In Thompson v. Intermodal Cartage Co., No.: 2:24-cv-34-KS-MTP (S.D. Miss. Jan. 24, 2025), Mississippi Magistrate Judge Michael T. Parker, stating “a privilege log is still required when a party claims privilege for a subpoena duces tecum directed at a third party”, gave defendants another chance to produce the privilege log.

Case Discussion and Judge’s Ruling

In this case filed after a motor-vehicle accident that occurred between Plaintiffs and Defendant Julian Davis, who was driving a vehicle for Defendant Intermodal Cartage, Plaintiffs served a subpoena duces tecum is served on Parker & Associates, LLC, a third-party company providing independent adjusting and claim administration services. Defendants filed a motion to quash the subpoena, arguing that the requested information was protected by attorney-client privilege and the work-product doctrine.

Addressing the attorney-client privilege claim, Judge Parker stated: “Defendants say that Parker is ‘in possession of confidential communications discussing strategy, litigation reports and claim evaluations.’…Defendants thus contend that the attorney-client privilege has been asserted to ‘essentially each and every document in possession of Parker related to this claim.’…However, Defendants have not identified which communications were made in pursuit of legal advice, and which were not. Nor have Defendants provided a privilege log for the Court or Plaintiffs to ascertain whether any documents are in fact privileged.”

Noting requirements from Rule 45 and FRCP Rule 26(b)(5) to describe the nature of the documents being withheld and Local Uniform Civil Rule 26(e), which provides that any party asserting a privilege is required to submit a privilege log, Judge Parker stated: “Defendants have failed to comply with these requirements. Defendants instead take the position that, because the subpoena seeks information from a third party, they are not withholding any information in response to the subpoena and ‘they should not incur the time and expense of working through each and every document in possession of Parker, nor is this required as Defendants are not the party to whom the request is directed.’…The Court rejects this position. Courts have repeatedly recognized that a privilege log is still required when a party claims privilege for a subpoena duces tecum directed at a third party.”

Continuing, he said: “Defendants cannot raise a blanket assertion of the privilege on the one hand and release themselves of the burden demonstrating that the privilege exists on the other. Indeed, Defendants say that they have ‘properly asserted the attorney-client privilege’ for ‘essentially each and every document in possession of Parker related to this claim.’…As such, they bear the burden of demonstrating that the privilege exists. Without identifying the documents that are allegedly privileged, Defendants have not carried their burden. Accordingly, because Defendants have failed to provide a privilege log, Plaintiffs argue that the privilege is waived.”

However, Judge Parker also added this: “The Court cannot presently ascertain whether any documents in response to the subpoena are privileged. However, it is likely that a full response to the subpoena may include information protected by the attorney-client privilege. Rather than find a waiver of the privilege, the Court will afford Defendants an opportunity to produce a privilege log that identifies specific documents that are, or will be, withheld based on the attorney-client privilege and/or the work-product doctrine”.

As for the work-product doctrine, Judge Parker stated: “Defendants and Parker were plainly put on notice of potential, if not imminent, litigation when they received the letter from Plaintiffs’ counsel on January 26, 2023. The work performed after this date very well may be protected by the work-product doctrine. It is unclear, however, whether Defendants believe that the work-product doctrine applies for any documents created before January 26, 2023. Even so, Defendants have not provided a privilege log that identifies any documents that are, or will be, withheld based on the work-product doctrine. That information shall also be identified in a privilege log in response to the Parker subpoena.”

As a result, Judge Parker ordered that:

“1. Defendants Intermodal Cartage Co., LLC, and Julian Davis’s Motion to Quash Plaintiffs’ Subpoena Duces Tecum to Parker & Associates, LLC… is GRANTED in part and DENIED in part;

2. The documents requested in the subpoena duces tecum shall be produced by Parker & Associates, LLC, by not later than February 5, 2025. However, except as to the documents requested in Paragraphs 3 and 4 of the subpoena…, Defendants may withhold production of those materials that they believe are protected by the attorney-client privilege and/or the work-product doctrine as identified in a privilege log that shall also be served upon Plaintiffs by not later than February 5, 2025; and

3. All other relief demanded in the Motion…is DENIED.”

So, what do you think? Should parties have to produce a privilege log for documents possessed by a third party? Please share any comments you might have or if you’d like to know more about a particular topic.

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