This product liability action arises from an incident where Plaintiff Kari Sue Kramer sustained serious injuries as a result of an accident that occurred after she experienced unintended acceleration in a Defendant Ford Motor Company (“Ford”) vehicle. First Am. Compl. ¶¶ 7, 10, ECF No. 61. Pursuant to the Scheduling Order, discovery closed in this case in April 2013. See Scheduling Orders, ECF No. 27. The deadline for filing non-dispositive motions was October 7, 2013, and the deadline for filing dispositive motions was September 5, 2015. ECF No. 182. The case is set for trial in June 2016. ECF No. 311.

In its mandatory disclosures pursuant to Rule 26 of the Federal Rules of Civil Procedure, Ford turned over seventy compact discs to Plaintiffs containing, among other things, Common Quality Indicator System (“CQIS”) reports. Mem. in Supp. of Mot. 1–2, ECF No. 271. Plaintiffs' expert, David Bilek, who also prepared expert reports in a prior case involving similar allegations against Ford, noticed that the letters “polic” did not appear in the vehicle description heading of the CQIS report entries that were provided by Ford in this case. Id. According to Bilek, these letters appeared in the CQIS reports in the prior case in which Bilek was involved. Plaintiffs allege that Ford intentionally removed the letters “polic” from the heading in the CQIS database in order to “conceal both the number and damaging content of those sudden acceleration reports from police agencies.” Id. at 4.

On November 13, 2015, Ford's attorneys wrote a letter to Plaintiffs' attorneys acknowledging that “there may have been a change made to the number of characters that print from the ‘vehicle’ field, which would account for the fact that the words ‘polic sedan’ did not print in contacts produced in this case.” Murray Decl. Ex. 2, ECF No. 273. Ford advised Plaintiffs that the words had not been deleted from the database, and explained how to search for police equipped vehicles in the database by VIN number. Id. Ford maintained that the information Plaintiffs sought was readily available to them and they did not require any additional discovery. Id.

On November 24, 2015, Plaintiffs' attorneys responded to Ford, requesting that Ford “promptly produce all CQIS reports containing the word ‘polic’ in their un-redacted form” so that, “there would be no need for motions practice.” ECF No. 273, Ex. 4. On December 8, 2015, Ford responded and explicitly stated that “there is nothing more for Ford to produce in this regard.” ECF No. 273, Ex. 5. Plaintiffs' filed the present motion on December 11, 2015 requesting sanctions pursuant to Rule 37(e) of the Federal Rules of Civil Procedure. ECF No. 269. Plaintiffs initially requested that the Court (1) strike Ford's liability defenses, (2) enter a default judgment against Ford, or in the alternative (3) grant an instruction advising the jury of Ford's intentional attempt to conceal evidence. Id.

*2 The parties represented at the hearing that the un-redacted CQIS reports Plaintiffs' requested were turned over to Plaintiffs around December 31, 2015.

The Court cannot grant Plaintiffs sanctions pursuant to Rule 37(e) unless there is a finding that the electronic stored information is “lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery ...” Fed. R. Civ. P. 37(e)(1). As Plaintiffs have been given the information requested, it is clear that the information is (1) not lost, and (2) can be restored or replaced through additional discovery.

The Court observes, however, that Plaintiffs were only able to recover the un-redacted CQIS reports because they filed this motion. Pursuant to Rule 37(c)(1)(A), Plaintiffs are entitled to their reasonable costs and attorney's fees incurred in bringing this motion. Assuming that the redaction of the word ‘polic’ from CQIS report headings was due to an accidental oversight in printing, Ford acknowledged in their November 13, 2015 and December 8, 2015 letters that they were aware of the issue but did not believe that they had any additional discovery obligations to Plaintiffs. Plaintiffs were forced to file a motion to recover the information, and are therefore entitled to recover their reasonable costs and attorney's fees in doing so. Plaintiffs are instructed to submit an affidavit to this Court within fourteen days of the date of this Order indicating the expenses and fees it incurred in bringing its motion for sanctions. Such affidavit should provide the attorneys' rates and hours worked. The Court will then issue a subsequent Order as to the award of fees and expenses at a later date.

Plaintiffs seek an in camera review and subsequent disclosure of the document identified as Bates Nos. BOA 00000006799 through 00000006802 (“the Logel Document”), that was inadvertently produced by Ford in Jenks v. Ford Motor Company, a case currently pending in Virginia State Court. Mot. to Compel, ECF No. 263. Ford, in turn, seeks a protective order prohibiting Plaintiffs from discovering the Logel Document arguing that it is privileged under both the doctrines of attorney-client privilege and work product. Mot. for Prot. Order, ECF No. 288. Plaintiffs claim that the Logel Document is not privileged or that it should be produced pursuant to the crime/fraud exception to the attorney-client privilege.

The Logel Document is a drafted press release created in the wake of Congressional hearings into Toyota and the possible link between electromagnetic interference and reports of sudden acceleration. Plaintiffs' Resp. Mem. 2, ECF No. 299. The Logel Document also contains typewritten interlineations made by Ford's attorney. Id. It was not turned over in this case and it was not included in a privilege log. Id. at 3. Plaintiffs assert that it should have been included in Ford's September 4, 2012 responses to Plaintiffs' request for “all studies, analyses, and/or memoranda in Ford's custody or control relating to alleged unintended acceleration as defined herein in vehicles equipped with an electronic throttle control system.” Id.; see also Mem. in Supp. of Mot. for Prot. Order 3, ECF No. 290. Ford realized that it had inadvertently disclosed the Logel Document in four cases due to a copier-vendor error on February 15, 2015. ECF No. 290 at 2. Ford clawed back the document in all four cases and it was fully litigated in cases pending in the United States District Court for the Southern District of West Virginia and in Floyd County, Virginia. Id.; see also Wichelman Decl. Exs. A–C, ECF No. 284. Both jurisdictions reviewed the Logel Document in camera and determined that it was protected by attorney-client privilege under the law in West Virginia and Virginia respectively. ECF No. 284, Ex. A. The Floyd County Court also determined that the document was not discoverable under the crime/fraud exception to the attorney-client privilege. ECF No. 284, Ex.C.

*3 In diversity cases, a federal court applies state law to resolve substantive law claims. See Phillips v. Marist Soc. of Wash. Province, 80 F.3d 274, 276 (8th Cir. 1996). The State of Minnesota's choice of law rules require the Court to first identify if there is an actual conflict between the law in each state. Milkovich v. Saari, 203 N.W.2d 408, 412 (Minn. 1973). “A conflict exists if the choice of one forum's law over the other will determine the outcome of the case.” Nodak Mut. Ins. Co. v. Am. Family Mut. Ins. Co., 604 N.W.2d 91, 93–94 (Minn. 2000).

The parties agree that there is an actual conflict between the attorney-client privilege analysis of Minnesota, the forum state, and Michigan, the state where the document was created. When there is an actual conflict, this Court must apply a five factor test to determine which law should govern. Milkovich v. Saari, 203 N.W.2d at 408. The factors are: (1) predictability of results; (2) maintenance of interstate order; (3) simplification of the judicial task; (4) advancement of the forum state's interests; and (5) application of the better rule of law. Id. at 412. The factors are not to be mechanically applied, but are meant “to prompt the courts to carefully and critically consider each new fact situation and explain in a straightforward manner their choice of law.” Jepson v. Gen. Cas. Co. of Wisc., 513 N.W.2d 467, 470 (Minn. 1994).

Both Plaintiffs and Ford agree that Michigan law should apply. Indeed, Ford's brief illustrates that application of Michigan law is favored under the relevant five factors:

ECF No. 282 at 9–10. Because Plaintiffs do not oppose the application of Michigan law, the Court adopts Ford's analysis under Minnesota choice of law and holds that Michigan law will be applied in determining whether the Logel Document is privileged.

Under Michigan law, “[t]he attorney-client privilege attaches to direct communication between a client and his attorney as well as communications made through their respective agents.” Reed Dairy Farm v. Consumers Power Co., 227 Mich. App. 614, 618 (1998). “The scope of the attorney-client privilege is narrow, attaching only to confidential communications by the client to his advisor that are made for the purpose of obtaining legal advice.” Id. at 618–619. Attorney-client privilege includes communications made by Ford's officers and agents and Ford's attorney for the purpose of obtaining legal advice. Upjohn Co. v. United States, 449 U.S. 383, 390–92 (1981). Additionally, “[t]he work-product doctrine protects from discovery the notes, working documents, and memoranda that an attorney prepares in anticipation of litigation.” Leibel v. Gen. Motors Corp., 250 Mich. App. 229, 244 (2002). [I]f a party demonstrates the substantial need and undue hardship necessary to discover work product, that party may discover only factual, not deliberative, work product.” Id. at 247.

*4 Although two courts have already examined the Logel Document and have concluded that it is privileged, none of these courts applied Michigan law. In any event, the Minnesota court is not bound by the determinations made by other jurisdictions and must make its own determination regarding whether the document is privileged. If the court concludes that the document is privileged, it must then determine whether the crime/fraud exception to the privilege applies.

To complete these tasks, the Court must itself review the document in question. See United States v. Zolin, 491 U.S. 554 (1989). Plaintiffs' motion is granted only insofar as it seeks an in camera review of the Logel Document. In all other respects, the Court defers making a final decision on the remainder of Plaintiffs' motion to compel and Ford's motion for a protective order until after it has had a chance to review the document.

Based upon all the files, records and proceedings herein, IT IS HEREBY ORDERED that: