Burnett et al v. Ford Motor Company, No. 3:2013cv14207 - Document 515 (S.D.W. Va. 2015)
Court Description: MEMORANDUM OPINION AND ORDER granting in part and denying in part Plaintiffs' 301 Second MOTION to Challenge Confidential Designation and to Compel; directing that the pages more fully set forth herein shall be de-designated as privileged; and the pages more fully set forth herein shall be designated as privileged and may be clawed back by Defendant. Signed by Magistrate Judge Cheryl A. Eifert on 9/3/2015. (cc: counsel of record; any unrepresented party)
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Burnett et al v. Ford Motor Company Doc. 515 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. BU RD , 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’ Second Motion to Challenge Confidential Designation and to Com pel. (ECF No. 377).1 Defendant Ford Motor Com pany (“Ford”) has filed a m em orandum in opposition to the m otion, (ECF No. 425), and Plaintiffs have replied, (ECF No. 435). Plaintiffs’ m otion relates to ten 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. (ECF No. at 591 at 5-27). For the reasons that follow, the Court GRAN TS, in part, and D EN IES, in part, 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 challenge and com pel are found at ECF No. 30 1 in Burnett v. Ford Motor Com pany , Case No.: 3:13-cv-1420 7, and ECF No. 264 in Burd v. Ford Motor Com pany , Case No.: 3:13-cv-20 976. 1 Dockets.Justia.com Plaintiffs’ m otion to challenge and com pel production of docum ents. (ECF No. 377).2 I. Re le van t Facts This putative class action involves 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; they included electromagnetic interference, resistive shorts, and other voltage and resistance fluctuations; and these issues were known to Ford. Despite having knowledge of the potential for sudden unexpected acceleration, Ford allegedly 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. On J anuary 19, 20 15, Ford served 60 8 docum ents on Plaintiffs in one production, including the ten docum ents currently at issue in Plaintiffs’ m otion to challenge and to com pel. The docum ents had been collected by Ford’s em ployees in 20 14 and sent to Xerox, Ford’s discovery vendor, for processing, m aintenance, and subsequent production. Xerox m ade the 60 8 docum ents available on a com puterized platform for pre-production review by Ford’s national litigation counsel, Ms. J ody Schebel, who exam ined the docum ents for relevancy and privilege. Ms. Schebel, 2 ECF No. 30 1 in Burnett v. Ford Motor Com pany , Case No.: 3:13-cv-1420 7, and ECF No. 264 in Burd v. Ford Motor Com pany , Case No.: 3:13-cv-20 976. 2 believing the ten docum ents to be privileged attorney-client com m unications, designated them as “privileged” and “withheld” using Xerox’s tagging system . Despite Ms. Schebel’s designation, the ten docum ents were produced. In late February 20 15, when Ms. Schebel discovered that the docum ents had been erroneously provided to Plaintiffs, she im m ediately issued a claw back letter and contacted Xerox to determ ine why the docum ents had been served despite their “privileged” and “withheld” tags. Ultim ately, Xerox advised that a processing error on its part electronically stripped the tags from the docum ents, resulting in their inadvertent disclosure. On March 23, 20 15, Plaintiffs filed the instant m otion, asking the Court to com pel form al production of the ten docum ents now subject to Ford’s claw back request. Plaintiffs assert that the docum ents should be produced for the following reasons: (1) the docum ents are not privileged; and (2) even if they are, Ford waived any privilege that m ight attach to the documents by failing to take reasonable steps to prevent their disclosure. In response, Ford argues that the docum ents are privileged as attorney-client com m unications, or protected from discovery as work product. Ford contends that it did not waive the privilege through inadvertent disclosure because Ford took reasonable steps to protect the documents and prom ptly attem pted to claw them back when Ford’s counsel learned of Xerox’s error. II. D is cu s s io n Having considered the argum ents of the parties, and after closely reviewing the docum ents, the Court finds that only a portion of the ten docum ents consist of privileged attorney-client com m unications, and none of the docum ents are work product. Therefore, the Court GRAN TS Plaintiffs’ m otion to de-designate and 3 com pel the production of the non-privileged portions of the docum ents. With respect to the privileged portions, the Court D EN IES Plaintiffs’ m otion and GRAN TS Ford’s request to claw back the docum ents. A. Exis t e n ce o f Pr iv ile g e The parties have divided the docum ents into three sets for purposes of discussion. Consequently, the Court will likewise refer to the docum ents by set num ber. 1. Set Se t On e One includes docum ents with Bates-stam ped num bers of 3748 0 0 0 0 0 0 0 1942 through 3748 0 0 0 0 0 0 0 1947. Set One consists of an e-m ail from J im Engle, a design analysis engineer em ployed by Ford, to J ay Logel, an attorney with Ford’s Office of the General Counsel, and attachm ents to the e-m ail. In the e-m ail, Mr. Engle seeks advice from Ford’s counsel about a letter Mr. Engle intends to send to the Chicago Transit Authority, reporting on an investigation by Ford into the Chicago Transit Authority’s claim of sudden unintended acceleration in Crown Victoria autom obiles m anufactured by Ford. The first attachm ent to the e-m ail is the letter with Mr. Logel’s edits. Also attached to the letter are two graphs with no edits. Plaintiffs posit that all of Set One should be produced, because Mr. Engle did not specifically request legal advice, and the edits m ade by Mr. Logel were superficial or stylistic, and were not even rem otely legal in nature. Plaintiffs further claim that the edits were incorporated in the final draft of the letter, which was produced in discovery without a privilege claim ; therefore, the edits were intended for public disclosure. Ford disagrees, pointing to cases which purportedly hold that prelim inary drafts of docum ents intended to be m ade public are nevertheless privileged; 4 particularly, when the drafts contain attorney’s notes and com m ents. The law is well-settled that “the attorney-client privilege applies to ‘in-house’ counsel just as it would to any other attorney.” Neuberger Berm an Real Estate Incom e Fund, Inc. v. Lola Brow n Trust No. 1B, 230 F.R.D. 398, 411 (D. Md. 20 0 5) (citing N LRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 95 S.Ct. 150 4, 44 L.Ed.2d 29 (1975). Nonetheless, because a corporation’s in-house counsel often wears m ore than one hat, courts look closely at claim s of privilege asserted by corporate employees involving com m unications with in-house counsel. Only contacts sought and given for legal purposes will be privileged. Id. at 411 (quoting Marten v. Yellow Freight Sy stem , Inc., 1998 WL 13244 *7 (D.Kan. J an.6, 1998)). The proponent of the privilege “carries the burden of establishing the existence of the attorney-client relationship, the applicability of the privilege to the specific comm unication at issue, and the absence of waiver.” FTC v. Reckitt Benckiser Pharm aceuticals, Inc., No. 3:14m c5, 20 15 WL 10 620 62, at *2 (E.D. Va. Mar. 10 , 20 15) (citing In re Grand Jury Subpeona, 341 F.3d 331, 335 (4th Cir. 20 0 3)). “To determ ine whether com m unications were m ade prim arily for the purpose of [seeking or] providing legal services, the court m ust consider the context in which they were m ade.” U.S. v. Cohn, 30 3 F.Supp.2d 672, 684 (D.Md. 20 0 3). Moreover, at least in this circuit,3 when a client com m unicates inform ation to counsel with the intention of having the inform ation 3 It is im portant to note that neither party has taken an explicit position on which jurisdiction’s law governs with respect to questions concerning the existence of the attorney-client privilege. As previously indicated in this litigation, the Court could apply federal law, but there are also good argum ents that either the law of Michigan or the law of West Virginia should be used. Since both parties cite extensively to federal law in their m em oranda, the undersigned has applied federal law in this opinion. See In re General Motors LLC Ignition Sw itch Litigation, 20 15 WL 2210 57, at *12, n. 3 (finding that the parties’ reliance on federal law was im plicit consent to apply federal law and was sufficient to establish choice of law on the subject); see, also, Baby ch v. Psy chiatric Solutions, Inc., 271 F.R.D. 60 3, 60 9 (N.D. Ill. 20 10 ) (holding that when both federal and state law supplies the rule of decision, issues related to the attorney-client privilege should be governed by federal law). 5 published, no privilege attaches to the com m unication. See In re Grand Jury Proceedings, 727 F.2d 1352, 1358 (4th Cir. 1984). The key consideration in such circum stances is whether the client intended the inform ation com m unicated to be kept confidential. See In Re Grand Jury Subpoena, 341 F.3d 331, 336 (4th Cir. 20 0 3) (explaining that sim ply because a com m unication assists a client in providing a public statem ent or publishing a docum ent does not result in a waiver of the privilege; “[a]dopting [that] ... reasoning would lead to the untenable result that any attorneyclient comm unications relating to the preparation of publicly filed legal docum ents— such as court pleadings—would be unprotected.”); see, also, In re General Motors LLC Ignition Sw itch Litigation, -- F.Supp.3d --, 20 15 WL 2210 57, at *6 (S.D.N.Y. J an. 15, 20 15) (holding that the public dissem ination of inform ation gathered during a confidential com m unication does not, by itself, lead to the factual inference that the com m unication was not intended to be confidential at the tim e it was m ade). “To determ ine whether confidentiality was intended, ‘[r]ather than look to the existence of the attorney-client relationship or to the existence or absence of a specific request for confidentiality, a court m ust look to the services which the attorney has been em ployed to provide, and determine if those services would reasonably be expected to entail the publication of the client’s com m unications.” Reckitt Benckiser Pharm aceuticals, Inc., 20 15 WL 10 620 62, at *3 (quoting United States v. (Under Seal), 748 F.2d 871, 875 (4th Cir. 1984)). Here, as indicated in the declarations subm itted by Mr. Engle and Mr. Logel, Mr. Engle’s purpose in com m unicating with Mr. Logel was to obtain legal advice about the wording of an investigation report Mr. Engle intended to supply to the Chicago Transit Authority. (ECF Nos. 425-1, 425-2). Mr. Engle did not provide data 6 to Mr. Logel for the purpose of drafting the investigation report; instead, he subm itted the com pleted report to Mr. Logel to review with an eye toward “possible legal and/ or litigation ram ifications of the statem ents m ade in [the] draft report and as to the general wording of the docum ent, including whether any inform ation should be om itted or included to com ply with legal requirements or principles.” (ECF No. 425-2 at 2). In other words, Mr. Engle’s com m unication with Mr. Logel was not a request for assistance in generating a public report; rather, it was a request to insure that the wording of a report that detailed a com pleted investigation did not expose the corporation to liability, or negatively affect its position in potential litigation. Being retained to provide legal guidance on how to reduce a client’s risk of liability is different than being retained for the specific purpose of preparing a report intended for public dissem ination. Certainly, Mr. Engle had reason to obtain legal advice on the wording of the report given his concern that the underlying incidents would lead to litigation. (ECF No. 425-2 at 2). Contrary to Plaintiffs’ contention, there is nothing about this request for advice that suggests Mr. Engle’s intention to have any of his com m unications with Mr. Logel published. See In Re Grand Jury Subpoena, 341 F.3d at 336. Accordingly, the Court finds that the e-m ail exchange between Mr. Engle and Mr. Logel, and the draft showing the edits of Mr. Logel, Bates-stam ped num bers 3748 0 0 0 0 0 0 0 1942-3748 0 0 0 0 0 0 0 1945, are privileged com m unications. While it is true that sections of the draft report contain factual statem ents that do not involve edits, the undersigned finds that Ford need not produce a redacted version given the extensiveness of the edits and the fact that Plaintiffs have a copy of the final draft report, which includes the sam e facts as those set forth in the draft. (ECF No. 425 at 6). With respect to the charts attached to the report, Bates-stam ped num bers 3748 7 0 0 0 0 0 0 0 1946-3748 0 0 0 0 0 0 0 1947, they are not privileged. The charts contain no notations by Mr. Logel, and identical charts were attached to the final report sent to the Chicago Transit Authority and produced in this litigation. Ford also argues that the docum ents in Set One are protected from discovery as attorney work product. That argum ent is unpersuasive. “Distinct from the attorney-client privilege, the 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 ploy ers Labor Relations Ass'n, 644 F.3d 221, 231-32 (4th Cir. 20 11) (citations om itted). However, “m aterials prepared in the ordinary course of business or pursuant to regulatory requirem ents or for other nonlitigation purposes” are not “docum ents prepared in anticipation of litigation” protected by work product privilege. Id. at 232 (quoting Nat'l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980 , 984 (4th Cir. 1992)). The Fourth Circuit explained the distinction as follows: We take notice of the fact that m em bers of society tend to docum ent transactions and occurrences to avoid the foibles of m em ory and to perpetuate evidence for the resolution of future disputes. And because litigation is an ever-present possibility in Am erican life, it is m ore often the case than not that events are docum ented with the general possibility of litigation in m ind. Yet, “[t]he m ere fact that litigation does eventually ensue does not, by itself, cloak m aterials” with work product im m unity. Binks Mfg. Co. v. National Presto Indus., Inc., 70 9 F.2d 110 9, 1118 (7th Cir.1983). See also Janicker v. George W ashington Univ., 94 F.R.D. 648, 650 (D.D.C.1982) (“The fact that a defendant anticipates the contingency of litigation resulting from an accident or an event does not autom atically qualify an ‘in house’ report as work product.”). The docum ent m ust be prepared because of the prospect of litigation when the preparer faces an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation. Thus, we have held that m aterials prepared in the ordinary course of business or pursuant to regulatory requirem ents or for other non-litigation purposes are not docum ents prepared in anticipation of litigation within the meaning of Rule 26(b)(3). See Goosm an v. A. Duie 8 Py le, Inc., 320 F.2d 45, 52 (4th Cir.1963). Following any industrial accident, it can be expected that designated personnel will conduct investigations, not only out of a concern for future litigation, but also to prevent reoccurrences, to im prove safety and efficiency in the facility, and to respond to regulatory obligations. Determ ining the driving force behind the preparation of each requested document is therefore required in resolving a work product im m unity question. National Union Fire Ins. Co. 967 F.2d at 984. “As in the case of attorney-client privilege, the party claim ing the protection bears the burden of dem onstrating the applicability of the work product doctrine.” Solis, 644 F.3d at 232 (citing In re Grand Jury , 33 F.3d at 353). “The party seeking protection m ust m ake this showing with a specific dem onstration of facts supporting the requested protection, preferably through affidavits from knowledgeable persons.” E.I. Du Pont de Nem ours and Co. v. Kolon Indus., Inc., No. 3:0 9cv58, 20 10 WL 1489966, at *3 (E.D.Va. Apr. 13, 20 10 ) (internal quotations om itted). Ford sim ply has not carried its burden to establish that the m aterials sent by Mr. Engle to Mr. Logel, or Mr. Logel’s edits, were prepared because of the prospect of litigation.4 Mere concern that a report or writing m ay have legal consequences in the future should litigation ensue is not the equivalent of preparing a report or writing for anticipated or pending litigation. Certainly, neither Mr. Engle nor Mr. Logel state that Mr. Engle’s investigation was done for litigation purposes, rather than as a norm al part of Ford’s business. Likewise, they do not assert that the Chicago Transit Authority had lodged a claim against Ford or threated litigation, prom pting Mr. Logel to request the investigation, or Mr. Engle to prepare the reports and m aterials he supplied to Mr. Logel for review. Finally, they do not 4 To the extent Ford claim s Set Two and Set Three contain documents protected as work product, the undersigned finds that Ford has sim ilarly failed to m eet its burden to establish that any of the documents were prepared in anticipation of litigation. 9 suggest that litigation related to the Chicago Transit Authority’s concern was pending at the tim e the docum ents were created. Consequently, there is nothing in the record to support a finding that the docum ents in Set One constitute work product. 2 . Se t Tw o Set Two consists of an e-m ail chain regarding high idle conditions in som e 20 0 5 m odel Ford vehicles, having Bates-stam ped num bers of 3748 0 0 0 0 0 0 0 1982 through 3748 0 0 0 0 0 0 0 1987. Since the filing of the m otion to challenge and to com pel, Ford has withdrawn its privilege claim to all of the docum ents in this set, with the exception of two e-m ail exchanges found at page num bers 3748 0 0 0 0 0 0 0 1984 and 3748 0 0 0 0 0 0 0 1985. The undersigned finds that the e-m ail from Kevin Layden to J ay Logel and others, dated Tuesday J anuary 11, 20 0 5 and tim ed 11:30 a.m . is a privileged com m unication given that Mr. Layden is specifically seeking legal direction based upon liability concerns. However, the subsequent e-m ail in the chain, sent by Andy Sawers to Kevin Layden and J ay Logel on March 22, 20 0 5 at 12:29 p.m ., is not a privileged com m unication. While Mr. Sawers reports a recent incident and asks for follow-up, he does not seek legal guidance. Not every com m unication involving a lawyer will m eet the definition of a privileged com m unication. See In re Grand Jury Subpoena, 727 F.2d at 1356. Moreover, a com m unication does not become privileged sim ply by including a lawyer in an e-m ail chain and noting the com m unication as “a request for legal direction.” See In re Allen, 10 6 F.3d 582, 60 4 (4th Cir. 1997). Indeed, it appears that Mr. Sawers put the header—indicating that the e-m ail was a request for legal advice—in his March e-m ail prim arily because the header had appeared on the earlier e-m ails discussing sim ilar 10 subject m atter. (ECF No. 425-4 at 2). 3 . Se t Th re e The final set includes an e-m ail exchange between Paul Szuszm an, a technical specialist at Ford, and J ay Logel, having Bates-stam ped num bers of 3748 0 0 0 0 0 0 35362 and 3748 0 0 0 0 0 0 35367. Also attached to the e-m ails, at Batesstam ped num bers 3748 0 0 0 0 0 0 35368 through 3748 0 0 0 0 0 0 35375, are draft reports and investigative m aterials prepared by Ford em ployees that were forwarded to J ay Logel with a request for review. The drafts do not contain any notes or comm ents by Mr. Logel and were ultim ately produced verbatim as final reports with supportive m aterials. Ford argues that all of the docum ents in Set Three are privileged com m unications, because they were sent to Mr. Logel for review. Plaintiffs argue that the docum ents are not privileged because they were created for the purpose of publication and contain facts rather than legal theories or conclusions. For the reasons previously set forth, the undersigned finds that the request by Mr. Szuszm an for legal input regarding the propriety of the reports, and Mr. Logel’s response to Mr. Szuszm an, are privileged com m unications (Bates-stam ped num bers 3748 0 0 0 0 0 0 35362 and 3748 0 0 0 0 0 0 35367). Although Mr. Szuszm an does not explicitly request an evaluation of the potential liability that m ay arise from the report, the declarations provided by Ford support the conclusion that Mr. Logel is the attorney in Ford’s Office of the General Counsel who is regularly consulted when em ployees are concerned that a docum ent they intend to publish or disclose will have unintended ram ifications in litigation, or m ay otherwise expose the corporation to liability. 11 On the other hand, the attached reports and investigative m aterials are not privileged. As noted in one of the cases cited by Ford, the attorney-client privilege applies to inform ation conveyed to an attorney “to the extent that such information is not contained in the docum ent published and is not otherwise disclosed to third persons.” Schenet v. Anderson, 678 F.Supp. 1280 , 1283 (E.D. Mich. 1988) (quoting U.S. v. Schlegel, 313 F.Supp. 177, 179 (D. Neb. 1970 )).5 Sim ilarly, while drafts of docum ents that contain the legal advice and opinions of attorneys m ay be privileged, the privilege is waived “as to those portions of the prelim inary drafts ultim ately revealed to third parties.” Id. at 1284 (citations om itted). Given that the final reports and investigative m aterials produced by Ford are exactly the sam e as the attachm ents to the e-m ails, the drafts are not properly withheld as privileged. B. W a iv e r Th r o u g h In a d v e r t e n t D is clo s u r e Plaintiffs also take the position that even if som e or all of the docum ents identified are privileged, as claim ed by Ford, the privilege was waived by Ford’s production of the docum ents. Plaintiffs argue that Ford should not be perm itted to claw back the docum ents because it failed to take reasonable steps to protect them from disclosure. According to Ford, the ten docum ents at issue here were inadvertently disclosed as a result of a technical error by Ford’s docum ent vendor, Xerox. Ford subm itted an declaration from Mr. Kevin Buss, an account operations m anager with Xerox, confirm ing that the ten docum ents had been designated as privileged by Ford, 5 The Schenet Court expressly declined to follow the Fourth Circuit’s opinion in In re Grand Jury Subpeona, 727 F.2d at 1356, suggesting that the Fourth Circuit’s narrow interpretation of the attorneyclient privilege would discourage clients from freely disclosing inform ation to their attorneys. The undersigned need not address the perceived differences between the courts or otherwise reconcile the opinions, because even under the more liberal view espoused by the Schenet Court, the attachm ents are not privileged. 12 but had their privilege designation m istakenly rem oved electronically when Xerox m oved the docum ents from one part of its platform to another to prepare for a docum ent production. (ECF No. 425-6). The error was not discovered until after the docum ents were produced. For the sam e reasons explained in this Court’s prior claw back opinion, the undersigned finds that Ford took reasonable steps to protect the docum ents and, thus, should be perm itted to claw back those pages that have been determ ined to be privileged. (See ECF No. 426). Having so found, the Court cautions Ford that now that it is aware of two technical glitches by Xerox, which resulted in the erroneous production of eleven docum ents m arked as privileged, Ford should take additional steps to insure that no other im proper productions are m ade by Xerox. III. Co n clu s io n Wherefore, for the foregoing reasons, the Court ORD ERS that: 1. The following pages produced by Ford shall be de-designated as privileged: Bates-stam ped num bers: 3748 3748 3748 3748 3748 3748 3748 3748 3748 3748 3748 2. 0 0 0 0 0 0 0 1946 0 0 0 0 0 0 0 1947 0 0 0 0 0 0 0 1984—March 22, 20 0 5 e-m ail 0 0 0 0 0 0 35368 0 0 0 0 0 0 35369 0 0 0 0 0 0 35370 0 0 0 0 0 0 35371 0 0 0 0 0 0 35372 0 0 0 0 0 0 35373 0 0 0 0 0 0 35374 0 0 0 0 0 0 35375 The following pages produced by Ford shall be designated as privileged and m ay be clawed back by Ford: 3748 0 0 0 0 0 0 0 1942 3748 0 0 0 0 0 0 0 1943 3748 0 0 0 0 0 0 0 1944 13 3748 0 0 0 0 0 0 0 1945 3748 0 0 0 0 0 0 0 1984-1985—only J anuary 11, 20 0 5 e-m ail sent at 11:30 a.m . by Kevin Layden 3748 0 0 0 0 0 0 35362 3748 0 0 0 0 0 0 35367 The Clerk is instructed to provide a copy of this Order to counsel of record and any unrepresented party. EN TERED : Septem ber 3, 20 15 14
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