161 F.R.D. 54 | W.D. La. | 1995
MEMORANDUM RULING
Pending before the Court is plaintiffs’ Motion to Appeal the Partial Memorandum Ruling of the Magistrate Judge on January 5, 1995. The appeal is opposed by the Defendants’ Steering Committee and McDermott, Inc.
While the instant matter was pending in state court, plaintiffs propounded interrogatories to defendants. Defendants asserted several privileges in response to the interrogatories. In August, 1994, plaintiffs filed two motions to compel defendants’ responses to interrogatories. Additionally, other discovery motions are pending which present to the magistrate the same or similar issues concerning assertions of privileges as is the case with regard to the interrogatories. In each instance, the magistrate will have to determine whether the privileges were properly asserted. Prior to addressing individual determinations on the asserted privileges, the magistrate ruled preliminarily that federal privilege law will apply in this matter and that the work product doctrine is not a privilege, but is a creation of federal jurisprudence which is independent of privilege law. Plaintiffs now appeal that portion of the ruling which holds that general federal privilege law will apply in this matter.
The standard of review for magistrates’ rulings on non-dispositive motions is that reversal shall issue where the ruling is found to be clearly erroneous or contrary to law. Fed.R.Civ.Pro. 72(a); 28 U.S.C. § 636(b)(1)(A).
Plaintiffs’ brief in support of the appeal does not suggest that the ruling is contrary to law; rather it argues that the conclusion is clearly erroneous—that the federal interest in federal privilege law does not support a blanket determination that federal privilege law will apply in this case. Plaintiffs suggest that the ruling be vacated and that the Court order the magistrate to determine each and every assertion of privilege individually on an ad hoc basis.
The ruling is not contrary to law. Federal Rule of Evidence 501 provides the procedural rule for application of privilege law in federal cases. The Fifth Circuit has not addressed the issue of which privilege law applies when both a federal question claim and a state law claim are pending, the evidence for which is certain to be identical, at least in part. However, two other circuits have recently done so.
Furthermore, the ruling is not clearly erroneous. As additional support for her conclusion, the magistrate also extrapolates from the Fifth Circuit’s rationale in American Civil Liberties Union of Mississippi, Inc. v. Finch.
As to plaintiffs’ suggestion that each assertion of privilege should be addressed ad hoc, such a ruling would be ill-conceived in this matter and paramount to an invitation to disaster. This matter, as presently constituted, is the most complex litigation of its size in the entire nation. Due to the sheer nature of the case, and in view of the enormity of the stakes at issue, the parties are considerably more argumentative than is normally found. A refusal to enter a blanket ruling on which law of privilege to apply would simply encourage plaintiffs, defendants, and third party defendants to engage in even more wrangling over every asserted privilege. In view of the fact that only one district judge and one magistrate judge are assigned to this entire case, an invitation to the parties to become even more contentious is unthinkable.
For the foregoing reasons as well as the reasons found in the magistrate’s ruling, the Partial Memorandum Ruling is AFFIRMED.
. See Hancock v. Hobbs, 967 F.2d 462 (11th Cir.1992); Hancock v. Dodson, 958 F.2d 1367 (6th Cir.1992).
. Hobbs, 967 F.2d at 467; Dodson, 958 F.2d at 1372.
. 638 F.2d 1336 (5th Cir. Unit A March 1981).
. See Id. at 1343.
. See Id. at 1343-44.