PYR Energy Corp. v. Samson Resources Co., 2007 WL 446025(E.D.Tex. Feb 07, 2007) (NO. 1:05-CV-530)
Judge: Earl S. Hines
Holding: Motion for Sanctions re: Nonproduction of Privilege Log Granted (pretty much in its entirety)
Judge Hines previously ordered the defendant to produce a privilege log. Contending that Samson didn't comply with the Court's order, Plaintiff wanted Samson taken out and shot. Judge Hines agreed, writing:
Samson failed to comply with either Rule 26 or the court's order in numerous respects. First, the purported privilege log was filed more than two weeks past the deadline, and then only after twice being prompted by the court, at hearings on May 10th and again on May 22nd. Second, the late-filed log was incomplete. It was not supplemented until six weeks past the deadline. Third, the log does not identify all recipients of the documents; the “general description” of the subject matter is so vague and oblique as to be meaningless; and there is no proffered justification for the assertion of any claim of privilege.
Additional and glaring deficiencies were identified during the court's subsequent in camera review. On the log, many documents list only one e-mail recipient. The e-mail, however, clearly was sent to multiple people. Some documents even were sent to third parties, e.g., Mr. Ames, an employee of Venus. Several documents were filed under seal as privileged, but were not identified in the log. Other documents filed under seal simply were not the documents purportedly identified by the log.
PYR's sanctions motion and objections to the privilege log identified many of the deficiencies noted above. Yet, Samson has taken no efforts to correct the deficiencies or to produce and disclose documents during the intervening seven months since PYR's motion was filed. Accordingly, the court agrees with PYR that Samson's disregard of the Federal Rules of Civil Procedure and of this court's explicit order subjects Samson to an appropriate sanction for failure to make disclosures and cooperate in discovery.
Judge Hines went on to find that Samson's "nearly wholesale and persistent failure to comply with the court's order warrants the sanction of deeming any privilege waived as to many documents in the log." However, "all sanctions must be just," Judge Hines observed, "and the court finds waiver of privilege to be unjust with respect to certain documents that are at the core of the attorney-client privilege." So the order went on to hold that privilege had been waived for all but fifteen of the documents listed on the privilege log.