Case No. 10-13301
United States District Court, E.D. Michigan, Southern Division
Signed December 08, 2011
Benjamin S. Reifman, Nicholas S. Andrews, Liss Seder & Andrews, P.C., Bloomfield Hills, MI, for Plaintiffs.
Emily J. Prentice, Jonathan L. Marks, Ross O. Silverman, Katten Muchin Rosenman LLP, Chicago, IL, Timothy A. Holland, Secrest Wardle, Michael W. Slater, Plunkett Cooney, Grand Rapids, MI, for Defendant.
ORDER ON MOTION FOR ENTRY OF DEFAULT JUDGMENT (Dkt. 91)
*1 Plaintiffs filed a motion for entry of default judgment on May 13, 2011. Plaintiffs seek a default judgment as a sanction for defendant's alleged discovery violations and failures to comply with the Court's previously entered orders. (Dkt. 91). Defendant filed a response on June 15, 2011. (Dkt. 109). Plaintiffs filed a reply on June 20, 2011. (Dkt. 110). District Judge Arthur J. Tarnow referred this motion to the undersigned for hearing and determination. (Dkt. 116). Pursuant to notice, the Court held a hearing on this motion on September 21, 2011. (Dkt. 118).
On June 23, 2011, plaintiffs filed a supplemental brief, to point out an error they had made regarding the claimed failure of defendant to provide a particular expert report. (Dkt. 112). On August 23, 2011, plaintiffs moved for leave to file another supplemental brief, which addressed apparent discrepancies between the income of Dr. Jackson from State Farm as represented in this case in contrast to another case involving State Farm pending in this District, and to bring to the Court's attention other instances in this District where State Farm was found to have violated the discovery rules. (Dkt. 119). At the hearing, plaintiffs' motion for leave to file the supplemental brief was granted. In a text-only order, defendant was given permission to respond to the supplemental brief by September 28, 2011. Defendant filed this brief on September 28, 2011. (Dkt. 125). On September 30, 2011, plaintiffs filed an objection to defendant's response, arguing that it far exceeded the scope of the two narrow subjects discussed in the supplemental brief. (Dkt. 126). Rather, plaintiffs argued that defendant improperly re-briefed all the issues raised in the motion for entry of default, without permission to do so. Plaintiffs ask the Court to strike State Farm's response to the supplemental brief. Id.
As discussed in more detail below, the undersigned declines to recommend default judgment as a sanction at this time, and denies plaintiffs' motion to strike State Farm's supplemental brief in the interest of having a complete record on which to make this decision, despite the Court's agreement with plaintiffs that the brief did in fact improperly exceed the scope of plaintiffs' supplemental brief. The decisions below should serve as a sufficient warning to State Farm that it must fully, completely, and diligently comply with the orders of this Court in the future or face further, and more extreme sanctions, including a default judgment.
B. Legal Standards
Plaintiffs request an entry of default judgment against defendant as a sanction for its conduct in discovery in this case. Federal Rule of Civil Procedure 37 provides the primary authority for the Court to impose sanctions where a party fails to meet their discovery obligations. Rule 37provides for different sanctions depending on the violation at issue and whether a court order was violated. Plaintiffs primarily rely on Rule 37(b)(2), which provides a variety of potential remedies where a party fails to comply with a court order:
*2 (A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent—or a witness designated under Rule 30(b)(6) or 31(a)(4)—fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
(C) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
(Emphasis added). Rule 37(b)(2)(A)(vi) provides that entering a default judgment against the party who fails to answer interrogatories or respond to document requests is an option within the Court's discretion. See e.g.
, Polanski v. Detroit Police, 15th Precinct, 1986 WL 17175 (6th Cir. 1986)(The choice of an appropriate sanction is primarily the responsibility of the trial judge and will not be reversed absent an abuse of discretion.). A default judgment is also an option under Rule 37(c), which applies where a party fails to provide information or identify a witness as required by Rule 26(a) or (e). Under this subsection, the Court may order that (1) the party who failed to provide the disclosure is not permitted to use the materials or witness not disclosed, (2) the payment of reasonable expenses including attorney fees caused by the failure; (3) the jury be informed of the failure; and (4) any other appropriate sanction, including those listed in Rule 37(b)(2)(A)(I)-(vi), which includes a default judgment.
The Sixth Circuit has described the sanction of default judgment as a “sanction of last resort that may be imposed only if the court concludes that a party's failure to cooperate in discovery is due to willfulness, bad faith, or fault.” Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir. 1990). The factors a court should consider when deciding whether to order a default judgment for failure to cooperate in discovery include whether the failure was due to an inability to comply rather than the willful bad faith or fault of the party, whether the adversary was prejudiced, whether the party was warned that failure to cooperate could lead to a default, and whether less drastic sanctions are available. Id. at 1079. Balancing these factors, as discussed in more detail below, leads the undersigned to conclude that a default judgment is not appropriate at this time. However, other sanctions are appropriate and should State Farm fail to fully, completely, and timely comply with this Order, a recommendation of entry of default judgment will be made.
C. Analysis and Conclusions
1. Names and Other Information Relating to Private Investigators
*3 As of the date of the hearing on this motion, the investigators had not been identified. According to State Farm's supplemental brief, counsel “believed” that the names were included in the report and this defect has since been cured. State Farm also indicates that it is willing to produce the investigators for deposition to cure any prejudice. As plaintiffs point out, the video (first taken on October 30, 2010) was not produced until May 23, 2011, after this motion was filed. In the view of the undersigned, the video, any reports, and the names of the investigators should have been produced as part of the initial disclosures or, at the very least, in response to plaintiff's discovery requests. It appears that counsel was not initially aware of the existence of these materials, however, no explanation was provided as to why State Farm failed to timely inform its counsel about these materials. Moreover, the undersigned is troubled that none of the materials were provided until after this motion was filed.
In the view of the undersigned, defendant's failure to produce videos and reports and identify the investigators violated Rule 37(c)(1) as this evidence should have been disclosed as part of the initial disclosures under Rule 26(a). Based on this violation, defendant may not use this evidence in any fashion to support its case or defense, but plaintiffs may use this evidence if they so choose.
2. Percentage of Expert Income Attributable to Employment as Experts or Other Financial Information
In its response, State Farm says that it “clarified” the information about its experts income in a letter dated May 23, 2011 to plaintiffs' counsel and this issue is now “moot.” In that letter, counsel for State Farm wrote “I have confirmed with State Farm's experts that the information provided to you represents the percentage of income derived from their work as an expert witness.” (Dkt. 109-4, Pg ID 1875). However, it is apparent that the information ordered to be produced in April, 2011 was not produced until at least sometime in July, 2011:
THE COURT: All right. The—the order which was entered relating to the expert witness' income attributable to employment, I mean that was sort of a carefully drafted order and the response that State Farm gave didn't address income. It talked about percentage of times rather than income. Was there some confusion about that order?
MR. HEWSON: No, Your Honor, I don't believe that there was. I think that the issue was initially interpreted and probably incorrectly as to what percentage of these individuals' time was being spent doing that kind of work. Those issues—those dollar amounts have been supplemented now. Those dollar amounts have been provided.
THE COURT: When were they provided?
MR. HEWSON: And I don't have plaintiffs' supplement in front of me. But I believe that they were provided in July of this year.
(Dkt. 124, Pg ID 2163). In its supplemental brief, State Farm explained that it provided updated information in July 2011. However, during the deposition of Dr. Jackson in another case, seemingly inconsistent income information was provided. (Dkt. 125, Pg ID 2210-11). According to State Farm, the information provided by Dr. Jackson in the other case is broader in scope than that ordered to be produced in this case. (Dkt. 125, Pg ID 2211). State Farm provided no real explanation as to why it took until July, 2011 to provide complete and accurate information regarding this rather simple interrogatory response, nearly three months past the court-ordered deadline.
In the view of the undersigned, the appropriate remedy here is to allow plaintiffs to submit a jury instruction at trial providing that defendant intentionally failed to comply with the court's order with respect to income attributable to expert witness employment by Dr. Jackson and to allow plaintiffs' a broader cross examination of Dr. Jackson at trial, as to his income sources, than would generally be permitted. In addition, plaintiffs are awarded costs and attorneys fees incurred as a result of State Farm's failure to timely and appropriately provide this information.
3. Reports by Dr. Jackson
*4 It is not clear from the record before the Court when Dr. Jackson's January 4, 2011 report was produced to plaintiff. The parties agree that it was produced, as part of the claim file, but no one has identified the production date. According to State Farm, the claim file was first produced on October 10, 2010 and was supplemented on December 29, 2010, March 9, 2011, and July 5, 2011. (Dkt. 125, Pg ID 2207). Given that the date of the report is January 4, 2011, it could not have been part of the first two productions. Given that plaintiffs filed their supplemental brief on June 23, 2011 acknowledging receipt of the report, it must have been included in the March 9, 2011 production. Oddly, State Farm's counsel was still claiming in May, 2011 that they did not have the report either and would produce it as soon as they received it. It appears that State Farm personnel received it on February 9, 2011. (Dkt. 110, Pg ID 1879). While there appears to have been much confusion on this issue, the confusion appears to have been a result of sloppiness, rather than willfulness. Thus, no sanctions are appropriate.
4. Reports by Dr. Hanks
According to State Farm, it received Dr. Hanks' report on June 7, 2011 and provided it to plaintiff's counsel on June 29, 2011. Plaintiff's counsel acknowledged that he received the report on June 29, 2011 and that he had made an error by stating that it was not provided. Thus, this appears to be a non-issue and sanctions are not appropriate.
5. Correspondence/Documents Between State Farm and Experts
Defendant's Privilege Log identifies correspondence dated January 17, 2011 from State Farm's insurance doctor, Dr. Richard Jackson, to Kami Phillips, State Farm employee, as being redacted as work product privilege. (Dkt. 125-4, Pg ID 2247). According to plaintiffs, this correspondence relates to an examination of the injured conducted under Mich. Comp. Laws § 500.3151 of the No Fault Act. And, under § 3152, State Farm is required to produce “a copy of every written report concerning the examination rendered by an examining physician ...” Plaintiffs point out that Mich. Comp. Laws § 500.3153 provides the Court with several options to remedy non-compliance with § 3152, including:
(a) An order that the mental or physical condition of the disobedient person shall be taken to be established for the purpose of the claim in accordance with the contention of the party obtaining the order.
(b) An Order refusing to allow the disobedient person to support or oppose designated claims or defenses, or prohibiting him from introducing evidence of mental or physical condition.
(c) An order rendering judgment by default against the disobedient person as to his entire claim or a designated part of it.
(e) An order requiring delivery of a report, in conformity with section 3152, on such terms as are just, and if a physician fails or refuses to make the report a court may exclude his testimony if offered at trial.
(Dkt. 91, Pg ID 1418-19). In response, State Farm indicated that it had “supplemented its production of the claim file with certain non-privileged communications between State Farm and its experts.” (Dkt. 109, Pg ID 1857). State Farm does not, however, address plaintiff's contention that the specific communication at issue is not privileged.
State Farm does not appear to claim that the communication at issue is a draft report protected under Rule 26(b)(4)(B). State Farm has also not established that the communication is protected under Rule 26(b)(4)(C) and is unrelated to Dr. Jackson's compensation for his testimony, facts or data that counsel provided to Dr. Jackson and that he considered in forming his opinions, or assumptions that the party's attorney provided and that Dr. Jackson relied on in forming his opinions. Finally, State Farm has not established that the communication at issue falls outside the scope of § 3151. Thus, this document must be produced.
6. Emails to/from State Farm Personnel
Plaintiffs asked for all documents maintained by State Farm that relate to the claims of Kelsey Garber, whether maintained in the claim file or otherwise. (Dkt. 91, Pg ID 1419). According to plaintiff, no emails have ever been produced
in this case. Id.
According to State Farm's counsel, State Farm has a policy where if an email exchanged between State Farm personnel is deemed “related” to a claim file, then it is appended to that file and becomes part of the claim file. It was also clear that no search of State Farm's email records had been made outside of whatever emails were appended to the claim file. In its supplemental brief, State Farm takes umbrage at plaintiffs' accusation that it never produced any emails because emails were identified on its privilege logs, which were produced along with updated copies of the claims files. Thus, it appears that plaintiffs' counsel is correct, no emails were actually produced
to plaintiffs and State Farm is taking that position that all emails selected for inclusion in the claim file are privileged. According to the privilege logs, some of these emails were “redacted,” but none of the emails in redacted form were made part of State Farm's submissions, so the undersigned cannot be sure if such redacted emails (and thus if any emails) were produced
to plaintiffs in this case.
*5 In any event, the undersigned is far more concerned about whether State Farm conducted an appropriate, diligent, and reasonable inquiry of its files and records in response to plaintiff's document request. It seems readily apparent that no records, other than the claim file, were searched for responsive documents, and in particular, for emails. State Farm does not get to decide what is relevant and responsive by selecting what goes in the claim file and then producing nothing else. That is not how discovery works. In the view of the undersigned, State Farm did not make a reasonable and diligent inquiry in response to plaintiff's discovery request. State Farm has failed to establish that the emails made part of the claim file were not prepared in the ordinary course of business, as opposed to anticipation of litigation. See
In re Professionals Direct Ins. Co., 578 F.3d 432, 439 (6th Cir. 2009). Thus, they must be produced.
Defendant is also required to conduct a good faith, diligent inquiry of other records and certify that there are no additional responsive emails or produce those responsive emails that are not in the claims file, assuming no claim of privilege is appropriate. If there is a claim of privilege applicable to any additional responsive emails that are located, State Farm must prepare and serve a privilege log that includes all information necessary to weigh the claims of privilege or protection, including the following:
1. A description of the document explaining whether the document is a memorandum, letter, e-mail, etc.;
2. The date upon which the document was prepared;
3. The date of the document (if different from # 2);
4. The identity of the person(s) who prepared the document;
5. The identity of the person(s) for whom the document was prepared, as well as the identities of those to whom the document and copies of the document were directed, “including an evidentiary showing based on competent evidence supporting any assertion that the document was created under the supervision of an attorney;”
6. The purpose of preparing the document, including an evidentiary showing, based on competent evidence, “supporting any assertion that the document was prepared in the course of adversarial litigation or in anticipation of a threat of adversarial litigation that was real and imminent;” a similar evidentiary showing that the subject of communications within the document relates to seeking or giving legal advice; and a showing, again based on competent evidence, “that the documents do not contain or incorporate non-privileged underlying facts;”
7. The number of pages of the document;
8. The party's basis “for withholding discovery of the document (i.e., the specific privilege or protection being asserted); and
9. Any other pertinent information necessary to establish the elements of each asserted privilege.”
Cooey v. Strickland, 269 F.R.D. 643 (S.D. Ohio 2010), quoting In re Universal Service Fund Tel. Billing Practices Litig., 232 F.R.D. 669 (D. Kan. 2005). See also
Comtide Holdings v. Booth Creek Management Corp., 2010 WL 4117552 (S.D. Ohio 2010) (“A claim of privilege may be defeated by an inadequate log, including one which does not provide evidentiary support for a claim of privilege not apparent from the identity of the sender or recipient ... but it cannot be sustained purely on the basis of unsworn information in a privilege log.”). State Farm must conduct this search for responsive emails and prepare any privilege log by December 31, 2011.
7. State Farm's Guidelines for Handling Work Loss Benefits, Medical Attendant Care, and Other Allowable Expense Benefits and Documents Discussing Attendant Care Claims in Michigan
In the April 5, 2011 Order (Dkt. 7), the Court concluded that plaintiffs were entitled to discovery of the no fault claims handling procedures of defendant. Plaintiffs were ordered to “recast” document request number 12 and 13 to specify the categories of guidelines and/or memos. Defendants had 21 days thereafter to respond. According to plaintiff, defendant has provided no documents in response to these amended requests. Rather, State Farm has asked plaintiffs to identify the documents they want. According to State Farm, this should not be a problem because plaintiffs' counsel identified documents by bates number in other instances and now inappropriately seeks to “back out” of that agreement or change the parties' practice.
*6 There are several problems with State Farm's position. Plaintiffs asked for “[a]ny documents relating to State Farm's guidelines for handling claims for Michigan No-Fault Automobile Insurance benefits, including claims for work loss benefits and medical, attendant care, and other allowable expense benefits.” (Dkt. 91-6, Pg ID 1478). In response, State Farm objected to the request as vague, ambiguous, and overly broad and referred plaintiffs to “those portions of the Auto Claim Manual which State Farm was ordered to produce by this Court.” Id.
In Request No. 13, plaintiffs ask for copies of any documents “that discuss the handling of claims for attendant care and/or family provided attendant care benefits in Michigan.” In response, defendant objected to this request as vague, overly broad, and unduly burdensome and further indicated, without identifying the documents, that “all responsive, non-privileged documents have been produced.” (Dkt. 91-6, Pg ID 1479).
The Court previously concluded that plaintiffs were entitled to “discovery of the no fault claims handling procedures of defendant.” The undersigned finds that defendant neither complied with the letter nor the spirit of that order. Plaintiffs' “recast” requests for production are not vague or ambiguous, and defendant has offered no proof (as is its burden) that responding is overly burdensome. Rather than engaging in a debate about who knows which documents from which category exist, State Farm and its counsel must conduct a reasonably diligent inquiry for responsive documents, rather than placing the burden on plaintiffs' counsel to identify responsive documents that have been produced in other cases. This is not plaintiffs' counsel's burden. The universe of potentially responsive documents are in State Farm's custody, possession, and control. And, the universe of potentially responsive documents is not limited by those that have been produced in other cases or what plaintiffs' counsel already knows about. In any event, the undersigned has little doubt that State Farm (as with most large companies who regularly engage in litigation) knows precisely what it has produced in other cases and maintains excellent records pertaining to those productions.
State Farm must conduct an appropriate, diligent, and reasonable inquiry of its files and records (including any electronically stored information) and produce all responsive documents by December 31, 2011. In addition, plaintiffs are entitled to costs and fees incurred in bringing this motion. The failure to do so will result in the imposition of additional sanctions under Rule 37(b)(2)(A), including the recommendation of a default judgment.
8. Employee Files
The Court ordered that, “with respect to Plaintiffs' Request to Produce No. 8, Plaintiffs' are entitled to information contained within employee files, for example information relating to an employee's history with the company, training, etc., but not necessarily personnel files in their entirety. Plaintiffs are to recast Request No. 8, focusing on more specific categories of information, within 7 days of the hearing, and Defendants are to respond to this request within 21 days of receipt of the request.” (Dkt. 70, Pg ID 1136). The deadline for production was April 26, 2011. As noted in the motion for default, in response to plaintiff's amended production request, State Farm redacted as “confidential” items such as: job grade; performance; previous employer; job class; and other information relating to job titles, promotions, etc. After the motion for entry of default was filed, on May 23, 2011, State Farm produced the additional information from the employee files that had previously been redacted, although no explanation was provided regarding the redactions in the first instance. (Dkt. 109-4, Pg ID 1874).
*7 As a result of State Farm's conduct, plaintiffs are entitled to costs and attorney fees incurred in bringing this motion.
9. Auto Claim Manual and Documents that Override ACM Requirements
This production was again the subject of a prior motion and was controlled by the Court's Order. (Dkt. 70). The Court ordered that “Plaintiffs are entitled to discovery of Defendant's No Fault Claim handling procedures and related portions of State Farm's Auto Claims Manual.” The order included that State Farm produce those portions of the ACM identified by chapter and bates number (from Armisted, et. al v. State Farm
) in plaintiff's notice for deposition as well as “any documents that override the requirements of the Auto Claim Manual for the State of Michigan.” According to plaintiff, State Farm only provided those portions of the Auto Claim Manual identified by bates number, nothing else. State Farm did not supplement its prior written response of merely objecting to the request and did not provide the documents that override the Auto Claims Manual. In its post-hearing supplemental brief, State Farm says it provided portions of the Auto Claims Manual request on May 23, 2011 and the updated portions on June 20, 2011. These documents were ordered to be produced by April 26, 2011. (Dkt. 70). State Farm offers no satisfactory explanation why it failed to comply with the earlier order and then failed to produce the requested documents until after this motion was filed. Plaintiffs also state that additional responsive documents exist that have not been produced and that the email produced was improperly redacted as privileged. (Dkt. 110-5, Pg ID 1898).
The undersigned agrees with plaintiffs' counsel that he has been put between a rock and hard place with respect to discovery issues involving State Farm. If the requests cast a broad net, State Farm objects, says it does not understand the request, or does not produce responsive documents that plaintiffs' counsel knows exists from other cases. If the request is too specific (i.e., specifically identifies documents produced in other cases), then State Farm only produces those documents, rather than all responsive documents. It seems that State Farm is operating under its own set of discovery rules. In the view of the undersigned, State Farm must conduct a reasonable and diligent inquiry to locate all responsive documents (including electronically stored information) and it has simply failed to do so in this case, despite previous orders granting plaintiffs' motions to compel, rather than requiring plaintiffs' counsel to identify particular documents sought, based on prior, unrelated litigation involving State Farm.
Thus, the Court orders State Farm to conduct an appropriate, diligent, and reasonable inquiry of its files and records (including any electronically stored information) and produce all responsive documents by December 31, 2011. The failure to do so in a timely and satisfactory manner will result in the imposition of additional sanctions under Rule 37(b)(2)(A), including the recommendation of a default judgment. In addition, plaintiffs are entitled to costs and attorney fees incurred in bringing this motion.
10. Privilege Logs
*8 Plaintiffs claim that defendant has never produced a proper
privilege log, despite being ordered to do so. At the March 23, 2011 hearing, the Court questioned defendant's counsel at length regarding whether its privilege log was linked in some way to its responses to plaintiff's requests for production of documents. That is, were documents identified as responsive to a particular request, but withheld as privileged, and identified as such on the log. (Dkt. 123, Pg ID 2035-2052). Defendant's counsel conceded that they were not and indicated that the privilege logs would be amended. Id.
In addition, the Court ordered the logs to be amended by April 26, 2011. (Dkt. 70, Pg ID 1136) (“Defendant is to provide proper privilege logs regarding their production that clearly identifies privileged materials that have not been produced.”). Defendant has attached the latest versions of its privilege logs to its supplemental brief. (Dkt. 125-4). Nothing in these privilege logs identifies the document request to which they are responsive. And, nothing in defendant's supplemental responses indicates which privileged documents are responsive to which document requests, as directed by the Court. (Dkt. 91-7, Pg ID 1490-1494).
Moreover, State Farm's privilege logs are woefully inadequate. State Farm merely identifies conversations or notes involving counsel, and indicates that they are protected by work product or the attorney-client privilege, but does not explain why. (Dkt. 125-4). Specifically, as to all of claims adjustor's notes (withheld and redacted), defendant must explain why each of these notes are work product, as opposed to having been prepared in the ordinary course of adjusting the claim. In evaluating a claim of work product, the Sixth Circuit has directed the following inquiry:
[W]e ask two questions: (1) whether that document was prepared “because of” a party's subjective anticipation of litigation, as contrasted with ordinary business purpose; and (2) whether that subjective anticipation was objectively reasonable.
In re Professionals Direct Ins. Co., 578 F.3d 432, 439 (6th Cir. 2009)(internal citations omitted). The Court also held that “[m]aking coverage decisions is part of the ordinary business of insurance and if the ‘driving force’ behind the preparation of these documents was to assist Professionals Direct in deciding coverage, then they are not protected by the work-product doctrine.” Id. at 439. Thus, defendant must satisfy its burden of establishing that its claim of work product protection satisfies this test as to each redacted and withheld note. And there is not sufficient information in the log for the Court to attempt to undertake such an inquiry.
The same is true for defendant's claims of attorney-client privilege. Under Michigan law, the “purpose of the attorney-client privilege is to permit a client to confide in the client's counselor, knowing that such communications are safe from disclosure.... The scope of the privilege is narrow: it attaches only to confidential communications by the client to its advisor that are made for the purpose of obtaining legal advice.” Fruehauf Trailer Corp. v. Hagelthorn, 208 Mich.App. 447; 528 N.W.2d 778 (1995). “The privilege also generally protects communications from an attorney to a client, including the attorney's opinions, conclusions, and recommendations based upon the facts furnished by the client.” Wrench LLC v. Taco Bell Corp., 212 F.R.D. 514, 516 (W.D. Mich. 2002), citing, Hubka v. Pennfield Twp., 197 Mich.App. 117, 494 N.W.2d 800 (1992). The burden of showing that information is not discoverable because it is privileged is with the party asserting the privilege. Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 303, 306 (E.D. Mich. 2000). In order to be a protected communication, it must be intended to be confidential and it must be provided to an attorney for the purpose of obtaining legal advice. With respect to the confidential nature of a communication, “ ‘the circumstances indicating the intention of secrecy must appear. Wherever the matters communicated to the attorney are intended by the client to be made public or revealed to third persons, obviously the element of confidentiality is wanting.’ ” Owen v. Birmingham Federal Savings and Loan, 27 Mich.App. 148; 183 N.W.2d 403 (1971)(quoting with approval from McCormick, Evidence, § 95). With these principles in mind, the Court is simply unable to discern whether defendant's claim of attorney-client privilege is well-founded. It simply has not met its burden.
*9 State Farm's privilege logs are woefully inadequate and it has failed to give even the barest information necessary for the Court to evaluate its claim of privilege. See Cooey
; see also
Comtide Holdings v. Booth Creek Management Corp., 2010 WL 4117552 (S.D. Ohio 2010) (“A claim of privilege may be defeated by an inadequate log, including one which does not provide evidentiary support for a claim of privilege not apparent from the identity of the sender or recipient ... but it cannot be sustained purely on the basis of unsworn information in a privilege log.”). State Farm was previously ordered to provide complete and proper privilege logs and it failed to do so. It has also had several months to offer corrected and complete privilege logs with supporting evidence and it has failed to do so. Thus, the privileges and protections claimed in its privilege logs (Dkt. 125-4) are deemed waived and State Farm must produce all documents identified on those logs (Dkt. 125-4) by December 31, 2011.
The parties to this action may object to and seek review of this Order, but are required to file any objections within 14 days of service as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). A party may not assign as error any defect in this Order to which timely objection was not made. Fed.R.Civ.P. 72(a). Any objections are required to specify the part of the Order to which the party objects and state the basis of the objection. Pursuant to Local Rule 72.1(d)(2), any objection must be served on this Magistrate.
End of Document.