Bad Faith for Not Reviewing Documents for Relevance Before Asserting Privilege: eDiscovery Case Law

In Stagger v. Experian Info. Sol., Inc., No. 21 C 2001 (N.D. Ill. Nov. 15, 2021), Illinois Magistrate Judge Jeffrey Cole granted the plaintiff’s motion to compel the defendant to respond to two document requests, finding that the defendant needed to re-produce an unredacted version of a report that it previously produced as redacted (despite claiming it was unredacted) and also finding that the defendant’s claims of privilege on documents was waived and in bad faith because those documents had not even been reviewed yet for relevancy.

Case Background

In this Fair Credit Reporting Act (“FCRA”) case filed by the plaintiff for how her credit history was handled, Judge Cole described the dispute between the parties accordingly: “A fair amount of the parties’ back and forth can be glossed over as it is clear the law firms are familiar with one another and not altogether cordial, especially given the tone taken on Experian’s side. Unfortunately, familiarity does seem to breed contempt, more so in litigation and especially in discovery. But not every case, and certainly not every little discovery spat needs to be treated as if it were Napoleon’s retreat from Moscow. In the case of discovery disputes, it’s a highly questionable strategy because once counsel abandons their responsibilities under Local Rule 37.2 and demands court intervention, it becomes a matter committed to the broad discretion of the court…Consequently, it behooves counsel to work things out on their own where possible.”

The two discovery requests in dispute were: 1) production of an unredacted version of the “Long Admin Report”, which is the historical information Experian keeps of updates to a consumer’s file, and 2) emails and document(s) explaining Experian’s post-bankruptcy reporting scrub procedures, and the changes Experian made to those procedures in early 2021.

Judge’s Ruling

With regard to the Long Admin Report, Judge Cole stated: “it certainly appears to be ‘relevant to any party’s claim or defense and proportional to the needs of the case….’…And Experian seems a bit flummoxed in its efforts to get around that obvious impression. At first, it claims it has already produced ‘both its standard Admin Report and a Long Admin Report’…and that the Long Admin Report it produced was ‘Unredacted.’…But reading a bit farther, Experian concedes that it certainly did produce a redacted report… It’s not clear whether Experian’s assertion that it has produced an ‘unredacted’ Long Admin Report was merely a blunder, but the gist of Experian’s position seems to be the report it produced was truly ‘unredacted’ because the only things redacted don’t, in Experian’s view, matter. That, of course, is preposterous.”

In granting the plaintiff’s motion for production of an unredacted version of the “Long Admin Report”, Judge Cole added: “Experian tells the court that its corporate representative also explained to counsel that a scrub does not delete accounts but updates its reporting of accounts to show that they are discharged in bankruptcy…That’s all well and good, but as already mentioned, a lawsuit involves a lot more ‘show me’ than ‘tell me.’ ‘Move along, there’s nothing to see here,’ is simply not a very convincing stance. If plaintiffs simply had to believe defendants’ and their attorneys’ assurances that defendants had done nothing wrong, there would be a lot of judges looking for other employment.”

As for the second request, Judge Cole stated: “if the way Experian handled plaintiff’s account pre-change was reasonable or accurate or in keeping with an injunction from a federal court in California, what was the motivation for making those March 2020 changes? So, Experian’s objection that the materials aren’t relevant doesn’t hold up… Experian also objects on the basis of ‘proportionality.’ But, Experian made no mention of that in its objection to plaintiff’s request at the time so the objection is waived.”

Regarding the defendant’s privilege objection, Judge Cole stated in finding bad faith and granting the plaintiff’s motion on that request as well: “Experian asserts a novel argument as why it did not have to comply with the rules and principles. It claims that, because it also generally objected on the grounds of relevance, that meant it did not have to comply with Fed.R.Civ.P. 26(b)(5) then and there… Experian is represented by one of the most significant law firms in the Nation and thus, contrary to Experian’s thesis, I do not think it was inappropriate to require a review of documents in advance of any claim of privilege… But Experian’s position has more serious problems. It asserts that if the court rules the documents at issue are relevant, it will then – only then – ‘collect those documents, [and] conduct a privilege review.’…In other words, according to Experian, it has yet to review the responsive documents. If Experian hasn’t gone over the documents, how could it claim they are privileged in its objections to the plaintiff’s document request back in July and, more importantly, how can it claim the are privileged in a brief filed in federal district court? The only answer is that those claims have been made in bad faith and, of course, cannot be upheld.”

So, what do you think about the bad faith argument? Should a party be able to claim privilege on documents yet to be reviewed for responsiveness or do you agree that is bad faith?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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