Ford Motor Company et al v. Michigan Consolidated Gas Company

Filing 198

ORDER granting in part and denying in part 188 Motion to Compel - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FORD MOTOR COMPANY, and
AK STEEL CORPORATION
Plaintiffs/Counter-Defendants,

Civil Action No.: 08-CV-13503

vs.

District Judge Paul D. Borman
Magistrate Judge Mona K. Majzoub

MICHIGAN CONSOLIDATED
GAS COMPANY,
Defendant/Counter-Plaintiff
_____________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S RENEWED MOTION TO COMPEL [188]
Before the Court is Defendant Michigan Consolidated Gas Company’s (“MichCon”)
Renewed Motion to Compel.1 (Docket no. 188.) Plaintiffs filed a Response (docket no. 190),
and Defendant filed a Reply (docket no. 197).2 The Parties then filed a Joint Statement of
Resolved and Unresolved Issues, narrowing the scope of Defendant’s Motion. (Docket no. 196.)
The Motion has been referred to the undersigned for consideration. (Docket no. 193.) The Court
dispenses with oral argument pursuant to E.D. Mich. LR 7.1(e). The Motion is now ready for
1

Defendant filed its initial Motion to Compel on March 7, 2013, arguing that Plaintiffs’
assertions of the attorney-client privilege, the common-interest privilege, the joint-defense
privilege, and the work-product doctrine were too broad in the context of Defendant’s discovery
requests. (Docket no. 127.) The Court entered an Order denying Defendants’ Motion without
prejudice, narrowing the scope of Plaintiffs’ asserted protections, and leaving the door open for
further argument. (Docket no. 140.) Defendant’s Renewed Motion to Compel is filed under the
guidelines of that Order.
2
Defendant initially filed its Reply at docket no. 192 but filed a “corrected” version of its
Reply at docket no. 197.
1

ruling.
I.

Background
In its initial Order on Defendant’s Motion to Compel, the Court set forth the relevant

factual background in this matter:
Plaintiffs Ford and Severstal[3] filed this action alleging that MichCon is
largely responsible for costs incurred by Plaintiffs in their efforts to perform the
environmental cleanup of a parcel of property located in Melvindale, Michigan,
referred to throughout this litigation as “the Schaefer Road Area,” or “SRA.” (See
docket no. 127 at 7.) The SRA is located between Schafer Road and the Rouge
River. (Id.)
From 1925 through the early 1950s, MichCon operated a manufactured gas
plant along the Rouge River on a parcel of land that included what is now the SRA.
MichCon’s plant included the use of tar ponds on a portion of the property. (Id. at
8.) In the 1960s, the Rouge River was re-routed by the U.S. Army Corps of
Engineers, and following the re-routing, the Rouge River effectively bisected
MichCon’s property. In 1966, Ford (which had a manufacturing plant located
across the Rouge River before its re-routing, purchased the property that is now the
SRA from MichCon with the intent to use it for a wastewater treatment plant as part
of an agreement with the Water Resources Commission. (See docket no. 130 at 9.)
Ford then constructed the wastewater treatment plant and its primary polishing
lagoon on the SRA through a wholly owned subsidiary known as Rouge Steel.
(See docket no. 127 at 9.) In 1989, Ford sold Rouge Steel to a company that
ultimately merged into the Rouge Steel Company. (See docket no. 130 at 9.) As
part of that sale, Ford agreed to be responsible for any hazardous substances
“existing or occurring on or prior to” the closing date of the sale. (Id.) Plaintiff
Severstal purchased the Rouge Steel Company assets (including the SRA and the
wastewater treatment plant) out of bankruptcy in 2004. (Id. at 10.)
Environmental Investigations, CRA, and “The CACO”
In or around 1988, visible contamination of the Rouge River adjacent to the
SRA was discovered. (See docket no. 130 at 8.) This led to investigation and
evaluation of the property by two federal agencies, the Environmental Protection
Agency (“EPA”) and the Agency for Toxic Substances and Disease Registry
3

On September 16, 2014, Severstal merged into AK Steel Corporation. The case caption
has been amended to reflect this merger. Even though the privilege log at issue was produced by
Severstal, the Court will refer to this entity as AK Steel for the remainder of this Opinion and
Order.
2

(“ATSDR”) and one State agency, the Michigan Department of Natural Resources
(“MDNR”). (Id. at 8-9.)
Ten years later, in or around 1998, Rouge Steel was the subject of a
multimedia inspection by the EPA. And in 1999, Ford received notice from the
EPA that its entire Rouge Manufacturing Complex (which included Rouge Steel
and the SRA) was a “high priority” for environmental cleanup. (Id. at 10.) Thus,
Ford and Rouge Steel approached the State of Michigan and voluntarily entered
into an agreement whereby Ford and Rouge Steel would investigate the
contamination and resolve the issues to satisfy the requirements of the Resource
Conservation and Recovery Act (“RCRA”). The State of Michigan accepted the
proposal and asked the EPA to hand over regulatory authority for this site to the
Michigan Department of Environmental Quality (“MDEQ”). (Id. at 130.) This
agreement was finalized in May 2000 in the form of a Corrective Action Consent
Order (the “CACO”). (Id. at 11.)
While negotiating the CACO, Ford contracted with non-party CRA, an
environmental consultant. (Id. at 11.) Ford contracted with CRA to help
negotiate the CACO, to prepare environmental reports in an effort to comply with
the CACO, and in an effort to ultimately assist Ford and Rouge Steel to clean up the
Rouge Manufacturing Complex and the SRA. (Id.; docket no. 127 at 11.)
Defendant’s Discovery Requests and Plaintiffs’ Responses
As part of its discovery in this matter, Defendant served Plaintiffs and CRA
with various discovery requests. At issue in this matter are: (1) Defendant’s Rule
34 Request served on Ford; (2) Defendant’s Rule 34 Request served on Severstal;
(3) Defendant’s Rule 33 Interrogatories served on Ford; and (4) Defendant’s Rule
45 Subpoena Duces Tecum served on CRA. (See docket no. 127 at 11 n.3.) As
set forth by Defendant, its requests cover (in relevant part) three general areas:
1. Environmental Investigation Documents, which include (by way of
example) dialogue between CRA and Plaintiffs; internal deliberative
documents about environmental concerns, issues, and options; and
preliminary conclusions and draft reports, notes, and observations from
CRA and Plaintiffs;
2. Remedy Assessment Documents, which include (by way of example)
notes, internal memoranda, calculations, costs, models, and
communications regarding remedial options that were available to
Plaintiffs other than the remedial option that Plaintiffs ultimately chose;
and
3. Allocation Documents, which Defendant contends would show how
3

Plaintiffs allocated (in the case of the U.S. Government) and intend to
allocate (in the case of MichCon, Ford, Rouge Steel, and Severstal) the
percentage of liability in this matter, including the $4.25 million
settlement by the U.S. Government.
(Docket no. 127 at 11-14.) In response, Ford produced approximately 4,200
documents, Severstal produced approximately 5,400 documents, and CRA
produced “several disks containing documents.” (Id. at 11.) But Plaintiffs and
CRA also produced privilege logs, which individually listed “nearly 8,000
responsive documents” that Plaintiffs and CRA would not produce. (Id.)
Plaintiffs and CRA argue that these documents are protected by either (1) the work
product doctrine; (2) attorney-client privilege; (3) the joint-defense doctrine; or (4)
the common-interest doctrine. In some instances, Plaintiffs assert that individual
documents are protected under multiple theories.
(Docket no. 140 at 2-5.)
The Court ordered Plaintiffs and CRA to produce certain documents and ordered them to
update their privilege logs, subject to the following restrictions:
1. Plaintiffs and CRA are permitted to raise the work-product doctrine, but any
potential litigation with Defendant beginning in the year 2000 or with the EPA
or the MDEQ is not a sufficient basis under which to assert such protection;
2. Plaintiffs and CRA are permitted to raise the attorney-client privilege, but only
for communications sent for the purpose of obtaining legal advice (1) from
CRA to Plaintiffs’ attorneys, (2) from Plaintiff’s attorneys to CRA, (3) from
Plaintiffs’ to their attorneys, or (4) from Plaintiffs’ attorneys to Plaintiffs.
3. Plaintiffs and CRA are not permitted to raise the attorney-client privilege for
any communications sent (1) from CRA to Plaintiffs, (2) from Plaintiffs to
CRA, (3) from Ford to Severstal, or (4) from Severstal to Ford, unless such
communications are protected by the common-interest privilege.
4. Plaintiffs and CRA are not permitted to raise the joint-defense privilege unless
they can show that they were represented by the same attorney at the time that
the communication was sent; and
5. Plaintiffs and CRA are permitted to raise the common-interest privilege, but the
underlying communication must be of a privileged nature, and their legal
interest in the underlying matter must have been identical.
(Docket no. 140 at 11-12.)
4

In light of the Court’s order, Plaintiffs and CRA produced a large number of documents but
also provided Defendant with a privilege log asserting protection of “several thousand
documents.” (See docket no. 188 at 10.) Defendant contends that with regard to 1,513 of these
documents, Plaintiffs and CRA “simply changed the designation of [these] documents from ‘work
product’ to ‘attorney client’” documents “[i]n an effort to circumvent” the Court’s order. (Id.)
Defendant has included a list of these documents at Exhibit D of its Motion. (Docket no. 188-4.)
Defendant also argues that Plaintiffs and CRA still improperly assert the attorney-client privilege
with regard to documents listed on its Exhibit E (docket no. 188-5) and still improperly assert
work-product protection over documents listed on its Exhibit F (docket no. 188-6). (Docket no.
188 at 11.) Through their Joint Statement, the Parties informed the Court that they were unable to
resolve the legal issues in question, but they were able to reduce the number of at-issue documents.
(Docket no. 196.) Amended versions of Exhibits D, E, and F have been filed with the Court.
(Docket nos. 196-2, 196-3, and 196-4, respectively).
II.

Governing Law
The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite

broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Parties may obtain
discovery on any matter that is not privileged and is relevant to any party’s claim or defense if it is
reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1).
“Relevant evidence” is “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” Fed.R.Evid. 401. But the scope of discovery is not unlimited. “District
courts have discretion to limit the scope of discovery where the information sought is overly broad

5

or would prove unduly burdensome to produce.” Surles ex rel. Johnson v. Greyhound Lines, Inc.,
474 F.3d 288, 305 (6th Cir. 2007).
Rules 33 and 34 allow a party to serve interrogatories and requests for production of
documents on an opposing party.

Fed.R.Civ.P. 33, 34.

A party receiving these types of

discovery requests has thirty days to respond with answers or objections. Fed.R.Civ.P. 33(b)(2),
34(b)(2)(A). If the receiving party fails to respond to interrogatories or RFPs, Rule 37 provides
the party who sent the discovery the means to file a motion to compel.

Fed.R.Civ.P.

37(a)(3)(B)(iii) and (iv). If a court grants a Rule 37 motion to compel, then the court must award
reasonable expenses and attorney’s fees to the successful party, unless the successful party did
not confer in good faith before the motion, the opposing party’s position was substantially
justified, or other circumstances would make an award unjust . Fed.R.Civ.P. 37(A)(5)(a).
III.

Analysis
A.

Documents Marked “Attorney-Client” Listed in Exhibit D

Although related, work-product protection and the attorney-client privilege are two distinct
doctrines with substantially different analyses.
“[T]he attorney-client privilege is an exception carved from the rule requiring full
disclosure, and as an exception should not be extended to accomplish more than its
purpose. As Dean Wigmore said in his oft-quoted statement: “It is worth preserving
for the sake of a general policy, but it is nonetheless an obstacle to the investigation
of the truth. It ought to be strictly confined within the narrowest possible limits
consistent with the logic of its principle.” 8 Wigmore, Evidence § 2291, at 554
(McNaughton rev. 1961). The judicial decisions have echoed this need for a
restrictive interpretation and application of the privilege. Prichard v. United States,
181 F.2d 326 (C.A.6); United States v. United Shoe Machinery Corp., 89 F.Supp.
357 (D.Mass).”
In re Rospatch Sec. Litig., No. 1:90-CV-805, 1991 WL 574963, at *5 (W.D. Mich. Mar. 14, 1991)
(quoting United States v. Goldfarb, 328 F.2d 280, 282 (6th Cir.1964)). “Business advice received
6

from an attorney is not privileged.” Id. (citing In the Matter of Walsh, 623 F.2d 489, 494 (7th
Cir.), cert. denied, 449 U.S. 494 (1980)). “The attorney-client privilege protects only those
disclosures necessary to obtain informed legal advice which might not have been made absent the
privilege.” Id. (citing Fisher v. United States, 425 U.S. 391, 403 (1976)).
“The work-product rule is not a privilege but a qualified immunity protecting from
discovery documents and tangible things prepared by a party or his representative in anticipation
of litigation. Fed. R. Civ. P. 26(b)(3).” In re Perrigo Co., 128 F.3d 430, 437 (6th Cir. 1997)
(quoting Admiral Ins. Co. v. U.S. Dist. Court for Dist. of Ariz., 881 F.2d 1486, 1492 (9th
Cir.1989)). Work performed in anticipation of litigation need not be for the purpose of obtaining
legal advice to be protectable under the work-product doctrine.

See Michele DeStefano

Beardslee, Taking the Business Out of Work Product, 79 Fordham L. Rev. 1869, 1912 (2011).
But nothing forecloses a party from asserting both the work-product doctrine and the
attorney-client privilege as a basis for protection.
Currently at issue in Defendant’s Motion are nearly 1,500 documents4 originally marked
as “work product” in Plaintiffs’ and CRA’s privilege logs that are now marked as “attorney-client”
privileged material. (See docket no. 188 at 10.) Defendant asserts that this change is improper
because Plaintiffs and CRA did not originally assert the attorney-client privilege with regard to
these documents. Thus, Defendant contends, when Plaintiffs and CRA themselves determined
that the documents were protectable as work product, they deliberately chose not to assert the
4

Defendant filed its initial motion contesting the privileged nature of 1,513 documents, but
as noted, the Parties have resolved their issues with regard to “a small number of documents,”
which have been removed from Defendant’s Amended Exhibit D. (See docket no 196 at 2.) The
Parties have not indicated exactly how many documents remain at issue, and the Court has not
counted the list by hand.
7

attorney-client privilege; and if the documents were not privileged communication before, they are
not privileged communication now. (Id. at 12-14.) Moreover, Defendant argues, by failing to
assert the attorney-client privilege originally, Plaintiffs and CRA have waived any such protection.
(Id. at 14-17.)5
Plaintiffs and CRA assert that they did not change the basis of protection for these
documents from “work product” to “attorney client.” In its Order, the Court discussed the
common-interest privilege:
The common-interest doctrine applies “where the parties are represented by
separate attorneys but share a common legal interest.” Hawkins, 2010 WL 2287454
at *8. Under the doctrine, privileged communication can be exchanged without
waiving the privilege, provided that the parties have “‘an identical legal interest
with respect to the subject matter of the communication.’” MPT, Inc. v. Marathon
Labels, Inc., 2006 WL 314435 slip copy at *6 (N.D. Ohio Feb. 9, 2006) (quoting
Libbey Glass, Inc. v. Oneida, Ltd., 197 F.R.D. 342, 347 (N.D. Ohio 1999)). The
weight of authority holds that litigation need not be actual or imminent for
communications to be within the common interest doctrine. United States v. BDO
Seidman, LLP, 492 F.3d 806, 816 n.6 (7th Cir. 2007). But like the joint-defense
doctrine, for the common-interest doctrine to apply, the underlying shared
communication must be privileged. Restatement (Third) of the Law Governing
Lawyers § 76.
(Docket no. 140 at 9-10.) Noting that communication between Plaintiffs could be protected by
the common-interest privilege “provided that such communication contains privileged

5

Defendant asserts through the examples in its Motion that there are two categories of
documents with “changes” to the basis for protection: (1) those that Plaintiffs and CRA changed
from “work product and common interest/joint defense” to “Common Interest/Attorney Client,”
such as document numbers 590, 591, and 592; and (2) those that Plaintiffs and CRA changed from
“work product and common interest/joint defense” to “attorney-client,” such as document number
F0025957. (Docket no. 118 at 13.) In reviewing the privilege log, however, document number
F0025957 is labeled as both “Common Interest Privilege” and “Attorney Client Privilege.”
While a distinction between documents labeled as both Common Interest and Attorney Client and
those labeled as only Attorney Client may impact the Court’s decision, Defendant has pointed to
no specific documents changed in this manner, and the Court will not compare 1,500 individual
line items to look for such a change.
8

information and that Ford and Severstal’s legal interest was identical,” the Court reserved ruling
on specific documents because Plaintiffs’ and CRA’s privilege logs were not sufficiently detailed.
(Id. at 10.) Thus, Plaintiffs contend, they have not added the attorney-client privilege as a new
basis for protection; instead, they have merely removed the work-production designation from
these materials pursuant to the Court’s Order, and they have added the attorney-client designation
as the underlying basis for the common-interest privilege. (Docket no. 190 at 11-13.)
The Court agrees with Plaintiff that adding the attorney-client designation along with the
common-interest designation is not inappropriate. To the contrary, as the Court indicated, for the
common-interest doctrine to apply, the underlying communication must be privileged. Thus,
where the Court has specifically informed the Parties that their privilege log is not sufficiently
detailed, the Court finds nothing improper about Plaintiffs and CRA identifying the nature of the
privileged communication.

Any other holding would render the Court’s initially ruling

inapposite.
As Defendant notes, a core difference between the work-product doctrine and the
attorney-client privilege is the ability for an opponent to pierce the veil of the work-product
doctrine. (See docket no. 188 at 16 n.5.) “‘Although the rule affords special protections for
work-product that reveals an attorney’s mental impressions and opinions, other work-product
materials nonetheless may be ordered produced upon an adverse party’s demonstration of
substantial need or inability to obtain the equivalent without undue hardship.’” In re Perrigo Co.,
128 F.3d at 437 (quoting Admiral Ins. Co., 881 F.2d at 1492 (quoting Upjohn v. United States, 449
U.S. 383, 401 (1981))).

Such an exception does not exist for attorney-client-privileged

communication. Thus, Defendant argues, “[i]t is nearly inconceivable [that] Plaintiffs and CRA

9

would have inadvertently neglected to identify the more significant protection as the basis for
withholding [the documents original].” (Docket no. 188 at 16 n.5.) Nevertheless, by arguing
that the documents were protected under the common-interest doctrine, Plaintiffs and CRA
implied that the documents were privileged; the updated privilege log simply details the privilege
under which they are claiming common-interest protection. Therefore, the Court will deny
Defendant’s Motion with regard to the documents in Exhibit D.
B.

Documents Marked “Attorney Client” Listed in Exhibit E

Unlike those listed in Exhibit D, the documents listed in Exhibit E were originally labeled
as attorney-client-privilege materials and are still listed in that manner. Currently at issue with
regard to Exhibit E are 11 documents: 6 documents listed on the AK Steel privilege log; 1
document listed on the Ford privilege log; and 4 documents listed on the CRA privilege log. (See
docket no. 196-3.)
The Court discussed the nature of attorney-client privileged communication in its original
Order:
The attorney-client privilege applies where legal advice is sought from a
legal advisor. Reedv. Baxter, 134 F.3d 351, 355-56 (6th Cir. 1998). The key inquiry
is whether the communication was made “for the purpose of obtaining legal advice
from a lawyer.” United States v. Koval, 296 F.2d 918, 922 (2d Cir. 1961) (emphasis
added). And while this privilege typically only applies to communications between
a client and his attorney, the privilege can also apply to communications between
an environmental consultant and an attorney when the communication is made to
assist the attorney in giving legal advice to the client. In re Grand Jury Matter, 147
F.R.D. 82, 85 (E.D. Pa. 1992). In either situation, however, an attorney must be
involved in the communication.
(Docket no. 140 at 7-8.) And as noted, the attorney-client privilege is to be strictly confined to its
narrowest possible limits. In re Rospatch Sec. Litig., 1991 WL 574963, at *5 (citing Prichard,
181 F.2d 326 (citing Wigmore, Evidence § 2291, at 554 (McNaughton rev. 1961))). More
10

importantly, though,
[t]he party asserting the attorney-client privilege must identify the withheld
documents with sufficient particularity to enable opposing counsel to intelligently
argue that the privilege ought not be applied. In the Matter of Walsh, supra, at 493;
Willemijn Houdstermaatschaapij B.V. v. Apollo Computer Inc., 707 F.Supp. 1429,
1443 (D.Del.1988); A.M. International, Inc. v. Eastman Kodak Co., 100 F.R.D.
255, 256 (N.D.Ill.1981). This identification must include an index of the
documents purportedly protected by attorney-client privilege and must include a
particularized description of the contents of each document. In re Richardson–
Merrell, Inc., 97 F.R.D. 481, 484 (S.D.Ohio 1983).
In re Rospatch Sec. Litig., 1991 WL 574963, at *5 (footnote omitted). The Court will consider
each Parties’ assertion of privilege independently.
With regard to Ford’s assertion of privilege, specifically with regard to document number
F0026222.1, the Court finds that Ford’s description is sufficiently specific to support its assertion
of privilege. The document is an email sent from CRA to seven individuals, three of which are
attorneys, for legal review and comment on proposed revisions of a draft memorandum. (Docket
no. 188-1 at 45.) And while “[an] attorney receiving or providing privileged communication
must be acting as an attorney and not as a business advisor,” In re Rospatch Sec. Litig., 1991 WL
574963, at *8 (citing 8 Wright & Miller, Federal Practice and Procedure § 2017, at 136 (1970)),
the Court accepts Plaintiff’s assertion that this email was sent for the purposes of obtaining legal
advice. Therefore, the Court will deny Defendant’s Motion with regard to this document.
With regard to AK Steel’s assertion of privilege, specifically with regard to document
numbers 147, 2060, 2067, 2229, 2231, and 2291, the Court finds that Plaintiff’s privilege log is not
sufficiently specific to meet its burden and assert the attorney-client privilege. Document number
147 describes the document as an “Environmental Contact Note re sample water and sediment
layers.” (Docket no. 188-2 at 11.) Document numbers 2060 and 2229 appear to be attachments

11

to emails with no description; the emails are both described as “Report[s] on EPA Sampling
Visit[s].” (Id. at 100-101; 110.) Document number 2067 is a “Review of Sediment Analysis.”
(Id. at 101.) Document number 2231 is an email “re: water and sediment sampling.” (Id. at
110.)

And document number 2291 is an email described as “Schaefer Road Proposal

Miller-17D.” (Id. at 114.) Based on these descriptions, the documents at issue do not appear to
give or seek legal advice. Therefore, the Court will grant Defendant’s Motion with regard to
these documents and order that they be produced by Plaintiffs.
With regard to CRA’s assertion of privilege, specifically with regard to document numbers
1273, 1704, 1705, and 2755, the Court finds that CRA has met its burden regarding its claim of
privilege for document numbers 1273, 1704, and 1705 but not with regard to document number
2755. Document number 1273 is listed as a document sent from Gordon Hotchkiss of CRA to
several individuals, including Tammy Helminski, Ford’s outside counsel, for legal review and
comment. (Docket no. 188-3 at 60.) Similarly, document numbers 1704 and 1705 are related
communications sent between CRA and Ms. Helminski for legal review and comment. (Id. at
82.) Even though the Defendant argues that these drafts are for business purposes and not for
legal review, Defendant relies only on mere speculation in making that assertion. The Court has
no reason to question CRA’s assertion that these documents are privileged. Therefore, the Court
will deny Defendant’s Motion with regard to these documents.
Document number 2755, however, is a draft memorandum “prepared at the request of
counsel” and sent to James VanAssche Nicole Rathbun Shanks and Douglas Gastrell, none of
whom appear to be attorneys.6 (Id. at 119.) Even though this document may have been created at
6

Plaintiffs and CRA have not provided the Court with a list of attorneys to cross reference
12

the request of counsel, it was not sent to or from counsel for the purpose of seeking legal advice.
While such a document may be protectable as work product, CRA did not claim such protection in
its privilege log. Protection of this document is inappropriate under the attorney-client privilege.
Therefore, the Court will grant Defendant’s Motion with regard to this document.
C.

Documents Marked “Work Product” Listed in Exhibit F

In its Order, the Court found that Plaintiffs’ potential litigation with the EPA or MDEQ
was “not a sufficient basis under which to assert work-product protection.” (Docket no. 140 at 7.)
The Court reasoned that holding otherwise would be based on the presumption that Plaintiffs knew
(or planned) to fail in their efforts under the CACO. (Id.) The Court noted, however, that
documents created after Plaintiffs decided to proceed with litigation against Defendant on March
6, 2006, may still be protectable, provided that the documents were, in fact, created in anticipation
of litigation. (Id. at 7 n.3.)
In their revised privilege logs, Plaintiffs asserted work-product protection for 108
documents at issue in Defendant’s current Motion. (See docket no. 188 at 20.) In their Joint
Statement, the parties resolved their dispute with regard to all but 34 documents: 11 documents
listed in Ford’s privilege log; and 23 documents listed in CRA’s privilege log. (Docket no. 196-4
at 2.) Defendant acknowledges that these documents were created after March 6, 2006, but
asserts that the documents were not generated in anticipation of litigation but “in connection with
Plaintiffs’ performance of their regulatory obligation to assess and, ultimately, remediate the

with their exhibits, and only Ford indicates in its privilege log which individuals are attorneys and
which are not. The Court was able to determine that Ms. Helminski is Ford’s outside counsel by
cross referencing CRA’s privilege log with Ford’s privilege log. The Court was unable to find
any mention of Ms. Shanks, Mr. Gastrell, or Mr. VanAssche through a review of Ford’s privilege
log.
13

STRA under the CACO.” (Docket no. 188 at 22.) In support of this contention, Defendant notes
that the documents post-dating the March 6, 2006 date “do not differ from those created to assess
the SRA prior to that date.” (Id.) Additionally, Defendant argues, Plaintiffs have waived
work-product protection by placing the substance of the documents at issue in this matter. (Id. at
23-24.)
As the Court noted in its original Order, a document may “be created for both use in the
ordinary course of business and in anticipation of litigation without losing its work product
privilege.” United States v. Roxworthy, 457 F.3d 590, 599 (6th Cir. 2006). Thus, the Court is not
persuaded by Defendant’s contention that the documents created after March 6, 2006, are similar
to the documents created before that date. Even assuming that documents created before March
6, 2006, were created for purely business purposes, it does not follow that substantially similar
documents created after that date could not be created for both business and litigation purposes.
Nevertheless, “A party asserting the work product privilege bears the burden of
establishing that the documents he or she seeks to protect were prepared ‘in anticipation of
litigation.’”

U.S. v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006).

Plaintiffs’ sweeping

assertion that the documents at issue “were undoubtedly generated in anticipation of litigation with
MichCon” is insufficient to meet this burden, particularly where the examples cited in their brief
related to litigation support activities are no longer at issue.

(See docket no. 190 at 20.)

Moreover, with regard to the Ford documents, it appears that only a “redacted portion[]” of the
documents is at issue. The Court has no way to determine what type of content is included in
these “redacted portions.” (Compare, e.g., docket no. 196-4 at 2, with docket no. 188-1 at 152.)
Therefore, the Court will grant Defendant’s Motion. Because the Court finds that Plaintiff has

14

not met its burden of establishing that work-product protection is appropriate for these documents,
the Court need not address whether Plaintiffs have waived any such protection.
D.

Defendant’s Request for Costs

As noted, where a court grants a Rule 37 motion to compel, then the court must award
reasonable expenses and attorney’s fees to the successful party, unless the successful party did not
confer in good faith before the motion, the opposing party’s position was substantially justified, or
other circumstances would make an award unjust. Fed.R.Civ.P. 37(A)(5)(a). The Court finds
that Plaintiffs’ and CRA’s position with regard to Defendant’s Motion was substantially justified.
Therefore, the Court will deny Defendant’s request for costs.
IT IS THEREFORE ORDERED that Defendant’s Renewed Motion to Compel is
GRANTED IN PART AND DENIED IN PART as follows:
a.

Defendant’s Motion is DENIED with regard to the documents listed in its
Amended Exhibit D;

b.

Defendant’s Motion is DENIED with regard to document number F0026222.1 in
Ford’s privilege log;

c.

Defendant’s Motion is GRANTED with regard to document numbers 147, 2060,
2067, 2229, 2231, and 2291 in AK Steel’s privilege log;

d.

Defendant’s Motion is DENIED with regard to document numbers 1273, 1704, and
1705 in CRA’s privilege log;

e.

Defendant’s Motion is GRANTED with regard to document number 2755 in
CRA’s privilege log; and

f.

Defendant’s Motion is GRANTED with regard to the documents listed in its

15

Amended Exhibit F.
IT IS FURTHER ORDERED that Plaintiffs and CRA are to produce responsive
documents as set forth in this Opinion and Order within 30 days.
IT IS FURTHER ORDERED that Defendant’s request for costs associated with its
Motion is DENIED.
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date of
this Order within which to file any written appeal to the District Judge as may be permissible under
28 U.S.C. 636(b)(1).

Dated: October 27, 2015

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Opinion and Order was served on counsel of record on
this date.
Dated: October 27, 2015

s/ Lisa C. Bartlett
Case Manager

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