UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Samuel J. Bourne, Individually

and as Trustee of Bedrock Realty Trust

v. No. 05-cv-365-JD

Opinion No. 2007 DNH 038

Town of Madison, et al.

O R D E R

This case involves a land use dispute between Samuel J.

Bourne and the town of Madison, New Hampshire, its board of

selectmen, the individual members of the board, and Robert D.

King, who allegedly served as an unauthorized alternate on a town

committee. Bourne alleges constitutional violations and

violations of New Hampshire law. The parties have been engaged

in a contentious discovery process for the past year. On January

8, 2007, the court granted Bourne’s motion to compel the

production of documents. The defendants now move for a

protective order or for reconsideration of that order. Bourne

objects and moves the court to hold defendants in contempt.

Background

On March 9, 2006, Bourne served the defendants with a

request for documents. The defendants produced some of the

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1The defendants initially objected to a third request, but

they have since produced those documents.

2

requested documents, but objected to two specific requests.1

Request fourteen asked for all “fax letter/memoranda and letters

from/to Robert King and the Board, as well as from/to Roger Cyr

and the Board, which refer, relate, or evidence in any way [the

property in dispute].” Request nineteen asked for any documents

“which refer, relate, or evidence in any way the petition by one

or more property owners in the Town requesting the Board to

commence a formal layout procedure under statutory authority of

the [property in dispute] and proceedings resulting therefrom.” 

The defendants responded that request fourteen sought attorney

work product and documents protected by the attorney-client

privilege. Additionally, the defendants contended that

compliance with either request would be unduly burdensome because

the same documents had already been provided to Bourne in a

related state case.

On October 31, 2006, Bourne filed a motion to compel the

production of the disputed documents arguing that the defendants

had failed to establish the applicability of the attorney-client

privilege. Bourne noted that neither Cyr nor King nor any of the

selectmen are attorneys. To the extent that the selectmen shared

privileged information with King or Cyr, Bourne argued, the

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2The defendants claim that sixty-four pages were redacted in

whole or in part. Bourne contends that eighty pages were

redacted, fifty-two of which were redacted in their entirety. 

3

attorney-client privilege was waived by disclosure to a third

party. Finally, Bourne argued that the defendants’ claims that

King’s communications to the selectmen were made at the behest of

town counsel and that King was effectively acting as a town

official were not supported by the record. 

The court agreed, finding that the defendants “failed to

demonstrate that the [requested] documents . . . are privileged

nor have they provided sufficient reason for not producing said

documents.” January 8, 2006 Order (document no. 55). The court

granted the motion to compel and ordered the defendants to

produce the relevant documents by January 19, 2007. 

Although Bourne received a production of documents on

January 19, many of the documents were heavily redacted.2 The

outside counsel representing the town in this case (and in the

related state case) provided a cover letter explaining his

decision to withhold “direct communications with me or Town

Counsel subsequent to the filing of the federal action. . . . I

have produced the to/from, dates, and re lines of these documents

in lieu of a privilege log.”

 

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On January 24, the defendants moved for a protective order

or for reconsideration of the January 8 order. Bourne objected

and moved the court to hold the defendants in contempt.

I. Defendants’ Motion for Protective Order or to Reconsider

The defendants want a protective order to prevent Bourne

from obtaining documents allegedly protected by the attorneyclient privilege. In the alternative, they ask the court to

reconsider the January 8 order compelling discovery and they

invite the court to conduct an in camera review of the disputed

documents. The defendants maintain they complied with the

January 8 order by producing all communications between Cyr and

the selectmen and all communications between King and the

selectmen. Those documents were produced without redaction,

except for communications between King and the selectmen that (1)

occurred after the initiation of the present lawsuit, and (2)

were communicated directly to either town counsel or the town’s

outside counsel who is representing the defendants in this suit. 

The production of redacted documents was intended to give Bourne

fair notice of the documents withheld on attorney-client

privilege grounds. 

The defendants are a dime short and a day (or more) late. 

First, the defendants cannot ask for an order protecting from

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discovery the very documents that the court has already ordered

the defendants to produce. The defendants could have requested a

protective order earlier in the discovery process and they also

had an opportunity to substantiate their privilege claims in

objecting to Bourne’s motion to compel. They failed to do

either. 

Second, the defendants’ request for reconsideration of the

January 8 order is also late. Under the local rules, a motion to

reconsider an interlocutory order of the court “shall be filed

within ten (10) days from the date of the order unless the party

seeking reconsideration shows cause for not filing within that

time.” LR 7.2(e). That deadline expired on January 23, 2007, a

day before the defendants moved for reconsideration. The

defendants’ motion provides no basis to excuse the late filing. 

More importantly, the court ordered compliance with its

discovery order by January 19. To avoid violating that order,

the defendants should have moved for reconsideration in advance

of January 19 and asked for, at a minimum, an extension of the

deadline. The defendants violated the discovery order by failing

to produce, by January 19, all documents responsive to requests

fourteen and nineteen. They cannot retroactively cure that

violation by subsequently filing a motion for reconsideration.

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Even if the court treated the defendants’ motion for

reconsideration as timely, it would fail on the merits. The

defendants’ motion does not “demonstrate that the order was based

on a manifest error of fact or law.” LR 7.2(e). The court

granted the motion to compel because it found that the defendants

had failed to demonstrate any valid basis for withholding the

requested documents. The defendants’ present motion fails to

demonstrate how that finding was erroneous.

The Federal Rules of Civil Procedure provide broadly that

parties “may obtain discovery regarding any matter, not

privileged, that is relevant to the claim or defense of any party

. . . .” Fed. R. Civ. P. 26(b)(1). A party that seeks to

resist discovery based on privilege must “make the claim

expressly and . . . describe the nature of the documents,

communications 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.” Fed. R. Civ. P. 26(b)(5). 

Thus, the party seeking to avoid a discovery obligation based on

a privilege bears the burden of establishing its applicability. 

See Cook v. CTC Commc’n Corp., Civ. No. 06-058, 2006 WL 3313838,

at *2 (D.N.H. 2006); cf. In re Keeper of Records, 348 F.3d 16, 22

(1st Cir. 2003) (party resisting a grand jury subpoena on

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3Rule 34 requires that a party served with a document

request must respond in writing within 30 days. Fed. R. Civ. P.

34. A response that objects to the disclosure of any documents

must state the reasons for the objection. Id.

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attorney-client privilege grounds “bears the burden of

establishing that it applies to the communications at issue and

that it has not been waived”).

The Federal Rules do not dictate the precise timing or form

of the Rule 26(b)(5) description. As this court has previously

noted, “[t]he scope of the description necessary to satisfy Rule

26(b)(5) need only be so broad as to permit [an] assessment [as

to the applicability of the privilege].” Emerson Elec. Co. v.

Ouellette, Civ. No. 96-364, 1998 WL 34088465, at *7 (D.N.H.

1998). The timing of the “duty to provide the description

required by Rule 26(b)(5) is flexible and does not arise until

there is a good faith challenge to the privilege claim.” Id. at

*8 (quotation marks and citation omitted). See also Burlington

N. & Santa Fe Ry. Co. v. U.S. Dist. Court for the Dist. of Mont.,

408 F.3d 1142, 1149 (9th Cir. 2005) (declining to adopt per se

rule that would deem “a privilege waived if a privilege log is

not produced within Rule 34's 30-day time limit”).3

Whatever the precise contours of the Rule 26(b)(5) notice

requirements, the defendants did not meet them here. Although a

privilege log describing each individual document may not be

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necessary in every case, see Fed. R. Civ. P. 26 advisory

committee notes (1993 amendments) (providing that a categorical

description of privileged documents may suffice when the

privileged documents are voluminous), this court has rejected the

use of blanket privilege assertions. See Emerson, 1998 WL

34088465, at *7; see also Burlington, 408 F.3d at 1149

(“boilerplate objections or blanket refusals . . . are

insufficient to assert a privilege”). In Emerson, the court

ruled that where the party seeking disclosure had conceded that

the requested documents were privileged and was only asking the

court to hold that “the privilege-holder ha[d] waived the

privilege as to a whole category of materials,” the opposing

party’s broad assertion “that the privilege protects various

categories of documents . . . satisf[ied] Rule 26(b)(5) until

such time as the court decides the waiver issue.” Emerson, 1998

WL 34088465, at *7. 

Here, unlike Emerson, Bourne has never conceded that the

documents at issue are privileged. The defendants were therefore

required, at least as of the time they filed their objection to

the motion to compel, to “provide sufficient information to

enable [the plaintiff or this court] to evaluate the

applicability of the claimed privilege or protection.” Fed. R.

Civ. P. 26 advisory committee notes (1993 amendments). The

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4The defendants’ objection to Bourne’s motion to compel

failed to substantiate the claim that King acted as town

counsel’s legal assistant and that his memoranda were composed at

the direction of counsel. Rather than cure that deficiency, the

defendants switch tracks in the motion to reconsider. They now

argue that because King, the town, and the selectmen are codefendants, the “common interest doctrine” provides that King

should be treated as a “client” of town counsel for attorneyclient privilege purposes. See Cavallaro v. United States, 284

F.3d 236, 249 (1st Cir. 2002). But in Cavallaro, the First

Circuit recognized that the common interest doctrine is merely an

exception to the third-party waiver rule, not an independent

basis for the privilege. Id. at 250. In any event, the court

will not consider a new legal theory on a motion to reconsider.

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defendants’ most recent production of redacted documents might

have been sufficient to satisfy Rule 26(b)(5) had it been timely. 

Unfortunately, it was not provided until after the court ordered

production.4

Finally, the court remains unpersuaded by the defendants’

argument that the production of documents responsive to requests

fourteen and nineteen would be unduly burdensome because Bourne

had already obtained these documents through discovery in the

related state case. The court cannot verify the accuracy of that

claim, but in any event, it hardly supports the defendants’

argument. If many of the requested documents have already been

produced to Bourne in another case, it should not be difficult to

undertake a second production, particularly where, as here, the

universe of documents is relatively small. Cf. Burlington, 408

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F.3d at 1149 (“The claim that responding in a timely fashion

would have been impossible or overly burdensome is hard to

justify, especially because the record reveals . . . that many of

the same documents were previously produced in a prior

lawsuit.”).

II. Plaintiff’s Motion for Contempt

Bourne asks the court to order the immediate production of

the requested documents regardless of privilege. Bourne also

requests an award of the attorneys’ fees incurred as a

consequence of filing a motion to compel, opposing the

defendants’ motion for a protective order, and filing the present

motion for contempt.

The advisory committee notes to Rule 26 provide that,

withholding materials without the proper Rule 26(b)(5) notice,

“subjects the [withholding] party to sanctions under Rule

37(b)(2), and may be viewed as a waiver of the privilege or

protection.” Moreover, as noted above, the defendants’

unilateral redaction of responsive documents was not permitted by

the court’s January 8 order. The defendants’ refusal to comply

with a court order provides an independent basis for a contempt

finding. See Fed. R. Civ. P. 37(b)(2)(D); see also Public Serv.

Co. of N.H. v. Portland Natural Gas, 218 F.R.D. 361, 362 n.2

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(D.N.H. 2003) (noting that “a failure to respond to

interrogatories is not punishable as a contempt of court unless

the responding party refuses to comply with an order compelling

it to respond”). 

Among other things, Rule 37(b)(2) permits the court to issue

an order “refusing to allow the disobedient party to support or

oppose designated claims or defenses.” Fed. R. Civ. P.

37(b)(2)(B). The rule also mandates an award of reasonable

expenses and attorneys’ fees caused by the disobedient party’s

failure to comply, “unless the court finds that the failure was

substantially justified or that other circumstances make an award

of expenses unjust.” Fed. R. Civ. P. 37(b)(2). 

In light of the waste of time and resources caused by the

defendants’ unjustified discovery tactics, the court grants

Bourne’s motion for contempt. The defendants are ordered to

produce, no later than April 4, 2007, all documents without

redaction that are responsive to requests fourteen and nineteen. 

The court deems as waived any claim of privilege that may have

applied to any of those documents that were created before

October 31, 2006 (the date that Bourne filed his motion to

compel). To the extent that there are responsive documents that

the defendants believe are privileged and that post-date October

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31, 2006, the defendants should produce a compliant Rule 26(b)(5)

notice describing those documents. 

Bourne is also entitled to reasonable attorneys’ fees and

expenses. The court could have awarded attorneys’ fees and

expenses when it granted Bourne’s motion to compel. See Fed. R.

Civ. P. 37(a)(4)(A). Because the defendants’ privilege claims

were colorable, the court found such a sanction unjust. In light

of the defendants’ continued delaying tactics and failure to obey

a court order, the court reconsiders that decision and orders the

defendants to pay the reasonable attorneys’ fees and expenses

necessitated by (1) Bourne’s motion to compel, (2) his objection

to the defendants’ motion for a protective order or for

reconsideration, and (3) his motion for contempt. Bourne may

file a bill of costs in accordance with Local Rule 54.1 within

twenty days of the date of this order. The defendants can object

as provided in Local Rule 54.1(c). 

Conclusion

The defendants’ motion for a protective order or for

reconsideration (document no. 71) is denied. The plaintiff’s

motion for contempt (document no. 73) is granted. The defendants

are ordered to produce the disputed documents no later than April

4, 2007. The plaintiff’s request for reasonable attorneys’ fees

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and costs is granted provided that the plaintiff files a full

accounting of the relevant fees and costs within twenty days of

the date of this order and subject to the court’s review for

reasonableness. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

March 27, 2007

cc: Catherine M. Costanzo, Esquire

Brian J.S. Cullen, Esquire

Rachel A. Hampe, Esquire

Richard D. Sager, Esquire

Gerald F. Williamson, Esquire

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