KIM SISTRUNK, Plaintiff, v. CARLOS DEL TORO, Secretary of the Navy, Defendant Case No. 3:23cv24673-TKW-HTC United States District Court, N.D. Florida Filed November 06, 2024 Cannon, Hope T., United States Magistrate Judge ORDER *1 Before the Court are Plaintiff Kim Sistrunk's motion to compel, Doc. 29, and Defendant Secretary of the Navy Carlos Del Toro's response in opposition, Doc. 30. Specifically, Plaintiff takes issue with Defendant's privilege and relevance objections to Request No. 4 of Plaintiff's Second Requests for Production of Documents (“RFP”), which seeks communications between Defendant's counsel and counsel for other government agencies. After reviewing the parties' submissions, the Court concludes Plaintiff's motion should be DENIED because it is untimely and because the requested documents are privileged. I. The Motion is Untimely On March 12, 2024, the Court entered an Initial Scheduling Order (“ISO”) that contained certain deadlines, including that all discovery must be issued no later than 75 days before the end of the discovery period and motions to compel must be filed no later than 30 days before the close of discovery. Doc. 10. After the parties submitted their Rule 26 Report, the Court entered a Final Scheduling Order (“FSO”) setting the discovery deadline as September 30, 2024.[1] Doc. 12. The FSO states, “[o]n matters not addressed in this Order or the parties' report, the Initial Scheduling Order remains in effect.” Id. Despite the mandate in the ISO, Plaintiff did not serve her RFP on Defendant until August 30, 2024, a mere 31 days before the close of discovery. Doc. 29-1. Defendant responded to the RFP on September 30, 2024, raising objections and asserting the RFP seeks privileged documents. Doc. 29-2. After conferring with Defendant regarding the response to the RFP, Plaintiff filed her motion to compel on November 1, 2024. Doc. 29. However, the motion is untimely because it was filed after the September 30 discovery deadline. Plaintiff asserts the motion to compel is not untimely because “Defendant provided the deficient responses on the last day of the discovery deadline, and the parties have since made efforts to resolve the disputes without requiring Court intervention.” Doc. 29 at 7. However, Plaintiff fails to show she exercised reasonable diligence during the discovery period. See Doc. 10 at 2 (The Court “will ordinarily not entertain a motion to compel filed during the last 30 days of the discovery period unless the movant shows reasonable diligence during the discovery period and the discovery dispute arose during the last 30 days of discovery.”). As previously mentioned, Plaintiff served the RFP at issue only 31 days before the close of discovery, which disregarded the ISO's command to make discovery requests at least 75 days before the discovery deadline. Moreover, the ISO opened discovery on March 12, 2024, and Plaintiff has offered no explanation for why the RFP could not have been made earlier.[2] Thus, Plaintiff has not shown reasonable diligence during the discovery period and her motion to compel should be denied as untimely. II. The Requested Documents are Privileged *2 Even assuming Plaintiff's motion to compel was timely, it would still be denied on the merits. The only discovery request at issue in the motion, Plaintiff's RFP No. 4, seeks “all communications between Defendant, Defendant's counsel, and anyone acting on Defendant's behalf, and counsel for Naval Hospital Pensacola, pertaining to this matter.” Doc. 29-1 at 5. Defendant indicates the only documents responsive to RFP No. 4 are being withheld based on the attorney-client privilege and work-product doctrine. Docs. 29-2 & 29-3. Defendant also produced a privilege log for the withheld documents; the log indicates the documents consist of 9 one-page emails dated between April 22, 2024, and August 5, 2024. Doc. 29-4. The emails were exchanged between three attorneys—Defendant's counsel, counsel for the Defense Health Agency (“DHA”), and counsel for the Naval Education & Training Command—and are described as pertaining to: (1) a request for Plaintiff's medical records; and (2) the medical providers Plaintiff disclosed as non-retained experts. Id. Plaintiff argues these 9 documents are not privileged because they involved counsel for the DHA, “a joint, integrated combat support agency which works not only with the U.S. Navy but also with the U.S. Army and the U.S. Air Force.” Doc. 29 at 5. Because the DHA is not a party to this case and is a government agency separate from the Navy, Plaintiff suggests the inclusion of DHA's counsel on the emails waived any privilege. “The purpose of the attorney-client privilege is to encourage open and complete communication between a client and his attorney by eliminating the possibility of subsequent compelled disclosure of their confidential communications.” Westchester Surplus Lines Ins. Co. v. Portofino Masters Homeowners Assoc., Inc., 347 F.R.D. 228, 234 (N.D. Fla. 2024) (citation omitted). “[I]n order to claim attorney-client privilege, the proponent of the privilege must prove that what is sought to be protected is (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client.” Diamond Resorts U.S. Collection Dev., LLC v. US Consumer Att'ys, P.A., 519 F. Supp. 3d 1184, 1197 (S.D. Fla. 2021) (citation omitted). “The work product privilege is broader than the attorney-client privilege. It is codified in Rule 26 of the Federal Rules of Civil Procedure and protects from disclosure ‘documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative’ unless the party makes a showing of substantial need ‘and cannot, without undue hardship, obtain their substantial equivalent by other means.’ ” Westchester, 347 F.R.D. at 235 (quoting Fed. R. Civ. P. 26(b)(3)). As an initial matter, the Court notes all 9 emails post-date the filing of Plaintiff's complaint in this case and discuss requests for Plaintiff's medical records and the medical providers Plaintiff disclosed as non-retained experts. These communications are clearly related to this litigation, as Plaintiff indicated these topics were relevant to her claims in her initial and expert disclosures. Docs. 30-1 & 30-2. Furthermore, Defendant's counsel confirms she “communicated with counsel for the Navy and counsel for the Naval Hospital Pensacola[3] concerning this lawsuit, and as disclosed on the ... privilege log, regarding Plaintiff's medical records and providers.” Doc. 30 at 7. *3 Based on the foregoing, the Court finds the emails listed on Defendant's privilege log are protected from disclosure by the attorney client-privilege and work-product doctrine. The emails are confidential communications about pending litigation which were intended to assist Defendant's counsel in defending against Plaintiff's claims. Furthermore, while Plaintiff argues Defendant waived any claim of privilege because counsel for the non-party DHA was privy to the communications, the Court disagrees. “The joint defense or common interest privilege protects communications between individuals and entities and counsel for another person or company when the communications are part of an on-going and joint effort to set up a common defense strategy. In other words, members of the community of interest must share at least a substantially similar legal interest.” Westchester, 347 F.R.D. at 235 (quotation marks and citation omitted). Here, the Department of the Navy and the DHA are two components of the executive branch of the federal government. While the DHA is not a party to this litigation, the common interest doctrine can extend to communications with nonparties. See United States v. Gumbaytay, 276 F.R.D. 671, 674-76 (M.D. Ala. 2011) (“recognizing that the common interest rule protects communications between a governmental agency and persons on whose behalf the governmental agency brings suit, where counsel for the government has filed suit to enforce the rights of aggrieved persons under the Fair Housing Act,” despite the fact the aggrieved persons “are neither clients represented by counsel nor parties to this litigation”). In addition, Defendant maintains the Navy and the DHA “have a common interest in this litigation,” Doc. 30 at 7, and the Court sees no reason why these two federal agencies' interests would not be aligned in defending against Plaintiff's discrimination claims. See Hamama v. Adducci, 2018 WL 11361029, at *3-4 (E.D. Mich. Oct. 25, 2018) (noting “[t]he Government stands in a different position than other litigants” and concluding Immigration and Customs Enforcement did not waive the attorney-client privilege by communicating with attorneys at the State Department because the two agencies' “interests are aligned and they share a common interest in the outcome of this litigation”); Modesto Irrigation Dist. v. Gutierrez, 2007 WL 763370, at *18 (E.D. Cal. Mar. 9, 2007) (“[A]lthough the documents for which the attorney-client privilege is asserted were shared between multiple agencies, those agencies shared the common goal of reaching a mutually acceptable policy decision that would withstand legal challenge. Accordingly, the common interest doctrine operates to protect these documents from disclosure.”). Thus, under the common interest doctrine, the communications between the three attorneys listed on Defendant's privilege log are not subject to disclosure. Accordingly, it is ORDERED: Plaintiff's motion to compel, Doc. 29, is DENIED. DONE AND ORDERED this 6th day of November, 2024. Footnotes [1] On October 8, 2024, the Court entered an order extending the discovery deadline to November 7, 2024, “for the limited purpose of allowing Plaintiff to take the deposition of the late-disclosed witness, Adm. Peter A. Garvin.” Doc. 28. The October 8 Order stated, “no other discovery is allowed” and, thus, this limited extension of discovery is not relevant to resolving Plaintiff's motion to compel, which involves a request for production. [2] The Court also notes Plaintiff waited until October 16 to begin conferring with Defendant regarding the September 30 response to the RFP which, again, is not indicative of diligence. [3] “Counsel for Naval Hospital Pensacola is employed by the Defense Health Agency and works out of Naval Hospital Pensacola.” Doc. 30 at 5.