Johnson et al v. Ford Motor Company, No. 3:2013cv06529 - Document 598 (S.D.W. Va. 2015)
Court Description: MEMORANDUM OPINION AND ORDER granting Plaintiffs' 536 MOTION to Compel, to the extent that it requests the Court to order Ford to provide a more detailed ASO privilege log; directing Ford to revise and supplement its privilege log in accorda nce with this opinion and Rule 26(b)(5)(A); denying Plaintiffs' request for Sanctions under Rule 37(b)(2); denying the request to find a waiver of the privilege by Ford and to compel production of the withheld documents; granting an award of reasonable expenses incurred in bringing the instant Motion to Compel. Signed by Magistrate Judge Cheryl A. Eifert on 8/28/2015. (cc: counsel of record; any unrepresented party) (jsa)
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Johnson et al v. Ford Motor Company Doc. 598 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION CH ARLES JOH N SON , e t al., TON Y BU RN ETT, e t al., an d Cas e N o .: 3 :13 -cv-0 6 52 9 Cas e N o .: 3 :13 -cv-14 2 0 7 Cas e N o .: 3 :13 -cv-2 0 9 76 CH ARLES T. BIRD , e t al., Plain tiffs , v. FORD MOTOR COMPAN Y, D e fe n d an t. MEMORAN D U M OPIN ION an d ORD ER Pending before the Court is Plaintiffs’ Motion to Com pel Defendant Ford Motor Com pany to Produce Docum ents Listed in its Supplem ental ASO (Autom otive Safety Office) Privilege Log and for Sanctions. (ECF No. 536).1 Defendant Ford Motor Com pany (“Ford”) has filed a m em orandum in opposition to the m otion, (ECF No. 551), and Plaintiffs have replied, (ECF No. 569). Plaintiffs’ m otion relates to 132 docum ents that Ford has claim ed are shielded from discovery due to attorney-client privilege and attorney work-product im m unity. (ECF No. 536-7 at 3-68). On August 18, 20 15, the Court heard oral argum ent on the m otion and ruled that the supplem ental privilege log 1 The docket numbers referenced in this Order are taken from the lead case, Johnson v. Ford Motor Com pany , Case No.: 3:13-cv-0 6529. Corresponding motions to compel and for sanctions are found at ECF No. 451 in Burnett v. Ford Motor Com pany , Case No.: 3:13-cv-1420 7, and ECF No. 410 in Burd V. Ford Motor Com pany , Case No.: 3:13-cv-20 976. 1 Dockets.Justia.com supplied by Ford was insufficient under Federal Rule of Civil Procedure 26(b)(5)(A). (ECF No. at 591 at 51, 54). This m em orandum opinion and order follows the Court’s ruling and confirm s that Plaintiffs’ m otion is GRAN TED insofar as Ford will be required to again supplem ent its ASO privilege log with m ore detail describing the docum ents therein. Ford is ORD ERED to provide the updated ASO privilege log to Plaintiffs within te n ( 10 ) d ays of the date of this Order. In addition, Plaintiffs are GRAN TED reasonable fees and costs associated with bringing this m otion. Plaintiffs are instructed to provide the requisite inform ation regarding fees and costs within fo u rte e n ( 14 ) d ays of the date of this Order. I. Re le van t Facts These cases involve alleged events of sudden unintended acceleration in certain Ford vehicles m anufactured between 20 0 2 and 20 10 . In particular, Plaintiffs claim that their vehicles were equipped with defective electronic throttle control (“ETC”) system s, which were not fault tolerant, resulting in open throttle events during which the drivers of the vehicles lacked the ability to control the throttles. Plaintiffs assert that the m echanism s causing the throttles to open unexpectedly were num erous, included electrom agnetic interference, resistive shorts, and other voltage and resistance fluctuations, and that these issues were known to Ford. Despite having knowledge of the potential for sudden unexpected acceleration, Ford nonetheless failed to properly design the ETC system to correct the events when they occurred, and further neglected to install fail-safes, such as a Brake Over Accelerator system , which would allow the drivers to physically prevent or m itigate sudden acceleration. In the course of discovery, Plaintiffs requested that Ford produce documents, including studies, reports, analyses, and m em oranda, related to alleged unintended 2 acceleration in the class vehicles. (ECF No. 536-2 at 4, 28-29). Specifically at issue here, Plaintiffs requested that Ford produce the ASO reports and databases for any alleged unintended acceleration event in a Ford vehicle equipped with the ETC system . (Id. at 27-28). Plaintiffs also requested the production of docum ents related to any governm ent correspondence or investigations concerning unintended accelerations in Ford vehicles equipped with the ETC system . (Id. at 33-34). On October 24, 20 14, after producing non-privileged documents responsive to Plaintiffs’ request, Ford provided Plaintiffs with a privilege log related to its 20 10 ASO investigation into sudden unintended acceleration. (ECF No. 536-1 at 2-67; ECF No. 551 at 3). According to Ford, the ASO investigation was undertaken after the Wall Street J ournal published an article in 20 10 concerning com plaints of sudden unintended acceleration in Ford vehicles. (ECF No. 551 at 2-3). The article was based on findings from vehicle owner questionnaires issued by the National Highway Transportation Safety Adm inistration (“NHTSA”). (Id. at 2). At the tim e that the article was released, Ford asserts it was defending several lawsuits related to claim s of unintended acceleration. (Id. at 2-3). According to Ford, in connection with those lawsuits and the article, Ford’s Office of the General Counsel (“OGC”) began an investigation of the vehicle owner questionnaires and Transportation Recall Enhancem ent, Accountability, and Docum entation (“TREAD”) Act subm issions with the assistance of Ford’s ASO. (Id. at 3). On March 25, 20 15, the parties m et and conferred about the sufficiency of Ford’s ASO privilege log. (ECF No. 536 at 2). According to Plaintiffs’ counsel, they inform ed Ford’s counsel that the ASO privilege log failed to adequately describe each docum ent withheld by Ford. (Id.) Plaintiffs’ counsel also questioned whether the “vast m ajority” of docum ents were indeed shielded from disclosure given their descriptions as 3 “spreadsheets” or “charts,” which Plaintiffs interpreted to m ean that those docum ents contained only “raw data or factual inform ation.” (Id.) In addition, Plaintiffs’ counsel expressed their belief that the docum ents m ay not be privileged because they were not authored by an attorney or anyone at Ford’s OGC, and the docum ents were sent to both attorneys and non-attorneys. (Id. at 2-3). The following day, Ford’s counsel sent an em ail confirm ing that Ford would review its privilege logs and determ ine whether additional inform ation could be provided. (ECF No. 536-3 at 2). On April 6, 20 15, Plaintiffs’ counsel inquired about the status of Ford’s counsel’s privilege log review, and Ford’s counsel replied the next day, confirm ing that Ford would supplem ent its privilege logs. (ECF No. 536-4 at 2; ECF No. 536-5 at 2). On April 15, 20 15, the Court conducted a regularly scheduled telephonic discovery conference and addressed the privilege log issue. (ECF No. 536-6 at 3-4). Specifically, the undersigned noted that Federal Rule of Civil Procedure 26 requires a privilege log to contain enough inform ation so that the receiving party m ay determ ine whether to challenge the privilege. (Id. at 4). On May 19, 20 15, Ford produced a supplem ental ASO privilege log to Plaintiffs. (ECF No. 536-7 at 3-68). Distinguishing the supplem ental privilege log from the original privilege log is the addition of file nam es for the docum ents listed. (Id.) By way of exam ple, the first two rows of the privilege log appear as such: Doc. # Bates Range Docum ent Date Author Recipient Docum ent Type 4 Description Basis for Claim File Name 1 0 0 0 0 1P 3/ 0 9/ 10 Ken Lilly (Ford’s Autom otive Safety Office) J ohn Mellen (Attorney, Ford’s OGC) … Spreadsheets and Charts Confidential com m unication containing an analysis prepared by Ford em ployees of the ASO for and at the request of Ford’s OGC to assist Ford’s attorneys with pending and anticipated litigation. AttorneyClient Privilege and Attorney WorkProduct Im m unity DI_ ExportFile _ All_ DI_ 1 8.XLS (Id. at 3). All 132 docum ents listed in the privilege log are described in one of two ways— the first is the description in the table above, and the second states that the docum ent is a “[c]onfidential comm unication containing an analysis prepared by authorized agent consultant of Ford for and at the request of Ford’s Office of the General Counsel to assist Ford’s attorneys with pending and anticipated litigation.” (Id. at 3-68). On J une 9, 20 15, Plaintiffs filed the instant m otion to com pel and for sanctions. (ECF No. 536). Plaintiffs contend that the supplem ental ASO privilege log is deficient because Ford has failed to describe the docum ents listed in sufficient detail for Plaintiffs to determ ine whether the attorney-client privilege or attorney work-product protection applies. (Id. at 6-16). Plaintiffs argue that the addition of file nam es to the ASO privilege log does nothing to clarify whether the listed docum ents are indeed privileged. (Id. at 9). In support of their position, Plaintiffs point out that David Ott, a form er m em ber of Ford’s ASO and the author or recipient of m any of the listed docum ents, testified that he was unable to identify the particular docum ents based on their file nam es. (ECF No. 536-8 at 4-5). Mr. Ott also testified that, after the 20 10 Wall Street J ournal article was released, he worked with a team to analyze Ford’s data related to unintended acceleration and he believed this work was part of the norm al course of Ford’s business. 5 (ECF No. 569-1 at 5). In addition, when asked if there was anyone at Ford that had been tasked with determ ining the cause of any alleged sudden unintended acceleration events, Mr. Ott stated that he was “not involved in litigation m atters that the com pany [Ford] m ay be involved in.” (Id. at 16). With respect to attorney-client privilege, Plaintiffs assert that the types of docum ents withheld by Ford, such as charts or spreadsheets, likely contain “m ere recitations or sum m aries of raw factual data,” which Plaintiffs posit are not protected from disclosure. (ECF No. 536 at 11). Moreover, Plaintiffs argue that it is not clear that the purpose behind the creation of each withheld docum ents was to obtain legal advice, as the docum ents were not authored by an attorney and were sent to both attorneys and non-attorneys. (Id. at 14). As to Ford’s claim of work-product protection, Plaintiffs notes that the privilege log offers no inform ation that “the withheld docum ents contain the m ental im pressions, conclusions, opinions or legal theories of an attorney.” (Id. at 15). In addition, Plaintiffs m aintain that the privilege log fails to identify any specific litigation for which the docum ents were prepared. (Id. at 16). Plaintiffs ask the Court to com pel the production of the docum ents listed in the supplem ental ASO privilege log and argue that an award of expenses and sanctions is warranted under Federal Rules of Civil Procedure 37(a)(5)(A) and 37(b)(2). (Id. at 16-18). In response, Ford asserts that the docum ents listed on the ASO privilege log were prepared in anticipation of litigation or in relation to ongoing litigation. (ECF No. 551 at 8). Ford claim s that its in-house attorneys “engaged Ford’s ASO and an outside consultant to conduct a review of and analyze” the vehicle owner questionnaires and TREAD Act subm issions. (Id. at 9). Consequently, Ford argues that this analysis contained in the withheld docum ents is im m une from disclosure as opinion work6 product.2 (Id. at 9-10 ). Ford also m aintains that, to the extent any of the withheld docum ents do not fall within the scope of opinion work-product, they m eet the requirem ents for fact work-product, and Plaintiffs have not dem onstrated substantial need for the withheld docum ents or that they are unable to obtain the substantial equivalent of the m aterials without undue hardship since the underlying data is publicly available. (Id. at 10 -11). As for attorney-client privilege, Ford reiterates that the investigation was conducted by Ford’s OGC, with the help of Ford’s ASO and a consultant, to assist Ford’s lawyers in defending pending and anticipated litigation related to claim s of sudden unintended acceleration. (Id. at 14). With respect to the sufficiency of Ford’s ASO privilege log, Ford contends that the log contains enough inform ation for Plaintiffs to assess Ford’s claim of privilege, including docum ent date, author, recipient, and type, along with a description of the privilege claim ed. (Id. at 1718). In addition, Ford em phasizes that it inform ed Plaintiffs the withheld docum ents were created in connection with Ford’s 20 10 investigation into sudden unintended acceleration com plaints. (Id. at 17). Finally, Ford insists that it has not waived any of its claim ed privileges with regard to the withheld ASO investigation docum ents because it provided an adequate and tim ely privilege log. (Id. at 19). II. D is cu s s io n Federal Rule of Civil Procedure 26(b)(1) provides that: 2 Ford relies heavily on an affidavit prepared by J ay Logel, an attorney with Ford’s OGC. The affidavit is attached as Exhibit C to Ford’s response brief, but it does not m ention the 20 10 ASO investigation. (ECF No. 551-3 at 2-5). Ford subsequently subm itted an affidavit from Mr. Logel at the August 18, 20 15 m otion hearing that discusses the 20 10 investigation into sudden unintended acceleration, during which Ford’s OGC purportedly enlisted Ford’s ASO to assist in the investigation. (ECF No. 591 at 5). Ford should have realized and corrected its m istake in filing the incorrect affidavit m uch earlier than the hearing, particularly given Plaintiffs’ observation in their reply brief that the affidavit attached to Ford’s response brief did not support any of Ford’s claim s m ade in its brief. (ECF No. 569 at 6). As of the date of this opinion, Ford has not filed the correct affidavit from Mr. Logel; accordingly, it is not officially part of the record. 7 Parties m ay obtain discovery regarding any m atter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, docum ents, or other tangible things and the identity and location of persons having knowledge of any discoverable m atter ... Relevant inform ation need not be adm issible at the trial if the discovery appears reasonably calculated to lead to the discovery of adm issible evidence. While the claim s and defenses raised in the pleadings should be the focus of discovery, broader discovery is perm itted when justified by the particular needs of the case. Fed. R. Civ. P. 26(b)(1), advisory com m ittee notes (20 0 0 ). In general, inform ation is relevant, and thus discoverable, if it ‘“bears on, or ... reasonably could lead to other m atter[s] that could bear on, any issue that is or m ay be in the case. Although ‘the pleadings are the starting point from which relevancy and discovery are determ ined ... [r]elevancy is not lim ited by the exact issues identified in the pleadings, the m erits of the case, or the adm issibility of discovered inform ation.’” Kidw iler v. Progressive Paloverde Ins. Co., 192 F.R.D. 193, 199 (N.D.W.Va. 20 0 0 ) (internal citations om itted). In m any cases, “the general subject m atter of the litigation governs the scope of relevant inform ation for discovery purposes.” Id. The party resisting discovery, not the party seeking discovery, bears the burden of persuasion. See Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243-44 (M.D.N.C. 20 10 )(citing W agner v. St. Paul Fire & Marine Ins. Co., 238 F.R.D. 418, 424-25 (N.D.W.Va. 20 0 6)). In this case, Ford has withheld docum ents based on claim s of attorney-client privilege and work-product protection. Procedurally, when a party withholds inform ation from discovery on the basis of attorney-client privilege or the work-product protection, the party is required to: (1) “expressly m ake the claim ;” and (2) “describe the nature of the docum ents, com m unications, or tangible things not produced or disclosed—and do so in a m anner that, without revealing inform ation itself privileged or 8 protected, will enable other parties to assess the claim .”3 Fed. R. Civ. P. 26(b)(5)(A). “A party can sustain this burden through a properly prepared privilege log that identifies each docum ent withheld, and contains inform ation regarding the nature of the privilege/ protection claim ed, the nam e of the person m aking/ receiving the com m unication, the date and place of the com m unication, and the docum ent's general subject m atter. Sky Angel US, LLC v. Discovery Com m unications, LLC, 28 F.Supp.3d 465, 483 (D. Md. 20 14). A party’s conclusory assertion that a docum ent is privileged is inadequate to m eet the burden im posed by Rule 26(b)(5)(A). See United Stationers Supply Co. v. King, No. 5:11-CV-0 0 728, 20 13 WL 419346, at *2 (E.D.N.C. Feb. 1, 20 13). Rather, the party’s privilege log “m ust set forth specific facts which, taken as true, establish the elem ents of the privilege for each document for which privilege is claim ed. A privilege log m eets this standard, even if not detailed, if it identifies ‘the nature of each docum ent, the date of its transm ission or creation, the author and recipients, the subject, and the privilege asserted.’” Clark v. Unum Life Ins. Co. of Am ., 799 F. Supp. 2d 527, 536 (D.Md. 20 11) (quoting N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 492, 50 2 (4th Cir. 20 11)) (citation and footnote om itted); see also Victor Stanley , Inc. v. Creativ e Pipe, Inc., 250 F.R.D. 251, 264 (D.Md. 20 0 8) (noting that privilege logs typically require “inform ation regarding the nature of the privilege/ protection claim ed, the nam e of the person m aking/ receiving the com m unication, the date and place of the comm unication, and the docum ent's general subject m atter.”); and Paul W. Grim m , Charles S. Fax, & Paul Mark Sandler, Discovery Problem s and Their Solutions, 62-64 (20 0 5) (“To properly dem onstrate that a privilege exists, the privilege log should contain a brief 3 Local Rule of Civil Procedure 37.1 requires “any claim of privilege or objection” to com ply with Federal Rule of Civil Procedure 26(b)(5). 9 description or sum m ary of the contents of the docum ent, the date the docum ent was prepared, the person or persons who prepared the docum ent, the person to whom the docum ent was directed, and for whom the docum ent was prepared, the purpose in preparing the docum ent, the privilege or privileges asserted with respect to the docum ent, and how each elem ent of the privilege is m et for that docum ent.”). Regardless of how the privilege log is designed, its prim ary purpose is to “provide[] inform ation about the nature of the withheld docum ents sufficient to enable the receiving party to m ake an intelligent determ ination about the validity of the assertion of the privilege.” Auto. Club of N.Y., Inc. v. Port Auth. of N.Y. and N.J., No. 11 Civ. 6746, 20 14 WL 2518959, at *5 (S.D.N.Y. J une 4, 2014). Ultim ately, the creation of an adequate privilege log requires a delicate balancing act—on the one hand, the withholding party m ust not supply too little or indecipherable inform ation, and on the other, the withholding party m ust not reveal too m uch detail for fear that the privileged inform ation itself m ay seep into the log. Here, the problem with Ford’s privilege log lies in its unsatisfactory docum ent descriptions. Undeniably, the sufficiency of a privilege log’s docum ent description m ay be context driven; nevertheless, “vague and uninform ative docum ent descriptions do not satisfy” the standard for privilege log adequacy. See In re McDonald, No. 13-10 661, 20 14 WL 4365362, at *4 (Bankr. M.D.N.C. Sept. 3, 20 14) (collecting cases). This is true for the sim ple reason that “when a party refuses to produce docum ents during discovery on the basis that they are privileged or protected, it has a duty to particularize that claim .” Victor Stanley , Inc., 250 F.R.D. at 254. “The focus is on the specific descriptive portion of the log, and not on conclusory invocations of the privilege or work-product rule, since the burden of the party withholding docum ents cannot be ‘discharged by 10 m ere conclusory or ipse dixit assertions.’” Neuberger Berm an Real Estate Incom e Fund, Inc. v. Lola Brow n Trust, No. 1B, 230 F.R.D. 398, 40 6 n. 14 (D. Md. 220 5) (quoting Golden Trade S.r.L. v. Lee Apparel Co., 1992 WL 3670 70 , *5, 1992 Dist. LEXIS 17739 *12-13 (S.D.N.Y. 1992)). Having stated the rule and the purpose of the privilege log, the undersigned concedes that courts have not been entirely consistent about the level of detail that is necessary to com ply with Rule 26(b)(5)(A). For exam ple, the United States Court of Appeals for the Second Circuit held that a privilege log was insufficient where the log contained a general claim of attorney-client privilege accom panied by the listed docum ents’ dates, authors, recipients, and “cursory” descriptions, such as “Fax Re: DOL Findings,” “Fax: Whistleblower article,” or “Letter Re: Custom er Orders with com m ent Re: Five Star Products.” United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 473-74 (2d Cir. 1996). Sim ilarly, in R.J. Rey nolds Tobacco v. Philip Morris, Inc., the Third Circuit determ ined that a privilege log was inadequate where the description of the docum ents included “various daily log entries,” “interoffice em ails,” or various m iscellaneous “notes/ correspondence.” 29 F. App’x 880 , 882 (3d Cir. 20 0 2); see also In re Gen. Instrum ent Corp. Sec. Litig., 190 F.R.D. 527, 530 (N.D. Ill. 20 0 0 ) (finding that description of docum ents in log was not “even m arginally specific” where docum ent descriptions such as “Explanation re: Primestar Relationship,” “NLC Em ployee Stock Options,” and “Filing with SEC,” were used). In contrast, other federal courts have found privilege logs to be sufficiently detailed where the logs contained the privilege asserted for each docum ent along with the docum ent date, author, recipient, type, and a description such as “[e]m ail string containing confidential com m unications with outside counsel and in-house counsel regarding em ployee benefits and labor issues in [nam ed] 11 transactions,” or “[m ]em o m ade at direction of counsel and sent to counsel for the purpose of seeing [sic] legal advice regarding m edical procedure.” Spilker v. Medtronic, Inc., No. 4:13-CV-76-H, 20 15 WL 1643258, at *6 (E.D.N.C. Apr. 13, 20 15); Vaughan v. Celanese Am ericas Corp., No. 3:0 6CV10 4-W, 20 0 6 WL 3592538, at *3 (W.D.N.C. Dec. 11, 20 0 6. Notwithstanding the inconsistencies am ong courts, Ford’s privilege log does not com ply with Rule 26(b)(5)(A) because it fails to provide any concrete facts about the nature or subject m atter of the withheld docum ents, which would allow an individual reviewing the log to assess the appropriateness of the privilege claim . Ford uses the sam e two docum ent descriptions throughout the entire log, and those descriptions are essentially synonym ous. More im portantly, the descriptions are nothing m ore than conclusory statem ents as to the privileged nature of the docum ents. Contrary to Ford’s position, m ore factual detail certainly could have been provided to describe the withheld docum ents without disclosing privileged inform ation, as is evidenced by Ford’s responsive brief wherein Ford explains the ASO investigation and ongoing litigation occurring at the tim e that the docum ents were created.4 (ECF No. 551 at 2-4). Additional detail concerning the ASO investigation is also contained in the affidavit of Mr. Logel subm itted at the August 18, 20 15 m otion hearing. However, none of this inform ation was included in the supplem ental privilege log. Furtherm ore, the inclusion of enigm atic file nam es offers little aid to the log recipient. Certain file nam es, such as the exam ple listed above or “DI_ UA.xls,” “Appendix 1 Ford.pdf,” “Appendix 14 Toyota.pdf,” “Mar. 1.xls,” and “Charts.xls,” are incom prehensible and shed no light on Ford’s claim that an 4 There are many ways Ford could have expanded on their docum ent descriptions. For exam ple, Ford could have specifically identified the person requesting the analysis or inform ation and the general subject m atter of the analysis. Additionally, Ford could have nam ed the specific litigation that any document was created in relation to, if applicable. 12 analysis subject to protection from discovery is contained within those files. (ECF No. 536-7 at 3, 21, 28, 33, 56). Indeed, Mr. Ott, who was questioned about logged docum ents that were attributed to him , was at a loss as to which of the docum ents he created were referenced by the privilege log. (ECF No. 536-8 at 4-5). When the author of a docum ent cannot recognize it from the inform ation provided in a privilege log, the only conclusion is that the log is inadequate and does not fulfill its purpose. Moreover, as Plaintiffs point out, m any of the withheld docum ents were created by non-attorneys within Ford’s ASO, and then sent to attorneys within Ford’s OGC. Mr. Ott testified to his belief that he and his team were assigned to perform the 20 10 investigation into unintended acceleration as part of the norm al course of Ford’s business. (ECF No. 569-1 at 5); see Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Murray Sheet Metal Co., 967 F.2d 980 , 984 (4th Cir. 1992) (noting that m aterials prepared in ordinary course of business “are not docum ents prepared in anticipation of litigation”); Johnson v. Ford Motor Co., No. 3:13-cv-0 6529, 20 15 WL 1650 428, at *4 (S.D.W.Va. Apr. 14, 20 15) (recognizing that, under both West Virginia and Michigan law, not all com m unications between attorney and client are privileged, only those m ade for purpose of obtaining legal advice); Apple, Inc. v. Sam sung Electronics, Co., Ltd, 30 6 F.R.D. 234 (N.D. Cal. 20 15) (noting that sim ply because an attorney is involved in a com m unication does not m ake the com m unication privileged, nor does a single em ail of a legal nature “privilege the entire em ail thread.”). Obviously then, reasonable questions exist as to Ford’s claim s of attorney-client privilege and work-product protection in light of the plain facial inadequacy of the privilege log and Mr. Ott’s testim ony. Ford should have recognized these issues and answered them with a m ore detailed privilege log or som e type of extrinsic evidence further explaining the basis for withholding the listed 13 ASO docum ents before Plaintiffs filed the instant m otion to com pel. Even now, Mr. Logel’s affidavit does not entirely quell Plaintiffs’ reasonable skepticism as to the nondisclosure of som e of the listed docum ents; particularly, in light of Mr. Ott’s testim ony. Therefore, after having reviewed the May 20 15 supplem ental ASO privilege log, the Court FIN D S that the log’s docum ent descriptions do not enable Plaintiffs “to m ake an intelligent determ ination about the validity of the assertion of the privilege” and thus are insufficient. Auto. Club of N.Y., Inc., 20 14 WL 2518959, at *5. “When a party provides an inadequate or untim ely privilege log, the Court m ay choose between four rem edies: (1) give the party another chance to subm it a m ore detailed log; (2) deem the inadequate log a waiver of the privilege; (3) inspect in cam era all of the withheld docum ents; and (4) inspect in cam era a sam ple of the withheld docum ents.” Nationw ide Mut. Fire Ins. Co. v. Keit, Inc., 20 15 WL 1470 971, at *9 (M.D. Fla. Mar. 31, 20 15) (citing N LRB v. Jackson Hospital Corp., 257 F.R.D. 30 2, 30 7 (D.D.C. 20 0 9). In this case, Plaintiffs urge the Court to find that Ford has forfeited its claim of privilege as to all of the ASO docum ents on the log. Certainly, that sanction has been used in this circuit. See Mezu v. Morgan State Univ., 269 F.R.D. 565, 577 (D.Md. 20 10 ) (“Absent consent of the adverse party, or a Court order, a privilege log (or other com m unication of sufficient inform ation for the parties to be able to determ ine whether the privilege applies) m ust accom pany a written response to a Rule 34 docum ent production request, and a failure to do so m ay constitute a forfeiture of any claim s of privilege.”). However, privilege waiver is not autom atic. See Sm ith v. Jam es C. Horm el Sch. of Va. Inst. of Autism , No. 3:0 8cv0 0 0 30 , 20 10 WL 370 2528, at *4 (W.D. Va. Sept. 14, 20 10 ). “Given the sanctity of the attorney-client privilege and the seriousness of privilege waiver, courts generally find waiver only in cases involving unjustified delay, 14 inexcusable conduct and bad faith.” Id. at *5 (collecting cases); see also W estfield Ins. Co. v. Carpenter Reclam ation, Inc., 30 1 F.R.D. 235, 247-48 (S.D.W.Va. 20 14) (recognizing sam e). Having concluded that Ford’s privilege log does not m eet the dictates of Rule 26(b)(5)(A), the undersigned m ust consider whether the “extrem e sanction of waiver” is appropriate in this case. See W estfield Ins. Co., 30 1 F.R.D. at 248. As noted above, federal courts have typically found waiver appropriate where unjustified delay, inexcusable conduct, or bad faith are present. Id. at 247. While Ford should have realized its docum ent descriptions were inadequate, the undersigned finds that the current circum stances do not justify application of the harshest rem edy. Accordingly, the Court FIN D S that waiver of privilege related to the withheld ASO investigation docum ents is not an appropriate sanction at this juncture. Instead, the Court ORD ERS Ford to supplem ent the ASO privilege log with m ore detailed descriptions of the withheld docum ents in accordance with Federal Rule of Civil Procedure 26(b)(5)(A), so that Plaintiffs m ay “m ake an intelligent determ ination about the validity of the assertion of the privilege,” by Ford. Auto. Club of N.Y., Inc., 20 14 WL 2518959, at *5. Ford is ORD ERED to provide the updated ASO privilege log to Plaintiffs within te n ( 10 ) d ays of the date of this opinion. Because the Court is ordering Ford to supplem ent its privilege log, it would be prem ature to address Plaintiffs’ argum ents that the withheld docum ents are not privileged based on the log as it now exists. Moreover, Ford’s new supplem ental privilege log should provide Plaintiffs with an opportunity to focus their attention on challenging Ford’s claim of privilege in relation to specific withheld docum ents, rather than arguing all of the 132 docum ents are not privileged for various reasons. See (ECF No. 536-6 at 4). Ford is cautioned that a failure to properly 15 supplem ent the log will likely result in a finding that it has forfeited its privilege claim s. Ford is also warned that the failure to provide future privilege logs, which com ply with the standards and purpose of Rule 26(b)(5)(A), m ay also result in a waiver of privilege. Finally, Plaintiffs request sanctions under Fed. R. Civ. P. 37(b)(2), citing to W estfield Ins. Co., 30 1 F.R.D. at 247 and Rule 26 Advisory Com m ittee Notes, 1993 Am endm ents, which state: “[A] party m ust notify other parties if it is withholding m aterials otherwise subject to disclosure ... because it is asserting a claim of privilege or work product protection. To withhold m aterials without such notice is contrary to the rule, subjects the party to sanctions under Rule 37(b)(2), and m ay be viewed as a waiver of the privilege or protection.” In this Court’s view, an award of Rule 37(b)(2) sanctions for failing to com ply with Rule 26(b)(5)(A) is m ost appropriate when (1) docum ents have been withheld without any notice or privilege log; (2) a party has been ordered by the court to correct an inadequate privilege log and fails to com ply with the order; or (3) the circum stances surrounding the production of an insufficient privilege log are particularly troubling or egregious and thus m erit an award of sanctions beyond the reasonable fees and costs allowed under Fed. R. Civ. P. 37(a)(5)(A). The undersigned does not find the presence of any of those scenarios. Nonetheless, Plaintiffs are entitled to an award of reasonable expenses pursuant to Rule 37(a)(5)(A). Therefore, it is hereby ORD ERED that Plaintiffs shall have through and including Se p te m be r 11, 2 0 15 in which to file an affidavit of reasonable fees and costs incurred in m aking and arguing their Motion to Com pel, as well as any supportive docum entation or argum ent to justify the am ount of fees and expenses requested. See Robinson v. Equifax Inform ation Services, LLC, 560 F.3d 235, 243-44 (4th Cir. 20 0 9). Within fo u rte e n ( 14 ) d ays after Plaintiffs have filed the aforem entioned docum ents, 16 Ford shall file a response either agreeing to the am ount requested, or objecting to specific fees or costs. Ford is hereby notified that the failure to file a response shall be deem ed an agreem ent with the representations and argum ents of Plaintiffs. III. Co n clu s io n In sum m ary, the Court GRAN TS Plaintiffs’ Motion to Com pel, (ECF No. 536),5 to the extent that it requests the Court to order Ford to provide a m ore detailed ASO privilege log. The Court ORD ERS Ford to revise and supplem ent its privilege log in accordance with this opinion and Rule 26(b)(5)(A). The Court D EN IES Plaintiffs’ request for sanctions under Rule 37(b)(2), D EN IES the request to find a waiver of the privilege by Ford and to com pel production of the withheld docum ents, but GRAN TS an award of reasonable expenses incurred in bringing the instant Motion to Com pel. The Clerk is directed to file a copy of this Order in all three actions and provide a copy of this Order to counsel of record and any unrepresented party. EN TERED : August 28, 20 15 5 ECF No. 451 in Burnett v. Ford Motor Com pany , Case No.: 3:13-cv-1420 7, and ECF No. 410 in Burd V. Ford Motor Com pany , Case No.: 3:13-cv-20 976. 17
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