Coker v. Goldberg & Assocs. Highlights the Importance of Privilege Logs in Discovery Process

In an article on the ACEDS website, Kelly Twigger, the CEO of eDiscovery Assistant, analyzes the case of Coker v. Goldberg & Assocs, focusing on the consequences of not providing a privilege log for withheld documents, which led to a waiver of privilege and sanctions.

The case originated from Sadie Cooker’s claim that she was not paid overtime by the defendant law firm and was terminated after requesting payment.

The law firm contends that Cooker was exempt from overtime as an employee and argues that their good faith effort to comply with the law should negate any liquidated damages.

Letters and WhatsApp messages meant to compel discovery elicited complaints that the defendant was stalling. The district court ordered the production of the agreed-upon items, including WhatsApp messages. Eventually, the plaintiff filed for sanctions for production deficiencies.

The sanctions motion included alleged failure to provide audio files exchanged between plaintiff and defendant on WhatsApp. These included messages that may have been exchanged between the defendant’s executive team and attorneys regarding exemption status.

The plaintiff sought Rule 11 sanctions, not Rule 37. The defendant argued that it did its best to comply while protecting the confidentiality of its own clients.

The Court construed the plaintiff’s motion under Rule 37(b)(2), which provides sanctions for failure to obey a court order, which only requires failure to comply with a court order.

Defendants admitted withholding portions of the WhatsApp communications on privilege grounds but did not provide a privilege log. The Court ruled that failure to produce a privilege log was a violation of a court order and that sanctions were warranted under Rule 37(b)(2)(a).

The appropriate sanction the Court identified was the conclusion that the defense had waived privilege for the remaining WhatsApp files. It required production on an attorneys’-eyes-only basis. It instructed the plaintiff that she had to seek agreement from the defendant, or a court order if she wanted to use the files as evidence.

It also ruled that the defendants were precluded from using or relying on any previously undisclosed WhatsApp communications to support their good faith defense. The case is ongoing.

Twigger highlights several key points, such as the importance of maintaining a privilege log and the necessity of having a strategy in place for managing data obtained and stored on employees’ devices.