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Johnson v. Oakland University

United States District Court, E.D. Michigan, Southern Division

October 12, 2016

Carmen Denise Johnson, Plaintiff,
v.
Oakland University and Ronald Watson, Defendant.

          Stephanie Dawkins Davis U.S. Magistrate Judge.

          ORDER OVERRULING IN PART DEFENDANT'S OBJECTIONS TO MAGISTRATE JUDGE'S ORDER [47]; AFFIRMING MAGISTRATE JUDGE DAVIS' ORDER TO ALLOW USE [43]

          Arthur J. Tarnow Senior United States District Judge.

         On August 1, 2016, Magistrate Judge Davis entered an Order allowing the use of a document [43]. On August 15, 2016, Defendants filed objections to the Order [47]. Plaintiff responded to the objections on September 6, 2016 [52]. Defendants replied on September 13, 2016 [55]. For the reasons stated below, these objections are OVERRULED in part and the Magistrate Judge's Order is AFFIRMED.

         STANDARD OF REVIEW

         When a litigant objects to a magistrate judge's ruling on a nondispositive pretrial matter, the court may “modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a). The “clearly erroneous” standard does not permit a district court to reverse the magistrate judge's finding simply because it would have decided the issue differently. Anderson v. City of Bessemer, N.C., 470 U.S. 564, 573 (1985). Rather, a “finding is ‘clearly erroneous' when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

         ANALYSIS

         On August 1, 2016, Magistrate Judge Davis entered an Order allowing the use of a document [43]. The Order found that a six-page Unmarked GC Report (“document”) produced by Defendants to Plaintiff was “attorney fact work product” and that Defendants had waived the privilege associated with this document and granted Plaintiff the ability to use the six-page document. Defendants have eight objections to the Magistrate Judge's Order.

         1. Objection One: Magistrate Judge Erred by not Enforcing the Claw-Back Provision in the Protective Order

         Defendants contend that the Magistrate Judge erred in the Order by not enforcing the claw-back provision in the protective order issued by the Court. Defendants cite the Advisory Committee Notes to Rule 26 as support that their claw-back provision should be enforced. However, that note explicitly contemplates that not all claw-back provisions will be enforced, stating “in most circumstances, a party who receives information under such an arrangement cannot assert that production of the information waived a claim of privilege or of protection.” Fed.R.Civ.P. 26 Advisory Comm. Note, 2006 Amendment, Subdivision (f).

         Additionally, as the Magistrate Judge points out, Defendants did not originally argue that the claw-back provision on its own saves them from waiving any privilege associated with the document; instead they responded that the waiver needs to be considered within the framework of the five step analysis cited by the Magistrate in Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008). In fact, in their response to the Motion to Allow Use, Defendants state “[t]he present state of the law requires application of the five-factor framework…to determine whether privilege has been waived…” [33 at 11, n. 3]. The Magistrate decided not to enforce the claw-back provision after analyzing the disclosure of the document under the five-step process from Victor Stanley, and the Court does not find this clearly erroneous or contrary to law. Therefore, the Court overrules this objection to the Magistrate Judge's Order.

         2. Objection Two: Magistrate Judge's Reliance on the four cases cited on page 12 of the Order was Erroneous and Clearly Contrary to Law

         In the Order, the Magistrate Judge stated that Defendants' “failure to take any precautions against public disclosure cannot be cured, ” “is deemed dispositive, ” and “on this basis alone, there was indeed a waiver of privilege.” [43 at 13]. In making this determination, the Magistrate relied on four cases, including E. Point Sys., Inc. v. Maxim, No. 13-CV-00215, 2015 WL 8023569 (D. Conn. Dec. 4, 2015); Curto v. Med. World Commc'ns, Inc., 783 F.Supp.2d 373 (E.D.N.Y. 2011); Cruz v. Coach Stores, Inc., 196 F.R.D. 228 (S.D.N.Y. 2000); First Am. CoreLogic, Inc. v. Fiserv, Inc., No. 10-CV-132-TJW, 2010 WL 4975566 (E.D. Tex. Dec. 2, 2010). Defendants argue that this analysis was contrary to law, both because these cases are distinguishable from the case at bar, as well as because Plaintiff never advanced an argument that Defendants waived the privilege by filing it on the Court's public docket, and therefore the Magistrate was impermissibly exceeding her role and creating arguments for Plaintiff.

         Plaintiff did raise this argument in the Motion to Allow Use and in the reply filed for that Motion. In Plaintiff's Motion to Allow Use [29], Plaintiff referred to the fact that the document was discussed and present on the public docket in Motions filed before the Court [29 at 8]. Additionally, in the reply brief for that Motion [35], Plaintiff refers to the fact that the disclosure was “a matter of public record” since the document “is an exhibit to Plaintiff's first Motion to Compel filed and was referred to extensively by the Plaintiff in her motion and brief in support of her motion and again by Defendant in its response, ” and was also publically available previously as a result of its inclusion in the record to Plaintiff's Motion to Amend. [35 at 8]. Plaintiff argued that this public disclosure means that the disclosure is “complete and cannot be undone.” Id. While Plaintiff did not cite the specific case law relied on by the Magistrate Judge, Defendants have not shown that this was clearly erroneous and necessitates overruling of the Order.

         Defendants point out that in three of the cases relied on by the Magistrate, the inadvertent public disclosure was first done by the party seeking privilege. See E. Point Sys., Inc. v. Maxim, No. 13-CV-00215, 2015 WL 8023569 (D. Conn. Dec. 4, 2015); Curto v. Med. World Commc'ns, Inc., 783 F.Supp.2d 373 (E.D.N.Y. 2011); First Am. CoreLogic, Inc. v. Fiserv, Inc., No. 10-CV-132-TJW, 2010 WL 4975566 (E.D. Tex. Dec. 2, 2010). Defendants also argue that, in the last case, the party claiming privilege did not do so until after a lengthy delay, and argue that in the instant case, Defendants took steps ...


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