United States District Court, E.D. Michigan, Southern Division
ORDER REGARDING DISCOVERY MOTIONS [DOCS. 75, 78, 81,
Honorable Victoria A. Roberts, Judge
discovery motions were filed on August 1, 2017: (1) Plaintiff
Al Leibovic's motion to compel Defendant Xerox Mortgage
Services, Inc.'s (“XMS”) production of
documents and interrogatory responses [Doc. 75]; (2)
Plaintiff and Defendant United Shore Financial Services,
LLC's (“United Shore”) joint motion to compel
XMS to produce certain documents and for an order denying
XMS's attempt to clawback documents its says it
inadvertently produced [Doc. 78]; (3) United Shore's
motion to compel XMS to respond to discovery requests [Doc.
81]; and (4) XMS's motion to compel United Shore to
respond to discovery requests [Docs. 84/85].
Court entered a preliminary order concerning the discovery
motions to aid further discussion among counsel, and ordered
them to appear on Friday August 18, 2017 to settle remaining
discovery disputes. [Doc. 90]. On August 17, the parties
submitted a joint letter via email indicating that they had
resolved all issues raised in the four motions except for
three legal issues. [Doc. 91]. Based on that, the Court
informed counsel they no longer had to appear on August 18.
parties resolved all issues in Plaintiff's motion to
compel XMS [Doc. 75] and United Shore's motion to compel
XMS [Doc. 81]; those motions are MOOT.
Court now rules that Plaintiff and United Shore's joint
motion to compel XMS [Doc. 78] is DENIED as
to the one unresolved issue and MOOT in all
XMS's motion to compel United Shore [Docs. 84/85] is
GRANTED IN PART and DENIED IN
PART regarding the two unresolved issues - as set
forth below; concerning the other issues in the motion which
the parties resolved, the motion is MOOT.
unresolved issues are: (1) XMS's assertion of the work
product doctrine to clawback documents; (2) XMS's
assertion that United Shore waived the attorney-client
privilege with respect to its communications involving
third-party Navigant; and (3) a disagreement regarding
“a privilege issue in connection with the production of
settlement communications between counsel for Plaintiff and
United Shore, in response to XMS Document Request No.
2.” [See Doc. 91].
XMS's Assertion of the Work Product Doctrine to Clawback
Non-Responsive Documents Inadvertently Produced [Doc.
first unresolved issue is raised in Plaintiff and United
Shore's joint motion to compel XMS. [Doc. 78].
April 24, 2017, XMS produced approximately 1, 150 documents;
the production of documents was made from a database of
documents compiled by XMS's counsel. Two days later, on
April 26, XMS informed Plaintiff and United Shore that it had
unintentionally produced approximately 400
“non-responsive” documents. XMS indicated that,
pursuant to Federal Rule of Evidence 502 and a
“claw-back” provision in the parties'
stipulated Discovery Plan, it intended to claw-back the
entire production and make an updated production as soon as
possible. On April 27, XMS elaborated on its initial email,
stating it was clawing back the non-responsive documents
because they were “inadvertently produced” and
“privileged under the work-product doctrine.” The
parties' Discovery Plan includes a claw-back provision
pursuant to Fed.R.Evid. 502(d) and (e), providing that a
party's inadvertent production of documents is without
prejudice to a claim by the producing party that the
documents are protected by a legally cognizable privilege or
evidentiary protection - including the work product doctrine
- if the producing party gives notice to the receiving party
within 15 days of discovering the inadvertent production.
[See Doc. 37, PgID 380-81].
informed Plaintiff and United Shore of its inadvertent
production and claim under the work product doctrine in a
timely manner. However, the parties dispute whether XMS can
claw-back “non-responsive” documents under the
work product doctrine. XMS says it can. Plaintiff and United
Shore disagree, and request an order from the Court rejecting
XMS's attempt to claw-back the documents - which would
allow them to use the documents in the case. Plaintiff and
United Shore essentially request the Court to order XMS's
counsel to produce its entire database of documents -
regardless of whether or not the documents in the database
are responsive to their discovery requests.
work product doctrine “extends beyond confidential
communications between the attorney and client to any
document prepared in anticipation of litigation by or for the
attorney.” In re Columbia/HCA Healthcare Corp.
Billing Practices Litig., 293 F.3d 289, 304 (6th Cir.
2002) (citation and internal quotation marks omitted).
“It is axiomatic that the purpose of the work-product
doctrine is to allow an attorney ‘to assemble
information, sift what he considers to be the relevant from
the irrelevant facts, prepare his legal theories and plan his
strategy without undue and needless interference ... to
promote justice and to protect [his] clients'
interests.'” In re Powerhouse Licensing,