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Wellin v. Wellin

United States District Court, D. South Carolina, Charleston Division

January 15, 2019

WENDY WELLIN, as the Special Administrator of the Estate of Keith S. Wellin and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2011, PLAINTIFF,
v.
PETER J. WELLIN, et al., DEFENDANTS, LARRY S. MCDEVITT, as Trustee of the Wellin Family 2009 Irrevocable Trust, PLAINTIFF,
v.
PETER J. WELLIN, et. al, DEFENDANTS, PETER J. WELLIN, et. al., PLAINTIFF,
v.
WENDY WELLIN, individually and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2011, DEFENDANT

         SPECIAL MASTER'S SUPPLEMENTAL REPORT AND RECOMMENDATION RE: MOTION OF WENDY C.H. WELLIN, INDIVIDUALLY, TO COMPEL PRODUCTION OF WITHHELD "FACTUAL SUMMARIES", OR, IN THE ALTERNATIVE, TO COMPEL PRIVILEGE LOG SUPPLEMENTATION - ECF NO. 444 IN 2:14-CV-04067-DCN

          William L. Howard, J.

         On October 13, 2017, Wendy C.H. Wellin, individually, (Wendy or Wendy Wellin) filed this motion to compel production of twenty-two factual summaries prepared by various Wellin Children and withheld by them from production on the grounds that they are protected work product. ECF No. 444 in 2:14-cv-04067-DCN. Alternatively, Wendy Wellin moved to compel the Wellin Children to supplement their privilege log containing the factual summary entries with specific, detailed information. After consideration of the motion, briefs and arguments of counsel for the parties, as well as in camera review of the summaries and information provided by the Wellin Children regarding the timing of the preparation of the summaries, the undersigned issued a Report and Recommendation on May 24, 2018, ECF No. 552 in 2:14-cv-04067-DCN, requiring the Wellin Children to supplement their privilege log regarding the summaries with the following information:

1. Adequate information as to the general subject matter of each withheld factual summary;
2. The identity of all persons who received, authored, revised, modified, or made suggestions for revisions to the document;
3. The identity of any and all third party recipients to whom the factual summary was transmitted and, to the extent a privilege is claimed for that transmission, an affidavit from the person(s) with knowledge regarding the privileged third party.

         The Wellin Children supplemented their privilege log as required, and on July 23, 2018, Wendy Wellin filed her Supplemental Brief In Support of Motion of Wendy C.H. Wellin Individually to Compel Production of The Withheld "Factual Summaries", ECF No. 795 in 2:13-CV-01831-DCN.[1] On August 2, 2018, the Wellin Children filed their Response to Wendy Wellin's supplemental brief, ECF No. 798, and on August 7, 2018, Wendy Wellin filed her Reply, ECF No. 584 in 2:14-cv-04067-DCN.

         This motion is before the undersigned, sitting as Special Master, pursuant to the February 17, 2015 Order of the United States District Court for the District of South Carolina, Charleston Division, Hon. David C. Norton presiding. See ECF Nos. 270, 258, and 35.

         The above captioned lawsuits involve multiple issues surrounding the handling and disposition of the assets, trusts, and estate of Keith S. Wellin (Keith). The factual allegations and procedural histories of these cases are extensively outlined in the Order of Judge Norton issued in Wellin I, No. 2:13-cv-1831-DCN, ECF No. 158, filed on June 28, 2014, and in the Amended Report and Recommendation of the Special Master, ECF No. 320, filed on July 31, 2015.

         FACTUAL HISTORY RELEVANT TO THE PRESENT MOTION

         As noted in the previous Report and Recommendation regarding this Motion, this is not the first time the issue of production of the factual summaries created by the Wellin Children has been presented to this court for review. Early in the litigation, the Plaintiffs in Civil Action 2:13-cv-01831-DCN and 2:13-cv-03595-DCN, moved to compel production, inter alia, of all factual summaries prepared by the respective Wellin Children. At that time, the Wellin Children's privilege log identified less than thirty such summaries. The Court ruled that all factual summaries prepared in 2011, 2012, and prior to June 1, 2013 were subject to production and were not protected by the work product doctrine because they were not prepared in anticipation of litigation as defined by the Fourth Circuit Court of Appeals. See Amended Report and Recommendation of the Special Master, ECF No. 320 and ECF No. 343. Specifically, the Court ruled that the documents created prior to June 1, 2013 "documented transactions and occurrences to avoid the foibles of memory and to perpetuate evidence for the resolution of future disputes . . . with the general possibility of litigation in mind." 2:13-cv 01831-DCN, ECF No. 320, p. 42 (quoting National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992)).

         According to Wendy Wellin, in April of 2017, the Wellin Children identified approximately 50 additional summaries described as being versions of those documents produced in accordance with the Court's September 30, 2015 ruling. The production of those documents was not without its difficulties, as described in an April 24, 2017 letter from Nelson Mullins Riley and Scarborough (NMRS), counsel for the Wellin Children, addressed to opposing counsel. See Motion of Wendy C.H. Wellin, Individually, to Compel Production of Withheld "Factual Summaries", or, in the alternative, To Compel Privilege Log Supplementation, Exhibit 2. NMRS enclosed with their letter revised privilege logs that 1) contained new entries for certain factual summaries created after June 1, 2013, but that were not previously logged, and 2) no longer contained entries for certain factual summaries that were previously logged with a date after June 1, 2013 but that, upon further review, NMRS had determined were created before June 1, 2013, and were therefore produced with the letter.

         The letter further explained that NMRS then discovered another factual summary in their database that had not been logged or produced, leading the firm to search for all factual summaries in their database and compare those to the factual summaries previously produced or logged. In doing so, they identified other versions of factual summaries that had neither been produced nor logged. According to the letter, "almost all" of the factual summaries that had not been produced or logged were "identical or nearly identical" to versions of the factual summaries that had been produced or logged. However, they identified some factual summaries with substantive information not contained in the summaries previously produced or logged. They explained that they identified only one factual summary that was created before June 1, 2013 and which was not merely a version of a previously produced factual summary. That one new document was Peter-Wellin-ESI-00002859 60.

         Following the above discovery, the firm undertook an internal review of their document analysis, and a second review of the documents tagged as privileged for purposes of creating the Wellin Children's privilege logs. During this process, they attempted to de-duplicate the documents to be included on the privilege log, but in doing so, did not compare the metadata of the documents that appeared to be duplicates or attempt to run an electronic comparison of the documents that appeared to be duplicates. As a result, they identified some non-identical factual summaries as duplicates. These summaries were not completely identical because either the metadata differed or there were slight substantive differences between the documents. They treated factual summaries that appeared to be identical to one another as, in fact, identical, but without making a word-by-word comparison and without comparing the metadata.

         In addition, when re-reviewing all factual summaries referenced on the privilege logs, they determined that some entries reflected an incorrect date. In a few cases, the incorrect date on the privilege log was after June 1, 2013, and the correct date as determined by their re-review was before June 1, 2013, in which case they state in the letter that they produced the factual summary and removed the entry from the log. In other cases, the incorrect date on the privilege log was after June 1, 2013, and the correct date as determined on re-review was also after June 1, 2013, such that they left the document on the privilege log but simply changed the date. They explained that the reason the entries on the privilege logs for certain factual summaries initially had an incorrect date appears to be that in creating the privilege logs, they typically relied upon the metadata field "Creation Date (E)" to determine the date of the factual summaries. However, based on their re-review of the documents and consultation with relevant experts, they learned that the "Creation Date (E)" is not always a reliable field for purposes of determining the date a document was created, and the "Creation Date" field, while not always reliable either, is more reliable than the "Creation Date (E)" field. In addition, they identified some documents where both the "Creation Date" and "Creation ...


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