I. BACKGROUND

Pursuant to this Court's August 4, 2016 order, the Special Master was directed to transcribe three audio recorded statements, designate the portions of these transcripts on which the Special Master based his Report and Recommendation, and submit these portions to Thomas Nelson's counsel, who would then designate any portions for which it claimed privilege and file the remaining nonprivileged transcript portions. (Doc. No. 320, PageID# 7485–7486.) Ultimately, Thomas Nelson was to file the nonprivileged portions of the transcripts on which the Special Master based his report.

On September 26, 2016, Thomas Nelson filed the three redacted statements and an accompanying privilege log. (Doc. Nos. 339, 339-1, 339-2, 339-3.) During a hearing with the Magistrate Judge on October 7, 2016, EPAC voiced concerns that the three transcripts may be over-redacted. To resolve this dispute, the Magistrate Judge directed Thomas Nelson to submit the unredacted transcripts for in camera review. Several days after the hearing, on October 10, 2016, EPAC moved for the production of the nonprivileged information in the statements taken by the Special Master. (Doc. No. 343.) EPAC also challenged the quality of the privilege log submitted in connection with the redacted statements. (Doc. No. 344.) Thomas Nelson filed a timely response to EPAC's motion (Doc. No. 353) and submitted the unredacted statements for in camera review (Doc. Nos. 350, 351, 352.)

II. PRODUCTION OF ALL NONPRIVILEGED TRANSCRIPT PORTIONS

EPAC seeks production of all nonprivileged transcript portions and all nonprivileged facts learned by the Special Master, not just those transcript portions on which the Special Master based his report. (Doc. Nos. 343, 344.) This issue was decided in the Court's August 4, 2016 order. EPAC has not offered reason to revisit that decision here, and the Court declines to do so.

III. ADEQUACY OF THOMAS NELSON'S PRIVILEGE LOG

EPAC challenges the adequacy of the privilege log Thomas Nelson produced with the redacted transcripts. (Doc. No. 344, PageID# 7938–7939.) The privilege log fields identify each transcript, the portions withheld as privileged, the type of privilege claimed, and a brief explanation for asserting privilege. (Doc. No. 339, PageID# 7651–7652.) For example, a portion of Marvin Maphet's transcript is redacted under claims of attorney-client privilege and the work-product doctrine because it contains “[q]uestioning reflecting legal advice between Thomas Nelson counsel and Thomas Nelson employee regarding anticipated litigation with EPAC[.]” (Doc. No. 339, PageID# 7652.)

*2 Rule 26(b)(5)(A) of the Federal Rules of Civil Procedure explains that a party withholding otherwise discoverable information under a claim of privilege must “expressly make the claim” and “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.” In response to an earlier challenge to Thomas Nelson's privilege log, Magistrate Judge Bryant concluded that Rule 25(b)(5)(A) was satisfied when TNI identified the attorneys referenced in the log and provided “the date, sender, recipient(s), a description of the document, and the basis for redacting or withholding the document.” (Doc. No. 200, PageID# 3031.)

Two sections of the privilege log pass muster. The log adequately identifies the documents as transcripts and specifies that portions of the transcripts are withheld under the attorney-client privilege and work-product doctrine. The description provided does not, however, associate a date with the withheld communications or identify the attorneys and employees involved in the communications. Last, the explanations provided for withholding portions of the transcripts are too vague to meaningfully assess each claim of privilege. Two descriptions rely on an order from a previous privilege review. While the description includes the page number of the previous order, that particular page addressed privilege assertions for forty-two documents. Without reviewing the forty-two documents, which EPAC cannot do, the basis for asserting privilege in the instant log is unclear. Moreover, the descriptions provided in the log contain conclusory recitations of elements of the attorney-client privilege and work-product doctrine. Magistrate Judge Bryant explained that nondescript justifications for withholding documents do not satisfy Rule 26(b)(5). (Doc. No. 200, PageID # 3031.) (“Series of emails providing information prepared at the direction of counsel and in preparation of litigation” was deemed insufficient.) In contrast, the descriptions provided in Thomas Nelson's consolidated privilege log (Doc. No. 167-1) provide a sufficient level of detail.

Consistent with the results of this Court's in camera review, Thomas Nelson is ORDERED to amend the privilege log accompanying the redacted transcripts within twenty-eight days of the date of this order. The log must provide the date of the privileged communications, the attorneys and employees referenced in the log, and a more detailed explanation for withholding the privileged transcript portions.

IV. IN CAMERA REVIEW OF THE TRANSCRIPTS

As the parties are aware, this suit is governed by Tennessee's attorney-client privilege and the federal work-product doctrine. (Doc. No. 200, PageID# 3020–3022.) The attorney-client privilege will protect disclosure of confidential communications between a client and his or her attorney for the purpose of giving or receiving legal advice so long as privilege has not been waived. Tenn. Code Ann. § 23–3–105 (2009); Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 212–13 (Tenn. Ct. App. 2002). The federal work-product doctrine generally prevents a party from discovering (1) documents and tangible things (2) prepared by or for a party or its representative (3) in anticipation of litigation or for trial. Fed. R. Civ. P. 26(b)(3)(A). The work-product doctrine is intended to protect from disclosure an attorney's theories and strategies about a case. United States v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006) (citation omitted).

Each party to civil litigation is required to preserve evidence that the party knows or should know may be relevant to current or future litigation. John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008) (citations omitted). Through discovery, the parties may investigate the adequacy of one another's preservation efforts. See Konica Minolta Bus. Sols., U.S.A. Inc v. Lowery Corp., No. 15-CV-11254, 2016 WL 4537847, at *5–6 (E.D. Mich. Aug. 31, 2016) (explaining that discovery into a party's preservation efforts and other topics was needed before entering spoliation sanctions); see also Boyington v. Percheron Field Servs., LLC, No. 3:14-CV-90, 2016 WL 6068813, at *11 (W.D. Pa. Oct. 14, 2016) (citing In re eBay Seller Antitrust Litig., No. C 07-01882 JF (RS), 2007 WL 2852364, at *2–3 (N.D. Cal. Oct. 2, 2007)) (explaining that information surrounding preservation efforts is discoverable); Cohen v. Trump, No. 13-CV- 2519-GPC WVG, 2015 WL 3617124, at *7 (S.D. Cal. June 9, 2015) (citation omitted) (“Discovery regarding the circumstances of a company's litigation hold is not privileged, even if the hold memo itself is privileged.”); Cannata v. Wyndham Worldwide Corp., No. 2:10-CV- 00068-PMP, 2011 WL 3495987, at *2 (D. Nev. Aug. 10, 2011) (quoting In re eBay Seller Antitrust Litig., No. C 07-01882 JF (RS), 2007 WL 2852364, at *2) (“Plaintiffs are entitled to know ‘what kinds and categories of ESI [defendant's] employees were instructed to preserve and collect, and what specific actions they were instructed to undertake to that end.’ ”). Such investigation becomes especially relevant where the adequacy of a party's preservation efforts is in question. See Nacco Materials Handling Grp., Inc. v. Lilly Co., 278 F.R.D. 395, 407 (W.D. Tenn. 2011) (finding a party's poor preservation efforts required sanctions and ordering the party to file a detailed affidavit or declaration explaining the steps taken to preserve evidence).

*3 As follows, the Magistrate Judge concludes that the Special Master appropriately designated the portions on which his report relies and finds that numerous privilege assertions are misplaced. Within twenty-eight days from entry of this order, Thomas Nelson is ORDERED to file an amended version of these transcripts consistent with the privilege rulings made herein.

A. MATERIAL ON WHICH THE SPECIAL MASTER DID NOT RELY

The transcript portions on which the Special Master did not rely are properly designated and redacted. These sections contain irrelevant background information, information that was produced more clearly in another portion of the transcript, and discussions between the Special Master and counsel for Thomas Nelson. With the exception of portions withheld under claims of privilege, EPAC has access to the material information in these three statements.

B. MATERIAL WITHHELD AS PRIVILEGED

The material withheld under claims of privilege falls into two categories: discussions regarding preservation efforts (1) in connection with a Department of Justice (DOJ) investigation into HarperCollins Publishers, LLC and (2) in connection with this lawsuit.

1. PORTIONS RELATED TO THE DOJ INVESTIGATION

The DOJ investigation is tangentially related to this lawsuit. In evaluating the adequacy of Thomas Nelson's preservation efforts, the Special Master compared Thomas Nelson's expenditures and efforts in connection with the present suit to those made during the DOJ investigation. (Doc. No. 226, PageID# 3825–3826.) For purposes of this case, Thomas Nelson's preservation efforts in connection with the DOJ investigation are relevant.

The redacted portions of pages 18 (lines 18–25), 19 (lines 1–12), 20 (lines 4–10, 14–17), and 21 (lines 1–25) of Mr. Gibbs's statement (Doc. No. 339-1, PageID# 7665–7668) are appropriately withheld. These portions reflect communications between Mr. Gibbs and Thomas Nelson's general counsel for purposes of creating litigation hold notices. Additionally, the discussion relies on an item for which Thomas Nelson may plausibly claim work-product protection. Last, this discussion does not contain the kind of information that that would enable EPAC to evaluate the adequacy of Thomas Nelson's preservation efforts in connection with the DOJ investigation.

Lines 2–8 on page 107 of Mr. Gibbs's statement refer to the general managerial protocol for adding and removing individuals from a legal hold backup at Thomas Nelson. (Doc. No. 339-1, PageID# 7747.) This section is not privileged and should not be redacted. The redacted sections on pages 111 (lines 17–25) and 112 (lines 1–4) of Mr. Gibbs's statement should likewise not be redacted. (Doc. No. 339-1, PageID# 7751–7752.) The Special Master explains in broad terms the circumstances in which Thomas Nelson enacted a litigation hold in connection with the DOJ investigation. No legal advice or mental impressions from counsel are reflected in the Special Master's summary.

2. PORTIONS RELATED TO THIS LAWSUIT

Insofar as the statements are redacted to omit discussion regarding preservation efforts in connection with this case, the statements should be produced. Earlier in this suit, Thomas Nelson was ordered to produce its litigation hold notices upon a preliminary finding of spoliation. (Doc. No. 200, PageID# 3036–3037.) Discussion of these notices and the efforts taken as a result of these notices are not privileged and should be produced.

*4 One preliminary matter must be addressed. The privilege log submitted in connection with the redacted statements (Doc. No. 339) relies in part on this Court's previous privilege review. Citing page 10 of docket number 200, Thomas Nelson argues that pockets of testimony related to its preservation efforts in these three statements are privileged. (Doc. No. 339.) Reviewing the forty-two documents listed on the cited page of the previous order, the Magistrate Judge notes that counsel for Thomas Nelson directed an executive to preserve evidence on April 18, 2011. This communication is reflected in privilege log entries 60, 61, 69, and 70. Several other executives were copied on the communication. In privilege log entry 69, counsel for Thomas Nelson sent a second preservation reminder to these executives on July 26, 2011. These documents were deemed privileged because “Mr. Wentworth solicit[ed] and receiv[ed] information to assist him in providing legal advice to Thomas Nelson employees.” (Doc. No. 200, PageID# 3027.) The preservation requests in those entries were not independent grounds for finding the documents privileged, and at that time were not clearly recognized as litigation hold notices. This is apparent as the briefing submitted at that time only identified the January 20, 2012 and May 10, 2012 litigation hold notices (Doc. Nos. 78, 80, 102, 116), and the Court's order made reference to the same. (Doc. No. 200, PageID# 3035.) Regardless, the order broadly required Thomas Nelson to produce its litigation hold notices to EPAC, which would necessarily include the April 18, 2011 and July 26, 2011 communications. (Doc. No. 200, PageID# 3037.) If Thomas Nelson has not yet done so, the April 18, 2011 and July 26, 2011 preservation requests should be produced. As the remainder of the documents containing the April 18, 2011 and July 26, 2011 preservation requests are privileged, only the preservation requests should be produced. With this clarification, the Magistrate Judge reviews the invocations of privilege as to the three transcripts.

a. SCOTT GIBBS'S STATEMENT

The redacted potions on pages 28 (lines 22–25), 29 (lines 1–5), and 36 (lines 13–18) should be produced. (Doc. No. 339-1, PageID# 7672–7673, 7678.) Mr. Gibbs testified that Mr. Proctor gave him instructions regarding implementing a litigation hold. This is not privileged or work product.

On pages 62 (lines 21–25), 63 (lines 1–2, 8–19), 66 (lines 17–23), 67 (lines 14–20), Mr. Gibbs and the Special Master discuss the litigation hold notices conveyed from counsel to Thomas Nelson executives. (Doc. No. 339-1, PageID# 7704–7705, 7708–7709.) As that material was ordered produced in December 2015, discussion regarding the communications should not be redacted.

Pages 82 (lines 9–25), 83 (lines 1–16), 84 (lines 12–25), 85 (lines 1–22), 96 (lines 17–23) contain a discussion about communications made by Mr. Gibbs when he realized that the Google Postini program was purging emails within ten years' duration. (Doc. No. 339-1, PageID# 7722–7725, 7736.) According to Mr. Gibbs's testimony, he communicated this news to his superior and to counsel. Rather than seeking legal advice, it is more reasonable to conclude that Mr. Gibbs was seeking managerial advice through these communications. Additionally, the discussion does not reveal counsel's mental impressions or strategies or any type of material intended to be covered by the work-product doctrine. These sections should not be redacted.

Last, the redacted portion on page 110 (lines 1–6) of Mr. Gibbs's statement does not contain legal advice or work product. (Doc. No. 339-1, PageID# 7750.) Those lines should be unredacted.

b. GEORGE GOWER'S STATEMENT

The redactions on pages 73 (lines 3–25) and 74 (lines 1–16) of Mr. Gower's statement are appropriate. (Doc. No. 339-2, PageID# 7810–7811.) This discussion summarizes the contents of a document previously found privileged.

The remaining redactions in Mr. Gower's statement should be removed: pages 16 (lines 21–25), 17 (lines 1–2, 9–17), 22 (lines 6–20), 27 (lines 3–14), 33 (lines 6–14), 36 (lines 9–11), 37 (lines 15–21), 38 (lines 1–18), 47 (lines 18–25), 48 (lines 1–12), 50 (lines 20–23), 52 (lines 3–6), 56 (lines 10–18), 76 (lines 15–19), and Exhibit A. (Doc. No. 339-2, PageID# 7767–7768, 7772–7773,7778, 7780–7782, 7790–7791, 7793, 7795, 7798, 7813, 7828.) These redacted communications concern the litigation hold notices that were ordered produced in December 2015.

c. MARVIN MAPHET'S STATEMENT

Only one portion of Mr. Maphet's statement was withheld as privileged. Thomas Nelson redacted lines 15–21 on page 50 of Mr. Maphet's statement. (Doc. No. 339-3, PageID# 7872.) The redacted portion relates to whether Mr. Maphet was instructed to participate in a litigation hold. This general statement does not reflect legal advice as opposed to general data retention requirements, and the statement does not reflect protected work product. This section should not be redacted.

V. CONCLUSION

For the reasons provided herein, EPAC's motion to compel production of all nonprivileged transcript portions and all nonprivileged facts learned by the Special Master (Doc. No. 343) is DENIED. Thomas Nelson is ORDERED to amend the privilege log accompanying the redacted transcripts and produce amended redacted transcripts within twenty-eight days from entry of this order.

*5 IT IS SO ORDERED.