Wausau Underwriters Insurance Company v. Reliable Transportation Specialists, Inc. et al

Filing 168

OPINION AND ORDER Denying Plaintiff's Motion to Compel Production of Joint Defense Agreement (ECF NO. 159 ). Signed by Magistrate Judge Elizabeth A. Stafford. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WAUSAU UNDERWRITERS
INSURANCE COMPANY,
Plaintiff,
v.

Civil Action No.: 15-12954
Honorable George Caram Steeh
Magistrate Judge Elizabeth A. Stafford

RELIABLE TRANSPORTATION
SPECIALISTS, INC., AMARILD
USHE, and BURT HOLT,
Defendants.
__________________________________/
OPINION AND ORDER
DENYING PLAINTIFF’S MOTION TO COMPEL
PRODUCTION OF JOINT DEFENSE AGREEMENT [ECF NO. 159]
Plaintiff Wausau Underwriters Insurance Company moves to compel
production of a joint defense agreement between Defendants Reliable
Transportation Specialists, Amarild Ushe and Burt Holt. [ECF No. 159].
Defendants’ responses described the agreement at issue as a common
interest agreement. [ECF No. 164, 166]. The Court ordered defendants to
produce the agreement for an in camera review, [ECF No. 167], and held a
hearing on September 6, 2018.
The “Common Interest Confidentiality Agreement,” which was signed
by counsel for each of the defendants in September 2017, includes none of
the tolling, settlement, indemnification or other financial provisions Wausau

relied upon in its motion to compel to argue that the agreement is relevant.
[See ECF No. 159, PageID.5587-92]. Admittedly, Wausau could not know
when filing its motion whether the agreement provided such provisions, but
defendants stated in their response that the agreement included only
boilerplate terms. [ECF No. 165, PageID.5702].
Defendants cited Biovail Laboratories Intern. SRL v. Watson
Pharmaceuticals, Inc., 2010 WL 3447187, *1–*2 (S.D. Fla. 2010), which
held that a “garden variety joint defense agreement” containing only
“standard and boilerplate language,” and that was merely a “mechanism for
safely sharing information,” was not relevant or discoverable. Biovail relied
upon other opinions, including Ford Motor Co. v. Edgewood Properties,
Inc., 257 F.R.D. 418, 428 (D.N.J. 2009), which found that a joint defense
agreement with “standard boiler plate language is not discoverable
because it is not relevant to any claim or defense in this case.” Within the
Sixth Circuit, the court in Broessel v. Triad Guar. Ins. Corp., 238 F.R.D.
215, 218 (W.D. Ky. 2006), bypassed the parties’ vigorous arguments
regarding whether the joint defense agreements at issue were privileged, 1

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At the hearing, defense counsel insisted that joint defense agreements
are privileged under the joint defense privilege, but “[c]ases addressing the
question of whether JDAs are privileged fall, quite frankly, all over the lot.”
Steuben Foods, Inc. v. GEA Process Eng’g, Inc., No. 12-CV-00904(S)(M),
2016 WL 1238785, at *1 (W.D.N.Y. Mar. 30, 2016).
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and instead found that they were not relevant within the meaning of Federal
Rule of Civil Procedure 26(b)(1). See also Innovative Legal Mktg., LLC v.
Mkt. Masters–Legal, No. 2:10CV580, 2011 WL 13118266, at *1 (E.D. Va.
Sept. 23, 2011) (denying motion to compel garden variety, boilerplate joint
discovery agreement with no substantive business, indemnity or financial
provisions).
In its reply, Wausau did not address the case law finding boilerplate
agreements to be irrelevant, and instead asserted that the Court was not
bound by defendants’ characterization of the agreement. [ECF No. 166,
PageID.5722]. At this juncture, the Court has conducted an in camera
review and confirmed that the common interest confidentiality agreement is
boilerplate and is merely a mechanism for safely sharing information.
Wausau’s reply provided no authority stating that such a boilerplate
agreement is relevant or discoverable.
At the hearing, Wausau asserted that it is entitled to discover the
scope of the common interest as defined by the agreement, but the
agreement does not define that the scope of the common interest. Wausau
also argued that the scope of the agreement is more relevant here than in
other case because this case is unique. What makes this case unique,
according to Wausau, is that there are adverse interests among the parties
to the common interest confidentiality agreement that may lead to future
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litigation between them. But courts have noted that the “common interest
privilege does not require a complete unity of interests among the
participants” and “applies where the interests of the parties are not
identical, and it applies even where the parties’ interests are adverse in
substantial respects. The privilege applies even where a lawsuit is
foreseeable in the future between the co-defendants.” JP Morgan Chase
Bank, N.A. v. Winget, No. 08-13845, 2010 WL 11545362, at *3 (E.D. Mich.
Dec. 10, 2010) (citations and internal quotation marks omitted). Thus,
adverse interests among parties to a common interest agreement are not
unique, as Wausau argued, and the alleged uniqueness of this case does
not distinguish this case from others finding that boilerplate joint defense
agreements are not relevant or discoverable.
For these reasons, Wausau’s motion to compel the joint discovery
agreement is DENIED.
IT IS SO ORDERED.
s/Elizabeth A. Stafford
ELIZABETH A. STAFFORD
United States Magistrate Judge
Dated: September 6, 2018

NOTICE TO PARTIES REGARDING OBJECTIONS
The parties’ attention is drawn to Fed. R. Civ. P. 72(a), which
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provides a period of 14 days from the date of receipt of a copy of this order
within which to file objections for consideration by the district judge under
28 U.S.C. § 636(b)(1).

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s ECF
System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on September 6, 2018.
s/Karri Sandusky on behalf of
MARLENA WILLIAMS
Case Manager

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