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Carhartt, Inc. v. Innovative Textiles, Inc.

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

October 24, 2019

CARHARTT, INC., Plaintiff,
v.
INNOVATIVE TEXTILES, INC., Defendant / Third Party Plaintiff,
v.
GENTRY MILLS, INC., Third Party Defendant.

          Judith E. Levy District Judge

          OPINION AND ORDER

          R. STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendant / Third Party Plaintiff Innovative Textiles, Inc.'s (“ITI's”) Motion to Compel a More Detailed Privilege Log from Plaintiff Carhartt, Inc. (“Carhartt”) [ECF No. 64]. For the reasons discussed below, the motion is DENIED.

         I. BACKGROUND

         Carhartt is a Dearborn, Michigan based clothing company that markets a line of flame-resistant garments. Beginning in 2009, ITI supplied Carhartt with flame-resistant fabric. Carhartt alleges that around June of 2016, its internal testing revealed that ITI's fabrics “did not satisfy the standards they were required to satisfy...and did not live up to the representations that [it] had made about the fabrics.” Complaint, ECF No. 1, PageID.11. As a result, Carhartt recalled products containing the allegedly non-conforming (i.e., defective) fabric, and seeks damages associated with the recall.

         As discovery proceeded, ITI served two sets of document requests on Carhartt. Those requests are reproduced at Exhibits A and B of ITI's motion. Carhartt's response included a 136-page privilege log, withholding over 1, 000 documents as protected by the attorney-client or work product privileges. See ICI's Exhibit C and revised privilege log at Exhibit G. In this motion, ICI argues that the privilege log does not contain sufficient information for it to assess the claim of privilege.[1]

         II.DISCUSSION

         Fed.R.Civ.P. 26(a)(5) states as follows:

(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed - and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

         Because the Rule does not delineate the precise information that must be contained in a privilege log, there is understandably tension between what a requesting party and a producing party might consider the minimum standards for disclosure. However, case law provides guidance. In this motion, both parties have cited Ypsilanti Comm. Utilities Auth. v. Meadwestvaco Air Sys. LLC, 2009 WL 3614997 (E.D. Mich. Oct. 27, 2009), which described the requirements of Rule 26(a)(5) as follows:

“The information for each document must include the express privilege or protection which Defendant claims and include a summary of the contents of the document (the “subject” line of the emails as set forth in Defendant's prior logs is insufficient in this respect), the purpose for which the document was created, the identity of the parties to the communication and who created the document, including by title and employer. For claims of attorney-work product, Defendant must also summarize whether the document contains mental impressions, conclusions, opinions or legal theories of an attorney or other representative of the party concerning the litigation. Fed.R.Civ.P. 26(b)(3)(B). To the extent that Defendant asserts that the document is subject to attorney-client privilege, Defendant must identify the nature of the communication, identify the parties to the communication including carbon copies, by name, title and employer, identify the attorney(s) on the communication, the purpose of the communication and whether or not it sought and/or conveyed legal advice.” Id. at *4.

Clark Const. Grp., Inc. v. City of Memphis, 2005 WL 6187896, (W.D. Tenn. Feb. 9, 2005), similarly but somewhat more succinctly described the ...


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