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Leibovic v. United Shore Financial Services, LLC

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

August 28, 2017

AL LEIBOVIC, Plaintiff,
v.
UNITED SHORE FINANCIAL SERVICES, LLC, et al., Defendants.

          ORDER REGARDING DISCOVERY MOTIONS [DOCS. 75, 78, 81, AND 84/85]

          Honorable Victoria A. Roberts, Judge

         I. INTRODUCTION

         Four 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].

         The 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.

         The 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.

         The 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 other respects.

         Also, 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.

         II. DISCUSSION

         The 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].

         1. XMS's Assertion of the Work Product Doctrine to Clawback Non-Responsive Documents Inadvertently Produced [Doc. 78]

         The first unresolved issue is raised in Plaintiff and United Shore's joint motion to compel XMS. [Doc. 78].

         On 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].

         XMS 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.

         The 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, LLC, ...


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