As noted above, the Court set a “final” discovery cut-off date for January 31, 2008 and a trial date of June 10, 2008. However, on January 31, 2008, the defendant filed a motion to dismiss with prejudice based on the plaintiffs' discovery misconduct, plus three other motions. The defendant complained that the plaintiffs had withheld two compact disks full of data, known as the “M & M disks” (designating Michael and Mark Laethem), and the defendant only obtained this information in January 2008. The plaintiffs contend that they offered the disks to the defendant during a production session at the plaintiffs' attorney's offices on February 6, 2006, but the defendant did not identify the disks as something it wanted.
After the Court referred the defendant's motion to dismiss for discovery misconduct to the magistrate judge, the defendant filed an *131 emergency motion requesting, among other things, that the Court enter an order requiring the plaintiffs to secure missing evidence and hold all other proceedings in abeyance until the issue of plaintiffs' discovery misconduct was resolved. The Court addressed that motion at a status conference and entered an order on February 21, 2008 that preserved the M & M disks, established a mechanism for the retention of a common computer expert to provide advice concerning the content of electronic storage media and feasibility of identifying privileged material, set deadlines and procedures for asserting claims of privilege, preserved all electronic data created by the parties since January 1993, and allowed the defendant to “submit one interrogatory to the plaintiffs requesting information on the identity and location of all electronically stored information generated by the plaintiffs or within the plaintiffs' control.” Order Pursuant to Status Conference Concerning Certain Electronically Stored Information [dkt. # 228]. The balance of the emergency motion to secure was referred to the magistrate judge for resolution to the extent not addressed by the Court. The magistrate judge filed a report and recommendation adopted by this Court over the defendant's objections.
In response to the February 21, 2008 order, the parties agreed to engage iVize LLC, a national provider of discovery services, to serve as the computer expert. Two weeks after the Court's order, the defendant filed a motion for clarification of the Court's order and a motion for adoption of its Rule 26(f) plan. Following a hearing on that motion, the Court entered an order on May 15, 2008 that reads:
It is further ORDERED that the parties may conduct discovery to identify and obtain the ESI in the other side's possession before July 31, 2008. Each side may submit up to twenty interrogatories (which includes subparts) to the other side. Each side may also submit document requests to the other side.
It is further ORDERED that the parties may file motions to compel production of discovery materials for the purpose of challenging the assertion of a privilege on or before August 29, 2008.
Order on Mot. for Clarification of ESI Order [dkt. # 291] at 2.
As with other things in this litigation, the parties' relationship with iVize quickly soured. IVize was appointed to be a neutral expert, but the defendant did not sign onto its proposal and the plaintiffs co-opted iVize, which began to act as the plaintiff's expert. Consequently, iVize moved to withdraw, which the Court allowed after a hearing on March 4, 2009. IVize was disqualified from acting as either side's expert thereafter.
The defendant brought a motion to compel production of the plaintiffs' ESI on August 29, 2008. It asked that the plaintiffs be prohibited from further amending their privilege log; that the Court find that all privilege has been waived by the plaintiffs; that the Court conduct a document-by-document privilege review; and that a special master be appointed to assist the Court. On October 28, 2008, the Court entered an order denying the motion “to the extent that it requests the Court to consider the issues surrounding the data log in connection with the defendant's other motions for sanctions.” [dkt. # 324]. The motion was referred for hearing and determination to Magistrate Judge Paul Komives “on all other issues except to the extent that the motion requests a privilege review of all individual privilege claims made by the plaintiffs and to the extent that the motion requests in-court supervised testimony of the plaintiffs and others as to the completeness of the ESI in the plaintiffs' data log.” Ibid.
The Court also established a briefing schedule for a privilege review:
It is further ORDERED that unless the magistrate judge concludes that the plaintiffs have waived all claims of privilege on or before November 24, 2008, the plaintiffs shall provide to the defendant and the Court a final privilege log that provides the information required by Fed.R.Civ.P. 26(b)(5) on or before December 1, 2008. The defendant then shall identify specifically, item by item, with reference to the privilege log, those items on the plaintiffs' privilege log for which the defendant challenges *132 the assertion of privilege on or before December 15, 2008, stating with particularity and concisely the basis on which the challenge is made.
It is further ORDERED that the plaintiffs must submit to the Court and the defendant a one-paragraph summary justifying the assertion of privilege for each item challenged by the defendant on or before December 29, 2008. The plaintiffs shall also furnish the disputed documents, segregated and identified by reference to the privilege log, to the Court for in camera
review on or before December 29, 2008.
The parties are informed that the Court will impose sanctions for assertions of privileges or challenges to privileges that are not warranted by existing law or are made for an improper purpose. See
Fed.R.Civ.P. 11; 26(g). The Court also will award attorney's fees to the prevailing party on each assertion of privilege or challenge thereto if the opposing party's position is not substantially justified. See
The Court then extended these deadlines in a later order.
The plaintiffs' final privilege log contains 586 items, of which the defendant challenges 415 of them, 180 on multiple bases, including 20 that are challenged on four or more grounds. These challenges are contained in exhibits to the defendant's brief. The defendant's exhibit lists sixty-nine documents as challenged on the ground that they do not appear to be communications because they are not designated as to or from anyone (although the defendant asserts there are only fifty-six in that category on the list). The defendant challenges 142 items (or 139 according to the defendant's count) as not privileged because they appear to only involve communications by or between Mark and Mike Laethem and no attorneys. The defendant challenges 269 items because they contain the word “case” in the description, 18 with the word “dispute,” and three have the word “settlement.”
In its brief, the defendant suggests that the Court conduct a “sampling,” and lists certain items. Although the Court never approved that procedure, the plaintiffs have submitted ex parte
thirty-one documents for in camera
review. The documents submitted for review are those identified in the defendant's brief as a “sampling.” These documents are briefly summarized as follows.
15: This document is a draft e-mail sent on August 12, 2002 by Michael Laethem to Mark Laethem for review and eventually to Jack Couzens in document number 144. It discusses tax issues, issues with Kathryn Laethem, and possible litigation.
27: This document is a draft e-mail sent on May 29, 2002 by Michael Laethem to Mark Laethem for review and eventually to Jack Couzens in document number 168. It discusses strategy for appraising value of real estate and terms regarding an unknown deal.
32: This document is an e-mail sent on May 9, 2002 from Mark Laethem to Michael Laethem with proposed changes to an e-mail to be sent to Jack Couzens. It was thereafter sent as document number 416 to Jack Couzens on May 9, 2002 by Michael Laethem.
51: This document is addressed to Jack Couzens. It is identical to document number 49, which is an e-mail of July 16, 2002 eventually sent to Couzens from Michael Laethem. Document discusses effort to strike a deal regarding sale of Laethem business, and potential dispute with Kathryn Laethem.
70: This document is a blank e-mail sent by Michael Laethem to “Mark” on April 16, 2002. The e-mail contains the subject line “What do you think?” and contains two attached files: “Jack Couzens.doc” and “Harmony tree.doc.”
*133 71: This document is addressed to Jack Couzens. It discusses effort to purchase Laethem business. It was apparently never sent to Mr. Couzens, but according to Michael Laethem the entire contents of the document were communicated to Mr. Couzens orally.
72: Document is entitled “Harmony tree.” It appears to discuss proposed plans for Laethem business.
73: Document is identical to 51.
74: Document is a letter addressed to “Jack.” A longer version of this document was e-mailed as an attachment to Jack Couzens in document number 324. Author discusses recent conversations he had with others and his concerns about the viability of a proposed deal to obtain the business.
75: Document is addressed to “Jack,” and was e-mailed on May 9, 2002 to “Jack” by Michael Laethem. It appears to contain author's comments about a proposed deal. An identical copy was emailed to “firstname.lastname@example.org” in document number 344.
76: This document is dated May 29, 2002, and is addressed to “Jack” from “Michael.” It makes several comments and asks questions about a proposed deal. A substantially similar writing (with an added material) was e-mailed to Jack Couzens by Michael Laethem.
78: This document was e-mailed on October 10, 2002 as an attachment to Jack Couzens by Michael Laethem. It suggests certain modifications to a proposed agreement.
82: This document appears to be identical to document number 72, with an additional page of questions.
179: This document is identical to document 70.
180: This document is similar to document 252, with small differences.
220: This document is identical to document 51 and 73. Its text was e-mailed to Jack Couzens on July 16, 2002, in document 218.
239: This document is identical to 70.
252: The document, dated April 24, 2002, is addressed to “Jack Couzens.” Provides update on developments with business, and asks “WHAT SHOULD WE DO?” as well as other questions. It was apparently never sent to Mr. Couzens, but according to Michael Laethem the entire contents of the document were communicated to Mr. Couzens orally.
351: This document (1/2/2008) is an e-mail conversation between Kim Brown, CPA at Brown & Kent, Michael Laethem, and Honigman attorneys Ann Andrews and Francis O'Donnell. It notes that a subpoena was served on Kim Brown by Varnum on January 2, 2008.
505: This document is a fax cover sheet from February 16, 2003, from Laethem Farm Service Company, addressed to Jack Couzens, with the subject “Stock Purchase Agreement”. It contains a note describing the faxed information as information believed by Kathryn Laethem to be evidence of self-dealing by the author.
517: This document is an e-mail (12/5/2002) exchange between David Deutsch and Michael Laethem. It discusses changes to some document.
On December 3, 2008, the Court ordered the plaintiffs to provide a report of the ESI that it sought from the defendant, which was to include an indication as to whether each item was previously requested. [dkt. # 346]. The plaintiffs timely provided their report. [dkt. # 351]. The defendant responded, arguing that the plaintiffs never requested ESI during their earlier discovery requests, and that the defendant produced some of the ESI requested. [dkt. # 354]. The defendant observed, *134 correctly,
that the Court already ruled that the plaintiffs are not entitled to further discovery of Deere's internal investigation. As to the cost of production, the defendant's retained electronic expert Rebecca Hendricks argued that it would cost $107,821 to harvest the requested ESI. The methodology, it appears, contemplates locating the relevant document and then searching multiple other media to determine if other documents related to the targeted request might be relevant. Additional costs would be incurred when attorneys review the documents for privilege and relevancy. In its item-by-item response, Deere claims that every item of ESI requested by the plaintiffs may be located on its email server backup tapes.