Johnson et al v. Ford Motor Company, No. 3:2013cv06529 - Document 728 (S.D.W. Va. 2016)

Court Description: MEMORANDUM OPINION AND ORDER denying Plaintiffs' 700 MOTION to Compel Ford to Produce Documents Listed in Ford's ASO Privilege Log and Plaintiffs' accompanying request for sanctions; granting Plaintiffs' 698 MOTION to Seal, and directing that Exhibit E attached to Plaintiffs' Motion to Compel be sealed. Signed by Magistrate Judge Cheryl A. Eifert on 3/28/2016. (cc: attys; any unrepresented party) (mkw)
Download PDF
Johnson et al v. Ford Motor Company Doc. 728 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., Plain tiffs , v. Cas e N o .: 3 :13 -cv-0 6 52 9 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’ second 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, (ECF No. 70 0 ), and Plaintiffs’ Motion to Seal pertaining to Exhibit E attached to Plaintiffs’ m otion to com pel, (ECF No. 698). Defendant Ford Motor Com pany (“Ford”) has filed a m em orandum in opposition to the m otion, (ECF No. 70 3), and Plaintiffs have replied to that m em orandum . (ECF No. 70 8). Plaintiffs’ m otion relates to 132 docum ents prepared by Ford’s Autom otive Safety Office (“ASO”) in 20 10 , which Ford claim s are shielded from discovery under attorneyclient privilege and attorney work-product protection. Plaintiffs previously m oved for an order compelling the production of these docum ents on J une 9, 20 15. (ECF No. 536). In ruling on that m otion, the undersigned found Ford’s privilege log to be insufficient and ordered Ford to supplem ent the log with m ore robust descriptions of the withheld ASO docum ents. However, the Court declined to com pel production of the docum ents at that 1 Dockets.Justia.com tim e. (ECF No. 598 at 17). After receiving the updated privilege log, Plaintiffs filed the instant m otion to com pel. On February 2, 20 16, the parties provided oral argum ent on the m otion. As a prelim inary m atter, the Court advised the parties that the supplem ental privilege log was adequate under Federal Rule of Civil Procedure 26(b)(5)(A) and did com ply with the Court’s prior opinion and order. (ECF No. 714 a 9-10 ). Accordingly, the parties focused their argum ents on whether the docum ents outlined on the privilege log were indeed entitled to protection from production. Having now fully considered the positions of the parties and the written m aterials, and for the reasons stated below, Plaintiffs’ second Motion to Com pel Ford to Produce Docum ents Listed in Ford’s ASO Privilege Log, (ECF No. 70 0 ), is D EN IED , and Plaintiffs’ request for sanctions contained therein is also D EN IED . Due to the highly confidential nature of the inform ation contained in Exhibit E attached to Plaintiffs’ m otion to com pel, the Court GRAN TS Plaintiffs’ Motion to Seal that exhibit, (ECF No. 698), and ORD ERS that Exhibit E be sealed.1 I. Re le van t Factu al an d Pro ce d u ral H is to ry 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 that were not fault tolerant, resulting in open throttle events during which the drivers of 1 The Court is cognizant of the well-established Fourth Circuit precedent recognizing a presumption in favor of public access to judicial records. Ashcraft v. Conoco, Inc., 218 F.3d 288 (4th Cir. 20 0 0 ). As stated in Ashcraft, before sealing a document, the Court m ust follow a three step process: (1) provide public notice of the request to seal; (2) consider less drastic alternatives to sealing the document; and (3) provide specific reasons and factual findings supporting its decision to seal the docum ents and for rejecting alternatives. Id. at 30 2. The Court finds that this mem orandum opinion and order serves as sufficient notice to the public. The Court has also considered less drastic alternatives to sealing Exhibit E and finds that none exist. Accordingly, the Court concludes that sealing Exhibit E is appropriate given its highly confidential nature. 2 the vehicles lacked the ability to control acceleration. 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. According to Plaintiffs, 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 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 2728). 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 nonprivileged docum ents created as part of a 20 10 ASO investigation into sudden unintended acceleration, Ford provided Plaintiffs with a privilege log listing additional docum ents from the 20 10 ASO investigation that were withheld from discovery. (ECF No. 536-1 at 267; ECF No. 551 at 3). Ford explained that the ASO investigation into com plaints of sudden unintended acceleration was undertaken after the Wall Street J ournal published an article in 20 10 concerning sudden unintended acceleration in Ford vehicles. (ECF No. 551 at 2-3). The article was based on findings from vehicle owner questionnaires (“VOQs”) issued by the National Highway Transportation Safety Adm inistration (“NHTSA”). (Id. at 3 2). At the tim e that the article was released, Ford asserts it was defending several lawsuits related to claim s of unintended acceleration, including a case styled Schanel v. Ford, which was initiated in the District Court for El Paso County, Colorado in February 20 10 and proceeded to trial in Decem ber 20 10 . (Id. at 2-3). Consequently, in connection with those lawsuits and the article, its Office of General Counsel (“OGC”) began an investigation of the VOQs and Transportation Recall Enhancem ent, Accountability, and Docum entation (“TREAD”) Act subm issions with the assistance of Ford’s ASO. (Id. at 3). Ford subsequently produced the underlying data analyzed by the ASO, as well as any nonprivileged inform ation. However, Ford claim s that the rem aining docum ents were prepared exclusively for the use of Ford’s OGC in order to render legal advice to Ford and were not shared or disclosed beyond Ford’s em ployees involved in the project. 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). Plaintiffs’ counsel 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 “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 e-m 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, verifying 4 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 pointed out that Federal Rule of Civil Procedure 26 required a privilege log to contain enough inform ation that the receiving party could determ ine whether to challenge assertion of 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 was 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 appeared as such: Doc. # Bates Range Docum ent Date Author Recipient Docum ent Type 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 were described in one of two ways— the first was the description in the table above, and the second stated that the docum ent was a “[c]onfidential com m unication containing an analysis prepared by authorized agent 5 consultant of Ford for and at the request of Ford’s OGC to assist Ford’s attorneys with pending and anticipated litigation.” (Id. at 3-68). On J une 9, 20 15, Plaintiffs filed a m otion to com pel production of the docum ents listed in the log and for sanctions. (ECF No. 536). On August 28, 20 15, the Court issued a m em orandum opinion and order finding that Ford’s privilege log was insufficient under Federal Rule of Civil Procedure 26(b)(5)(A) because the log’s docum ent descriptions did not enable Plaintiffs “to m ake an intelligent determ ination about the validity of the assertion of the privilege.” (ECF No. 598 at 14) (quoting Auto. Club of N.Y., Inc. v. Port Auth. of N .Y. & N.J., No. 11 Civ. 6746, 20 14 WL 2518959, at *5 (S.D.N.Y. J une 4, 20 14)). Accordingly, the Court ordered Ford to supplem ent the ASO privilege log with m ore detailed descriptions of the withheld docum ents. (Id. at 15). The Court declined to find that Ford had waived its privilege related to the withheld ASO investigation docum ents, but cautioned Ford that a finding of waiver would likely result if the supplem ental log did not com ply with Federal Rule of Civil Procedure 26(b)(5)(A) and the Court’s opinion and order. (Id. at 15-16). Ford supplem ented its ASO privilege log on Septem ber 8, 20 15. (ECF No. 70 0 at 5; ECF No. 70 0 -6 at 2-67). The updated privilege log contains a “Supplem ental Description” colum n. Som e of the supplem ental descriptions include: “VOQ data selected for ASO review in connection with 20 10 ASO VOQ review project”; “Analysis of NHTSA VOQ Reports for Ford vehicles by category from 0 1/ 99 to 0 9/ 0 9 for all m odel years, including top 5 vehicle charts by VOQ Report Count”; “Analysis of NHTSA VOQ Reports for Toyota vehicles by category by incident date 0 1/ 99 to 10 / 0 9 for all m odel years, including top 5 vehicle charts by VOQ Report Count”; and “Analysis of Ford alleged SUA related fatalities from NHTSA VOQ Report count by m odel and year.” (ECF No. 70 0 -6 at 6 2-3, 6, 18). The rem ainder of the privilege log was identical to the privilege log produced on May 19, 20 15 to Plaintiffs other than an addition to the “Description” colum n that states “See also attached Affidavit of J ay Logel in Schanel v. Ford in support of project description and basis of Ford’s claim of privilege.” (Id. at 2). Mr. Logel’s affidavit, which was sworn on Novem ber 18, 20 10 , and originally filed in the Schanel case, provides that he is an attorney who is em ployed with Ford’s OGC and that he has reviewed Ford’s ASO privilege log. (ECF No. 612 at 1, 3, 6). Mr. Logel asserts that Ford’s OGC undertook a review and analysis of NHTSA VOQs and TREAD Act subm issions after “the m edia opined that Ford had the second m ost claim s of sudden unintended acceleration in its vehicles” based on the NHTSA questionnaires. (Id. at 4). Ford’s OGC “engaged” the ASO to assist with this review and analysis. (Id. at 5). According to Mr. Logel, docum ents were created by the ASO in perform ing their duties assigned by the OGC, and those docum ents were “used solely by Ford’s attorneys in rendering legal advice to Ford regarding pending and anticipated litigation involving claim s of sudden unintended vehicle acceleration.” (Id.) Mr. Logel indicates that the docum ents listed on Ford’s ASO privilege log “would not have been created but for the request and direction of Ford’s [OGC].” (Id.) On Decem ber 21, 20 15, Plaintiffs filed the instant Motion to Com pel Ford to Produce Docum ents Listed in Ford’s ASO Privilege Log. (ECF No. 70 0 ). In Plaintiffs’ m em orandum in support of their m otion, they argue that the privilege log is still insufficient given the “perfunctory” nature of the supplem ental docum ent descriptions. (ECF No. 70 1 at 9). Accordingly, Plaintiffs assert that Ford has failed to “establish any elem ent of privilege or work-product protection.” (Id.) Plaintiffs request that the Court sanction Ford for failing to com ply with the Court’s August 28 opinion and order by again 7 providing an inadequate privilege log. (Id. at 20 ). Additionally, Plaintiffs contend that the docum ents listed in the ASO privilege log are not privileged for several reasons. First, Plaintiffs insist that the docum ents were not created in anticipation of litigation or for the purpose of obtaining legal advice. (Id. at 10 ). Plaintiffs claim that Ford has not identified any pending or im m inent litigation that caused it to prepare the withheld docum ents. (Id. at 12). Instead, Plaintiffs m aintain that the docum ents were created in the ordinary course of Ford’s business, and in support of this contention, Plaintiffs cite to the deposition testim ony of Ford em ployees David Ott, Raym ond Nevi, and Mark Tuneff. (Id. at 10 -11). Second, Plaintiffs assert that Ford cannot dem onstrate that Ford’s em ployees in the ASO contem plated an attorney-client relationship when it com m unicated with Ford’s OGC, because the com m unications were done in the ordinary course of Ford’s business. (Id. at 13). Third, Plaintiffs argue that “there is no evidence that Ford approached the OGC to seek legal advice with respect to [sudden unintended acceleration].” (Id.) Rather, Plaintiffs insist that the evidence shows the 20 10 ASO investigation was initiated at the request of Ford em ployees outside of the OGC. (Id. at 13-14). Fourth, Plaintiffs contend that Ford did not intend to preserve the confidentiality of the com m unications between the ASO and Ford’s OGC. (Id. at 14). According to Plaintiffs, the ASO was not involved in litigation m atters, “so its work is presum ptively non-confidential.” (Id.) Furtherm ore, Plaintiffs assert that m any of the withheld docum ents were prepared for disclosure to the NHTSA, which defeats any claim of privilege. (Id. at 14-15). Finally, to the extent that the Court declines to com pel production of the withheld docum ents, Plaintiffs request that the Court order an in cam era review of the docum ents to determ ine whether the crim e-fraud exception applies; thereby, obviating the attorney8 client privilege and attorney work-product protection. (Id. at 15). Plaintiffs allege that the 20 10 ASO investigation was conducted with the “fraudulent purpose of concealing from NHTSA and consum ers Ford’s knowledge of defects in its vehicles equipped with ETC system s.” (Id. at 17). Plaintiffs assert that NHTSA conducted a series of m eetings with Ford personnel regarding sudden unintended acceleration in early 20 10 and that Ford provided docum ents and inform ation concerning that issue to NHTSA, but Ford withheld an ASO review of thousands of reports related to sudden unintended acceleration contained in Ford’s internal databases from NHTSA. (Id. at 18-20 ). Plaintiffs claim that Ford instead provided a separate, m ore lim ited analysis of sudden unintended acceleration data, which was m eant to “create the false im pression that Ford vehicles do not suffer from a high volum e of [sudden unintended acceleration] incidents.” (Id. at 18). In response, Ford asserts that its m ost recently supplem ented ASO privilege log is adequate and com plies with the Court’s August 28 opinion and order. (ECF No. 70 3 at 8). Ford argues that the additional docum ent descriptions along with Mr. Logel’s affidavit sufficiently provide the basis for Ford’s claim of privilege over the docum ents listed in the ASO log. (Id.) With respect to Plaintiffs’ position that the docum ents were created in the ordinary course of business, Ford notes that it has produced to Plaintiffs the non-privileged docum ents created during the 20 10 ASO investigation and only withheld those docum ents that were specifically prepared at the request and under the direction of Ford’s counsel for the purpose of advising the corporation. (Id. at 11). Ford em phasizes Mr. Logel’s statem ents in his affidavit that he and other attorneys in Ford’s OGC com m issioned the ASO to review the NHTSA questionnaires and Ford’s TREAD Act subm issions to aid Ford in defending pending and anticipated lawsuits related to claim s 9 of sudden unintended acceleration. (Id. at 11). Ford indicates that the Schanel case, which was filed in February 20 10 , was pending at the tim e that the withheld docum ents were created. (Id.) Ford also cites Mr. Nevi’s testim ony that Ford’s OGC requested a “different look” at the data reviewed by the ASO, which Ford believes supports its position that certain docum ents were created in the ordinary course of business during an initial look into the NHTSA VOQs and that other, privileged docum ents were generated at the OGC’s request. (Id. at 12). Insofar as Plaintiffs rely on Ford em ployee deposition testim ony to establish that the docum ents listed on the log were created in the ordinary course of Ford’s business, Ford insists that the testim ony dem onstrates only that the process used by the ASO during its work for the OGC was the sam e process that the ASO routinely used. (Id. at 13). Because the docum ents were created in anticipation of litigation, Ford contends that the withheld docum ents are protected from disclosure based on the attorney workproduct doctrine. Ford argues that the withheld docum ents are opinion work product because they were created by the ASO at the request of Ford’s OGC, and if produced, would divulge the substance of what Ford’s counsel requested and directed Ford’s em ployees to analyze. (Id. at 13). In addition, Ford asserts that the withheld docum ents are also protected from disclosure because they are fact work product. (Id. at 13 n.9). Ford m aintians that attorney-client privilege bars Plaintiffs from discovering the logged docum ents because the docum ents were “created in furtherance of OGC’s rendition of legal advice to Ford,” and Ford intended for the inform ation contained therein to rem ain confidential. (Id. at 15-16). Finally, Ford argues that the crim e-fraud exception is inapplicable in this case because “Ford has not claim ed privilege over the ‘com m unications’ that Plaintiffs allege 10 Ford withheld from NHTSA.” (Id. at 17). Indeed, Ford insists that Plaintiffs have received the purportedly withheld inform ation that was not provided to NHTSA. (Id.) Moreover, Ford asserts that the crim e-fraud exception does not apply since the data reviewed during the 20 10 ASO investigation was in NHTSA’s possession, either through the VOQs or TREAD Act and Early Warning Report subm issions. (Id. at 18-19). Ultim ately, Ford contends that Plaintiffs have failed to produce any evidence that Ford intended to “cover up a defect or to withhold data from NHTSA.” (Id. at 18). In reply, Plaintiffs insist that the latest version of the ASO privilege log “fails to provide additional inform ation that would assist Plaintiffs in determ ining the validity of Ford’s privilege claim s.” (ECF No. 70 8 at 3). Plaintiffs also argue that Mr. Logel’s affidavit is insufficient to support Ford’s claim of privilege over the listed docum ents because the affidavit conflicts with the testim ony of Ford’s em ployees that the withheld docum ents were created in the norm al course of business. (Id. at 2, 8-11). On the subject of Ford’s work-product argum ent, Plaintiffs reiterate their contention that the docum ents were not created in anticipation of litigation. (Id. at 11-12). As to Ford’s invocation of attorneyclient privilege, Plaintiffs claim that Ford has failed to supply the Court with sufficient inform ation to determ ine whether the 20 10 ASO investigation was related to the rendition of legal services by the OGC. (Id. at 12). Lastly, Plaintiffs assert that the crim efraud exception applies because “Ford produced to NHTSA only the VOQ analysis it wanted NHTSA to see and invoked privilege over the 131 others it did not want NHTSA to see.” (Id. at 13). Plaintiffs contend that Ford’s “fraudulent schem e of withholding safety-critical analyses from NHTSA and the public” requires disclosure of the withheld docum ents. (Id.) 11 On February 2, 20 16, the Court heard oral argum ent on the instant m otion to com pel. The Court inform ed the parties that it believed the supplem ented log was adequate under Rule 26(b)(5)(A), and as such, the Court focused prim arily on whether the withheld docum ents were protected from disclosure due to the work-product doctrine or attorney-client privilege. (ECF No. 714 at 9-10 , 12-13). The Court indicated its concern that none of the Ford em ployees perform ing work for the ASO had unequivocally testified that the logged documents were created at the request of Mr. Logel or the OGC. (Id. at 16, 18-19, 24-30 ). The Court granted Ford leave to subm it additional evidence on that issue. (Id. at 30 -31). In addition, Plaintiffs were asked to a supply the Court with a representative, non-privileged docum ent produced as part of the 20 10 ASO investigation, and Ford was asked to provide for in cam era review one or two of the privileged docum ents listed on the log. (Id. at 37-39). The parties subm itted their supplem ental docum entation related to the m otion to com pel within two weeks of the hearing, including a sam ple of already-produced, nonprivileged docum ents related to the 20 10 ASO investigation. Of particular note, on February 16, 20 16, Ford subm itted to the Court an affidavit from Keith Love, who has worked in Ford’s ASO since March 20 0 3 and was em ployed as an External Investigations Engineer within Ford’s ASO in 20 10 .2 In his affidavit, Mr. Love asserts that he has reviewed the ASO privilege log and is fam iliar with twenty-four of the docum ents listed therein. With respect to those twenty-four docum ents, Mr. Love confirm s that he created those logged docum ents at Mr. Logel’s request and for the OGC’s use. Mr. Love explains that “[t]he review and analysis requested from Ford’s ASO by Mr. Logel was different from 2 The affidavit was never filed by Ford. 12 other VOQ analysis conducted by Ford’s ASO during the sam e tim e period.” In addition to Mr. Love’s affidavit, on February 17, 20 16, Ford subm itted to the Court a withheld docum ent for in cam era review (Bates num bered 0 0 120 P). II. D is cu s s io n A. Th e Ad e qu acy o f Fo rd ’s ASO Privile ge Lo g as Su p p le m e n te d o n Se p te m be r 8 , 2 0 15 The Court’s August 28, 20 15 m em orandum opinion and order described the proper standard for reviewing the adequacy of Ford’s ASO privilege log, and the Court reiterates that standard herein. Federal Rule of Civil Procedure 26(b)(1) provides that: 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 13 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 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 U.S., 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-CV0 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 docum ent 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 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). 14 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 LRB 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. Creative 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 com m unication, and the docum ent's general subject m atter.”); 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 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., 20 14 WL 2518959, at *5. 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. 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 15 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 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. 20 0 5) (quoting Golden Trade S.r.L. v. Lee Apparel Co., 1992 WL 3670 70 at *5 (S.D.N.Y. 1992)). In the August 28, 20 15 opinion and order, the undersigned concluded that Ford’s ASO privilege log, as it existed at that tim e, did not com ply with Rule 26(b)(5)(A) because it failed 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 . Having now reviewed Ford’s Septem ber 8, 20 15 supplem entation of the ASO privilege log, the Court finds that the log satisfies Rule 26(b)(5)(A) and the previous opinion and order. The supplem ental docum ent descriptions, along with the other inform ation contained in the log, adequately perm it Plaintiffs “to m ake an intelligent determ ination about the validity of the assertion of the privilege.” Auto. Club of N.Y., Inc., 20 14 WL 2518959, at *5. Indeed, the supplem ental docum ent descriptions identify the specific type of data analyzed by the ASO in each withheld docum ent, and the original document description colum n provides that these analyses were perform ed by the ASO at the request of Ford’s OGC to assist Ford’s attorneys with pending and anticipated litigation. With this inform ation, Plaintiffs are 16 able to ascertain the basis for Ford’s claim of privilege for each docum ent and determ ine whether a challenge to Ford’s non-disclosure would be reasonable. Thus, the Court FIN D S that Ford’s supplem ental ASO privilege log is adequate. Accordingly, the Court turns to whether the logged docum ents are protected from disclosure for the reasons claim ed by Ford. B. W o rk-Pro d u ct Pro te ctio n As explained in detail above, Ford insists that the work-product doctrine prevents Plaintiffs from discovering the withheld docum ents. “[T]he work product doctrine belongs to the attorney and confers a qualified privilege on docum ents prepared by an attorney in anticipation of litigation.” Solis v . Food Em p’rs Labor Relations Ass’n, 644 F.3d 221, 231 (4th Cir. 20 11). “To determ ine whether a docum ent was prepared in anticipation of litigation, ‘the prim ary m otivating purpose behind the creation of the docum ent m ust have been to assist in pending or probable future litigation.’” Mordesovitch v. W estfield Ins. Co., 244 F. Supp. 2d 636, 642 (S.D.W.Va. 20 0 3) (quoting State ex rel. United Hosp. Ctr., Inc. v. Bedell, 484 S.E.2d 199, 213 (W. Va. 1997)). Federal Rule of Civil Procedure 26(b)(3), which codifies the work-product doctrine under federal law4 , states in part: (A) Docum ents and Tangible Things. Ordinarily, a party m ay not discover docum ents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indem nitor, insurer, or agent). But, subject to Rule 26(b)(4), those m aterials m ay be discovered if: 4 Under Federal Rule of Evidence 50 1, a federal court in a diversity action answers questions of attorneyclient privilege using state law. However, “[b]ecause the work product doctrine is not a privilege, but rather a qualified imm unity from discovery,” the applicability of the work product doctrine, even in diversity cases, is a m atter of federal law. See Cont'l Cas. Co. v. Under Arm our, Inc., 537 F. Supp. 2d 761, 769-70 (D. Md. 20 0 8) (collecting cases). 17 (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the m aterials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other m eans. (B) Protection Against Disclosure. If the court orders discovery of those m aterials, it m ust protect against disclosure of the m ental im pressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation. As can be deduced from the rule’s language, work product is separated into two categories: (1) opinion work product, or in other words, “m ental im pressions, conclusions, opinions, or legal theories” of an attorney or other representative, which is “absolutely” im m une from discovery; and (2) fact work product consisting of “docum ents prepared by an attorney that do not contain the attorney's m ental im pressions,” which m ay be discovered “upon a showing of both a substantial need and an inability to secure the substantial equivalent of the m aterials by alternate m eans without undue hardship.” In re Grand Jury Proceedings # 5 Em panelled January 28, 20 0 4, 40 1 F.3d 247, 250 (4th Cir. 20 0 5); see also Nat'l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980 , 983-84 (4th Cir. 1992). The work-product doctrine protects not only those m aterials prepared by an attorney, but also those m aterials prepared by “agents for the attorney.” United States v. Nobles, 422 U.S. 225, 238-39, 95 S.Ct. 2160 , 45 L.Ed.2d 141 (1975). However, no m atter who prepares them , “‘m aterials prepared in the ordinary course of business or pursuant to regulatory requirem ents or for other non-litigation purposes’ do not constitute ‘docum ents prepared in anticipation of litigation’ protected by work product privilege.” Solis, 644 F.3d at 232 (quoting Nat'l Union Fire Ins. Co., 967 F.2d at 984). 18 Here, the m ain thrust of Plaintiffs’ argum ent against the applicability of workproduct protection to the withheld ASO docum ents is that the docum ents were not created in anticipation of litigation. Instead, Plaintiffs insist that the docum ents were created in the ordinary course of Ford’s business. In support of their argum ent, Plaintiffs cite to the deposition testim ony of Mr. Ott, who was Ford’s Manager of Governm ent Investigations in 20 10 and led the 20 10 ASO Investigation. (ECF No. 70 1 at 2-3; ECF No. 70 3 at 4). Mr. Ott testified that the docum ents listed on the log contained “a com pilation of the data reviews” that the ASO perform ed, but not “thoughts [or] conclusions” from the “data reviews,” and he could not recall whether the docum ents contained recom m endations to Ford’s OGC related to the “data review.” (ECF No. 70 0 -1 at 23-24). Presum ably, Plaintiffs cite this testim ony to com bat Ford’s claim of opinion work-product protection. Plaintiffs also em phasize Mr. Ott’s testim ony that he believed he was enlisted from the Governm ent Investigations Com m ittee to perform the VOQ review because his “job typically involved review of reports, … claim s, allegations, and this team effort was constructed principally to do that, so it was … an effort that we conducted as part of our norm al course of business.” (ECF No. 70 0 -1 at 5). In addition, Plaintiffs rely on the testim ony of Mr. Nevi, who was also involved in the 20 10 ASO investigation. At his deposition, Mr. Nevi stated that he approached Mr. Ott about the Wall Street J ournal article and requested that Mr. Ott look at the VOQ data across m ajor m anufacturers. (ECF No. 70 0 -3 at 5). When asked whether he gave Mr. Ott any specific instruction as to how to review the questionnaires or whether the task was “already defined in som e existing standard operating procedure or Mr. Ott’s job description,” Mr. Nevi answered: “Well, not in the defined operating procedure per se, but just part of our everyday analysis.” (Id. at 5-6). Mr. Nevi also testified that he did not 19 inform Mr. Ott of any “study design or specific objective” since the review “was part of the norm al work we did on an ongoing basis.” (Id. at 6). Plaintiffs also highlight Mr. Nevi’s testim ony that he did not com m it to writing any form at or protocol for data collection because “it was the ordinary course of business used in collecting all of the TREAD data.” (Id. at 7). Lastly, Plaintiffs assert that the deposition testim ony of Mr. Tuneff, a Senior Research Engineer in Ford’s ASO, supports their argum ent that the 20 10 ASO investigation was perform ed in Ford’s ordinary course of business. (ECF No. 70 1 at 4, 11). Plaintiffs rely on Mr. Tuneff’s testim ony that the “senior leadership” at Ford requested that the 20 10 ASO investigation into the VOQs be perform ed. (ECF No. 70 0 -2 at 13-14). Plaintiffs contend that Mr. Tuneff’s statem ent signifies that an attorney did not initiate the 20 10 ASO investigation. (ECF No. 70 1 at 11). Plaintiffs also point out that Mr. Tuneff testified the “level of reviews” of the analysis were “internal to the [ASO],” which Plaintiffs interpret to m ean that the 20 10 ASO investigation was not part of any broader litigationrelated project. (ECF No. 70 0 -2 at 15; ECF No. 70 1 at 11). After reviewing all of the m aterials subm itted by the parties, the Courts FIN D S that the withheld docum ents listed on the 20 10 ASO privilege log were created in anticipation of litigation. Mr. Logel’s affidavit filed in the Schanel case establishes that Ford’s OGC “undertook a review and analysis of NHTSA Vehicle Owner Questionnaires and TREAD Act subm issions in order to assist Ford lawyers in defending lawsuits and non-litigated claim s against Ford involving claim s of sudden unintended acceleration, as well as anticipated lawsuits and claim s ….” (ECF No. 612 at 4-5). Mr. Logel asserts that Ford’s OGC enlisted Ford’s ASO to assist in the review and analysis of NHTSA VOQs and TREAD Act subm issions. (Id. at 5). Ford’s ASO then created docum ents during its review 20 and analysis that were “used solely by Ford’s attorneys in rendering legal advice to Ford regarding pending and anticipated litigation involving claim s of sudden unintended vehicle acceleration.” (Id.) Mr. Love’s affidavit corroborates Mr. Logel’s sworn statem ents. As a m em ber of Ford’s ASO in 20 10 , Mr. Love recalls creating docum ents at Ford’s OGC’s request after reviewing and analyzing NHTSA VOQs and TREAD Act subm issions. Mr. Love also states that “[t]he review and analysis requested from Ford’s ASO by Mr. Logel was different from other VOQ analysis conducted by Ford’s ASO during th[e] sam e tim e period.” Sim ilarly, Mr. Nevi testified that Ford’s OGC specifically requested a “different look” at the inform ation reviewed by Ford’s ASO during the 20 10 investigation. (ECF No. 70 3-3 at 10 ). Moreover, Ford’s argum ent that the withheld docum ents were created in anticipation of litigation succeeds for at least three additional reasons. First, the withheld docum ents were created between February and J uly 20 10 , and the Schanel case, which concerned an allegation of sudden unintended acceleration, was pending from February 20 10 through Decem ber 20 10 . (ECF No. 551 at 2-3; ECF No. 70 3-6 at 1-3, 5-6). As such, litigation related to the exact issue that Ford’s OGC tasked the ASO with exam ining was ongoing at the tim e that the logged documents were created. Second, after reviewing Ford’s in cam era subm ission and com paring that subm ission to the representative docum ents provided by the parties, the Court concludes that the ASO conducted a separate analysis of the pertinent data from a different perspective for the benefit of the OGC. Third, and relatedly, the contents of Ford’s in cam era subm ission dem onstrate that Ford was concerned with probable future litigation after the Wall Street J ournal article was published. 21 The deposition testim ony cited by Plaintiffs does not contradict Ford’s substantiated claim that its OGC requested a separate analysis of the VOQs and TREAD Act subm issions for use in defending pending or probable future litigation. Rather, the testim ony relied on by Plaintiffs dem onstrates that certain Ford em ployees were enlisted to perform the ASO investigation due to their fam iliarity with the typical analysis process used by Ford. Furtherm ore, the m ost reasonable resolution of any potential conflict between the parties’ evidence is that a portion of the ASO docum ents were created at the behest of Ford’s OGC, and a portion were not. Ford’s counsel has represented that Plaintiffs have received those 20 10 ASO investigation docum ents that were not prepared at Ford’s OGC’s request. (ECF No. 714 at 36-37). Having determ ined that the withheld docum ents were created in anticipation of litigation, the Court turns to which type of work-product protection applies. The Court FIN D S that the withheld docum ents constitute fact work-product as it does not appear from a review of the in cam era subm ission and Ford’s descriptions of the docum ents that the docum ents contain the “m ental im pressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B). Plaintiffs m ay only discover this fact work-product if they can show that they have “substantial need for the m aterials to prepare [their] case and cannot, without undue hardship, obtain their substantial equivalent by other m eans.” Fed. R. Civ. P. 26(b)(3)(A)(ii). Because the Court finds in the alternative below that attorney-client privilege also prevents disclosure of the withheld docum ents, a protracted discussion as to whether Plaintiffs can m eet the standard for overcom ing fact work-product protection is unnecessary. Nevertheless, the Court FIN D S that Plaintiffs have not m et the standard for discovering the fact work-product contained in the logged docum ents because 22 Plaintiffs have access to the underlying data that Ford’s ASO analyzed in the withheld docum ents. C. Atto rn e y-Clie n t Privile ge Ford also contends that attorney-client privilege prevents Plaintiffs from discovering the withheld docum ents. The Court has previously noted the com plex nature of choosing which forum ’s law to apply to claim s of attorney-client privilege in this action under Federal Rule of Evidence 50 1. (ECF No. 426 at 6-7). In discussing the issue, the Court has noted that “the federal law of privilege and the laws of West Virginia and Michigan are com patible.” (Id. at 7). In their subm issions to the Court, neither party has taken an explicit position as to which jurisdiction’s law should control. However, the parties prim arily cite to federal law and West Virginia law in support of their attorneyclient privilege positions. Accordingly, the Court sum m arizes and applies attorney-client privilege under both federal law and West Virginia state law. Under West Virginia law, attorney-client privilege attaches to confidential com m unications m ade between a client and an attorney for the purpose of obtaining legal advice. State ex rel. Montpelier U.S. Ins. Co. v. Bloom , 757 S.E.2d 788, 794 (W. Va. 20 14). “In order to assert an attorney-client privilege, three m ain elem ents m ust be present: (1) both parties m ust contem plate that the attorney-client relationship does or will exist; (2) the advice m ust be sought by the client from the attorney in his capacity as a legal advisor; (3) the com m unication between the attorney and client m ust be intended to be confidential.” Id. (quoting State v. Burton, 254 S.E.2d 129, Syll. Pt. 2 (W. Va. 1979)). “[T]he burden of establishing the attorney-client privilege …always rests upon the person asserting it.” State ex rel. U.S. Fid. & Guar. Co. v. Canady , 460 S.E.2d 677, 684 (W. Va. 1995). 23 Sim ilarly, under federal law, “[c]onfidential disclosures by a client to an attorney m ade in order to obtain legal assistance are privileged.” Fisher v. United States, 425 U.S. 391, 40 3, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) (citing 8 Wigm ore, Evidence § 2292 (McNaughton rev. ed. 1961)). The privilege “does not shield all inform ation that a client divulges to an attorney, or vice versa, but rather is lim ited to instances where legal advice is sought or rendered.” Deseret Mgm t. Corp. v. United States, 76 Fed.Cl. 88, 90 (20 0 7) (quoting Pac. Gas & Elec. Co. v. United States, 69 Fed.Cl. 784, 810 (20 0 6)). Particularly im portant here, “the attorney-client privilege applies to ‘in-house’ counsel just as it would to any other attorney.” Lola Brow n Trust No. 1B, 230 F.R.D. at 411 (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 95 S.Ct. 150 4, 44 L.Ed.2d 29 (1975)). The privilege also applies to “com m unications between an attorney and client during attorney-conducted investigations” for the purpose of fact finding where the attorney is acting in his or her capacity as an attorney. In re Allen, 10 6 F.3d 582, 60 2-0 3 (4th Cir. 1997); see also Upjohn Co. v. United States, 449 U.S. 383, 390 -91, 10 1 S.Ct. 677, 66 L.Ed.2d 584 (1981) (stating that “privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of inform ation to the lawyer to enable him to give sound and inform ed advice,” and recognizing “[t]he first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant.”). Like West Virginia state law, under federal law, the party asserting the privilege bears the burden of establishing its applicability. AAB Joint Venture v. United States, 75 Fed.Cl. 448, 456 (20 0 7). If a party can establish the privilege’s applicability, then the com m unications between attorney and client are “absolute[ly] and com plete[ly]” protected from disclosure. In re Allen, 10 6 F.3d at 60 0 . 24 Under both West Virginia law and federal law, the withheld ASO docum ents are protected from disclosure under attorney-client privilege. First, Ford’s OGC, specifically Mr. Logel, and Ford’s ASO contem plated that an attorney-client relationship existed at the tim e that the OGC engaged the ASO to analyze the VOQs and TREAD Act data. Mr. Logel’s affidavit, Mr. Love’s affidavit, and Mr. Nevi’s deposition testim ony all support this conclusion. Second, as explained above, the ASO prepared and subm itted the logged docum ents at the request of the OGC for the purpose of rendering legal advice to Ford.5 Although Ford’s OGC m ay have been the initiating party by requesting that the ASO conduct an analysis of the pertinent data, that fact alone does not render the attorneyclient privilege inapplicable. As explained above, com m unications during fact-finding investigations conducted by an attorney in his or her legal capacity are protected. In re Allen, 10 6 F.3d at 60 2-0 3. Indeed, even with the understanding that the privilege should be construed narrowly, N euder v. Battelle Pacific N orthw est N at’l Lab., 194 F.R.D. 289, 293 (D.D.C. 20 0 0 ), it would be an unreasonable interpretation of the privilege to hold that a proactive, fastidious in-house attorney who seeks inform ation from his client for the purpose of rendering legal advice cannot claim privilege over the inform ation that he receives in response to his request sim ply because he was the first to act. See Cline v. Advanced Med. Optics, Inc., No. 2:0 8-CV-62, 20 0 9 WL 58550 7, at *1-*3 (E.D. Tex. Mar. 6, 20 0 9) (finding attorney-client privilege where in-house counsel initiated investigation into product m anufactured by client); First Chicago Int’l v. United Exchange Co. Ltd., 125 F.R.D. 55, 58 (S.D.N.Y. 1989) (applying attorney-client privilege to docum ents 5 The Court rejects Plaintiffs’ contention that Ford’s rem oval of the word “analysis” from several document descriptions renders those documents unprivileged. (ECF No. 70 1 at 10 n.11). The privilege log indicates that the data contained in those documents was specifically selected for ASO review in connection with the ASO analysis that the Court finds was privileged. 25 created as a result of in-house counsel’s initiation of investigation concerning client’s business practice). Third, and finally, the com m unication of the inform ation (i.e. the sending of the docum ents) from Ford’s ASO to the OGC was intended to be confidential. As Mr. Logel’s affidavit explains, “[t]he docum ents identified on Ford’s ASO Privilege Log have not been dissem inated beyond those Ford em ployees and consultants working directly with Ford’s counsel in this regard.” (ECF No. 612 at 6). There is no evidence that Mr. Logel’s assertion is false or that it was “the intention or understanding of [Ford] that the com m unication [was] to be m ade known to others.” In re Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir. 1984). Although Plaintiffs speculate that the description of a handful of the docum ents as “for presentation” m eans that the docum ents were not intended to be confidential, Plaintiffs’ have provided no evidence that the presentations were m ade to a third-party, and their speculation cannot defeat Mr. Logel’s clear statem ent that the docum ents were not dissem inated in a m anner that would destroy the privilege.6 (ECF No. 70 1 at 14-15). For these reasons, the Court FIN D S that docum ents listed on Ford’s ASO privilege log are protected from disclosure by attorney-client privilege. D . Crim e -Frau d Exce p tio n Lastly, Plaintiffs argue that, even if the withheld docum ents are protected from disclosure based on work-product doctrine or attorney-client privilege, the Court should 6 Plaintiffs’ argum ent as to confidentiality also relies on testim ony from ASO employees that they were not involved in litigation m atters. (ECF No. 70 1 at 14). Even assum ing that Plaintiffs’ characterization of the testim ony is correct, their argum ent is unconvincing. Certainly, an em ployee need not be em ployed by a com pany’s litigation departm ent for the attorney-client privilege to apply. Moreover, the fact that an em ployee m ay testify that he does not typically analyze “privileged inform ation” does not m ean that the em ployee did not create inform ation subject to privilege by preparing an analysis at counsel’s request. Most significantly, the Court has already found that sufficient evidence exists to support the conclusion that Ford’s OGC enlisted the ASO to perform data review and analysis related to pending and anticipated litigation. 26 nevertheless com pel disclosure under the crim e-fraud exception. Ford responds that the crim e-fraud exception is inapplicable to the withheld docum ents and that Plaintiffs’ argum ent relies entirely on speculation. Because the parties generally cite federal law in support of their argum ents on this point, the Court sum m arizes and applies the federal law related to the crim e-fraud exception.7 The United States Court of Appeals for the Fourth Circuit has recognized that “[b]oth the attorney-client and work product privileges m ay be lost … when a client gives inform ation to an attorney for the purpose of com m itting or furthering a crim e or fraud.” In re Grand Jury Proceedings # 5 Em panelled January 28, 20 0 4, 40 1 F.3d at 251. “The party asserting the crim e-fraud exception … m ust m ake a prim a facie showing that the privileged com m unications fall within the exception.” Id. This prim a facie standard does not require “proof either by a preponderance or beyond a reasonable doubt of the crim e or fraud.” Id. In elaborating on the requirem ents for establishing the crim e-fraud exception, the Fourth Circuit has stated: [T]he party invoking the crim e-fraud exception m ust m ake a prim a facie showing that (1) the client was engaged in or planning a crim inal or fraudulent schem e when he sought the advice of counsel to further the schem e, and (2) the docum ents containing the privileged m aterials bear a close relationship to the client's existing or future schem e to com m it a crim e or fraud. Prong one of this test is satisfied by a prim a facie showing of evidence that, if believed by a trier of fact, would establish the elem ents of som e violation that was ongoing or about to be com m itted. Prong two m ay be satisfied with a showing of a close relationship between the attorneyclient com m unications and the possible crim inal or fraudulent activity. 7 It seem s that Federal Rule of Evidence 50 1 would apply to the crim e-fraud exception analysis related to attorney-client privilege, yet, the rule may not apply to the crime-fraud exception concerning work-product protection. As m entioned above, because the parties prim arily rely on federal law in their discussion of the crim e-fraud exception, the Court determines that the m ost effective approach is to apply federal law in this area, rather than applying both state law and federal law. Notwithstanding, the Court notes that its ultim ate conclusion is identical under both West Virginia law and federal law. Cf. Cont’l Cas. Co. v. Am . Hom e Assurance Co., No. 2:0 0 -0 260 , 20 10 WL 692942, at *6 (S.D.W.Va. Feb. 23, 20 10 ) (stating that “there is no m aterial difference between the West Virginia and federal form ulations of the [crim e-fraud] exception.”). 27 Id. (citations om itted). As this Court explained the exception, it “applies only when the client intended to perpetrate a crim e or fraud, at the tim e of the com m unication or prospectively, and that the confidential discussions were had to further the nefarious act.” Cont’l Cas. Co. v. Am . Hom e Assurance Co., No. 2:0 0 -0 260 , 20 10 WL 692942, at *7 (S.D.W.Va. Feb. 23, 20 10 ) (Copenhaver, J .). Procedurally, in deciding the applicability of the crim e-fraud exception, “the court m ay exam ine the assertedly privileged docum ents them selves in an in cam era hearing, provided that the party invoking the exception … first m akes a threshold ‘showing of a factual basis adequate to support a good faith belief by a reasonable person’ that the hearing would reveal evidence of crim e or fraud.” In re Grand Jury Subpoena # 0 6-1, 274 F. App’x 30 6, 310 (4th Cir. 20 0 8) (quoting United States v. Zolin, 491 U.S. 554, 572, 10 9 S.Ct. 2619, 10 5 L.Ed.2d 469 (1989)). If the requisite showing is m ade by the invoking party, the court m ust decide whether to conduct an in cam era review of the allegedly privileged and protected docum ents to determ ine if the exception applies. Zolin, 491 U.S. at 572. The decision to perform such a review rests within the sound discretion of the court, and “the court should m ake that decision in light of the facts and circumstances of the particular case, including, am ong other things, the volum e of m aterials the district court has been asked to review, the relative im portance to the case of the alleged privileged inform ation, and the likelihood that the evidence produced through in cam era review, together with other available evidence then before the court, will establish that the crim e-fraud exception does apply.” Id. In this case, Plaintiffs insist that the 20 10 ASO investigation was conducted for a fraudulent purpose. (ECF No. 70 1 at 17). They contend that NHTSA was “actively investigating” claim s of sudden unintended acceleration in Ford and other car 28 m anufacturers’ vehicles at the tim e of Ford’s 20 10 ASO investigation. (Id.) According to Plaintiffs, after NHTSA requested inform ation from Ford about sudden unintended acceleration in Ford vehicles, Ford perform ed two analyses of report data related to unintended acceleration incidents. (Id. at 17-18). In conducting the first analysis, Ford drew data from “all of its internal sources,” which were unavailable to NHTSA. (Id. at 18). Plaintiffs claim that the first analysis dem onstrated that sudden unintended acceleration incidents at Ford “were m uch m ore com m on than NHTSA would have known,” and therefore, Ford perform ed a second analysis “that involved reorganizing, slicing and dicing NHTSA’s VOQ data relating to [sudden unintended acceleration] events in Ford vehicles to m inim ize the severity of the [sudden unintended acceleration] threat.” (Id. at 18). Plaintiffs argue that the second analysis, which was subm itted to NHTSA, was “incom plete and m isleading,” and Ford’s subm ission of that second analysis perpetrated a fraud upon NHTSA and the public. (Id.; ECF No. 70 8 at 13). In resolving the applicability of the crim e-fraud exception, the Court sets forth som e additional factual background. To start, Plaintiffs have supplied evidence that NHTSA’s Office of Defect Investigation investigated Ford four tim es for reports of unintended acceleration between 20 0 2 and 20 10 . (ECF No. 70 0 -8 at 5-6). Ford m aintains that these investigations did not concern ETC equipped Ford vehicles. (ECF No. 70 3 at 19). Moreover, Ford cites Mr. Tuneff’s testim ony that there was never a “form al investigation” by NHTSA into Ford’s ETC system s, although Mr. Tuneff noted that NHTSA representatives had m eetings with Ford in early 20 10 concerning ETC system s and “potentially stuck throttles.” (ECF No. 70 0 -2 at 8-9; ECF No. 70 3-2 at 26-27). At one of those m eetings, Ford’s personnel explained the design of the ETC system and provided certain docum ents at NHTSA’s request. (ECF No. 70 0 -2 at 10 ). NHTSA representatives 29 also m et with Ford in March 20 10 to discuss Brake Over Accelerator technology. (ECF No. 70 0 -3 at 10 ). After that m eeting occurred, on March 23, 20 10 , Ford voluntarily subm itted an analysis of “certain VOQ information” to NHTSA. (ECF No. 70 0 -4 at 2). With that analysis, Ford sent an explanation as to how Ford’s personnel categorized the VOQ data in perform ing their analyses. (ECF No. 70 0 -9 at 3). In addition to the analysis that Ford sent to NHTSA, Ford’s ASO conducted a com parison analysis of the VOQ data with a larger pool of data related to sudden unintended acceleration. (ECF No. 70 0 -2 at 4, 24). Mr. Tuneff testified that the data used for the com parison was taken from Ford’s “internal data,” including inform ation from Ford’s “MORS,” “CQIS,” “AWS,” and lawsuit and claim s databases. (Id. at 4, 12-13). This analysis and its results were not sent to NHTSA. (Id. at 18, 24). According to Mr. Tuneff, the analysis was not sent to NHTSA because the agency never requested the analysis and there was no form al investigation into Ford ongoing at that tim e. (Id. at 25). Moreover, Mr. Tuneff asserted that this broader analysis confirm ed the results of the VOQ review results, which was another reason that the analysis was not provided to NHTSA. (Id. at 25). Sim ilarly, Mr. Ott testified that he did not inform NHTSA about the com parison analysis because the agency did not inquire about it and Ford “principally” used NHTSA’s data in perform ing the analysis. (ECF No. 70 0 -1 at 19-20 ). As for the results of the broader analysis, Mr. Ott testified that the ASO concluded there was not an unreasonable risk to the safety of Ford’s custom ers due to sudden unintended acceleration in Ford’s vehicles. (Id. at 11-12; ECF No. 70 3-1 at 8-11). Mr. Tuneff likewise testified that, after com paring the VOQ data to Ford’s internal data, the ASO did not find any evidence of sudden unintended acceleration events. (ECF No. 70 330 2 at 6-7). In addition, Mr. Nevi testified that Ford “saw no pattern of any condition in the vehicles leading to the [unintended acceleration] claim s that were reported.” (ECF No. 70 3-3 at 10 ). Having considered Plaintiffs’ argum ents and the evidence cited in support of those argum ents, the Court FIN D S that Plaintiffs have failed to meet their burden of dem onstrating “a factual basis adequate to support a good faith belief by a reasonable person” that in cam era review of the withheld docum ents “would reveal evidence of crim e or fraud.” In re Grand Jury Subpoena # 0 6-1, 274 F. App’x at 310 (quoting Zolin, 491 U.S. at 572). First, it is difficult to imagine how Ford could have perpetrated a fraud against NHTSA when the data that Ford analyzed was available for NHTSA to perform its own review. The VOQs were NHTSA’s own data, and the inform ation that Ford used in its broader analysis would have been available to NHTSA in the form of TREAD Act and Early Warning Report subm issions. (ECF No. 70 0 -2 at 20 -22; ECF No. 70 3 at 3-4 n.2; 18 n.13; 19). Second, while Plaintiffs allege that Ford’s production to NHTSA “reorganized” the VOQ data to m inim ize the num ber of sudden unintended acceleration incidents, Ford provided NHTSA with an explanation as to how it categorized various VOQs. Plaintiffs are hard-pressed to show that Ford intended to deceive NHTSA by disclosing the VOQ categorization utilized during Ford’s analysis. (ECF No. 70 0 -9 at 3). Third, Mr. Tuneff’s testim ony unequivocally dem onstrates that Ford’s conclusions were the sam e after both analyses. (ECF No. 70 0 -2 at 25). Although subm ission of the broader analysis to NHTSA m ay have bolstered Ford’s already-tendered analysis, there is nothing fraudulent about Ford’s decision to refrain from sending a confirm atory analysis. Finally, at this juncture, Plaintiffs have presented no convincing evidence that Ford withheld ASO investigation docum ents from NTHSA showing a defect related to sudden unintended acceleration in 31 Ford vehicles. For these reasons, the Court FIN D S that Plaintiffs have failed to m eet their threshold burden for application of the crime-fraud exception and that in cam era review of additional docum ents listed in the ASO privilege log is not warranted. III. Co n clu s io n For the aforem entioned reasons, the Court D EN IES Plaintiffs’ Motion to Com pel Ford to Produce Docum ents Listed in Ford’s ASO Privilege Log, (ECF No. 70 0 ), and Plaintiffs’ accom panying request for sanctions. The Court GRAN TS Plaintiffs’ Motion to Seal, (ECF No. 698), and ORD ERS that Exhibit E attached to Plaintiffs’ Motion to Com pel, (ECF No. 70 0 ), be sealed. The Clerk is directed to provide a copy of this Mem orandum Opinion and Order to counsel of record and any unrepresented party. EN TERED : March 28, 20 16 32