American Municipal Power, Inc. v. Voith Hydro, Inc.
Filing
205
ORDER: Voith's motion to compel 190 is GRANTED, in part and DENIED without prejudice, in part, to the extent set forth herein. AMP shall complete its review and revisions of the relevant disputed entries (ECF Nos. 190-1 (whichincludes 190-2); 190-4; 190-6) and provide a revised privilege log to Voith within 14 days of the date of this Order. AMP shall produce the Stantec documents to Voith within fourteen days of the date of this Order. AMP is DIRECTED to submit to the Court the 40 remaining items identified in ECF No. 190-3 for an in camera inspection within seven days of the date of this Opinion and Order. Signed by Magistrate Judge Elizabeth Preston Deavers on October 20, 2021. (jlk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
AMERICAN MUNICIPAL
POWER, INC.
Plaintiff,
Case No. 2:17-cv-708
vs.
Chief Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers
VOITH HYDRO, INC.,
Defendant.
OPINION AND ORDER
This matter is before the Court for the resolution of the most recent iteration in the series
of discovery disputes that have come to define this four-year old case. The current issues are
reflected in Voith’s motion to compel ESI production (ECF No. 190), AMP’s 31-page response
(accompanied by 24 exhibits totaling over 1400 pages) (ECF No. 193), and Voith’s reply (ECF
No. 198). For the following reasons, the motion to compel is GRANTED, in part and
DENIED without prejudice, in part.
I.
The Court previously has addressed, at great length, the background of this complex,
multi-million dollar case arising out of the construction of four, new hydroelectric power plants
on the Ohio River. See ECF No. 84, at pp. 2-15; 2019 WL 6251339, *1-8 (S.D. Ohio Nov. 22,
2019). Accordingly, it will not include any such discussion here. Rather, the Court resolves the
most recent motion to compel as follows.
II.
Federal Rule of Civil Procedure 37 permits a party to file a motion for an order
compelling discovery if another party fails to respond to discovery requests, provided that the
motion to compel includes “a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make disclosure or discovery in an effort
to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). Consistent with this, Local Rule 37.1
requires the parts to “exhaust[] among themselves all extrajudicial means for resolving their
differences” before filing an objection, motion, application, or request relating to discovery.
S.D. Ohio Civ. R. 37.1.
“District courts have broad discretion over docket control and the discovery process.”
Pittman v. Experian Info. Sol., Inc., 901 F.3d 619, 642 (6th Cir. 2018) (citation omitted). “‘It is
well established that the scope of discovery is within the sound discretion of the trial court.’” Id.
(quoting Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir. 1993)). The Federal Rules of Civil
Procedure provide that “[p]arties may obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claim or defense and proportional to the needs of the case. . . .” Fed. R.
Civ. P. 26(b)(1). While a plaintiff should “not be denied access to information necessary to
establish her claim,” a plaintiff may not be “permitted to go fishing and a trial court retains
discretion to determine that a discovery request is too broad and oppressive.” In re Ohio
Execution Protocol Litigation, 845 F.3d 231, 236 (6th Cir. 2016) (citation omitted); see also
Gallagher v. Anthony, No. 16-cv-00284, 2016 WL 2997599, at *1 (N.D. Ohio May 24, 2016)
(“[D]istrict courts have discretion to limit the scope of discovery where the information sought is
overly broad or would prove unduly burdensome to produce.”).
2
Determining the scope of discovery is within the Court’s discretion. Bush v. Dictaphone
Corp., 161 F.3d 363, 367 (6th Cir. 1998). “The proponent of a motion to compel discovery bears
the initial burden of proving that the information sought is relevant.” Gruenbaum v. Werner
Enter., Inc., 270 F.R.D. 298, 302 (S.D. Ohio 2010) (citation omitted). If the movant makes this
showing, “then the burden shifts to the non-movant to show that to produce the information
would be unduly burdensome.” Prado v. Thomas, No. 3:16-CV-306, 2017 WL 5151377, at *1
(S.D. Ohio Oct. 19, 2017) (citing O’Malley v. NaphCare, Inc., 311 F.R.D. 461, 463 (S.D. Ohio
2015)); see also Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment (stating
that a party claiming undue burden or expense “ordinarily has far better information—perhaps
the only information—with respect to that part of the determination” and that a “party claiming
that a request is important to resolve the issues should be able to explain the ways in which the
underlying information bears on the issues as that party understands them”).
The Federal Rules of Civil Procedure grant parties the right to “obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ.
P. 26(b)(1); see also Siriano v. Goodman Mfg. Co., L.P., No. 2:14-CV-1131, 2015 WL 8259548,
at *5 (S.D. Ohio Dec. 9, 2015). “Relevance is construed very broadly for discovery purposes.”
Doe v. Ohio State Univ., No. 2:16-CV-171, 2018 WL 1373868, at *2 (S.D. Ohio Mar. 19, 2018)
(emphasis in original) (citing Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998)).
Despite being construed broadly, the concept of relevance is not unlimited. Averett v. Honda of
Am. Mfg., Inc., No. 2:07-cv-1167, 2009 WL 799638, at *2 (S.D. Ohio March 24, 2009). Indeed,
“[t]o satisfy the discoverability standard, the information sought must have more than minimal
relevance to the claims or defenses.” Doe, 2018 WL 1373868 at *2 (citations omitted).
3
Furthermore, when information is “negligibly relevant [or] minimally important in resolving the
issues” this will not satisfy the standard. Id. (citation omitted).
“[T]he Federal Rules of Civil Procedure instruct district courts to limit discovery where
its ‘burden or expense . . . outweighs its likely benefit, taking into account the needs of the case,
the amount in controversy, the parties’ resources, the importance of the issues at stake in the
litigation, and the importance of the proposed discovery in resolving the issues.’” Surles ex rel.
Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007) (quoting former Fed. R.
Civ. P. 26(b)(2)(C)(iii)). This Court has previously held that “[t]hese factors are retained in
revised Fed. R. Civ. P. 26(b)(1), reflecting ‘their original place in defining the scope of
discovery’” because “‘[r]estoring proportionality’ is the touchstone of revised Rule 26(b)(1)’s
scope of discovery provisions.” Siriano, 2015 WL 8259548, at *5 (citing Fed. R. Civ. P.
26(b)(1)). In analyzing the extent of the burden on the producing party, the Court of Appeals for
the Sixth Circuit “has held that limiting the scope of discovery is appropriate when compliance
‘would prove unduly burdensome,’ not merely expensive or time-consuming.” Id. (citing Surles,
474 F.3d at 305) (emphasis in original).
III.
According to Voith, there are three categories of improperly withheld ESI – (a) attachments1;
(2) emails withheld from AMP’s Discharge Ring Production2; and (3) non-email items. More
specifically, Voith asserts that there are 12,997 attachments for which “AMP has failed to
demonstrate privilege” because AMP’s “Privilege Description” does not sufficiently describe the
1
As the Court understands Voith’s argument here, the attachments at issue are email
attachments. See, e.g., ECF 198 at 6.
2
The discharge ring records were the subject of a supplemental production directed to postComplaint records. (ECF No. 190 at 2.)
4
attachments or provide information demonstrating privilege. (ECF No. 190 at 2; ECF No. 190-1.)
Further, Voith argues that AMP has not provided the author’s name for 4,711 of those items. (Id.;
ECF No. 190-2.) With respect to the discharge ring records, Voith seeks to compel (1) 43 emails
sent to third parties (ECF No. 190-3); (2) 38 emails which do not include counsel but were withheld
as attorney-client privileged (ECF No. 190-4); and (3) 114 emails exchanged with project engineer
Stantec Consulting Services, Inc. (ECF No. 190-5.) Finally, Voith seeks 2,316 non-email items
for which it contends AMP’s logs are deficient because AMP either failed to provide the author or
sufficiently describe privilege. (ECF No. 190-6.)
The Court will address the parties’ arguments
by category.
A. Attachments
As noted, Voith asserts that there are 12,997 attachments for which “AMP has failed to
demonstrate privilege” because AMP’s “Privilege Description” does not sufficiently describe the
attachments or provide information demonstrating privilege. (ECF No. 190-1.) Further, Voith
argues that AMP has not provided the author’s name for 4,711 of those items. (ECF No. 190-2.)
For its part, AMP contends that Voith has not made any effort to identify whether any of these
documents are relevant to the claims and defenses in this case. By way of example, AMP asserts
that Voith is attempting to “force the production” of items on AMP’s privilege log simply because
they lack author metadata. Further, AMP argues, relying on a declaration from its counsel,
Michael K. Robertson (ECF No. 193-1, Declaration of Michael K. Robertson (“Robertson
Decl.”)), that its review process worked such that original, non-privileged versions of its
attachments are found in its production. AMP also rejects Voith’s remaining asserted justifications
for demanding production, affirming specifically that it stands by its privilege descriptions. In
reply, Voith maintains that it devoted significant effort to remove irrelevant attachments and focus
5
its challenges, objects to AMP’s view that non-privileged attachments may be privileged “in
context,” and reiterates its complaint that AMP’s privilege descriptions are deficient.
The starting point for the Court’s discussion on this issue is the Stipulation and Order
Regarding Protocol for the Search and Production of Electronically Stored Information and Hard
Copy Documents dated April 23, 2018. (ECF No. 38.) That document provides, in relevant part:
If any original ESI has attachments, the parties will produce copies of that ESI with
the attachments unless the ESI is privileged. If the ESI is privileged, any
attachments to the ESI will be produced unless also privileged.
(ECF No. 38 at § III, ⁋ I.)
Producing parties shall only withhold ESI or Documents as permitted herein, on
the basis of privileged within the bounds of applicable law, or upon order of the
Court. Pursuant to Section III(N), the parties shall prepare the privilege logs in
accordance with Fed.R.Civ.P. 26(b)(5).
(Id. at § VI, ⁋ A.)
Needless to say, the parties did not agree to a process for identifying and categorizing
attachments and determining whether to withhold or produce them. That lack of agreement, in
large part, has led to the current dispute. Regardless, it is clear from the briefing that both parties
clearly recognized the potential for instances where non-independently privileged attachments
could present a problem in relation to a privileged parent. Voith adopted a three-step process
which, from its perspective, accounted for this potential problem. First, at the outset, Voith
identified, but did not log, previously produced non-privileged attachments. AMP agreed simply
to accept Voith’s representation on this issue. (ECF No. 193 at 10; ECF No. 193-7.) Further,
Voith produced, but did not log, any remaining non-independently privileged attachments not
previously produced to AMP. These attachments were produced without metadata to avoid the
potential for disclosure of a privileged communication. Finally, Voith logged any remaining and
independently privileged attachments. For its part, AMP adopted a process that yielded four
6
potential outcomes: the attachment and its parent were both produced as non-privileged; the
attachment and its parent were both withheld as privileged; the parent was withheld but the
attachment was produced; the parent was produced but the attachment was withheld. (ECF No.
193 at 7.) According to AMP, its logged attachments include non-independently privileged
attachments which it has deemed to be privileged in “context,” i.e., where the “nature and
context of the communication as a whole renders the ‘attached version’ privileged. (Id.) AMP
further explains that, in the case of “context” privilege, although the attachment was logged and
withheld, “the original version of the same relevant document could be found elsewhere in
AMP’s production.” (Id.)
Voith contends that AMP’s approach, compounded by its deficient logging, has made it
difficult to determine whether the attachment is appropriately withheld as either independently
privileged or because it has been produced elsewhere. Voith suggests that it would be willing to
accept AMP’s representation that the “context-privileged” documents have been provided
elsewhere but asserts that AMP has not offered such a representation.
The Court offers the following observations. First, contrary to Voith’s protestations,
AMP has represented, both in its briefing and through Mr. Robertson’s Declaration, that it has
otherwise produced every document withheld not on the basis of independent privilege but on
the basis of what AMP has deemed its “context” driven privilege. See ECF No. 193 at 7;
Robertson Decl. at ⁋ 3. At this point, absent anything but accusations to the contrary, the Court
will accept AMP’s representations that this is so. Of course, AMP is specifically cautioned that,
if this turns out not to be the case, appropriate consequences for any such misrepresentations may
need to be considered. What is less clear to the Court, particularly given the nature of the
parties’ briefing, is the extent to which this resolves Voith’s issue with AMP’s privilege log as
7
addressed to these attachments. Voith has submitted a 1082-page exhibit setting forth the
12,997 disputed log entries. (ECF No. 190-1.)3 A cursory review suggests that any description
containing the introductory phrase “[a]ttachment providing information in furtherance of legal
advice …” would relate to an attachment that is not independently privileged but was deemed by
AMP to be privileged in the context of seeking legal advice. Beyond this, the Court will not
parse this exhibit line by line. Instead, AMP is DIRECTED to confirm in writing within 14
days of the date of this Order which disputed entries in Exhibit 190-1 can be removed based on
its representation that these attachments have otherwise been produced. For ease of reference,
such written confirmation should take the form of a revised table identical in format to Exhibit
190-1. Accordingly, Voith’s motion to compel is DENIED without prejudice at this juncture but
is subject to renewal as it pertains to any disputed attachment privilege log entries identified in
Exhibit 190-1 that may remain after receipt of AMP’s written confirmation.
B. Discharge Ring Production
1. Third Party Records
Next, Voith contends that 43 emails AMP withheld from its discharge ring production must
be produced with their attachments because they involve third parties. (ECF No. 190-3.) In
response, AMP has agreed to produce items 3, 4, and 5 as identified on Voith’s exhibit but
maintains that the remainder are protected work product. (ECF No. 193 at 18.) The remaining
40 items can be categorized as follows. Thirty-five entries are either emails or attachments to
emails (32 emails, 3 attachments) between Pete Crusse, AMP’s Vice President of Hydro
Construction, and various individuals from Santo Antonio Energia, S.A., a Brazilian
3
As the Court understands it, the 4,711 items separately identified in ECF No. 190-2 would also
appear in ECF No. 190-1.
8
hydroelectric utility. (Items 8-40 and 42-43). (Robertson Decl. at ⁋ 9.) Two items are
attachments to emails between Mr. Crusse and another third party. (Items 2 and 7.) Two items
are emails between another AMP employee and a third-party. (Items 41 and 44.) Finally, one
item is an attachment to an email between AMP employee Scott Barta and a third-party. (Item
6.)
In resolving claims regarding the work product doctrine, the Court applies federal law. In
re Powerhouse Licensing, 441 F.3d 467, 472 (6th Cir. 2006). This doctrine prevents
“unwarranted inquiries into the files and the mental impressions of an attorney.” Hickman v.
Taylor, 329 U.S. 495, 510 (1947). Accordingly, the work product doctrine “protects an
attorney’s trial preparation materials from discovery to preserve the integrity of the adversarial
process.” In re Powerhouse Licensing, 441 F.3d at 438. Federal Rule of Civil Procedure 26(b)
provides that “[o]rdinarily, a party may not discover documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its representative....”
Fed. R. Civ. P. 26(b)(3)(A). There are two considerations when determining whether a document
was “prepared in anticipation of litigation or for trial”: “(1) whether that document was prepared
‘because of’ a party’s subjective anticipation of litigation, as contrasted with ordinary business
purpose; and (2) whether that subjective anticipation was objectively reasonable.” In re Prof’ls
Direct Ins. Co., 578 F.3d 432, 439 (6th Cir. 2009) (citing United States v. Roxworthy, 457 F.3d
590, 594 (6th Cir. 2006)). Accordingly, “[t]he mere fact that a document was prepared by an
attorney does not necessarily lead to the characterization of that document as work product.” Guy
v. United Healthcare Corp., 154 F.R.D. 172, 181 (S.D. Ohio 1993). This Court has previously
discussed the different approaches taken in determining if a document was prepared in
anticipation of litigation or trial. Id. at 181–82 (noting that “[s]ome courts hold that the
9
possibility of litigation must be ‘identifiable because of specific claims that [have] already
arisen[ ]’ ” and that other courts consider “whether in light of the nature of the document and the
factual situation in the particular case, the document can fairly be said to have been prepared or
obtained because of the prospect of litigation”) (internal citations omitted).
Subject to Rule 26(b)(4) (regarding trial preparation and expert witnesses), work product
materials may still be discovered if:
(i)
they are otherwise discoverable under Rule 26(b)(1); and
(ii)
the party shows that it has substantial need for the materials to prepare its case and
cannot, without undue hardship, obtain their substantial equivalent by other means.
Fed. R. Civ. P. 26(b)(3)(A)(i), (ii) (emphasis in original). “Under the Federal Rules, the work
product protection under Rule 26(b)(3) is not limited to attorneys, but has been extended to
documents and tangible things prepared by or for the party and the party’s representative, as long
as such documents were prepared in anticipation of litigation.” Decker v. Chubb Ins. Co, No.
1:15-cv-88, 2015 WL 5954584, *5 (S.D. Oh. Oct. 15, 2015) (citing Fed. R. Civ. P. 26(b)(3)(A)).
As the Rule provides, documents that are protected as work product may still be
discoverable if the requesting party shows that it has substantial need for the materials to prepare
its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
Fed. R. Civ. P. 26(b)(3)(A). While “fact” work product may be discoverable upon such a
showing, “opinion” work product is entitled to near absolute protection against disclosure. See In
re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 294 (6th Cir. 2002).
“[A]bsent waiver, a party may not obtain the ‘opinion’ work product of his adversary; i.e., ‘any
material reflecting the attorney’s mental impressions, opinions, conclusions, judgments, or legal
theories.’” Id. (quoting In re Antitrust Grand Jury, 805 F.2d 155, 163-64 (6th Cir. 1986)
(citations omitted)).
10
Under certain circumstances, however, a party may waive a claim under the workproduct doctrine. In re Columbia/HCA Healthcare, 293 F.3d at 304. Because the purpose of the
work-product doctrine is to protect the relevant work “from falling into the hands of an
adversary,” disclosure of protected materials to a third-party will often waive the protection of
the work-product doctrine. See In re Chevron Corp., 633 F.3d 153, 165 (3rd Cir. 2011). When
work product is disclosed to a third party, the key issue becomes whether “the material is
disclosed in a manner inconsistent with keeping it from an adversary....” Id.; cf. also In re
Columbia/HCA, 293 F.3d at 306 (“Other than the fact that the initial waiver must be to an
‘adversary,’ there is no compelling reason for differentiating waiver of work product from
waiver of attorney-client privilege.”); see also Gard v. Grand River Rubber & Plastics Co., No.
1:20CV125, 2021 WL 75655, at *13 (N.D. Ohio Jan. 8, 2021 (disclosure of protected materials
to a third-party will often waive the protection of the work product doctrine).
AMP asserts that all of Mr. Crusse’s correspondence with Santo Antonio represent
investigative and fact finding undertaken at the direction of AMP’s counsel and therefore
constitute work product. (Robertson Decl. at ⁋ 10.) Further, AMP contends that work product
protection was not waived as to these communications Santo Antonio is a non-adverse third
party. Finally, AMP argues that Voith has failed to demonstrate that it has a substantial need for
these communications or that it cannot obtain these same documents from a third-party. Voith
argues that, with respect to the emails from Santo Antonio to Mr. Crusse, even assuming Mr.
Crusse was operating at counsel’s direction, documents from a third-party to a party’s counsel
are not work product. With respect to the emails to Santo Antonio from Mr. Crusse, Voith
contends that AMP has presented no evidence that they contain the mental impressions of
counsel. Alternatively, Voith argues that AMP waived any work product protection when the
11
emails were shared with individuals at Santo Antonio. Finally, Voith contends that if, as AMP
suggests, Voith could have obtained the emails directly from Santo Antonio, AMP could not
have had any expectation that the emails would remain confidential.
The Court believes it would be premature to determine whether work product protection
extends to any of these items without an in camera inspection. Accordingly, AMP is
DIRECTED to submit the 40 remaining items identified in ECF No. 190-3 to the Court for an in
camera inspection within seven days of the date of this Opinion and Order.
2. Attorney-Client Privileged Emails without Attorneys
Voith seeks to compel 38 emails (and their attachments) between non-attorneys for which
it contends that AMP has claimed attorney-client privilege. (ECF No. 190-4.) In response,
AMP contends that all of these documents represent protected work product and that many of
them also constitute privileged attorney-client communications. (ECF No. 193 at 21.) Voith
asserts that the log descriptions as written establish neither privilege nor protected work product.
The Court’s review of these particular log descriptions confirms Voith’s characterization that all
of these documents were withheld only on the basis of attorney client privilege. (See ECF No.
190-4 at Column G.) Further, consistent with Voith’s view, several of these entries do not
appear to describe a privileged communication. (See, e.g., ECF No. 190-4 at entries 2, 15, 17,
19, 24, 25, 26, and 39.) To the extent that AMP now cites work product protection as its
primary basis for withholding, AMP is DIRECTED to re-review these 38 emails and their
attachments and to revise its privilege log to clarify precisely how these emails constitute
protected work product. AMP is further DIRECTED to complete this re-review and
clarification and provide it to Voith within fourteen days of the date of this Order. If, at that
time, Voith continues to dispute a particular entry it may renew its motion to compel on this
12
issue. Accordingly, the motion to compel is DENIED without prejudice to renewal upon receipt
of AMP’s revised privilege log relating to these emails.
3.
Stantec emails
Voith seeks 114 emails exchanged between AMP and third-party engineer Stantec and
withheld from AMP’s discharge ring production on the basis of either attorney-client privilege or
the work product doctrine or both.
(ECF No. 190-5.) As Voith argues, the Court previously
ordered AMP to produce Stantec emails in its primary document production and nothing is
different here. In response, AMP makes several assertions designed to demonstrate the privileged
nature of the AMP-Stantec relationship. First, AMP recycles its previously rejected argument that
Stantec (formerly MWH) is a litigation consultant. Further, AMP contends that the Joint-Defense
Agreement executed by AMP and Stantec on April 13, 2018, “has elements of a joint defense
agreement, a joint prosecution agreement, and a litigation consulting agreement.” (ECF No. 193
at 23.)
By way of footnote, AMP adds that these emails would also be protected under the
common interest doctrine. (Id. at 24 n.12.) AMP also cites Stantec’s status as a retained expert
witness in this case and the fact that AMP counsel has represented Stantec personnel at depositions.
Beyond these arguments, AMP takes aim at Voith’s interpretation of the JDA and Voith’s own
practices of withholding documents relating to communications with Voith’s litigation consultant
Dr. Hutarew. AMP’s arguments on this issue are not well-taken
First, the Court finds no merit to AMP’s continued argument that Stantec is a litigation
consultant. As the Court previously has recognized, Section 3.22.2 of AMP’s contract with
Stantec contemplated Stantec’s potential retention as AMP’s litigation consultant. However,
Section 3.22.1 required that AMP request those services in writing from Stantec and that both
AMP and Stantec sign a written scope and budget for those services. The Court already found
13
evidence of any specific agreement to be non-existent. (ECF No. 133 at 14.) AMP now suggests
that the JDA is, inter alia, a litigation consulting agreement. The Court, however, is not
persuaded. As Voith points out, nothing in the JDA engages Stantec to perform additional
services; the JDA contains no reference to Sections 3.22.1 or 3.22.2.8; the scope of any
additional services is not defined; and there is no budget for such services. Moreover, the JDA
specifically provides that it does not alter the [Stantec] Contracts in any way except to toll notice
requirements. (ECF No. 193-31, at ¶ 5.c.) In short, the JDA is not an agreement by which AMP
transformed Stantec’s role as project-engineer into a specially-retained litigation consultant.
AMP’s reliance on the joint defense or common interest doctrines is likewise to no avail.
AMP does not address these doctrines with particular precision or regard to the governing law.
The Court will begin its analysis with a discussion of the specific nature of these concepts as they
relate to the protections AMP asserts.
As the Court discussed previously:
“In a diversity case, the court applies federal law to resolve work product claims
and state law to resolve attorney-client claims.” In re Powerhouse Licensing, LLC,
441 F.3d 467, 472 (6th Cir. 2006) (citing, inter alia, Fed. R. Evid. 501). In this []
diversity suit, state law governs attorney-client privilege claims, and federal law
governs assertions of work product doctrine protection. See Fed. R. Civ. P.
26(b)(3). “The burden of establishing the existence of the privilege rests with the
person asserting it.” Canton Drop Forge, Inc. v. Travelers Cas. & Sur. Co., No.
5:18-CV-01253, 2019 WL 1205295, at *1 (N.D. Ohio Mar. 14, 2019) (citing U.S.
v. Dakota, 197 F.3d 821, 826 (6th Cir. 1999)).
(ECF No. 133 at 11.)4 There is no material difference between Ohio’s attorney-client privilege
and the federal attorney-client privilege. MA Equip. Leasing I, L.L.C. v. Tilton, 980 N.E.2d 1072,
4
As the Court noted in its previous Opinion and Order:
On the issue of attorney-client privilege, the parties do not explicitly address
whether Ohio law or the law of another state governs here. The Court notes that, in
connection with AMP’s motion to compel Voith to produce a compliant privilege
14
1079–80 (Ohio App. 10th Dist. Oct. 9, 2012) (citing Guy v. United Healthcare Corp., 154 F.R.D.
172, 177 n.3 (S.D. Ohio 1993); Inhalation Plastics, Inc. v. Medex Cardio–Pulmonary, Inc., No.
2:07–CV–116, 2012 WL 3731483 (S.D. Ohio Aug. 28, 2012)).5
Ohio appears to recognize both a joint-representation exception and common interest
exception to the attorney client privilege. Squire, Sanders & Dempsey, L.L.P. v. Givaudari
Flavors Corp., 127 Ohio St.3d 161, 169 (2010). Under Ohio law, an exception to the attorneyclient privilege falls into the category of situations in which the privilege does not attach to the
communications in the first instance * * *.” Id. at 173. The joint-representation exception
applies “when the same attorney acts for two parties having a common interest, and each party
communicates with him.” Buckeye Corrugated, Inc. v. Cincinnati Ins. Co., 2013 WL 4153540 at
*3 (Ohio App. 9th Dist. August 14, 2013) (quoting Emley v. Selepchak, 76 Ohio App. 257, 262
log, AMP suggests that, based on the relevant contract language, Ohio law applies.
(ECF No. 121, at p.8 n.2.) AMP also recognizes that, given that Voith is
headquartered in Pennsylvania, that state’s law arguably could apply. (Id.) AMP
explains, however, that Pennsylvania law on this issue is substantially similar to
Ohio’s. (Id.) It does not appear that Voith addresses the issue of governing law.
However, in its motion to compel, Voith relies on William Powell Co. v. National
Indemnity Co., 2017 WL 1326504 (S. D. Ohio April 11, 2017), a diversity case
applying Ohio law on attorney-client privilege. Accordingly, the Court has applied
Ohio law as relevant.
Am. Mun. Power, Inc. v. Voith Hydro, Inc., No. 2:17-CV-708, 2020 WL 5014914, at *7 n.8 (S.D.
Ohio Aug. 25, 2020). Similarly, the Court has applied Ohio law as relevant in connection with
the current motion to compel.
5
Federal law, however, can govern waiver in a diversity case, “even if state law provides the rule
of decision.” Pinnacle Sur. Servs., Inc. v. Manion Stigger, LLP, 370 F. Supp. 3d 745, 750–51
(W.D. Ky. 2019) (citing Fed. R. Evid. 502(f); accord. Lee v. Med. Protective Co., 858 F. Supp.
2d 803, 807 (E.D. Ky. 2012). However, federal law does so only when “disclosure” of the
privileged communication is made, whether intentional or inadvertent, “in a federal proceeding.”
Fed. R. Evid. 502(a)–(b), advisory committee’s note (“[This] rule does not purport to supplant
applicable waiver doctrine generally.”).
15
(9th Dist.1945), quoting 8 Wigmore on Evidence, Section 2312 (3d Ed.1940)). Joint
representation is distinguishable from situations where a lawyer represents one client, but
another person with allied interests cooperates with the lawyer and client. M.A. Equip. Leasing,
980 N.E.2d at 1084 (citation omitted). Further, joint representation does not necessarily exist
when clients of the same lawyer share common interests. Id. A joint-client representation
begins when the co-clients convey their desire for representation and the lawyer consents. Id.
Under Ohio law, the common interest exception is “‘[a]nother step beyond the joint client
situation * * * where two or more clients, each represented by their own lawyers, meet to discuss
matters of common interest-commonly called a joint defense agreement or pooled information
situation.’” Buckeye Corrugated, 2013 WL 4153540, at *3 (quoting State ex rel. Bardwell v.
Ohio Atty. Gen., 181 Ohio App.3d 661, 680 (Ohio App. 10th Dist. 2009), quoting McCormick,
Evidence, Section 91.1, at 413–414 (6th Ed.2006)). To fall within the common interest
exception, it must be shown that “(1) the communications were made in the course of a joint
defense effort; [and] (2) the statements were designed to further the effort * * *.” Id. at 3
(quoting Travelers Cas. and Sur. Co. v. Excess Ins. Co. Ltd., 197 F.R.D. 601, 606 (S.D. Ohio.
2000), quoting In re Bevill, Bresler & Schulman Asset Management Corp., 805 F.3d 120, 126
(3d Cir. 1986)). The common interest exception should be construed narrowly. Id. (citing Cigna
Ins. Co. v. Cooper Tires and Rubber, Inc., No. 3:99CV7397, 2001 WL 640703, at *2 (N.D. Ohio
May 24, 2001)). Therefore, the exception will only apply where the “disclosures are made in the
course of formulating a common legal strategy.” (Internal quotations and citations omitted.) Id.
[T]he common interest doctrine “typically arises in the context of litigation when two parties are
either represented by the same attorney or are independently represented but have the same goal
in the litigation. Under those circumstances, they may freely share otherwise privileged
16
communications without waiving the [attorney-client] privilege.” William Powell Co. v. Nat’l
Indem. Co., No. 1:14-CV-00807, 2017 WL 1326504, at *24 (S.D. Ohio Apr. 11, 2017), aff’d sub
nom. William Powell Co. v. OneBeacon Ins. Co., No. 1:14-CV-807, 2017 WL 3927525 (S.D.
Ohio June 21, 2017), and modified on reconsideration, No. 1:14-CV-00807, 2017 WL 4315059
(S.D. Ohio Sept. 26, 2017) (quoting Fresenius Medical Care Holdings, Inc. v. Roxana Lab., Inc.,
No. 2:05-cv-0889, 2007 WL 895059, at *2 (S.D. Ohio Mar. 21, 2007)); see also Avis Rent A Car
System, LLC v. City of Dayton, Ohio, No. 3:12-cv-399; 3:12-cv-405, 2013 WL 3781784 (S.D.
Ohio July 18, 2013) (acknowledging the common interest doctrine as recognized under Ohio
law).
Federal law also recognizes the common interest and joint defense doctrines. “Under the
common interest doctrine, a ‘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.’” Elvis Presley Enterprises, Inc. v. City of Memphis, Tennessee,
No. 218CV02718SHMDKV, 2020 WL 4283277, at *2 (W.D. Tenn. Mar. 12, 2020), aff’d, No.
2:18-CV-02718, 2020 WL 4015476 (W.D. Tenn. July 16, 2020) (quoting Ford Motor Co. v.
Michigan Consol. Gas Co., 2013 WL 5435184, at *5 (E.D. Mich. Sept. 27, 2013) (citations and
internal quotations omitted)); see also Prudential Def. Sols., Inc. v. Graham, 517 F. Supp. 3d
696, 702 (E.D. Mich. 2021) (explaining that the privilege applies where “two or more clients
with a common interest in a matter are represented by separate lawyers and agree to exchange
information concerning the matter) (citations omitted). “[L]itigation need not be actual or
imminent for communications to be within the common interest doctrine.” Id. (citing United
States v. BDO Seidman, LLP, 492 F.3d 806, 816 n.6 (7th Cir. 2007))]; see also Cooey v.
17
Strickland, 269 F.R.D. 643, 652 (S.D. Ohio 2010) (recognizing that the doctrine applies only to
protect communications regarding the common interest and intended to further that interest).
“Under the ‘joint defense doctrine,’ communications between one client (e.g., a defendant) and
his attorney are allowed to be shared with a co-defendant without waiving the privilege where
both are represented by the same attorney.’” Id. (quoting Polylok, Inc. v. Bear Onsite, LLC,
2017 WL 1102698, at *7 (W.D. Ky. Mar. 23, 2017); see also Prudential, 517 F. Supp. 3d at 703
(the joint-client privilege applies only where “two persons employ a lawyer as their common
agent” and “the communications [are] to [the attorney].”) (citations omitted). “For either
doctrine to apply, the underlying shared communication must be privileged or protected by the
work product doctrine.” Id. (citing Restatement (Third) of the Law Governing Lawyers § 76));
see also United States ex rel. Scott v. Humana Inc., No. 3:18-CV-61-GNS-CHL, 2021 WL
1221487, at *3 (W.D. Ky. Mar. 30, 2021) (discussing that applicability of the common interest
doctrine requires attorney-client privilege or work product protection).
Regardless of whether Ohio law or federal law governs, AMP has not demonstrated the
applicability of either the joint-defense or common interest doctrines. First, AMP does not
explain how the requirements for application of the joint defense doctrine have been met. AMP
mentions, without elaboration, that Stantec is an AMP-retained expert witness in this case and
AMP’s counsel has represented Stantec personnel at depositions. As Voith points out, however,
Stantec is not a party defending claims in this matter. Further, although captioned as a JDA, the
document does not expressly indicate that AMP and Stantec intend to pursue a particular defense
together. (ECF No. 193-31.) AMP cites no evidence to the contrary.
Similarly, AMP has not demonstrated the existence of a common legal, not merely
commercial, interest. Elvis Presley Enterprises, 2020 WL 4283277 at *2; Buckeye Corrugated,
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2013 WL 4153540, at *3. As Voith notes, the particular 114 emails at issue here relate to
AMP’s claim that the discharge rings are defective. But, as Voith also asserts, Stantec did not
design, manufacture or install the Voith discharge rings and no claim related to the discharge
rings involves Stantec. Under this circumstance, it is not possible to conclude that AMP and
Stantec share an identical legal interest with respect to this specific subject matter.
Beyond this, to the extent necessary, AMP has not addressed the existence of an independent
underlying privilege with respect to any of these 114 documents. Accordingly, the motion to
compel is GRANTED as to the 114 emails between AMP and Stantec.
C. Remaining non-email log entries
Voith seeks 23166 non-email items for which AMP has not identified the author or provided a
description which establishes privilege. (ECF No. 190-6.) In arguing against production, AMP
incorporates its argument above relating to the email attachments. Beyond this, AMP does not
seriously contest Voith’s position with respect to these entries in any significant way. Instead, it
both suggests incorrectly that Voith continues to contest 9,842 non-email records and points out
Voith’s own alleged privilege log deficiencies.
As the Court has already explained to the parties at some length:
There is no question that simply claiming that information is privileged “is
insufficient to meet the burden” of establishing privilege. Little Hocking Water
Assn., Inc. v. E.I. Du Pont De Nemours & Co., No. 2:09-CV-1081, 2013 WL
607969, at *5 (S.D. Ohio Feb. 19, 2013), aff’d sub nom. Little Hocking Water Ass’n,
Inc. v. E.I. Du Pont de Nemours & Co., No. 2:09-CV-1081, 2014 WL 5857994, at
*5 (S.D. Ohio Nov. 12, 2014) (quoting In re Trans–Industries, No.: 1:10 MC 34,
2011 U.S. Dist. LEXIS 37¶ 0, at *10, 2011 WL 1130410, at *3 (N.D. Ohio Mar.
28, 2011)).
6
Voith originally disputed 9,842 non-email records which AMP had withheld from production.
As explained in Voith’s Reply, it has culled the disputed privilege log entries to 2,316. (ECF
No. 198 at 18 requesting that AMP be ordered to produce “the 2,316 non-email items for which
AMP has not identified the author or provided a description which establishes privilege” and
citing ECF No. 190-6.)
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Fed. R. Civ. P. 26(b)(5)(A) provides as follows:
(A) Information Withheld. When a party withholds information
otherwise discoverable by claiming that the information is
privileged or subject to protection as trial-preparation, the party
must:
(i)expressly make the claim; and
(ii) describe the nature of the documents, communications, or
tangible things not produced or disclosed - and do so in a manner
that, without revealing information itself privileged or protected,
will enable other parties to assess the claim.
The Rule does not identify the precise information that must be contained in a
privilege log. Instead, courts are required to look to case law for guidance.
Courts have found privilege logs deficient where they have included general
categories of persons and entities without identifying anyone by name and position,
and provided vague descriptions, such as a notation that a document is
“correspondence” or “meeting notes” or “a report containing legal information.”
Clark Const. Grp., Inc. v. City of Memphis, 2005 WL 6187896, at *3 (W.D. Tenn.
Feb. 9, 2005). Similarly, courts have found deficiencies where logs have
“identif[ied] only the dates of the documents, a brief description providing no
substantive information, and the asserted privilege.” Mafcote, Inc. v. Fed. Ins. Co.,
2010 WL 1929900, at *5 (W.D. Ky. May 12, 2010).
In In re Search Warrant Executed at Law Offices of Stephen Garea, 173 F.3d 429,
1999 WL 137499, *2 (6th Cir. 1999) (unpublished), the Sixth Circuit noted,
[i]n our view, a person seeking to assert the attorney-client privilege
must make a minimal showing that the communication involved
legal matters. This showing is not onerous and may be satisfied by
as little as a statement in the privilege log explaining the nature of
the legal issue for which advice was sought.
Further, as explained by the Court in Cooey v. Strickland, 269 F.R.D. 643 (S.D.
Ohio 2010):
The privilege log must be detailed enough to prove that the
communications in question were in fact confidential
communications relating to legal advice. In re Search Warrant
Executed at Law Offices of Stephen Garea, No. 97-4112, 173 F.3d
429, ––––, 1999 WL 137499, at *2 (6th Cir. Mar. 5, 1999). The party
asserting the privilege must make “at least a minimal showing that
20
the communication contained legal matters,” but that showing need
not be “onerous and may be satisfied by as little as a statement in
the privilege log explaining the nature of the legal issue for which
advice was sought.” Id. 173 F.3d 429 at ––––, at *2. However,
merely conclusory statements may not be enough to satisfy this
minimal standard. Id. 73 F.3d 429 at ––––, at *2. A “cryptic
privilege log” does not satisfy this standard if “review of the
documents themselves fails to reveal whether they were produced
or transmitted in the course of legal representation.” Id.173 F.3d 429
at ––––, at *2. See also United States v. Constr. Prods. Research,
Inc., 73 F.3d 464, 473 (2d Cir. 1996) (“if the party invoking the
privilege does not provide sufficient detail to demonstrate
fulfillment of the legal requirements for application of the privilege,
his claim will be rejected”) (quoting Bowne of New York City, Inc.
v. AmBase Corp., 150 F.R.D. 465, 471 (S.D.N.Y. 1993)).
Id. at 649.
Am. Mun. Power, Inc. v. Voith Hydro, Inc., No. 2:17-CV-708, 2020 WL 5014914, at *10–11
(S.D. Ohio Aug. 25, 2020).
Expanding upon the above discussion, in Clark, the court described the requirements for
a privilege log:
“‘[E]ach document in a privilege log should contain details including: date, author
and all recipients of the document, subject matter, and an explanation as to why the
document should be privileged and not produced in discovery.’” Id. at *3 (quoting
Coltec Industries, Inc. v. Am. Motorists Ins. Co., 197 F.R.D. 368, 371
(N.D.Ill.2000)).
Clark, 2005 WL 6187896, at *3.
Similarly, in Mafcote, the court listed the following elements to be identified in a
privilege log:
(a) The author(s) and all recipients (designated so as to be clear who is the sender
and who the receiver), along with their capacities/roles/positions.
(b) The document’s date.
(c) The purpose and subject matter of the document.
(d) The nature of the privileged asserted, and why the particular document is
believed to be privileged.
21
Mafcote, 2010 WL 1929900, at *6 (citing Brubaker v. Encompass Prop. & Cas. Co., 2008 U.S.
Dist. LEXIS 40133, at *2 (E.D. Mich. May 19, 2008); Jones v. Hamilton County Sheriff’s Dep’t,
2003 WL 21383332 (S.D. Ind. June 12, 2003); Allen v. Chicago Transit Auth., 198 F.R.D. 495,
498 n.1 (N.D. Ill. 2001); Allendale Mut. Ins. Co. v. Bull Data Sys., 145 F.R.D. 84, 88 (N.D. Ill.
1992); Smith v. Logansport Cmty. Sch. Corp., 139 F.R.D. 637, 648–49 (N.D. Ind. 1991)). The
Mafcote court found the privilege logs insufficient because they “identif[ied] only the dates of
the documents, a brief description providing no substantive information (e.g. “Email
correspondence with Mark W. Dobbins and Matt Jean”), and the asserted privilege.” Id. at *5.
In applying these applicable standards, the Court will not undertake the onerous task of
analyzing in detail all 2,316 entries contained in 119 pages. (See ECF No. 190-6.) The Court’s
superficial review, however, indicates that AMP’s privilege log as it relates to these non-emails
does not satisfy the requirements of Rule 26(b)(5)(A)(ii). Where AMP has asserted “attorneyclient communication” as the type of “privilege,” it has failed to identify any sender or any
recipient, let alone whether such individual is an attorney. The “description” category also can
only reasonably be described as vague. While the Court is tempted to order the production of
these documents, it finds that the better exercise of discretion at this point is to direct AMP to
review and revise these privilege log entries and provide its revisions to Voith within 14 days of
the date of this Order. Accordingly, Voith’s motion to compel is DENIED without prejudice at
this juncture subject to renewal as it pertains to any disputed privilege log entries identified in
Exhibit 190-6 remaining after receipt of AMP’s revisions.
IV.
For the reasons stated above, Voith’s motion to compel (ECF No. 190) is GRANTED, in
part and DENIED without prejudice, in part, to the extent set forth herein. AMP shall
22
complete its review and revisions of the relevant disputed entries (ECF Nos. 190-1 (which
includes 190-2); 190-4; 190-6) and provide a revised privilege log to Voith within 14 days of the
date of this Order. AMP shall produce the Stantec documents to Voith within fourteen days of
the date of this Order. AMP is DIRECTED to submit to the Court the 40 remaining items
identified in ECF No. 190-3 for an in camera inspection within seven days of the date of this
Opinion and Order.
IT IS SO ORDERED.
DATED: October 20, 2021
/s/ Elizabeth A. Preston Deavers______
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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