JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint v. UNITED STATES OF AMERICA
Filing
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OPINION AND ORDER DENYING PLAINTIFFS' 255 MOTION TO COMPEL PRODUCTION OF UNREDACTED DOCUMENTS Signed by District Judge Linda V. Parker. (AFla)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re FTCA Flint Water Cases,
Case No. 17-cv-11218
(Consolidated)
_________________________/
This Order Relates to:
Honorable Linda V. Parker
All Cases
________________________________/
OPINION AND ORDER DENYING PLAINTIFFS’ MOTION TO COMPEL
PRODUCTION OF UNREDACTED DOCUMENTS
These consolidated cases are presently before the Court on Plaintiffs’ motion
to compel (ECF No. 255), which has been fully briefed (ECF Nos. 256, 257). For
the reasons set forth below, the Court is denying the motion.
Background
Prior to a status conference on November 7, 2023, Plaintiffs asked to add to
the Court’s conference agenda: “Plaintiffs[’] intentions on filing a motion to
compel the production of unredacted documents that the [United States] has
redacted based on attorney client privilege.” At the November 7 status conference,
the United States indicated that, despite inquiring earlier, it was uncertain of the
document(s) Plaintiffs were referencing until the morning of the conference. The
morning of the conference, Plaintiffs identified the document at issue as the notes
from an interview of Avi Garbow, General Counsel in the Environmental
Protection Agency’s Office of General Counsel (“Garbow Interview”). (ECF No.
251 at PageID 4789.) Plaintiffs challenged the United States’ redaction of the
Garbow Interview, which were based on attorney-client privilege.
Plaintiffs maintained that there was urgency to address the issue because
they wished to use the Garbow Interview at the deposition of a former EPA
employee, Peter Grevatt, scheduled to begin November 29. (Id. at PageID 4784.)
With the upcoming Thanksgiving holiday, this did not leave much time for a
resolution. Nevertheless, the Court heeded Plaintiffs’ request and entered an
expedited briefing schedule to address the matter. (See 11/7/23 Minute Entry;
ECF. No. 251 at PageID 4805-06.)
Plaintiffs filed their motion to compel on the expected date, November 13,
but unexpectedly expanded the subject of their motion to four additional
documents. (ECF No. 255.) In response, the United States decided to simply
provide Plaintiffs with an unredacted copy of the Grabow Interview and, therefore,
requested that Plaintiffs withdraw their motion to compel. Plaintiffs refused. The
United States therefore filed a timely response to the motion. (ECF No. 256.)
Plaintiffs then filed a timely reply. (ECF No. 257.)
Discussion
Eastern District of Michigan Local Rule 7.1 requires a party to seek
concurrence from the opposing side before filing a motion. See E.D. Mich. LR
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(“LR”) 7.1(a). The requirement is quite comprehensive—requiring “a good faith
interactive exchange”—to ensure the parties engage in reasonable efforts to resolve
disputes before expending their time and effort to brief an issue and the Court’s
time and effort to resolve it. See LR 7.1(a)(1). This Court’s Practice Guidelines
go further, prohibiting a party from filing any discovery motion without first
contacting the Court and participating in a conference attempting to resolve the
specific dispute. See http://www.mied.uscourts.gov/.
Plaintiffs failed to adhere to Local Rule 7.1 or this Court’s guidelines before
filing their motion raising discovery issues concerning documents other than the
Garbow Interview. Contrary to any suggestion in their reply brief (see ECF No.
257 at PageID 4963-64), Plaintiffs’ reference to “documents” when requesting the
addition of an item to the conference agenda did not satisfy their concurrence
obligations under Local Rule 7.1 or the Court’s guidelines. 1
When the United States requested that Plaintiffs identify the documents at
issue, Plaintiffs referenced the Garbow Interview, only, which they did on the
At the status conference, Plaintiffs did tell the Court that they have “been dealing
with this issue [redacted documents] with the . . . DOJ for some time” and
described how, “through multiple meet and confers” the parties addressed these
documents. (ECF No. 251 at PageID 4783-84.) However, this appeared to be
provided by way of background rather than to present issues broader than the
Garbow Interview to be addressed in an immediate motion. The conversation
quickly turned to and focused on the Garbow Interview, only. (See id. at PageID
4784-87.)
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morning of the conference. Nothing said at the status conference suggested that
the parties discussed any other documents at this “meet and confer.” No document
other than the Garbow Interview was specifically discussed at the status
conference. There was no request, suggestion, or discussion about a motion to
compel addressing any document but this one or any broader problem concerning
redactions. Nor did the Court give Plaintiffs’ permission to file a motion to compel
that covered other documents or issues.
As the response brief filed by the United States contends, compliance with
the meet-and-confer requirements, alone, would have significantly, if not
completely, alleviated the need for a motion with respect to the additional
documents. For example, Plaintiffs attached a redacted document for which a
subsequent version with far fewer redactions had been produced by the United
States in early August 2023. A second document had been produced with no
redactions in April 2022.
Plaintiffs assert in their reply brief that the United States has a “pattern of
redacting documents” and only removing redactions after Plaintiffs question their
propriety, and that this is not something Plaintiffs should have to do. (See ECF
No. 257 at PageID 4964.) Plaintiffs seem to be suggesting that initial redactions in
documents produced by the United States—far more than just the Garbow
Interview—were unwarranted under the attorney-client privilege, although
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Plaintiffs offer no proof to support this accusation. Plaintiffs therefore ask the
Court to issue an order setting forth steps the United States must follow for
redacted documents. (Id. at PageID 4965-66.) But these arguments raise issues far
broader than the one discussed by the parties before the status conference—their
purported “meet and confer”—or between the parties and the Court at the status
conference. Further, they are inappropriately raised for the first time in reply,
providing no opportunity for the United States to respond or for the relevant
arguments and facts to be presented for the Court to evaluate their merit.
In their reply brief, Plaintiffs also request sanctions against the United States
under Federal Rule of Civil Procedure 37(a)(5) based on the production of the
unredacted Garbow Interview after the motion to compel was filed. (Id. at PageID
4966-67.) However, Rule 37(a)(5) precludes sanctions “if . . the movant filed the
motion before attempting in good faith to obtain the disclosure or discovery
without court action[.]” Fed. R. Civ. P. 37(a)(5)(A)(i). Sanctions also are
precluded if “the opposing party’s nondisclosures, response, or objection was
substantially justified[.]” Fed. R. Civ. P. 37(a)(5)(A)(ii).
The Court cannot find that Plaintiffs made a good faith attempt to resolve the
redactions in the Garbow Interview given the timing and manner of how the issue
was raised. Plaintiffs waited until the morning of the status conference to identify
the document at issue, leaving little opportunity for the United States to
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contemplate and the parties to engage in meaningful discussion as to whether all or
some redactions should be removed. Nor can the Court conclude that the United
States was not substantially justified in redacting the document, initially, even
though it decided to provide an unredacted copy to Plaintiffs “to facilitate the
completion of fact discovery and to obviate the need to address page-line
redactions in the document.” (ECF No. 256 at PageID 4900.) In other words, the
United States may still believe that attorney-client privilege justifies the redactions
but may have concluded that, at the particular juncture in the litigation, other
interests outweigh the disclosure of the material The Court, therefore, denies
Plaintiffs’ request for sanctions under Rule 37(a)(5).
Plaintiffs acknowledge that when they have raised concerns to the United
States about redactions in specific documents, discussions between the parties—
when given the opportunity to occur—result in redactions being removed. This
occurs without the need for motions to compel. It is the process that Local Rule
7.1 and this Court’s Practice Guidelines contemplate to avoid the filing of
unnecessary motions. In fact, it is a process required by Rule 37 before a motion
to compel may be filed. See Fed. R. Civ. P. 37(a)(1) (“The motion must include a
certification that the movant has in good faith conferred or attempted to confer
with the person or party failing to making disclosure or discovery in an effort to
obtain it without court action.”).
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The Court is denying the motion to compel without prejudice to the extent it
raises issues beyond the Garbow Interview as Plaintiffs failed to comply with these
pre-filing requirements. The motion to compel which this Court granted Plaintiffs
permission to file—i.e., addressing the Garbow Interview—is moot due to the
production of an unredacted version by the United States shortly after the motion
was filed. Therefore, to this extent, the motion is denied as moot.
SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: November 22, 2023
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