United States District Court, E.D. Michigan, Southern Division
E. Levy District Judge
OPINION AND ORDER
STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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 ...