COURT ORDERS COMPANY TO PROVIDE INFORMATION ON PRIVILEGE CLAIMS.

It is well established that documents prepared in anticipation of litigation are protected by the work product doctrine. F.R.C.P. Rule 26(b)(3), Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L.Ed. 451 (1947). This doctrine is broader and distinct from the attorney-client privilege. United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975) (citing Hickman, 329 U.S. at 508, 67 S.Ct. 385). The party asserting protection under the work product doctrine has the burden of proving that the documents were prepared in anticipation of litigation. Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 138 (3d Cir.2000) Also, the anticipated litigation must be identified and it must be proven that the communication in question was in preparation of that litigation. In Re Vioxx Products Liability Litigation, 501 F.Supp.2d 789 (E.D. La 2007). In the Fifth Circuit, while litigation need not necessarily be imminent, the primary motivating purpose behind the creation of the document must be to aid in possible future litigation. United States v. Davis, 636 F. 2d 1028, 1040 (5^th Cir. 1981). For example, work papers generated by an attorney who prepares a tax return are not protected by the work product doctrine "simply because there is always a possibility that the IRS might challenge a given return." Davis, citing to Colton v. United States, 2 Cir. 1962, 306 F.2d 633, 639-40, cert. denied, 1963, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499. There must be evidence to expect "future trouble with the IRS," or the documents will be outside the scope of the work product doctrine. Id.

"Generally, a reasonable anticipation of litigation requires existence of an identifiable specific claim or impending litigation at the time the materials were prepared." Schmidt, Long & Assoc., Inc. v. Aetna U.S. Healthcare, Inc., Civ. A. No. 00-CV-3683, 2001 WL 605199, at *4, 2001 U.S. Dist. LEXIS 7145, at *13 (E.D.Pa. May 31, 2001). When determining the applicability of the work product doctrine, the court must consider the nature of the document, and the facts surrounding its creation and distribution. Martin v. Bally's Park Place Hotel & Casino, 983 F.2d 1252, 1260 (3d Cir.1993). Based upon these factors, the court then determines whether "the document can be fairly said to have been prepared or obtained because of the prospect of litigation." In re Grand Jury Proceedings (FMC Corp.), 604 F.2d 798, 803 (3d Cir.1979).

Moreover, Rule 26 "does not attempt to define for each case what information must be provided. . . . [d]etails concerning time, persons, general subject matter, etc. may be appropriate." Id., advisory committee notes. Additional detail in the privilege log or supporting affidavits for the allegedly privileged documents may be necessary to provide facts relating to the individuals listed on the privilege log, including their job titles. Muro v. Target Corp., 243 F.R.D. 301, 308 (N.D. Ill 2007) A proper assertion that documents are attorney-client privileged or protected by the work product doctrine means that a party must describe those documents it contends are privileged to the best of its ability without revealing the privileged information, even if doing so is difficult to do without revealing the confidential nature of the documents. Estate of Manship v. U.S., 232 F.R.D. 552, 561 (M.D. La. 2005) Where descriptions in the privilege log fail to meet this standard, "then disclosure is an appropriate sanction." Smithkline Beecham Corp. v. Apotex Corp., 193 F.R.D. 530, 534 (N.D.Ill., 2000)

For example, privilege log entries that state the documents concerned "legal advice" lack sufficient information for the court or other parties to determine the applicability of the privilege. United Investors Life Insurance Company v. Nationwide Life Insurance Company, 23 F.R.D. 483 (N.D. MS 2006). Further, "the mere assertion of a lawyer that responsive materials or information are attorney-client privileged or protected by the work product doctrine is not evidence establishing that the information is privileged." Estate of Manship at 561. Blanket assertions are unacceptable. United States v. Hodgson, 10 Cir. 1974, 492 F.2d 1175, 1177; United States v. Roundtree, 5 Cir. 1969, 420 F.2d 845, 852. Asserting privilege for an entire e-mail thread in the privilege log, but only describing the last message in the thread is deficient. In Re Vioxx Products Liability Litigation, 501 F.Supp.2d 789 (E.D. La 2007) Moreover, business advice which is unrelated to legal advice is not protected by the attorney-client privilege even when it is between an attorney and a client. Id. Also, documents relating to the preparation of a tax return are not privileged. United States v. Davis, 636 F. 2d 1028, 1043 (5^th Cir. 1981)

Plaintiff asserts that it has met its burden of proof under the federal rules and the rules of this district. For those documents it claims are protected under the work product doctrine, plaintiff contends that litigation "need not be imminent, or even certain to occur, for work product to apply," (rec. doc. 52), and cites to United States v. Davis, 636 F.2d 1028, 1040 (5^th Cir. 1981) for this proposition. The doctrine is not so amorphous. Davis goes on to say that there must still be evidence to expect there may be litigation in order for the documents to enjoy the protection of the work product doctrine. As plaintiff points out, there has been widespread adoption for the standard in United States v. Adlman, 134 F.3d 1194 (2^nd Cir. 1998), which "asks instead whether a document was prepared 'because of' the prospect of litigation." (rec.doc. 52) Plaintiff also states that the Fifth Circuit has not "revisited its applicable test for work product, but Vioxx, a recent Fifth Circuit case, found that the anticipated litigation must be identified and it must be proven that the communication in question was in preparation of that litigation, all in keeping with the standard set forth in Hickman. The key is identifying the anticipated litigation first, then explaining the facts regarding the document's creation as it relates to the identified litigation.

In reviewing the privilege logs, the court is at a loss as to how one could determine the application of the privilege from viewing the log alone. The subject matter is vague and repetitious, and lacks enough detail. For example, there are sixteen general subject matter descriptions, and some examples are "tax advice relating to Chemtech partnership. "the basis, depreciation, fair market value and/or royalty rates of the Chemtech patent portfolios," "government filing requirements of the Chemtech partnership," "the formation of the Chemtech partnership," and "the structure and/or operation of Chemtech." Plaintiff claims for several pages that its descriptions are sufficient, but has cited to no cases wherein government filing requirements, partnership formation data, or the structure of a partnership has constituted information inherently protected by the attorney-client privilege or the work product doctrine, or identified the litigation which generated the need for the protection of the work product doctrine. Plaintiff has acknowledged that the sixteen subject matter descriptions "set forth the topic of communication at a general level." (rec. doc. 52) This "general level" description is not in keeping with the intent of Rule 26, or the cases cited herein, and this is where plaintiff's protests fall short. Based on the log alone, the court could override most, if not all, of the objections.

Also, there are email strings without explanation as to each part of the email, documents without recipients, documents sent to several individuals without identifying titles, and documents claiming both attorney-client privilege and work product doctrine. It is not possible to tell from the entries whether these entries truly enjoy both the privilege and the protection of the work product doctrine without useless speculation. Moreover, the author of some of these documents is "Dow Chemical Company," which is an entity and not an individual, and "Dow Chemical Company" prepared memoranda to the file.

The plaintiff also attempts to convince this court that an order by the undersigned in another case which required a privilege log to contain the date, author, recipient(s), general statement regarding the document, and the specific basis for the privilege claim, is all that is required of plaintiff. On the contrary, the sufficiency of privilege log descriptions are decided on a case-by-case basis, and it is well within the discretion of this court to determine what constitutes enough information in a privilege log. The case cited by plaintiff was a simple matter, very much unlike this one. In this case, due to the complicated and intricate financial and business transactions involved, the entries need far more detail, such as the title of the memorandum or legal opinion, the kind of tax advice issue involved, etc. This does not mean that the description has to repeat the entirety of the document's contents, but it does need a more accurate and specific description of its contents. In this matter, neither the court nor any other party can determine the merits of the documents by reviewing the log entries themselves, as is required under the "four corners" test, because plaintiff only provided "general level" subject matter descriptions.

Thus, the court will order the plaintiff to revise its privilege log entries for the outstanding 379 documents to include each element of a claimed privilege or protection, and in a manner sufficient for the defendant and this court to "test the merits." At this juncture, the court will not order that any of the 379 documents be produced, and will not conduct an in camera review of the documents. Obviously, such a log will require some work, but an in camera inspection of 379 documents is no substitute for an informative log. There is not enough information at this point for the parties to present any merits-based argument for the individual documents or to challenge anything other than the log is insufficient.

Since the parties obviously are very familiar with the litigation and its complexities, it would be beneficial if they discussed the necessary information to be included in a privilege log that would enable the defendant and the court to reasonably assess the claimed privilege. A deficient log entry will be grounds for waiver in the future. At a minimum, the identity and title (including, for example, in-house or outside attorney) of all authors and recipients, the date of the document, the beginning and ending Bates numbers, a title and specific description and subject matter of the document, the purpose for which it was created, and the reason the document was withheld should be included. In the case of work product, the date the document was created and the identity of the specific litigation anticipated should be provided along with the other required information.

The court now addresses the second issue in the motion to compel, which is that the defendant finds plaintiff's answer to interrogatory no. 16, to be inadequate. The question read as follows:

In reviewing the plaintiff's explanations contained within the opposition, the court finds that the response to the interrogatory should be supplemented to include this additional information. Accordingly,

IT IS ORDERED that defendant's motion to compel is GRANTED in part and DENIED in part as follows:

² The "economic substance" doctrine is a judicially developed doctrine that permits transactions lacking in economic substance to be disregarded for tax purposes, and is one tool used by the IRS when dealing with tax shelter issues.

³ The definition for attorney-client privilege my be found in "In Re Grand Jury Proceedings, 517 F.2d 666, 670 (5^th Cir. 1975)