On November 12, 2010, T&B commenced this action against New Albertson's, Inc. (“New Albertson”). (Docket No. 1). The complaint alleges that New Albertson breached a 2007 contract with T&B concerning the cleanup of a contaminated section of Mother Brook, a man made canal running through a portion of Hyde Park. New Albertson filed an answer and a counterclaim for contribution, reimbursement and or/equitable allocation under the Massachusetts Oil and Hazardous Material Release Prevention Act, M.G.L. c. 21E (“Chapter 21E”). (Docket No. 7). In response, T&B filed a counterclaim asserting claims under Chapter 21E against New Albertson. (Docket No. 12). Subsequently, a number of third party claims and cross-claims have been brought in this case.

On July 20, 2012, this Court ordered T&B to produce certain documents responsive to New Albertson's request for “[t]he insurance policies identified [by T&B] and all documents concerning any notices given or claims asserted thereunder pertaining to PCB contamination in and/or around Mother Brook and/or any actual, alleged or potential liabilities or costs for the same.” Docket No. 203 at 4-5. Specifically at issue was correspondence between T&B and its insurer regarding coverage. This Court found that “[d]ocuments concerning T&B's insurance claim are likely to contain information regarding the scope and extent of the contamination, the damages that T&B has allegedly suffered, and the availability of other sources of cost reimbursement to T&B.” Id. at 5.

The Supermarket Defendants now seek to compel T&B to produce certain spreadsheets maintained by T&B's in-house counsel concerning remediation costs.[2] The Supermarket Defendants state that they did not learn about these spreadsheets until the January 13 and 14, 2014 deposition of Michael Geiger, T&B's Assistant General Counsel, who was deposed as T&B's Rule 30(b)(6) witness. Goodheart Aff. at ¶ 4.

*2 Mr. Geiger has been providing T&B with legal advice in connection with environmental legal matters, including the remediation at issue in this case. Geiger Aff. at ¶ 4.[3] Mr. Geiger has prepared and maintained spreadsheets that he uses to stay updated and informed about the amount and nature of expenses incurred in connection with remediating environmental conditions at T&B-owned properties. Id. at ¶ 5. He prepared and maintained such spreadsheets in connection with his work advising T&B about the remediation of the former L.E. Mason Property and Mother Brook. Id.

Mr. Geiger declared that he maintains these spreadsheets for two litigation purposes: (1) to advise T&B respecting potential litigation with insurers that T&B contended were responsible for portions of the response costs or costs of defense; and (2) in anticipation of litigation with other potentially responsible parties for reimbursement of those costs. Geiger Aff. at ¶ 6. Mr. Geiger maintains that in order to properly advise T&B in connection with potential lawsuits, it was necessary for him to be aware of the nature and amount of response costs that were incurred. Id. at ¶ 7. For example, he tracked response costs related to the Mother Brook remediation separately from the L.E. Mason remediation, and once downstream sources were located, he asked vendors to segregate costs related to the Upper Mother Brook from response costs related to the Middle and Lower sections of Mother Brook. Id. According to Mr. Geiger, “[b]ut for the anticipated litigation with T&B's insurers and/or potentially responsible parties that owned and operated other properties draining into the Mother Brook, [he] would not have maintained [his] running accounting.” Id. at ¶ 8. Mr. Geiger is not aware of any legal or regulatory requirement that would require him or T&B to maintain the spreadsheets in essentially similar form. Id.

The records underlying Mr. Geiger's running accounting of remediation expenses, including invoices, back-up documentation, checks, etc. have been produced to Defendants in this litigation. Geiger Aff. at ¶¶ 9, 12, 13.

The Supermarket Defendants argue that the spreadsheets are critical because although T&B has provided a basic accounting of the costs which it seeks to recover from the defendants in this case, “none of the documents produced by T&B in this case provide a complete accounting of specifically which of its response costs T&B deemed, in real time and in the ordinary course, to have been paid by [its insurer].” Docket No. 413 at 2 (emphasis in original); seealso Goodheart Aff. at ¶ 9 (“T&B has confused and conflated the defendants' 2012 efforts to obtain a basic accounting of the response costs which T&B seeks to recover from the defendants in this case with their separate effort to obtain T&B's business accounting of the specific response costs for which it has been reimbursed by AIG and its other insurers. We have the former ... but we are still seeking the latter.”) (emphasis in original). T&B maintains that the spreadsheets do not provide this information and that such information simply does not exist. Geiger Aff. at ¶¶ 14-18.

T&B does not argue that the spreadsheets are irrelevant or non-responsive to the Supermarket Defendants' discovery requests.[4] Rather, it argues that the Supermarket Defendants' motion is untimely and that, in any event, the spreadsheets are protected from disclosure by the work-product doctrine. Docket No. 417 at 6-11.

*3 T&B argues that the Supermarket Defendants' motion is untimely because T&B has consistently refused to produce Mr. Geiger's spreadsheet on work product grounds since July 2012 and the Supermarket Defendants have waited until now to raise the issue. Docket No. 417 at 6. The Supermarket Defendants argue that they were not aware of the spreadsheets until they took Mr. Geiger's deposition in January 2014. Docket No. 413 at 7-8. It appears that T&B had referenced the spreadsheets and their position that they were protected by the work product doctrine back in 2012. Merten Aff. at ¶ 5, 9.[5] However, it is not apparent that the Defendants would have understood at the time that T&B was referring to the same spreadsheets that are the subject of this motion. Accordingly, the Court finds that the Supermarket Defendants' motion is timely.

The work product doctrine protects (1) documents or other things, (2) prepared in anticipation of litigation, (3) by or for a party or a party's representative. Fed. R. Civ. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495 (1947).[6] “The underlying purpose of the work product doctrine is to protect the integrity of the adversarial process by creating a zone of privacy for those matters prepared by or for the party or the party's counsel in anticipation of litigation.” Amgen, Inc. v. Hoechst Marion Roussel, Inc., 190 F.R.D. 287, 290 (D. Mass. 2000). The work product doctrine does not protect the underlying facts contained in the documents. Tyler v. Suffolk County, 256 F. R. D. 34, 38 (D. Mass. 2009); In re Grand Jury Subpoena, 220 F.R.D. 130, 141 (D. Mass. 2004).

One claiming privilege, “bears the burden of establishing that ... [the privilege] applies ... and that it has not been waived.” In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003); see also Amgen, Inc. v. Hoecsht Marion Roussel, 190 F.R.D. at 289 (“The party claiming the protection of a privilege bears the burden of demonstrating, by a fair preponderance of the evidence, not only that the privilege applies, but also that it has not been waived.”). Once a party claiming privilege has carried its initial burden of establishing grounds for asserting the privilege and that the privilege has not been waived, the burden shifts to the opposing party to establish any exceptions to the privilege. Vicor Corp. v. Vigilant Ins. Co., 674 F.3d 1, 17 (1st Cir. 2012).

Rule 26(b)(3) permits discovery of ordinary work product if the party seeking discovery “shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii).

“From the outset, the focus of work product protection has been on materials prepared for use in litigation, whether the litigation was underway or merely anticipated.” United States v. Textron, Inc., 577 F.3d 21, 29 (1st Cir. 2009). Documents or materials satisfy the “in anticipation of litigation” test if they were “prepared for use in possible litigation.” Columbia Data Prods., Inc. v. Autonomy Corp. Ltd., No. 11-12077-NMG, 2012 WL 6212898, at *12 (D. Mass. Dec. 12, 2012) (emphasis in original; quoting Textron, 577 F.3d at 27).

“It is not enough to trigger work product protection that the subject matter of a document relates to a subject that might conceivably be litigated. Rather, as the Supreme Court explained, ‘the literal language of [Rule 26(b)(3)] protects materials prepared for any litigation or trial as long as they were prepared by or for a party to the subsequent litigation.’ ” Textron, 577 F.3d at 29 (emphasis in original; quoting Federal Trade Comm'n v. Grolier Inc., 462 U.S. 19, 25 (1983)). It is not enough that the materials were prepared by lawyers or represent legal thinking to fall under the work product doctrine. Id. at 29-30. “Even if prepared by lawyers and reflecting legal thinking, ‘[m]aterials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes are not under the qualified immunity provided by this subdivision.’ ” Id. at 30. In addition, work product protection does not extend to “that would have been created in essentially similar form irrespective of the litigation.” State of Maine v. U.S. Dep't of the Interior, 298 F.3d 60, 70 (1st Cir. 2002) (citation omitted).

*4 T&B has met its burden of establishing that the work product doctrine applies to the spreadsheets by submitting an affidavit prepared by Mr. Geiger, the attorney who created the spreadsheets. Docket No. 418. He declared that he prepared the spreadsheets after T&B commenced remediation for PCB contamination, after T&B's insurers had disputed coverage, and after T&B learned that Mother Brook was also contaminated with PCBs. Geiger Aff. at ¶¶ 4-8. At the time, Geiger was contemplating litigation against insurers and potentially responsible parties and he kept the spreadsheets in order to advise T&B in connection with those anticipated lawsuits. Id. at ¶ 7. Geiger stated that but for the anticipated litigation, he would not have maintained the spreadsheets. Id. at ¶ 8. Accordingly, the Court finds that the spreadsheets are protected by the work product doctrine.

The Supermarket Defendants argue that T&B has failed to properly assert work product protection with respect to the spreadsheets because it has failed to provide a privilege log. Docket No. 413 at 6. Pursuant to Rule 26(b)(5) of the Federal Rules of Civil Procedure, a party withholding documents on the basis of work product protection 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.” Fed. R. Civ. P. 26(b)(5)(A). The “universally accepted means” of claiming that documents are privileged is the production of a privilege log. In re Grand Jury Subpoena, 274 F.3d 563, 576 (1st Cir. 2001) (quotation omitted). The privilege log should “identify each document and the individuals who are parties to the communications, providing sufficient detail to permit a judgment as to whether the document is at least potentially protected from disclosure.” Corvello v. New England Gas Co., Inc., 243 F.R.D. 28, 33 (D.R.I. 2007) (quoting United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 473 (2nd Cir. 1996)). “A failure by the party claiming privilege to adequately describe the documents at issue, to sufficiently explain the basis for the privilege, or to assert the privilege in a timely manner, may be grounds for rejecting the claim.” Corvello, 243 F.R.D. at 33 (citations omitted).

Here, T&B included some versions, but not others, of the spreadsheets on its privilege logs. See Merten Aff. at ¶ 14 and Ex. 4 thereto. Pursuant to the parties' agreement, this Court entered an Order Governing Production of Electronically Stored Information and Other Documents (the “ESI Order”). Docket No. 187. Pursuant to the ESI Order, “[t]o avoid undue expense and burden, any documents reflecting communications or work on or after August 8, 2007 that are protected by the attorney-client privilege and/or the work product doctrine may be withheld from production without being listed on any privilege log, absent further agreement among all affected parties or court order specifying otherwise.” Id. at ¶ 20. Consistent with the ESI Order, T&B logged pre-August 8, 2007 versions of the spreadsheets but not later versions. Merten Aff. at ¶¶ 12-14. Accordingly, the Court finds that T&B's failure to log post August 8, 2007 versions of the spreadsheets does not defeat its claim of work product protection.

Finally, the Supermarket Defendants argue that any work product protection was waived because T&B produced some versions of the spreadsheets in discovery. Docket No. 413 at 7.

The ESI Order provides that “[p]ursuant to Federal Rule of Evidence 502(d), the inadvertent production of ESI protected by the attorney-client privilege or work product doctrine is not a waiver in the pending case or in any other federal or state proceeding. The mere production of ESI in litigation as part of a mass production shall not itself constitute a waiver of any privilege or protection.” Docket No. 187 at ¶ 15. Rule 502(d) allows for “clawback” provisions. Rajala v. McGuire Woods, LLP, No. 08-2638-CM-DJW, 2010 WL 2949582, at *4 (D. Kan. July 22, 2010). “So-called clawback provisions essentially undo a document production and allow the return of documents that a party belatedly determines are protected by the attorney-client privilege or work product immunity.” Id. at *3 (internal quotation marks omitted).

*5 Congress enacted Rule 502(d) to resolve longstanding disputes about inadvertent disclosures and subject matter waiver and to respond to the widespread complaint that litigation costs necessary to protect against waiver of privilege have become prohibitive due to the concern that any disclosure will operate as a subject matter waiver of all protected communication. Olaoye v. Wells Fargo Bank, N.A., No. 3:12-CV-4873-M-BH, 2013 WL 6912691, at *1 (N.D. Tex. Dec. 30, 2013) (citations omitted). “The rule ‘is designed to enable a court to enter an order ... that will allow the parties to conduct and respond to discovery expeditiously, without the need for exhaustive pre-production privilege reviews, while still preserving each party's right to assert the privilege to preclude use in litigation of information disclosed in such discovery.’ ” Id. (emphasis in original; citation omitted).

T&B argues that the ESI Order precludes a finding of waiver. Docket No. 417 at 10-11. However, work product protection is waived “when documents are used in a manner contrary to the doctrine's purpose.” Bryan Corp. v. Chemwerth, Inc., 296 F.R.D. 31, 39 (D. Mass. 2013) (citations omitted). Here, despite the ESI Order, T&B's conduct is inconsistent with the work product doctrine's purpose. The ESI Order provides for a mechanism to recover privileged documents produced inadvertently. Docket No. 187 at ¶ 16. Despite having had notice that the Supermarket Defendants had received prior versions of the spreadsheets in discovery since at least February 19, 2014 (see Docket No. 412-7), T&B has not availed itself of the clawback provisions in the ESI Order. Moreover, prior versions of the spreadsheets are part of the public docket in this case. See Docket Nos. 412-5, 412-6. T&B has not taken any steps to protect these documents by, for example, requesting that they be sealed. Accordingly, the Court finds that T&B has waived any work product protection as to the spreadsheets.[7]

For the foregoing reasons, the Court grants the Supermarket Defendants' motion to compel. T&B shall produce the most current and complete version of Mr. Geiger's running spreadsheets within two weeks after the date of this Order.

The District Court referred this case to the undersigned for full pretrial proceedings on January 24, 2011.

The Supermarket Defendants argue that the spreadsheets are not only responsive to the request at issue in the July 20, 2012 order, but also to Master Request No. 6, which seeks “[a]ll documents concerning any notice given or claims asserted under any insurance policies Identified in response to Request No. 5, including Communications or correspondence concerning any claims or coverage.” Affidavit of Lisa Goodheart in Support of Motion of Defendants New Albertson's Inc., Jewel Food Stores, Inc., Star Markets Company, Inc., and Hyde Park Manager, Inc. as Administrative Trustee of W/S Cardinal Hyde Park-MA Trust to Compel Plaintiff to Produce Insurance Documentation (“Goodheart Aff.”) at ¶ 3. Docket No. 412.

“Geiger Aff.” refers to the Sworn Declaration of Michael Geiger in Opposition to the Supermarket Defendants' Motion to Compel Discovery of T&B's Cost Accounting Spreadsheets. Docket No. 418.

Indeed, the Court finds that the spreadsheets are relevant and responsive. T&B does correctly argue that, contrary to the Supermarket Defendants' assertion, this Court's July 20, 2012 Order did not address the spreadsheets. Docket No. 417 at 4-5.

“Merten Aff.” refers to the Sworn Declaration of Howard Merten in Opposition to the Supermarket Defendants' Motion to Compel Discovery of T&B's Cost Accounting Spreadsheets. Docket No. 419.

Federal courts apply federal law when addressing the work product doctrine, even in diversity cases lacking any federal question. Ferrara & DiMercurio, Inc. v. St. Paul Mercury Ins.Co., 173 F.R.D. 7, 11 (D. Mass. 1997).

To be clear, the Supermarket Defendants have not argued for, and this Court has not found, a subject matter waiver. Rather, the Court finds that T&B waived any work production protection as to the spreadsheets only.