify and redress, if necessary, any remaining deficiencies in the logs. No later than November 15, 2018, the parties shall submit a joint letter to the Court outlining any unresolved disputes with respect to the adequacy of the privilege logs. If disputes still remain regarding the sufficiency of Deutsche Bank's logs, plaintiff may identify, in the joint letter, no more than 10 of the disputed entries from each log (a total of no more than 20 entries) for prompt in camera review of the asserted claim of privilege. See Blackrock Balanced Capital Portfolio v. Deutsche Bank National Trust Company, No. 14 Civ. 9367, slip op. at 3-6 (S.D.N.Y. Feb, 14, 2018). This Order resolves Dkt. Nos. 503 and 506. SO ORDERED. Footnotes [1] Plaintiff's application also seeks an order compelling Deutsche Bank to produce all documents withheld under the bank examiner privilege. In its opposition letter, Deutsche Bank asserted that it “has produced, or will produce,” no later than December 15, 2017, all documents as to which banking regulators determined not to assert the bank examiner privilege. Def. Ltr. at 3-4. Accordingly, the Court addresses only the dispute concerning the sufficiency of defendant's privilege logs. [2] Similarly, while plaintiff is correct that the entries on Exhibit 15 were not sent to or from attorneys, the subject-matter description for each entry reflects that the document contains legal advice from a specified attorney (or legal department) regarding a specified topic. Absent some reason to believe that the non-attorneys to whom the documents were disclosed were “not in a position to act or rely on the legal advice contained in the communication,” Scott, 94 F. Supp. 3d at 598, the Court will not compel disclosure of these documents at this time.