Brown et al v. Tellermate Holdings Ltd. et al

Filing 261

ORDER regarding Discovery and production of documents. Signed by Magistrate Judge Terence P. Kemp on 9/28/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Robert A. Brown, et al.,

:
Case No. 2:11-cv-1122

Plaintiffs,

:
JUDGE JAMES L. GRAHAM

v.

:
Magistrate Judge Kemp

Tellermate Holdings Ltd.,
et al.,
Defendants.

:
:
ORDER

This order will hopefully be the last installment in the
ongoing saga of a case where issues with discovery, caused in
large part by Defendant Tellermate and its prior counsel, have
all but overwhelmed progress on getting the matter disposed of on
its merits.

This order reflects the results of an in camera

review of documents submitted by Tellermate which appeared on a
privilege log Tellermate provided to Plaintiffs following the
appearance of new counsel.
Tellermate asserted the attorney-client privilege for many
of the documents, and the Court finds most of those claims to be
valid.

Many documents are emails between Tellermate and

litigation counsel, and there is no basis in this case for
overcoming that privilege.

Others are clearly work product,

since they were created after and in response to the Browns’
either threatening or filing suit, and for purposes of responding
to their claims.
The Court is concerned, however, about the listing of many
documents on the log which are minutes or agendas of management
meetings.

Such documents have been the subject of prior

discussion, with Tellermate claiming, somewhat disingenuously,
that it did not have minutes of “Board of Directors” meetings to

produce; as it turns out, the persons who manage Tellermate met
in management meetings which resemble, functionally, directors’
meetings, a fact not fully disclosed until the evidentiary
hearing held on Plaintiffs’ motion for a default judgment.
Further, even if, semantically, Tellermate had some basis for
refusing to produce these documents in response to a request for
directors’ minutes, now that the Court has had a chance to look
at many of them, it appears they are responsive to other document
requests based on their subject matter.

Further, any work

product privilege which attaches to them - that is the claim applies, at most, to a brief section where the pending litigation
is mentioned.
Perhaps the relevant portions of these documents have now
been produced.

The Court agrees that the short discussions of

the litigation are protected work product or recapitulations of
attorney-client communications.

Also, much of the information in

these documents does not relate to any issues in this case.
However, the documents contain information about recruitment for
the replacement of the Browns, about North American Sales and
Marketing, and about sales and marketing generally - including
ongoing issues with the proper use of salesforce.com - which are
at least arguably relevant to this case.

If that information has

not been produced to date, the Court orders Tellermate to produce
it within seven days.
The specific documents subject to this order - which may be
redacted for totally irrelevant information not pertaining to the
Browns’ sales territory or to salesforce.com information - are
these:
From the first disk submitted by Tellermate:
81713
86244
82738

88440
88480
90356

90581
123403
123794
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173386
173460
174226

82742
84025

90570
90574

129863
129879

174231

From the second disc submitted by Tellermate:
69278
82739
82743
84026
90357

90571
90576
90582
129864
129881

173387
173398
173461
174227
174232

IT IS SO ORDERED.
Motion for Reconsideration
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.

The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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