MICHAEL I. GOLDBERG, as court appointed receiver in Securities and Exchange Commission v. Ariel Quiros, et al., US. District Court of South Florida, Case No. 16-cv-21301-Gayles, Plaintiff/Counterclaim Defendant, V. LOUIS DUFOUR, LOUIS HEBERT, and SAINT-SAUVEUR VALLEY RESORTS, INC., Defendants/Counterclaimants and Third Party Plaintiffs, V. QRESORTS, INC., ARIEL QUIROS, JAY PEAK, INC., JAY PEAK MANAGEMENT, INC., WILLIAM STENGER, RAYMOND JAMES FINANCIAL, INC., and RAYMOND JAMES & ASSOCIATES, INC., Third Party Defendants. Case 2:17-cv-00061-cr UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT Filed April 24, 2020 Reiss, Christina, United States District Judge OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SAINT-SAUVEUR VALLEY RESORTS, INC.'S MOTION TO COMPEL (Doc. 149) Plaintiff Michael I. Goldberg brings this action against Defendants Saint-Sauveur Valley Resorts, Inc., currently known as Valley Summits, Inc. ("SSVR"), Louis Dufour, and Louis Hebert ( collectively, "Defendants") as a court-appointed receiver on behalf of Jay Peak Hotel Suites LP and Jay Peak Hotel Suites Phase II LP, which were formed pursuant to the federal EB-5 Immigrant Investor Program in order to facilitate investment in Jay Peak, Inc., a Vermont corporation which owns a ski resort in Jay, Vermont. In June of 2008, SSVR sold the Resort to Ariel Quiros and his corporation, Q Resorts, Inc. Pending before the court is SSVR's December 12, 2019 motion to compel Plaintiff pursuant to Fed. R. Civ. P. 26 and 37 and L.R. 26(c) to: (1) adequately respond to SSVR's First and Second Requests for the Production of Documents (the "First Requests" and "Second Requests," respectively) and First Set oflnterrogatories (the "Interrogatories"); and (2) produce electronically stored information ("ESI") in image file format. (Doc. 149.) In particular, SSVR asks this court to order Plaintiff to reproduce any documents provided only in a native file to an image-file format, complete all document productions, amend his responses to the First Requests, and produce a privilege log within fourteen days of the court's Order; make all future productions through image files; and fully respond to the Second Requests and Interrogatories. Plaintiff filed an opposition on January 6, 2020. SSVR replied on January 21, 2020, at which time the court took the motion under advisement. Plaintiff is represented by Joshua L. Simonds, Esq. Defendants are represented by David M. Pocius, Esq., Laurence May, Esq, and Daniel R. Long, Esq. I. Conclusions of Law and Analysis. A. Standard of Review. Under Fed. R. Civ. P. 26(b )(1 ), parties are entitled to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Relevant information "need not be admissible in evidence to be discoverable." Id. The scope of discovery is to be "construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). "[A]s in all matters relating to discovery, the district court has broad discretion to limit discovery in a prudential and proportionate way." EM Ltd. v. Republic of Argentina, 695 F.3d 201,207 (2d Cir. 2012). B. Whether Plaintiff Must Produce ESI with Images. SSVR asks the court to compel Plaintiff to reproduce all ESI documents produced in native file to an image-file format. SSVR points to Plaintiffs lack of objection to the production format SSVR requested in its First and Second Requests as well as the court's August 21, 2017 Order, which states that all ESI will be produced in "image files unless native files [are] specifically requested[.]" (Doc. 20 at 1.) In the Affidavit of David Pocius, Esq., SSVR describes the obstacles it encountered in seeking to obtain ESI from Plaintiff. The court need not recite those difficulties here to find that Plaintiff has not fully and timely complied with his duty to produce relevant documents. Nonetheless, the court credits Plaintiffs representation that he has produced over 500,000 non-duplicate documents to Defendants to date. Pursuant to Fed. R. Civ. P. 34(b)(l)(C), parties "may specify the form or forms in which electronically stored information is to be produced." "The responding party then must either produce ESI in the form specified or object." Aguilar v. Immigration & Customs Enforcement Div. of US. Dep't of Homeland Sec., 255 F.R.D. 350,355 (S.D.N.Y. 2008); see also In re Porsche Cars N. Am., Inc. Plastic Coolant Tubes Prods. Liab. Litig., 279 F.R.D. 447,450 (S.D. Ohio 2012) ("Once Plaintiffs request native format/metadata at the outset, the burden would shift to [the defendant] to object to this form as unduly burdensome."). If the responding party does not assert any objection to the requesting party's format, that objection is waived. See Morgan Hill Concerned Parents Ass 'n v. Cal. Dep 't of Educ., 2017 WL 445722, at *3 (E.D. Cal. Feb. 2, 2017), reconsideration denied, 2017 WL 1382483, at *3 (E.D. Cal. Apr. 18, 2017) ("In the absence of any timely objection to format, the objection is waived, and the responding party must produce the requested ESI in the form requested[.]"); Dixon v. Experian Info. Solutions, Inc., 2014 WL 2881589, at *4 (N.D. Ind. June 25, 2014) (holding the responding party "waived any objection to the ESI format requested" by failing to address or object to the requesting party's specifications). The parties stipulated to the production of all ESI as image files unless native files are requested, which the court adopted as its Order. SSVR's First and Second Requests request all productions in "TIFF," or image, format. Plaintiff did not object and made four productions to SSVR in that format. Although Plaintiff now claims that the parties agreed to modify that format, the court's Order was not modified to reflect that agreement and, as SSVR points out, the record of communications provided to the court does not document an agreement between the parties sufficiently to render it enforceable. Plaintiff has thus waived any objections to SSVR's requested production format. For the above-stated reasons, the court GRANTS SSVR's motion to compel Plaintiff to re-produce in image-file format files produced only in native format within fourteen (14) days of the expiration of the ninety-day extension of all deadlines granted on March 26, 2020. C. Whether Plaintiff Has Waived All Objections to the Interrogatories by Failing to Sign His Responses. SSVR argues that Plaintiff has waived all objections to SSVR's Interrogatories because Plaintiff failed to sign or date his responses. Pursuant to Fed. R. Civ. P. 33(b)(3), "[ e ]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath." In addition, "[t]he person who makes the answers must sign them, and the attorney who objects must sign any objections." Fed. R. Civ. P. 33(b)(5). "Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure." Fed. R. Civ. P. 33(b)(4). Answers to interrogatories do not constitute a response when not signed under oath by the party making them. See, e.g., Ca bales v. United States, 51 F .R.D. 498, 499 (S.D.N.Y. 1970), aff'd, 447 F.2d 1358 (2d Cir. 1971) (per curiam) (holding that interrogatories not answered in writing under oath or signed by the person making them do "not qualify as an answer"); Black Hills Molding, Inc. v. Brandom Holdings, LLC, 295 F.R.D. 403,412 (D.S.D. 2013) (holding a party's failure to sign his answers to interrogatories rendered his responses "invalid on procedural grounds, regardless of the substance of the answers given"). Plaintiff signed his responses on December 13, 2019, well outside the thirty-day response period set forth in Fed. R. Civ. P. 33(b)(2). He offers no explanation for his failure to verify his answers prior to that date. Rather than deem any objections waived, courts generally compel a signature, [1] although some courts impose a more onerous sanction. [2] In this case, Plaintiff's responses to the Interrogatories included only objections, and Plaintiff's counsel provided electronic signatures. See Fed. R. Civ. P. 33(b)(5) ("[T]he attorney who objects must sign any objections."); Allstate Ins. Co. v. A&F Med. P.C., 2017 WL 2445185, at *2 (E.D.N.Y. June 5, 201 7) ( finding plaintiffs' counsel's electronic signature on interrogatories "permissible" in light of Fed. R. Civ. P. 5(d)(3)'s allowance of filings to be signed electronically). SSVR "receive[ d] the responses themselves in a timely fashion, and has not indicated any instance of prejudice [it] suffered by not seeing the signature[] and notarization[.]" Telesford v. Esgrow, 2016 WL 3636682, at *2 (W.D.N.Y. June 29, 2016) (finding a party who did not sign or verify its interrogatory responses on time did not waive objections). Against this backdrop, the court DENIES SSVR's request that the court declare Plaintiff has waived all objections by failing to timely sign and verify his answers to the Interrogatories, although it cautions Plaintiff to comply with the applicable rules for all further responses. D. Whether Plaintiff Must Amend His Responses to the Second Requests and Interrogatories and Produce a Privilege Log. SSVR contends that Plaintiffs objections to the Second Requests and Interrogatories are inadequate because they are too vague, they do not properly assert an applicable privilege, and they were given without a privilege log. SSVR argues that, in the absence of a privilege log, it cannot discern whether Plaintiff properly asserts an attorney-client privilege with regard to certain communications or whether Plaintiff waived that privilege. As a result, SSVR seeks to compel Plaintiff to amend his responses to the Second Requests and Interrogatories and to produce a privilege log. Fed. R. Civ. P. 34(b)(2)(B) requires responses to requests for production to "state with specificity the grounds for objecting to the request, including the reasons." Any objections "must state whether any responsive materials are being withheld on the basis of that objection." Fed. R. Civ. P. 34(b)(2)(C). In addition, "[t]he grounds for objecting to an interrogatory must be stated with specificity." Fed. R. Civ. P. 33(b)(4). "Boilerplate" objections to requests for production and interrogatories are generally deemed waived. [3] See CapRate Events, LLC v. Knobloch, 2018 WL 43 78167, at *2 (E.D.N.Y. Apr. 18, 2018) ("The 2015 Amendments to the Federal Rules no longer permit[] global, generalized objections to each request."); Carl v. Edwards, 2017 WL 4271443, at *8 (E.D.N.Y. Sept. 25, 2017) (holding defendants responding to interrogatories were "required to do more than simply respond in a 'boilerplate' fashion which lacks the necessary specificity for the Court to properly analyze the objection within the contextual facts of this individual case"); see also Fed. R. Civ. P. 26(b )(1 ), 2015 Amendment, Advisory Committee notes ( stating changes to the rule are not "intended to permit the opposing party to refuse discovery simply by making a boilerplate objection"). In response to SSVR's Second Requests and Interrogatories, Plaintiff asserts the following "General Objections": Plaintiff objects to each and every [request or interrogatory] to the extent that [it] calls for the production of documents and/or disclosure of documents or other information protected (a) by attorney/client privilege, (b) reflecting the mental impressions, conclusions, opinions, or legal theories of the Plaintiff or his attorneys or other representatives concerning this action or any other related or unrelated litigation, ( c) based on the work product doctrine, ( d) prepared in anticipation of litigation or for trial, and [ ( e)] on the basis that they are outside the permissible scope of discovery under the federal rules. (Doc. 149-6 at 2; Doc. 149-8 at 2.) Of the fourteen requests for production and eleven interrogatories, Plaintiff responded to Requests 1-13 and Interrogatories 1-9 with: "Objection (See above General Objections)." (Doc. 149-6 at 2-4; Doc. 149-8 at 2-5.) (emphasis in original). [4] Plaintiff has waived any objections asserted in this manner, including any relevance objections. In contrast, in light of the importance of the attorney-client privilege, privilege objections may be preserved if at least some information regarding the basis of the privilege is provided. See Fed. R. Civ. P. 26(b)(5), 1993 Amendment, Advisory Committee notes (stating to withhold documents as privileged, "[t]he party must also provide sufficient information to enable other parties to evaluate the applicability of the claimed privilege or protection"). Plaintiffs responses to both the Second Requests and Interrogatories include the following "Statement Regarding Attorney/Client Privilege": The Plaintiff and his present Counsel, Keith L. Miller ("Miller["]), first communicated by telephone in June, 2016. Miller initiated the conversation and the subject matter was a potential lawsuit to be filed by the Receiver against the Defendant, SSVR, pertaining to its involvement in the sale of the Jay Peak Ski Resort to QResorts, Inc. To date local and Co Counsel, Joshua L. Simonds ("Simonds"), has had no direct contact with Plaintiff. Prior to any substantive discussions, it was explicitly understood and agreed between the Plaintiff and Miller that attorney/client privilege would attach to that discussion and any future related discussions. That understanding and agreement has never changed since that date, and consequently, Plaintiff asserts that attorney/client privilege and, unless expressly ordered by the Court, refuses to respond in any way to Defendant's discovery requests, which would in any way invade that privilege. (Doc. 149-6 at 1-2; Doc. 149-8 at 1.) In addition, Plaintiff proffers the affidavit of Keith L. Miller wherein Attorney Miller describes why he believes his communications with plaintiff are privileged and producing certain communications in support of that claim. (Doc. 153 and exhibits thereto.) In his affidavit, Attorney Miller opines that because the information and documents Defendants seek are not discoverable, no privilege log is required. This latter conclusion is in error. "Where federal jurisdiction is based on diversity of the parties, it is clear that Fed. R. Evid. 501 requires the application of state law to questions of privilege." Cicel (Beijing) Science & Tech. Co. v. Misonix, Inc., 331 F.R.D. 218, 225-26 (E.D.N.Y. 2019) (alteration, citation, and internal quotation marks omitted). "Under Vermont law, the attorney-client privilege extends to 'confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.'" Citibank, NA. v. City of Burlington, 2013 WL 12227252, at *1 (D. Vt. July 30, 2013) (quoting Vt. R. Evid. 502). "[T]he burden is on a party claiming the protection of a privilege to establish those facts that are the essential elements of the privileged relationship, ... a burden not discharged by mere conclusory or ipse dixit assertions." In re Grand Jury Subpoena Dated Jan. 4., 1984, 750 F.2d 223, 224-25 (2d Cir. 1984) (citations and internal quotation marks omitted); see also Dixon v. 80 Pine St. Corp., 516 F.2d 1278, 1280 (2d Cir. 1975) ("[W]hile the substantive question of privilege is governed by the law of [ the state] ... , the discovery procedure is governed by the Federal Rules[.]"). The work-product doctrine is "distinct from and broader than the attorney-client privilege[,]" United States v. Nobles, 422 U.S. 225, 238 n.11 (1975), and preserves "a zone of privacy in which a lawyer can prepare and develop legal theories and strategy with an eye toward litigation, free from unnecessary intrusion by his adversaries." New York Times Co. v. US. Dep 't of Justice, 939 F .3d 4 79, 489 (2d Cir. 2019) ( citation and internal quotation marks omitted). In contrast to the attorney-client privilege, "federal law governs the applicability of the work-product doctrine in all actions in federal court." Cicel, 331 F.R.D. at 226 (citation omitted). As codified in Fed. R. Civ. P. 26(b)(3)(A), "a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative" unless those materials are otherwise discoverable under Fed. R. Civ. P. 26(b )( 1) or the party seeking the documents shows both a "substantial need" for them and that the party "cannot, without undue hardship, obtain their substantial equivalent by other means." "The party invoking the privilege bears the heavy burden of establishing its applicability." In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007), cert. denied, 553 U.S. 1094 (2008). The parties dispute whether an attorney-client privilege exists and whether it has been waived. Plaintiff, as the holder of that privilege, see Vt. R. Evid. 502(c), denies waiver. See In re von Bulow, 828 F.2d 94, 100 (2d Cir. 1987) ("[T]he privilege belongs solely to the client and may only be waived by him. An attorney may not waive the privilege without his client's consent."). SSVR to date provides scant evidence to the contrary. However, both the existence of the privilege and any waiver thereof cannot be evaluated in a vacuum but must be assessed in the context of a factual record. A privilege log is one means of providing this factual context. More importantly, it is in every case required. The Federal Rules of Civil Procedure require a party asserting an attorney-client or attorney-work product privilege to provide a privilege log: When 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 disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. Fed. R. Civ. P. 26(b)(5)(A). "[T]he Federal Rules of Civil Procedure are unequivocal in that if any privilege has been asserted, it must be supported by a privilege log." Country Home Prods., Inc. v. Banjo, 2016 WL 9344261, at *3 n.3 (D. Vt. Nov. 14, 2016); see also One Source Envtl., LLC v. M+W Zander, Inc., 2015 WL 13505324, at *2 (D. Vt. Apr. 16, 2015) ("When privileged material has been withheld the[] two requirements [of Fed. R. Civ. P. 26(b)(5)(A)] are mandatory under the plain terms of the rule, regardless of whether producing such a log would be burdensome."). Because Plaintiff has not produced a privilege log as required by Fed. R. Civ. P. 26(b)(5)(A), neither the court nor SSVR can determine whether the documents and information he has withheld are privileged. Even though some of SSVR's Second Requests and Interrogatories target documents and communications between Attorney Miller and Attorney Simonds which may not be discoverable, SSVR and the court are "entitled to have the chance to ·assess the claim[.]'" One Source Envtl., LLC, 2015 WL 13505324, at *3 (quoting Fed. R. Civ. P. 26(b)(5)(A)). Indeed, "[t]hat is the entire point of the [privilege] log." Id. Because Plaintiffs privilege objections are non-compliant with the Federal Rules of Civil Procedure, the court GRANTS IN PART SSVR's motion to compel Plaintiff to produce a privilege log addressing all documents withheld in response to the Second Requests within fourteen ( 14) days of the expiration of the ninety-day extension of all deadlines granted on March 26, 2020. Failure to produce a privilege log by this deadline will result in a waiver of any privilege objections. The court DEFERS ruling on SSVR's motion to compel Plaintiff to fully respond to the Second Requests and Interrogatories until Plaintiffs privilege log is produced. In deferring ruling, the court notes that SSVR has yet to proffer a persuasive argument as to why the documents sought are within the scope of discovery. E. Whether the Court Should Compel Plaintiff to Amend His Responses to the First Requests for the Production of Documents and Complete All Productions. Finally, SSVR asks the court to compel Plaintiff to amend his responses to SSVR's First Requests for the Production of Documents and to complete his document productions. SSVR has made no argument regarding the sufficiency of the First Requests; instead, it expressly reserved its arguments regarding these requests for "when the Receiver finally amends them[.]" (Doc. 149 at 4 n.1.) The court issued its Opinion and Order regarding SSVR and Defendants Dufour's and Hebert's motion to dismiss the Third Amended Complaint on January 23, 2020. The discovery deadline has been extended to December 24, 2020 at the parties' request. To the extent Plaintiff asserts his full compliance with SSVR's First Requests for the Production of Documents, he must certify under oath that his response is complete within twenty (20) days of this Order. If Plaintiffs response is not complete, he must complete his production in response to SSVR's First Requests for the Production of Documents within fourteen (14) days of the expiration of the ninety-day extension of all deadlines granted on March 26, 2020.CONCLUSION For the foregoing reasons, the court GRANTS IN PART and DENIES IN PART SSVR's motion to compel. (Doc. 149.) Plaintiff is hereby ORDERED to: 1. Re-produce any and all documents provided only in native format to an image-file format within fourteen (14) days of the expiration of the ninety day extension of all deadlines granted on March 26, 2020. 2. Make all future productions using image files unless native files are specifically requested in accordance with the court's August 21, 2017 Order. 3. Produce a privilege log addressing any and all documents withheld in response to SSVR's Second Requests for the Production of Documents pursuant to Fed. R. Civ. P. 25(b)(5)(A) within fourteen (14) days of the expiration of the ninety-day extension of all deadlines granted on March 26, 2020. Plaintiffs failure to do so will result in the waiver of any privilege objections. 4. Certify under oath that his response to SSVR's First Requests for the Production of Documents is complete within twenty (20) days of this Order. If Plaintiffs response is not complete, he must complete his production in response to those requests within fourteen ( 14) days of the expiration of the ninety-day extension of all deadlines granted on March 26, 2020. The court DEFERS ruling on SSVR's motion to compel Plaintiff to fully respond to the Second Requests and Interrogatories until Plaintiffs privilege log is produced. SO ORDERED. Dated at Burlington, in the District of Vermont, this 24th day of April, 2020. Christina Reiss, District Judge United States District Court Footnotes [1] See, e.g., Connolly v. Alderman, 2018 WL 4462368, at *5 (D. Vt. Sept. 18, 2018) (compelling the plaintiff to serve "signed responses under oath to Defendants' interrogatories to which Plaintiff has not objected" pursuant to Fed. R. Civ. P. 33 within fifteen days of the court's Order); CitiMortgage, Inc. v. Chicago Bancorp, Inc., 2015 WL 6736119, at *3 (E.D. Mo. Nov. 4, 2015) ( compelling plaintiff who did not sign its interrogatory responses to amend them to comply with Fed. R. Civ. P. 33(b)(3) and (5), "[a]lthough the court does not find that [the plaintiffs] failure to verify its interrogatory responses renders its objections waived"); Johnson v. Derhaag Motor Sports, Inc., 2014 WL 5817004, at *8 (D. Minn. Nov. 10, 2014) (declining to consider defendant's unsigned interrogatory responses on summary judgment and ordering defendant to sign them "[i]n order to use or refer to this document in future proceedings in this case"); Impact, LLC v. United Rentals, Inc., 2009 WL 413 713, at * 14 (E.D. Ark. Feb. 18, 2009) (ordering party to sign interrogatories). [2] See, e.g., Patient First Corp. v. Patients 1st Med. Equip. Co., 2007 WL 9782590, at *2 (D. Md. Sept. 11, 2007) ("Because Defendant failed to provide verified responses to Plaintiffs interrogatories within the thirty-day deadline imposed by the Federal Rules, these responses must be stricken, and Defendant has waived its right to object to Plaintiffs interrogatories unless Defendant can show good cause for its failures."); Alexander v. Certegy Check Servs., Inc., 2006 WL 1515841, at *2 (M.D. Ala. May 30, 2006) (holding that a party who did not timely sign initial interrogatory responses but ultimately provided signed responses was "simply too late" and waived any objections). [3] See, e.g., Chow v. SentosaCare, LLC, 2020 WL 559704, at *3 (E.D.N.Y. Jan. 23, 2020) (holding the 2015 Amendments "no longer permit global, generalized objections to each request") ( citation, alteration, and internal quotation marks omitted); Fischer v. Forrest, 2017 WL 773694, at *3 (S.D.N.Y. Feb. 28, 2017) (holding that incorporating general objections "into each response violates Rule 34(b)(2)(B)'s specificity requirement as well as Rule 34(b)(2)(C)'s requirement to indicate whether any responsive materials are withheld on the basis of an objection"); Benjamin v. Oxford Health Ins., Inc., 2017 WL 772328, at *4 (D. Conn. Feb. 28, 2017) ("[P]at, generic, non-specific objections, intoning the same boilerplate language, are inconsistent with both the letter and the spirit of the Federal Rules of Civil Procedure. An objection to a document request must clearly set forth the specifics of the objection and how that objection relates to the documents being demanded.") ( alteration, citation, and internal quotation marks omitted); Leibovitz v. City of NY, 2017 WL 462515, at *2 (S.D.N.Y. Feb. 3, 2017) ("General boilerplate objections are inappropriate and unpersuasive.") (citation omitted); Jacoby v. Hartford Life & Accident Ins. Co., 254 F.R.D. 477,478 (S.D.N.Y. 2009) (holding a defendant's responses to document requests and interrogatories "with boilerplate objections that include unsubstantiated claims of undue burden, overbreadth and lack of relevancy ... are a paradigm of discovery abuse"). [4] Request 14 seeks documents regarding expert witnesses, to which Plaintiff responded: "None. Plaintiff will supplement if and when the Answer requires supplementation." (Doc. 149-6 at 4, ,r 14) ( emphasis in original). Interrogatories 10 and 11 similarly request details about expert and non-expert witnesses, to which Plaintiff responded: "Plaintiff has not decided who will be his witnesses at trial of this action, but will supplement his answer at a later time." (Doc. 149-8 at 4, ,r,r 10-11.)