Burlington Northern v. Usdc=mt ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BURLINGTON NORTHERN & SANTA 
FE RAILWAY COMPANY,
Petitioner,
No. 04-72134
v.
D.C. No.
UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF  CV-02-00116-RFC
MONTANA, ORDER AND
Respondent, AMENDED
OPINION
BRIAN KAPSNER AND RYANN
KAPSNER,
Real Parties in Interest.

Appeal from the United States District Court
for the District of Montana (Billings)
Richard F. Cebull, District Judge, Presiding
Argued and Submitted
January 12, 2005—Seattle, Washington
Filed March 31, 2005
Amended May 19, 2005
Before: Mary M. Schroeder, Chief Judge, Alfred T. Goodwin
and Susan P. Graber, Circuit Judges.
Opinion by Judge Goodwin
5401
5404 BURLINGTON NORTHERN v. USDC
COUNSEL
John C. Berghoff, Jr. (Argued), Mayer, Brown, Rowe & Maw
LLP, Chicago, Illinois; Oliver Goe (On the Briefs), Browning,
Kaleczyc, Berry & Hoven, P.C., Helena, Montana, for the
petitioner.
Julieann G. McGarry (Argued), Cok, Wheat, Brown &
McGarry PLLP, Bozeman, Montana; D. Anthony West (On
the Briefs), Morrison & Foerster LLP, San Francisco, Califor-
nia, for the real parties in interest.
ORDER
The opinion filed March 31, 2005, slip op. 3893, and
appearing at 403 F.3d 1042 (9th Cir. 2005), is amended as fol-
lows:
At 403 F.3d 1047 (slip op. 3903, 3rd line from the bottom
of the page), delete the text after “. . . the following factors:”
to just before “(where providing particulars . . .” and replace
with the following:
. . . the degree to which the objection or assertion of
privilege enables the litigant seeking discovery and
the court to evaluate whether each of the withheld
documents is privileged . . .
At 403 F.3d 1047 (slip op. 3904, at the end of the first con-
tinuation paragraph), after the word “format.”, add the follow-
ing:
BURLINGTON NORTHERN v. USDC 5405
Finally, the application of these factors shall be sub-
ject to any applicable local rules, agreements or stip-
ulations among the litigants, and discovery or
protective orders.FN
FN
We are well aware that, particularly in
discovery-intensive litigation, compiling a
privilege log within 30 days may be
exceedingly difficult, even for counsel who
are sophisticated, experienced, well-funded,
and acting in good faith. Further, we are
aware (and take this opportunity to make
district courts aware) that litigants seeking
discovery may attempt to abuse the rule we
announce today by propounding exhaustive
and simultaneous discovery requests. In
these circumstances, litigants are not with-
out recourse. Rather, at the outset of dis-
covery or, at the latest, before Rule 34’s 30-
day time limit has expired, they may either
secure an appropriate agreement or stipula-
tion from the relevant litigants or, failing
that, apply for a discovery or protective
order.
With these amendments, the panel has voted unanimously
to deny the petition for rehearing. Chief Judge Schroeder and
Judge Graber have voted to deny the petition for rehearing en
banc, and Judge Goodwin recommended denial.
The full court has been advised of the petition for rehearing
en banc and no active judge has requested a vote on whether
to rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing is DENIED and the petition for
rehearing en banc is DENIED.
No further petitions for rehearing or rehearing en banc shall
be entertained.
5406 BURLINGTON NORTHERN v. USDC
OPINION
GOODWIN, Circuit Judge:
Burlington Northern & Santa Fe Railway Company
(“Burlington”) petitions this court for a writ of mandamus to
overturn the District Court of Montana’s discovery ruling,
which orders Burlington to produce documents to plaintiffs
Brian and Ryann Kapsner (“the Kapsners”) in underlying
environmental litigation in which Burlington is the defendant.
The writ is denied.
I. FACTS AND PROCEDURAL HISTORY
The Kapsners brought an action on July 12, 2002, against
Burlington in the District Court of Montana for the Sixth Judi-
cial District (Park County) for Burlington’s alleged inten-
tional dumping of diesel oil and toxic solvents, resulting in
contamination of the Kapsners’ land, and for Burlington’s
intentional failure to contain and remediate this damage. Bur-
lington removed to the United States District Court for the
District of Montana on diversity grounds. The amended com-
plaint seeks recovery for nuisance, negligence, strict liability,
trespass, wrongful occupation, violations of the Montana
Constitution, unjust enrichment, and misconduct warranting
punitive damages.
Discovery has been underway since November 6, 2002,
when the Kapsners served their first set of document requests
pursuant to Federal Rule of Civil Procedure 34 (“Rule 34”).
The discovery process has been characterized by delay, mis-
understandings, and increasing acrimony between the parties.
Burlington responded to the Kapsners’ first set of document
requests on December 9, 2002. However, this response was
not accompanied by a privilege log. The record suggests that
both parties intended and expected from the outset that a priv-
ilege log would in fact be produced. Thus, while Burlington
accuses the Kapsners of gamesmanship in failing to assert the
BURLINGTON NORTHERN v. USDC 5407
argument that the privilege was waived in their original
motion to compel, Burlington does not seriously dispute that
a privilege log was expected.
The Kapsners objected to the form of Burlington’s original
response, which was not accompanied by documents but
recited an invitation to inspect documents on Burlington
premises. The Kapsners complained to Burlington as early as
January 2003 that the production was neither organized
according to the categories in the discovery requests nor kept
in “the usual course of business,” as required by Rule 34, and
instead was simply produced in boxes “with no rhyme or rea-
son.” Underlying these disagreements about form was the
Kapsners’ belief that responsive documents were being
improperly withheld. On April 7, 2003, the Kapsners filed a
motion to compel, arguing that in addition to producing docu-
ments in an impermissible form, Burlington was withholding
responsive documents, and had made no assurance that its
production exhausted the universe of responsive documents.
Before the magistrate judge ruled on the motion, Burling-
ton produced a privilege log. The Kapsners continued to sus-
pect that Burlington was withholding unprivileged responsive
documents, and were apparently unsatisfied with this log,
which they allege “made it difficult . . . to determine whether
[Burlington] was complying with its discovery obligations or
asserting its privileges in good faith.” The magistrate judge
ordered Burlington to organize its entire production to corre-
spond to discovery requests, and to produce documents
responsive to the Kapsners’ requests as stated rather than as
unilaterally limited by Burlington.
The parties continued to wrangle over the privilege issue
during the next fourteen months, as the Kapsners issued addi-
tional discovery requests insisting that responsive documents
continued to be withheld. During this time, Burlington modi-
fied its privilege log several times, removing entirely some
documents that were previously marked as responsive but
5408 BURLINGTON NORTHERN v. USDC
privileged. In a letter to Burlington, the Kapsners again articu-
lated their position that unprivileged responsive documents
were being withheld, demanded voluntary production, and
declared their intention to file another motion to compel if the
documents were not produced. After Burlington refused to
produce the contested documents, the Kapsners filed a second
motion to compel, this time demanding all responsive docu-
ments withheld from production on privilege grounds. The
magistrate judge granted the motion, and upon appeal to the
district judge, his order was upheld.1 Burlington then brought
this petition for a writ of mandamus to overturn the district
court’s order.
II. DISCUSSION
Standard of Review
[1] The writ of mandamus is an “extraordinary” remedy
limited to “extraordinary” causes. Cheney v. U.S. Dist. Court,
124 S. Ct. 2576, 2586 (2004). In order to gain the benefit of
the writ, the party must have no other recourse; the right to
the writ must be “clear and indisputable”; and the appellate
court must be satisfied that the writ is appropriate under the
circumstances. Id. at 2587. Distilling the Court’s mandamus
caselaw, the Ninth Circuit has articulated this standard in
terms of a five-factor test, asking whether: 1) there are no
other adequate means, such as direct appeal, to secure relief;
2) failure to grant the writ would result in damage to peti-
tioner that is “not correctable on appeal”; 3) the district
court’s order is “clearly erroneous as a matter of law”; 4) the
order represents an “oft-repeated” error or patent “disregard
of the federal rules”; and 5) the order raises “new and impor-
tant problems” or legal issues of first impression. Bauman v.
U.S. Dist. Court, 557 F.2d 650, 654-55 (9th Cir. 1977); see
1
Throughout the rest of this opinion, we refer to both the actions of the
magistrate judge and the actions of the district court judge as actions of
“the district court.”
BURLINGTON NORTHERN v. USDC 5409
also Admiral Ins. Co. v. U.S. Dist. Court, 881 F.2d 1486,
1490-91 (9th Cir. 1989) (applying the Bauman factors). Not
every factor need be present at once; indeed, the fourth and
fifth will rarely be present at the same time. Id. at 1491. How-
ever, the absence of the third factor, clear error, is dispositive.
See, e.g., Gallo v. U.S. Dist. Court, 349 F.3d 1169, 1177 (9th
Cir. 2003), cert. denied, 124 S. Ct. 2420 (2004).
Thus, we review the district court’s order for clear error as
a matter of law. In the present case, this standard is informed
by the general principle, not unique to the mandamus context,
that “[d]istrict courts have wide latitude in controlling discov-
ery.” United States ex rel. Aflatooni v. Kitsap Physicians
Serv., 314 F.3d 995, 1000 (9th Cir. 2002) (internal quotation
marks omitted). Because we hold that there was no clear
error, we do not reach the remaining Bauman factors.
Proper Assertion of Privilege
Burlington argues that the district court erred as a matter of
law by reading into Federal Rule of Civil Procedure 26(b)(5)
(“Rule 26(b)(5)”) and Rule 34 a per se rule that failure to pro-
duce a privilege log in a timely manner triggers waiver of
privileges. While we reject the per se waiver rule, we affirm
the district court’s order on the ground that the factual circum-
stances put the result well outside the realm of clear error.
The district court agreed with the Kapsners that “defendant
waived its privilege objections by failing to provide a privi-
lege log at the time it served its discovery responses.” Two
propositions are embedded in the district court’s assertion,
when read in the context of the decision as a whole: (1) that
a general, boilerplate assertion of an evidentiary privilege in
response to a discovery request does not satisfy the demands
of Rule 26(b)(5) and Rule 34, read together, and is not a
proper assertion of the privilege; and (2) that the effect of
untimeliness in properly asserting the privilege is to waive or
otherwise abandon the privilege.
5410 BURLINGTON NORTHERN v. USDC
[2] Neither the text of the rules nor a binding judicial
authority clearly affirms or negates these two propositions.
Rule 34 requires that a written response to a discovery request
be served within 30 days of the service of the request. The
response must provide access to the information requested,
either by permitting inspection or by producing documents,
“unless the request is objected to, in which event the reasons
for the objection shall be stated. If objection is made to part
of an item or category, the part shall be specified and inspec-
tion permitted of the remaining parts.” Rule 34(b). While this
Rule imposes a bright-line rule defining timeliness, it does not
contain an explicit prohibition against boilerplate objections
or assertions of privilege. Rule 26 provides, under the heading
“Claims of Privilege or Protection of Trial Preparation Mate-
rials:”
When a party withholds information otherwise dis-
coverable under these rules by claiming that it is
privileged or subject to protection as trial preparation
material, the party shall make the claim expressly
and shall describe the nature of the documents, com-
munications, or things not produced or disclosed in
a manner that, without revealing information itself
privileged or protected, will enable other parties to
assess the applicability of the privilege or protection.
Rule 26(b)(5). Thus Rule 26 clarifies that a proper assertion
of privilege must be more specific than a generalized, boiler-
plate objection. However, it does not specifically correlate
this requirement with Rule 34’s bright-line rule for timeliness,
nor does it explicitly articulate a waiver rule.
[3] The advisory committee notes accompanying the addi-
tion of the relevant paragraph to Rule 26(b)(5) do suggest a
temporal framework for asserting privilege, and also suggest
waiver as a possible result of failure to properly provide
26(b)(5) notice. “To withhold materials without such notice is
contrary to the rule, subjects the party to sanctions under Rule
BURLINGTON NORTHERN v. USDC 5411
37(b)(2), and may be viewed as a waiver of the privilege or
protection.” Rule 26(b)(5) advisory committee’s note (1993
Amendments). However, the nature of this notice is explicitly
left indeterminate. “The rule does not attempt to define for
each case what information must be provided when a party
asserts a claim of privilege or work product protection.” Id.The notes also provide that, while details may be appropriate
under some circumstances, there are circumstances in which
they would be unduly burdensome. Id. Still, the “party must
. . . provide sufficient information to enable other parties to
evaluate the applicability of the claimed privilege or protec-
tion.” Id. The absence of explicit guidance as to the nature of
the required notice enlarges the vacuum in which strategic
manipulation of the discovery process by means of blanket
assertions of privilege, or “functionally silent” privilege
claims, may flourish. See generally Rebecca A. Cochran,
Evaluating Federal Rule of Civil Procedure 26(B)(5) as a
Response to Silent and Functionally Silent Privilege Claims,
13 REV. LITIG. 219 (1994).2
[4] Judicial construction of the rules does not resolve the
issue. No Circuit has explicitly weighed in on the precise con-
tent of Rule 26(b)(5)’s notice requirement, nor on its relation-
ship to Rule 34’s deadline. This circuit has held that a
privilege log is sufficient to properly assert the privilege, with-
out explicitly holding that it is necessary to meet those
2
Professor Cochran notes that functionally silent privilege claims are a
systemic problem in large civil cases, where the
privilege problems . . . more frequently arise from blanket or gen-
eralized privilege claims . . . Blanket claims appear to be express,
but reveal so little about the basis for withholding the materials
that they are ‘functionally silent.’ The problem of blanket, func-
tionally silent privilege claims caused one civil litigator to advise
other litigators to demonstrate good faith in the discovery process
by voluntarily providing detailed privilege logs and inviting in
camera submissions even when not required by the court.
13 REV. LITIG. at 229 (footnote omitted).
5412 BURLINGTON NORTHERN v. USDC
requirements. Dole v. Milonas, 889 F.2d 885, 890 (9th Cir.
1989); see also United States v. Corporation (In re Grand
Jury Investigation), 974 F.2d 1068, 1071 (9th Cir. 1992) (cit-
ing Dole). However, in articulating this holding, the court did
not authorize general boilerplate objections as a proper
method of asserting the privilege; indeed, it named a variety
of methods such as in camera review and redactions of privi-
leged material, all of which involve conveying some informa-
tion about the content of the allegedly privileged material,
which a boilerplate objection does not do. Dole, 889 F.2d at
890. Moreover, at least one circuit has refused to issue a writ
of mandamus to a trial court, where the latter had ruled that
untimeliness had destroyed the attorney-client privilege, even
though “it does not seem seriously disputed that the privilege
would have attached if the objection had been timely and ade-
quately asserted.” Peat, Marwick, Mitchell & Co. v. West, 748
F.2d 540, 542 (10th Cir. 1985) (per curiam). A survey of dis-
trict court discovery rulings reveals a very mixed bag, running
the gamut from a permissive approach where Rule 26(b)(5) is
construed liberally and blanket objections are accepted, to a
strict approach where waiver results from failure to meet the
requirements of a more demanding construction of Rule
26(b)(5) within Rule 34’s 30-day limit. In general, a strict per
se waiver rule and a permissive toleration of boilerplate asser-
tions of privilege both represent minority ends of the spec-
trum.
While courts may differ in their chosen means, the end is
clear. “Excessive discovery and evasion or resistance to rea-
sonable discovery requests pose significant problems.” Rule
26(f) advisory committee’s note (1983 Amendment). Much
ink has been spilled on the costs of abuse of the discovery
process, and we will not rehearse those costs again here. “The
purpose of discovery is to provide a mechanism for making
relevant information available to the litigants . . . Thus the
spirit of the rules is violated when advocates attempt to use
discovery tools as tactical weapons rather than to expose the
facts and illuminate the issues . . .” Id. (citation omitted). In
BURLINGTON NORTHERN v. USDC 5413
order to honor the spirit of the rules, we now chart a middle
road through the wide spectrum of caselaw regulating discov-
ery by reading Rules 26(b)(5) and 34 together, informed by
the purposes of Rule 26(b)(5) as articulated in the advisory
committee notes.
[5] We hold that boilerplate objections or blanket refusals
inserted into a response to a Rule 34 request for production
of documents are insufficient to assert a privilege. However,
we also reject a per se waiver rule that deems a privilege
waived if a privilege log is not produced within Rule 34’s 30-
day time limit. Instead, using the 30-day period as a default
guideline, a district court should make a case-by-case deter-
mination, taking into account the following factors: the degree
to which the objection or assertion of privilege enables the lit-
igant seeking discovery and the court to evaluate whether
each of the withheld documents is privileged (where provid-
ing particulars typically contained in a privilege log is pre-
sumptively sufficient and boilerplate objections are
presumptively insufficient); the timeliness of the objection
and accompanying information about the withheld documents
(where service within 30 days, as a default guideline, is suffi-
cient); the magnitude of the document production; and other
particular circumstances of the litigation that make respond-
ing to discovery unusually easy (such as, here, the fact that
many of the same documents were the subject of discovery in
an earlier action) or unusually hard. These factors should be
applied in the context of a holistic reasonableness analysis,
intended to forestall needless waste of time and resources, as
well as tactical manipulation of the rules and the discovery
process. They should not be applied as a mechanistic determi-
nation of whether the information is provided in a particular
format. Finally, the application of these factors shall be sub-
ject to any applicable local rules, agreements or stipulations
among the litigants, and discovery or protective orders.3
3
We are well aware that, particularly in discovery-intensive litigation,
compiling a privilege log within 30 days may be exceedingly difficult,
5414 BURLINGTON NORTHERN v. USDC
[6] Here, the district court found a waiver where the log not
only was not filed during the Rule 34 time limit, but was filed
five months later. In the absence of mitigating considerations,
this fact alone would immunize the district court’s ruling from
reversal under the standard just articulated. But additional cir-
cumstances support the district court’s ruling. Burlington is a
sophisticated corporate litigant and a repeat player in environ-
mental lawsuits and regulatory action involving the site that
is the subject of the underlying lawsuit. The claim that
responding in a timely fashion would have been impossible or
overly burdensome is hard to justify, especially because the
record reveals agreement between the parties that many of the
same documents were previously produced in a prior lawsuit.
The record also contains evidence that even the untimely
assertion of privileges by Burlington was insufficient. The
district court noted that the untimely logs “failed to correlate
[specified] documents with specific discovery requests.”
Moreover, the Kapsners represented, and Burlington admit-
ted, that even after producing the privilege log, Burlington
made substantive changes to that log, removing “documents
which, upon additional review, were not responsive.” While
an appellate court is not in a position, given the absence of
explicit fact-finding on this matter, to definitively resolve the
reciprocal claims of gamesmanship advanced by both parties,
this is precisely the type of evaluation that is entrusted to the
district court.
III. CONCLUSION
[7] The district court did not err in ordering Burlington to
produce documents as to which it had untimely asserted a
even for counsel who are sophisticated, experienced, well-funded, and act-
ing in good faith. Further, we are aware (and take this opportunity to make
district courts aware) that litigants seeking discovery may attempt to abuse
the rule we announce today by propounding exhaustive and simultaneous
discovery requests. In these circumstances, litigants are not without
recourse. Rather, at the outset of discovery or, at the latest, before Rule
34’s 30-day time limit has expired, they may either secure an appropriate
agreement or stipulation from the relevant litigants or, failing that, apply
for a discovery or protective order.
BURLINGTON NORTHERN v. USDC 5415
privilege. Because the district court’s order is not clearly erro-
neous, there is no need to reach the remaining Bauman fac-
tors. Burlington’s petition for a writ of mandamus is
DENIED.