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Cequent Performance Products, Inc. v. Hopkins Manufacturing Corporation

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

May 24, 2017

CEQUENT PERFORMANCE PRODUCTS, INC., Plaintiff,
v.
HOPKINS MANUFACTURING CORPORATION et al. ., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL (ECF ## 68, 70)

          MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

         On March 3, 2017, Plaintiff Cequent Performance Products, Inc. filed a motion to compel the production of unredacted documents that Defendant Hopkins Manufacturing Corporation had previously produced in redacted form. (See ECF ## 68, 70.)[1] As set forth below, the Court GRANTS the motion in part and DENIES the motion part.

         I

         During discovery, Hopkins produced certain documents to Cequent that contained redactions. Hopkins identified twelve such documents on a supplemental privilege log dated January 27, 2017. (See ECF #70-1.) In that log, Hopkins claimed that the redacted portions of the listed documents were protected from disclosure because they reflect “attorney-client patent advice sought or received from [outside patent counsel] Tom Luebbering.” (Id. at Pg. ID 2280-81.)

         In the motion to compel, Cequent sought the production of unredacted copies of eleven of the twelve documents listed on the supplemental privilege log.[2] (See ECF #70.) Cequent asked the Court “to review the withheld documents in camera to determine whether they are privileged and, if not, then order Hopkins to produce them.” (Id. at Pg. ID 2272.)

         Hopkins opposed both an in camera review and any required production of the unredacted documents. (See ECF #74.) Hopkins insisted that “[t]he information withheld from production and described in [the] Supplemental Privilege Log” did not need to be produced because it “consist[ed] of communications between Hopkins' corporate representatives relating directly to legal advice of patent counsel that was sought and/or received to aid Hopkins in its pursuit of developing the Agility [brake controller].” (Id. at Pg. ID 2340.)

         On March 22, 2017, the Court entered a written Order in which it required Hopkins to produce unredacted copies of the eleven documents at issue to the Court for an in camera review. (See ECF #74.) The Court then received the documents and reviewed them in light of the representations Hopkins made on the supplemental privilege log and in its response to Cequent's motion to compel.

         Following the Court's in camera review of the documents, it held a telephonic hearing on the motion to compel. (See ECF #92.) During that hearing, the Court agreed with Hopkins that, in theory, the redactions at issue could potentially be protected by the attorney-client privilege if they were created for the purpose of receiving legal advice and/or reflect legal advice received from counsel. See, e.g., Williams v. Sprint/United Management Co., 238 F.R.D. 633, 638-39 (D. Kan. 2006) (citing cases and noting that “the attorney-client privilege extends to communications made within a corporation if those communications are made for the purpose of securing legal advice”). However, the Court told Hopkins that it had concerns that there was not sufficient evidence in the record specifically tying the redactions here to legal advice that Hopkins sought or received. The Court then provided Hopkins one final opportunity to produce additional evidence of privilege through the submission of declarations from the authors of the redacted documents. The Court also allowed Cequent to depose these declarants and, after those depositions, to file a reply brief in further support of its motion to compel.

         On April 27, 2017, Hopkins filed the declarations of Gary Kamisnki and Daniel Scheller, the identified authors of ten of the eleven documents at issue.[3] (See ECF ## 98, 99.) Kamisnki and Scheller both stated in their declarations that the redacted portions of the documents “reflect legal advice to be sought from counsel, Mr. Tom Luebbering” or reflect advice “received” from Luebbering. (Kaminski Decl. at ¶¶ 6-7, ECF #98 at Pg. ID 3852-53; see also Scheller Decl. at ¶8, ECF #99 at Pg. ID 3855-56.) Hopkins then took the depositions of both Scheller and Kamisnki. (See Deposition Transcripts, ECF ## 102-1, 102-3.) It also filed a reply brief in further support of the motion to compel. (See ECF #102.) On May 19, 2017, Hopkins filed a motion for leave to file a sur-reply in further opposition to the motion to compel (see ECF #103), and the Court granted such leave on May 22, 2017. (See Dkt.)

         II

         “The purpose of the attorney-client privilege is to encourage clients to communicate freely with their attorneys.” In re Grand Jury Proceedings Oct. 12, 1995, 78 F.3d 251, 254 (6th Cir. 1996) (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).[4] “But because the privilege operates to reduce the amount of information discoverable during the course of a lawsuit, it is narrowly construed.” Id.; see also In re Columbia/HC Healthcare Corp. Billing Practices Litigation, 293 F.3d 289, 294 (6th Cir. 2002) (“The privilege applies only where necessary to achieve its purpose and protects only those communications necessary to obtain legal advice”) (internal quotation marks omitted). “The burden of establishing the existence of the privilege rests with the person asserting it.” United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999).

         III

         A

         The Scheller Documents

         Hopkins has not carried its burden to establish that the redactions on documents identified on the supplemental privilege log as authored by Dan Scheller - documents three (bates-numbered HOPKINS0043804), four (HOPKINS0043808), and ten (HOPKINS0046161-78) (the “Scheller Documents”) - are protected by the attorney-client privilege. At his deposition, in stark contrast to his declaration, Scheller testified that he “d[id] not know” whether the redactions included on the Scheller Documents “reflect[ed] either advice that was sought from counsel or advice that was received” from counsel, and he agreed that he “[did not] have any basis to say that the redacted portions of any of [the Scheller Documents] actually do reflect advice to or from counsel.” (Scheller Dep. at 15, ECF #102-1 at Pg. ID 3884.) For example, when Cequent showed Scheller document ten at his deposition, which are pages from his personal notebook that reflect notes he took during meetings, Scheller testified that he “ha[d] no idea” whether the redacted portions of that document “reflect[ed] advice that was either sought or received from counsel.” (Id. at 18, ECF #102-1 at Pg. ID 3887.) Moreover, Scheller testified that he never communicated with an attorney and that he also had “no idea” what documents may have been shared with counsel or that counsel may have reviewed for Hopkins. (Id. at 10-13, 19-20, ECF #102-1 at Pg. ID 3879-81, 3888-89; see also Id. at 14, ECF #102-1 at Pg. ID 3883 in which Scheller testified that he “[did] not know” exactly what documents were shared with counsel or when they may have been shared.) Simply put, Scheller could not say that any of the redactions on the Scheller Documents reflect advice that was either sought or received from counsel, and Hopkins has not presented any other evidence that the documents are privileged.

         In Hopkins' sur-reply, it argues that the redactions on the Scheller Documents are privileged because Scheller “regularly communicated” with Kaminski and knew that Kaminski “communicated with Tom Luebbering regarding the design and development of Hopkins's Agility controllers.” (ECF #103-1 at 6, pg. ID 4063.) But these facts say nothing about whether the specific redactions from the Scheller Documents relate in any way to Kaminski's consultations with counsel. And Hopkins has not presented any evidence from Kaminski that the redactions on the Scheller Documents reflect legal advice he (Kaminski) sought or received. Accordingly, Hopkins has not met its burden to establish that the redactions on Scheller Documents are privileged and it must produce unreacted copies of those documents to Cequent.

         B The Gray Document

         Hopkins has carried its burden to establish that the redactions of handwritten notes on the document identified on the supplemental privilege log as authored by Jon Gray - document seven (bates number HOPKINS0044571) (the “Gray Document”) - are privileged. First, Hopkins produced Kaminski's declaration in which Kaminski swore under oath that “the information reflected in the redacted portion[]” of the Gray Document “constitutes legal advice sought or received from patent counsel, Mr. Tom Luebbering, that flowed between me and [Luebbering]….” (Kaminski Declaration at ¶7, ECF #98 at Pg. ID 3853.) Second, at Kaminski's deposition, he confirmed that his statement in the declaration about the Gray Document was “correct, ” “accurate, ” and was not “incomplete, ” and he affirmed that the redactions on that document “related to subjects [he] consulted with Mr. Luebbering on.” (Kaminski Dep. at 239, 242, ECF #102-3 at Pg. ID 3966, 3969; see also Id. at 243, ECF #102-3 at Pg. ID 3970.) Hopkins has therefore produced sufficient evidence to carry its burden to establish that the redactions on the Gray Document are privileged and need not be produced to Cequent.

         C The ...


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