RUSSELL MAYFIELD, PAUL WALTON, Plaintiffs, v. SAFECO INSURANCE COMPANY OF INDIANA, Defendant 5-20-CV-00210-XR United States District Court, W.D. Texas, San Antonio Division Filed May 27, 2021 Counsel Alyssa Monet Salinas, Rene M. Sigman, E. Armistead Easterby, Williams Hart Boundas Easterby, LLP, Houston, TX, for Plaintiffs. Kelly J. Moynihan, David R. Stephens, Lindow Stephens Schultz LLP, San Antonio, TX, for Defendant. Farrer, Richard B., United States Magistrate Judge ORDER *1 Before the Court are the (1) Motion to Compel filed by Plaintiffs Russell Mayfield and Paul Walton, Dkt. No. 30, and (2) Motion to Strike filed by Defendant Safeco Insurance Company of Indiana, Dkt. No. 31. The District Court referred the motions for resolution pursuant to Rules CV-72 and 1 of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. See May 4 & 6, 2021 text orders. Authority to enter this Order stems from 28 U.S.C. § 636(b)(1)(A). As discussed further below, this Order continues the May 25 hearing and directs the parties to meaningfully confer and submit by June 11 an amended joint advisory to the Court regarding that conference. The hearing will resume in-person on June 18, 2021. Plaintiffs seek, in a voluminous motion punctuated by technical arguments, to do the following: (1) compel responses to a multitude of discovery requests; (2) to strike most—if not all—of Safeco's objections; and (3) obtain an order overruling the withholding of either all or a portion of documents for which Safeco claims attorney-client privilege or work-product protection. See Dkt. No. 31. Many of the discovery requests at issue are overbroad and appear irrelevant to this dispute. Many of the objections are vague or inapplicable. And to the extent Safeco has withheld documents because of an objection, it must so specify but does not always appear to have done so. See Fed. R. Civ. P. 34(b)(2)(C). Ultimately, however, it's unclear what Plaintiffs seek to achieve by striking the vast majority of Safeco's objections, especially for those for which Safeco appears to have substantively responded to the underlying requests. Simply put, the motion and response embody discovery practice at odds with the expectations of this Court and the Federal Rules; too often the present dispute reflects form over substance. Parties are largely free to conduct discovery how they see fit, so long as they comply with the Rules and the Court's orders. But parties who expect the Court to walk through voluminous discovery issues that turn on technicalities and produce results irrelevant to the case should expect that they will pay a price—literally—for such litigation practices. The Court is instructed by Rule 37 to award expenses—including attorney's fees—against the non-prevailing party in such a dispute. See Fed. R. Civ. P. 37(a)(5). On the privilege and work-product issue, Plaintiffs haven't identified which documents listed in Safeco's privilege log need to be produced. And as the party claiming a privilege or similar protection, Safeco's privilege log must describe each withheld document and its contents in sufficient detail to “permit courts and other parties to test the merits of the privilege claim.” Equal Emp. Opportunity Comm'n v. BDO USA, L.L.P., 876 F.3d 690, 697 (5th Cir. 2017) (quotations and brackets omitted). Moreover, the mere fact that a communication involved an attorney does not suffice to support withholding it pursuant to the attorney-client privilege. Id. at 696 (“There is no presumption that a company's communications with counsel are privileged.”). The failure to provide a compliant log can result in waiver of privilege or work-product protection. See id. (noting that waiver may result when failure to provide a compliant log “results from unjustified delay, inexcusable conduct, or bad faith”). *2 For these reasons, the Court set the motion for a hearing and ordered the parties to meaningfully confer regarding the issues raised therein beforehand. See Dkt. No. 32. On May 25, 2021, the Court held a hearing on Plaintiffs' motion. From the hearing's outset, it was readily apparent the parties had not yet sufficiently conferred as required by the Federal Rules of Civil Procedure, the Local Rules for the Western District of Texas, and this Court's prior order. See Fed. R. Civ. P. 37(a)(1), Local Rule CV-7(i), Dkt. No. 32. Counsel also seemed to operate under the impression that hearing itself provided an opportunity for a further attorney conference. The hearing was held by video, and the Court is cognizant that certain courtroom norms and conventions may have somewhat slipped during the COVID-19 pandemic. It has been a long video-infested pandemic for us all. Ultimately, the Court advised the parties that the hearing would be re-set for a later date so as to provide counsel a further opportunity to fully confer on the matters at issue. IT IS THEREFORE ORDERED THAT the hearing on Plaintiffs' Motion to Compel, Dkt No. 30, is CONTINUED to June 18, 2021 at 10:30 am. Given the recent standing order entered regarding in-person proceedings at the John H. Wood, Jr. United States Courthouse, and further given the aforementioned issues regarding the previous video hearing, the parties, through counsel, shall appear in-person in Courtroom A on the 4th Floor of the John H. Wood, Jr. United States Courthouse, 655 E. Cesar Chavez Boulevard, San Antonio, Texas, 78206. Counsel should be prepared to discuss at the hearing the motion as well as their efforts to resolve the discovery dispute that gave rise to it. IT IS FURTHER ORDERED THAT the parties shall meaningfully confer either in-person or via phone or video conference about the issues raised in the motion, and they shall then jointly file an amended advisory by June 11, 2021. The advisory should discuss the parties' conference, identify any remaining disputed issues that will require resolution by the Court at the hearing, and set forth briefly the parties' respective positions on each remaining issue. If the parties are able to resolve their dispute prior to the hearing, they should so inform the Court in their joint advisory and the hearing will be cancelled. **The parties are advised and hereby placed on notice that the Court may award expenses—including attorney's fees—against a party that doesn't prevail on the issues presently before the Court. See Fed. R. Civ. P. 37(a)(5), Fed. R. Civ. P. 16(f)** IT IS FINALLY ORDERED THAT Safeco's Motion to Strike, Dkt. No. 31, is DENIED IN PART AND DISMISSED IN PART AS MOOT. The Court previously granted Safeco the alternative relief sought, namely, additional time to respond to Plaintiffs' motion. See May 10, 2021 text order. The Court declines to strike Plaintiffs' motion because it exceeds the page-limits imposed by the Local Rules. Plaintiffs, however, are reminded of their obligation to comply with all applicable Local Rules when filing documents with the Court. IT IS SO ORDERED. SIGNED this 27th day of May, 2021.