Walter PETTAWAY, as Administrator of the Estate of Joseph Lee Pettaway, deceased, Plaintiff, v. Cpl. Nicholas D. BARBER, et al., Defendants CASE NO. 2:19-cv-8-JTA United States District Court, M.D. Alabama, Northern Division Signed March 18, 2021 Counsel Gordon Griffin Sikes, Jr., Attorney at Law, Montgomery, AL, Horace Earl Nix, Jr., H. E. Nix, Attorney at Law, Montgomery, AL, for Plaintiff. Allison Alford Ingram, Charles Winston Sheehan, Jr., Sydney Kay Brasfield, Ball Ball Matthews & Novak PA, Montgomery, AL, Rebecca L. Chambliss, Chambliss Law, Montgomery, AL, Robert Lee DeMoss, III, Balch & Bingham, Montgomery, AL, for Defendant Nicholas D. Barber. Allison Alford Ingram, Charles Winston Sheehan, Jr., Sydney Kay Brasfield, Ball Ball Matthews & Novak PA, Montgomery, AL, Robert Lee DeMoss, III, Balch & Bingham, Montgomery, AL, for Defendants Ernest N. Finley. Allison Alford Ingram, Charles Winston Sheehan, Jr., Sydney Kay Brasfield, Ball Ball Matthews & Novak PA, Montgomery, AL, Robert Lee DeMoss, III, Balch & Bingham, Montgomery, AL, Stacy Lott Bellinger, City of Montgomery, Montgomery, AL, for Defendant The City of Montgomery, Alabama. Adams, Jerusha T., United States Magistrate Judge ORDER *1 Before the Court is Plaintiff Walter Pettaway's Motion to Compel the City to Produce the City's Investigations File on the Death of Joseph Lee Pettaway. (Doc. No. 141.) The Court has reviewed the response in opposition thereto filed by non-party City of Montgomery (“City”) (Doc. No. 144) and the reply filed by Plaintiff (Doc. No. 145). The motion is ripe for review. I. FACTUAL BACKGROUND Plaintiff Walter Pettaway filed this case in his capacity as administrator of the estate of Joseph Lee Pettaway. The late Mr. Pettaway died from injuries received during the course of a burglary investigation conducted by officers of the Montgomery Police Department (“MPD”). In August of 2020, Plaintiff requested the City produce [a]ll incident reports, investigative reports, witness statements, or other writings however known or by whatever name they are called which memorialize, record, recite, concerning, address or relate to events or communications occurring on July 7 or July 8, 2018 that preceded or followed or which were involved in interactions or communications between M.P.D. policemen at or in the vicinity of 3809 Cresta Circle and other persons. (Doc. No. 141 at ¶ 1.) The City responded by producing 178 pages designated as COM000787-COM000964, of which 60 pages were completely redacted. (Id. at ¶¶ 2-3; Doc. No. 141-1.) The City's Confidentiality Log justified the redactions as follows: The complete City Investigations file that is designated as Bates Stamp COM000787-COM000964 is hereby redacted to reflect work product information. Additionally, the CI file also contains confidential and personally identifying information of parties and non-parties, as well as information regarding K-9 training, commands and signals that, when in the possession of someone with ulterior motives, may be used to misguide and manipulate the service trained canine and create a safety or risk factor for law enforcement and the public. (Doc. No. 141-2 at ¶ 26.) On August 30, 2020, Plaintiff wrote the City to request that it identify with specificity the work product claims asserted as required under this district's Guidelines to Civil Discovery Practice. (Doc. No. 141-4 at 5.) Apparently, the City never met this demand despite several conversations between counsel. On November 6, 2020, Plaintiff again wrote the City regarding his dissatisfaction with the production and again requested that it substantiate its work product claims. (Doc. No. 141-5 at 4.) Plaintiff asked the City to discuss and hopefully resolve these issues in lieu of court involvement. (Id.) The City again was silent. Plaintiff did not telephone the City nor schedule a face-to-face meeting with the City to resolve the issue. Plaintiff filed this motion to compel on December 21, 2020, six weeks after issuing his letter of November 6, 2020. (Doc. No. 141.) Plaintiff asserts the City's blanket claim of work product privilege as to its Investigations File is insufficient under Federal Rule of Civil Procedure 26(b)(5) and the Guidelines to Civil Discovery Practice in the Middle District of Alabama (“MDAL”). (Id. at ¶ 8.) He claims that the City's noncompliance has caused it to forfeit any right to claim the privilege and asks the court to order full, unredacted release of the City's Investigation File. (Id. at ¶ 19.) Plaintiff did not certify in the motion that he conferred with the City, by telephone or a face-to-face meeting as required, prior to filing his motion.[1] *2 The City urges the court to deny Plaintiff's motion based upon its further review of the origins of the contested documents and its subsequent withdrawal of any claim of privilege as to COM 000885, COM 000892, COM 000899 and COM 000936. (Doc. No. 144 at 2.) The City reasserts the work product privilege for the remaining documents in a categorical manner without linking any information to a specific document. (Id. at 2-3.) The City states that the remainder of the redacted materials is comprised of the request from the Office of the City Attorney for City Investigations to conduct an investigation into the events; a synopsis of that investigation by a Senior Staff Attorney with the City of Montgomery's Legal Department; a synopsis of the investigation by the Investigator who conducted the investigation at the direction of counsel; a memorandum by the investigator detailing his investigative plan and a memorandum by the Director of City Investigations regarding the investigative plan; an unofficial transcript of an interview with Defendant Barber conducted by the investigator; and a letter from the investigator to the Alabama Department of Forensic Sciences requesting a copy of the autopsy report. (Id.) The City argues it is clear that “each of [these documents] were either done by legal counsel or as part of an investigation at the direction of legal counsel in anticipation of litigation.” (Id. at 3.) Plaintiff rejects the City's position that it has established grounds for withholding the challenged documents under the work-product privilege. (Doc. No. 145 at ¶1.) He further notes that the City never substantively responded to his letter of November 6, 2020, and has yet to properly support its work-product claim. (Id. at ¶¶ 10-11.) II. DISCUSSION Federal Rule of Civil Procedure 37 provides for motions to compel discovery where the movant certifies that it has either conferred in good faith or attempted to confer with the party failing to make disclosure. Fed. R. Civ. P. 37(a)(1). Plaintiff seeks the full and unredacted release of documents for which the City asserts work-product privilege under Rule 26(b)(3). The privilege protects “documents and tangible things that are prepared in anticipation of litigation or for trial by or for [a] party or its representative (including the [ ] party's attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3). The City has the burden of establishing that the work-product doctrine is applicable. Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1189 (11th Cir. 2013). Documents for which the privilege is asserted must have been created in anticipation of litigation, though litigation need not have been imminent at the time of creation “as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.” Holladay v. Royal Caribbean Cruises, Ltd., 334 F.R.D. 628, 631 (S.D. Fla. 2020) (quoting United States v. Davis, 636 F.2d 1028, 1040 (5th Cir. 1981)). Rule 26(b)(5)(A) provides [W]hen a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclose – and do so in a matter that, without revealing information itself privileged or protected, will enable other parties to assess the claim. *3 Fed. R. Civ. P. 26(b)(5)(A). The Guidelines to Civil Discovery Practice in the Middle District of Alabama (“MDAL Civil Discovery Guidelines”) reference Rule 26(b)(5)(A) and instruct litigants of the correct procedure when invoking work-product protection. Where objections arise as to a party's assertion of the protection, the parties must first confer and attempt to resolve the issue informally. The asserting party should provide the opposing party with “[a]dditional information that would not destroy the privilege,” including description, date, author, subject, recipients and purpose of the document. See Guidelines To Civil Discovery Practice In The Middle District Of Alabama, § J(A). The MDAL Civil Discovery Guidelines include an example of a privilege log which identifies the document and privilege asserted. See id. at App. I. The City's original privilege log and additional explanatory information in its response do not satisfy the requirements of Rule 26(b)(5)(A) or the MDAL Civil Discovery Guidelines. The list of categories submitted in the City's response simply does not provide sufficient information about each document so that the Plaintiff, or perhaps later the Court, can determine whether the documents qualify for the work-product privilege under Rule 26(b)(3). The Court will therefore direct the City to meet its discovery obligations under Rule 26(b)(3) and MDAL Civil Discovery Guidelines by creating a compliant privilege log. Though Plaintiff's frustration with the City during this dispute is evident and understandable, he cannot cite the Federal Rules of Civil Procedure and MDAL Civil Discovery Guidelines without complying therewith. A party filing a motion to compel must certify that he has “conferred or attempted to confer with the person or party failing to make disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). Moreover, in addition to the command in Rule 37(a)(1), this Court requires litigants to meet and confer prior to seeking court resolution of discovery disputes. “Before a motion to compel may be filed, the parties are required to confer about the matters concerning the dispute either by telephone or at a face to face meeting (i.e. – in person, by Skype, video conference or the like) where a meaningful exchange can be had.” See Guidelines To Civil Discovery Practice In The Middle District Of Alabama, § I(I) (https://www.almd.uscourts.gov/forms/guidelines-civil-discovery-practice-middle-district-alabama). Should Plaintiff remain skeptical of the City's work-product privilege claims after his review of the City's compliant privilege log, he should seek a good faith conference with the City. Merely demanding by letter that opposing counsel make contact by a date certain does not suffice. The Court expects Plaintiff and the City to confer either in person or by telephone, and further expects that some or all discovery issues can be resolved in this manner. III. CONCLUSION Accordingly, it is hereby ORDERED that the motion to compel (Doc. No. 141) is DENIED without prejudice, pursuant to Federal Rule of Civil Procedure 37(a)(1) and Section I(I) of the Guidelines To Civil Discovery Practice In The Middle District Of Alabama. It is further ORDERED that on or before April 1, 2021, the City of Montgomery shall produce a compliant privilege log as to the remaining documents at issue in this dispute (COM000787-884; COM000886-891; COM000893-898; and COM000900-936). The privilege log shall comply with Appendix I to the Guidelines To Civil Discovery Practice In The Middle District Of Alabama. DONE this 18th day of March, 2021. Footnotes [1] See Guidelines To Civil Discovery Practice In The Middle District Of Alabama, §§ I(A) and (I) (https://www.almd.uscourts.gov/forms/guidelines-civil-discovery-practice-middle-district-alabama).