I. Statement of the Case

On September 30, 2014, EPAC filed a motion requesting that the Magistrate Judge review sections of Thomas Nelson's privilege logs and litigation holds. (Docket Entry 78). After considering Thomas Nelson's response (Docket Entry 102) and EPAC's reply (Docket Entry 116) and discussing the matter in a hearing on July 24, 2015 (Docket Entry 165), the Magistrate Judge granted EPAC's motion and ordered Thomas Nelson to submit the contested documents to the Court for in camera review. (Docket Entry 164). In addition to providing the documents as requested, Thomas Nelson submitted a new consolidated privilege log (Docket Entry 167-1) and Thomas Nelson's supplemental responses to EPAC's request for all litigation hold documents (Docket Entry 167-2). These issues are properly before the Court.

II. Legal Standard

Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case ....” This includes documents and electronically stored information. Fed. R. Civ. P. 34(a)(1)(A). Should the court's assistance be required in completing discovery, “[o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). This rule may be invoked to compel production of documents which have been improperly withheld from a request for production. Fed. R. Civ. P. 37(a)(3)(B)(iv).[1]

III. Issues Presented and Analysis

A. Documents Withheld for Attorney-Client Privilege and Work Product Privilege

1. Issue Presented

EPAC argues that Thomas Nelson has improperly withheld documents on the basis of attorney-client privilege and work product privilege. (Docket Entry 80, p. 8-12). First, EPAC believes that the withheld e-mails involving Thomas Nelson's in-house counsel, Frank Wentworth, dated March 5, 2010 to July 9, 2010 pertain to business advice, not legal advice. (Docket Entry 80, p. 8-10). In particular, EPAC is concerned that these e-mails may include communications between Thomas Nelson and Lightning Source, Inc. in an attempt to undercut EPAC's contract with Thomas Nelson. (Docket Entry 80, p. 10). EPAC also challenges the privilege log entries in which attorneys are merely copied on e-mails. (Docket Entry 80, p. 11). Last, EPAC challenges the privilege log entries in which no attorney was copied. (Docket Entry 80, p. 11-12).

2. Rule: Attorney-Client Privilege

*2 Rule 501 of the Federal Rules of Evidence states that in civil cases, “state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” Therefore, when a federal court's subject matter jurisdiction is based on diversity of the parties, like the present case, the court applies state law to resolve claims of attorney-client privilege. In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir. 2006). As well as being recognized at common law, the attorney-client privilege is also codified in Tennessee. Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 212 (Tenn. Ct. App. 2002). The Tennessee statute provides that:

Tenn. Code Ann. § 23-3-105 (2009). This privilege is narrowly construed, as Tennessee law “favors making all relevant evidence available to the trier of fact.” Boyd, 88 S.W.3d at 212 (citation omitted).

To be privileged, “[t]he communications must involve the subject matter of the representation and must be made with the intention that they will be kept confidential.” Id. at 213. The party claiming privilege must show that the attorney was “applied to for advice or aid in his professional character ....” State v. Jackson, 444 S.W.3d 554, 599 (Tenn. 2014) (citation omitted). Copying an attorney on an e-mail is not in itself sufficient to make the communication privileged. See Leazure v. Apria Healthcare Inc., No. 1:09-CV-224, 2010 WL 3397685, at *4 (E.D. Tenn. Aug. 26, 2010) (requiring production of e-mails on which in-house counsel was copied when the communication was not made for the purpose of obtaining legal advice). However, the attorney-client privilege extends to “[d]rafts of documents prepared by counsel or circulated to counsel for comments on legal issues ... if they were prepared or circulated for the purpose of giving or obtaining legal advice and contain information or comments not included in the final version.” Andritz Sprout-Bauer, Inc. v. Beazer E., Inc., 174 F.R.D. 609, 633 (M.D. Pa. 1997) (citations omitted); see also Keating v. McCahill, No. CIV.A. 11-518, 2012 WL 2527024, at *3 (E.D. Pa. July 2, 2012); Iowa Pac. Holdings, LLC v. Nat'l R.R. Passenger Corp., No. 09-CV-02977-REB-KLM, 2011 WL 1527599, at *4 (D. Colo. Apr. 21, 2011); United States v. New York Metro. Transp. Auth., No. 03CV02139-SLT-MDG, 2006 WL 3833120, at *1 (E.D.N.Y. Dec. 29, 2006).

“Communications among non-attorneys in a corporation may be privileged if made at the direction of counsel, to gather information to aid counsel in providing legal services.” In re Rivastigmine Patent Litig., 237 F.R.D. 69, 80 (S.D.N.Y. 2006); see also Voelker v. Deutsche Bank AG, No. 11-CV-6362 VEC, 2014 WL 4473351, at *1 (S.D.N.Y. Sept. 11, 2014); Sky Angel U.S., LLC v. Discovery Commc'ns, LLC, 28 F. Supp. 3d 465, 486 (D. Md. 2014); Brigham Young Univ. v. Pfizer, Inc., No. 2:06-CV-890 TS, 2011 WL 2795892, at *3 (D. Utah July 14, 2011). Additionally, communications with in-house counsel may be privileged. Upjohn Co. v. United States, 449 U.S. 383, 394 (1981). Recognizing that in-house counsel often provide both legal and business advice to their employers, courts look at the “hat” worn by the in-house attorney during the communication.[2] Curtis v. Alcoa, Inc., No. 3:06-CV-448, 2009 WL 838232, at *2-3 (E.D. Tenn. Mar. 27, 2009); Jones v. Nissan N. Am., Inc., No. 3:07-0645, 2008 WL 5114652, at *2 (M.D. Tenn. Dec. 2, 2008). Regardless of how much extra scrutiny is attached to communication with in-house counsel, the court applies this general rule: communications conveying or seeking legal advice are privileged; communications conveying or seeking business advice are not privileged. Leazure, No. 1:09-CV-224, 2010 WL 3895727, at *1; John B. v. Goetz, 879 F. Supp. 2d 787, 894-95 (M.D. Tenn. 2010).

3. Rule: Work Product Privilege

*3 In diversity cases, claims of work product privilege are resolved by federal law, specifically Rule 26(b)(3) of the Federal Rules of Civil Procedure. In re Professionals Direct Ins. Co., 578 F.3d 432, 438 (6th Cir. 2009). “Rule 26(b)(3) protects (1) documents and tangible things; (2) prepared in anticipation of litigation or for trial; (3) by or for another party or its representative.” Id. (citation and internal quotations omitted).

Whether a document is prepared in anticipation of litigation is resolved by a two-factor test. Id. at 439. First, the party must have prepared the document in response to a subjective anticipation of litigation. Id. (citing United States v. Roxworthy, 457 F.3d 590, 594 (6th Cir. 2006)). Second, the party's subjective anticipation of litigation must have been objectively reasonable. Id. (citing Roxworthy, 457 F.3d at 594). The party asserting the privilege bears the burden of proving the privilege applies. In re Powerhouse Licensing, LLC, 441 F.3d at 473.

4. Application and Conclusion

Thomas Nelson submitted its privilege log entries for in camera review. The Magistrate Judge reviews each in turn. For the ease of the reader, cumulative e-mail threads are discussed together. The entries marked nonprivileged are discoverable.

Privilege Log Entry #[3] Entries 1-6 and 93-95 Entry 96 Entries 7, 78-79, and 139 Entry 9 Entry 97 Entries 10-11 Entries 12-15 Entries 16-17 and 98 Entries 18-19 Entries 20 and 99-100 Entry 21 Entries 101-102 Entry 22 Entry 23 Entries 24-25 Entries 26-27 and 103-104 Entries 105-106 Entries 28 and 107-108 Entries 29 and 110 Entry 109 Entries 30 and 111-113 Entry 31 Entry 8 Entries 32 and 72 Entry 33 Entry 34 Entries 35-36 and 38-51 Entry 37 Entry 52 Entry 114 Entries 115-120 Entries 53 and 56 Entries 54-55, 57, and 121-126 Entries 58, 62, and 128-132 Entries 59 and 127 Entries 60-61 and 69-70 Entries 63-65 and 113-135 Entries 66-68 Entry 71 Entry 138 Entries 73-75 and 136 Entries 76 and 140 Entries 77 and 141 Entry 137 Entry 80 Entries 81-83 Entry 84 Entries 85-86 Entry 87 Entries 88-92 Finding EPAC did not challenge these entries. The entry is privileged. Mr. Wentworth is copied on an e-mail concerning the business terms between EPAC and Thomas Nelson, presumably anticipating his legal input in an upcoming meeting. These documents have been produced and are no longer at issue. The document is properly withheld under the attorney-client privilege. It contains a short e-mail thread between several Thomas Nelson legal department employees discussing the EPAC agreement. This entry is privileged. George Gower discusses contract formation issues with Mr. Wentworth and Tom Harris. As in-house counsel for Thomas Nelson, Mr. Wentworth would be expected to provide legal advice in response to this communication. These e-mail exchanges are privileged. Mr. Wentworth's legal advice was sought regarding the EPAC agreement materials. The descriptions on the privilege log are not entirely accurate. A more fitting description for these entries is “Emails seeking legal advice of counsel re: EPAC agreement draft.” Mr. Wentworth did not provide any legal advice in the email exchanges.[4] These entries are privileged. They consist of e-mails in which information is provided to Mr. Wentworth to obtain his legal advice regarding the EPAC agreement materials. Although Mr. Wentworth is only copied on this series of e-mail exchanges, the entries are privileged. This is yet another set of correspondence between Thomas Nelson employees discussing the formation of the EPAC agreement. Since Mr. Wentworth's legal advice was consistently sought during the creation of the agreement, it is to be expected that he is copied on the e-mails in which suggestions to the agreement are made. Having been copied on the correspondence, Mr. Wentworth could render informed legal advice. These entries are privileged. Mr. Wentworth is copied on the e-mails in these entries, presumably to inform him of the current version of the EPAC draft agreement materials and to allow him to provide legal advice concerning the agreement. These entries are privileged. Mr. Wentworth is copied on an e-mail containing suggested changes to the EPAC draft agreement materials. As discussed earlier, this would enable Mr. Wentworth to provide legal advice regarding the agreement. The entry is privileged. Mr. Wentworth was provided with updated versions of the EPAC agreement materials and proceeded to make several handwritten comments on the materials. These entries are privileged. Mr. Wentworh was copied on e-mails containing suggestions to the EPAC agreement materials. As discussed earlier, the fact that Mr. Wentworth is only copied on the e-mail does not preclude claims of privilege. Acting as the in-house counsel for Thomas Nelson, Mr. Wentworth should be expected to receive updates on the progression of the agreement so that he could render informed legal advice. The entry is privileged. It consists of e-mails in which suggestions to the EPAC agreement materials are discussed. The discussion and attachments were submitted to Mr. Wentworth for comment. This entry is privileged. A copy of the EPAC agreement materials is provided to Mr. Wentworth for comment. The sender also requests Mr. Wentworth's legal services on a related matter. This e-mail thread is not privileged. While Mr. Wentworth is copied on the most recent e-mails in the thread, he is not giving legal advice, nor is legal advice reasonably sought from him. This is distinguishable from the e-mail threads on which Mr. Wentworth is copied so that he may render legal advice on the matter. These e-mails are merely informing several Thomas Nelson employees about a business decision and the preferred means of handling it. These entries are privileged. Suggestions to the EPAC agreement materials are provided to several Thomas Nelson employees, and Mr. Wentworth is copied on the e-mails. As the in-house counsel for Thomas Nelson, Mr. Wentworth required this information in order to provide legal advice. These entries are privileged. They reflect legal advice received from Mr. Wentworth with regard to the attached EPAC agreement materials. These entries are privileged. The e-mail thread contained within these entries solicits legal advice from Mr. Wentworth. Although the first e-mail in these threads is not privileged, seeing as it was sent from Thomas Nelson employees to EPAC employees, the e-mails between Thomas Nelson employees are privileged. The e-mails between Thomas Nelson employees contain information regarding the EPAC agreement negotiations that are appropriately copied to Mr. Wentworth as the in-house counsel providing legal advice on the agreement. This entry is privileged. A Thomas Nelson employee requested legal advice from Mr. Wentworth. These entries are privileged. Mr. Wentworth is sent a copy of the latest EPAC agreement materials for review. As the in-house attorney for Thomas Nelson, Mr. Wentworth should have been aware of the progression of the agreement negotiations so that he could render legal advice. Part of this entry has been provided to EPAC. The redacted portion is not privileged. Thomas Nelson has not shown that it was seeking or receiving legal advice from Mr. Wentworth. The entry is privileged. Thomas Nelson's privilege log states that this entry is withheld under the attorney-client privilege because it is a “Master Services Agreement with confidential notations.” The description of the document is correct – it is a copy of a Master Services Agreement, and it contains notations throughout. The problem, however, is that the author of the notations is not identified. However, from the notations made on the document, the author was most likely Mr. Wentworth. These entries are nearly identical. Entry 32 differs in that it contains Mr. Wentworth's handwritten notes. A portion of these entries, the November 23, 2010 e-mail referred to on the privilege log, has already been produced to EPAC. (Docket Entry 102, p. 10). The remainder of the entries is properly withheld as privileged. The handwriting on Entry 32 is Mr. Wentworth's work product, and the particular compilation of e-mails and accompanying comments are intended to enable Mr. Wentworth to provide legal advice. The entry is privileged. A Thomas Nelson employee seeks legal advice from Mr. Wentworth regarding the EPAC contract. The entry is privileged. Mr. Wentworth provides legal advice and seeks additional information from Thomas Nelson employees for the purposes of rendering legal advice in the future. These entries are privileged. Thomas Nelson employees were tasked with providing Mr. Wentworth with information about the EPAC contract so that Mr. Wentworth may render a legal opinion. Thomas Nelson has produced a redacted version of this e-mail thread to EPAC. The redacted portion is properly withheld as privileged. George Gower discusses EPAC's contract compliance with Mr. Wentworth. This entry is privileged. Although the drafter of this particular version of the draft termination letter is not identified, the creation of the document was overseen by Mr. Wentworth and the document was repeatedly submitted to him for legal advice. Either this draft was created by Mr. Wentworth or submitted to Mr. Wentworth for advice. The entry is privileged. It consists of a draft letter that Mr. Wentworth sent to another Thomas Nelson legal department employee. These entries are not privileged. Although Mr. Wentworth is involved in the e-mail exchange contained within these entries, he does not give legal advice, nor do Thomas Nelson employees seek his legal advice. The e-mail threads contained in Entries 115-120 merely discuss the delivery status of a letter that was e-mailed to EPAC representatives. Since the letter was sent to EPAC, the letter is clearly not privileged. The dialogue concerning the delivery status of the letter is a business discussion, not a legal discussion. These entries are privileged. The e-mail exchange between Mr. Wentworth and Mr. Gower contained in these entries is meant to assist Mr. Wentworth in providing legal advice. These entries are privileged despite the fact that neither Mr. Wentworth nor another legal advisor is listed on several of the e-mails in this thread. The discussion contained in this e-mail thread solicits input from a variety of Thomas Nelson employees for the purpose of informing Mr. Wentworth of the appropriate way to respond to a letter from EPAC. These discussions are privileged. These entries contain privileged communications. The e-mail exchange between Stuart Bitting, a Thomas Nelson employee, and Sasha Dobrovolsky, an EPAC employee, are not privileged. Neither is the attached letter which was sent from EPAC to Thomas Nelson. The subsequent e-mails between Thomas Nelson employees and Mr. Wentworth, however, are privileged because the Thomas Nelson employees seek and receive legal advice from Mr. Wentworth. Although the first two e-mails in these entries are between an EPAC employee and a Thomas Nelson employee and are not privileged, the subsequent emails in the entries are privileged because they provide information to Mr. Wentworth to obtain legal advice. These entries are privileged. Mr. Wentworth solicits and receives information to assist him in providing legal advice to Thomas Nelson employees. These entries contain privileged communications between Thomas Nelson employees and Mr. Wentworth. The e-mails between Mr. Wentworth and Mr. Beattie, an attorney for EPAC, are not privileged. The subsequent discussion between the Thomas Nelson employees and Mr. Wentworth is privileged. These entries contain privileged communications between Mr. Bitting and Mr. Wentworth as well as privileged handwritten notes on Entry 66. An e-mail sent from Mr. Beattie to Mr. Wentworth is not privileged, but the subsequent e-mails between Mr. Bitting and Mr. Wentworth are properly withheld. A redacted version of this entry was produced to EPAC. The redacted portion is properly withheld on a claim of privilege. Information is provided to Mr. Wentworth for use in giving legal advice. A redacted version of this entry has been produced to EPAC. The withheld portion provides information to Mr. Wentworth to assist him in giving legal advice to Thomas Nelson employees and is properly withheld. These entries are not privileged. No legal advice is given or solicited, and this is not work product prepared in anticipation of litigation. The e-mails consist of Mr. Wentworth's attempts to schedule a meeting between EPAC and Thomas Nelson officials. These are identical entries. The redacted sections in the entries arguably are intended to submit information to Mr. Wentworth for purposes of obtaining legal advice. They are properly withheld as privileged. These are identical entries with the same redactions. As with Entries 76 and 140, the information in the redacted sections appears to have been provided to Mr. Wentworth in order to obtain legal advice. The sections are properly withheld. Portions of this entry are not privileged. The correspondence between Mr. Wentworth and Mr. Beattie is not privileged. The two e-mails between Thomas Nelson employees and Mr. Wentworth are privileged. The redacted portion of this entry is properly withheld as privileged. Mr. Wentworth seeks input from Thomas Nelson employees in connection with legal advice he provides. These entries are a continuation of Entry 80. They contain privileged communications between Mr. Wentworth and Thomas Nelson employees and are properly withheld. The entry is privileged. Although Mr. Wentworth is only copied on the e-mail communication in this entry, it appears he was being informed so that he may give a legal opinion on the matter. These are privileged entries. As described by Thomas Nelson's privilege log, these entries consist of draft letters to Mr. Beattie with confidential notations from Mr. Wentworth. The handwritten notes on this entry are privileged. According to Thomas Nelson's privilege log, the handwriting belongs to Mr. Wentworth. The handwritten notes on these entries appear to belong to Mr. Wentworth and/or another legal service employee at Thomas Nelson. While the final versions of these documents are not privileged, Mr. Wentworth's handwritten notes on the documents are properly withheld. Privileged? Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes

B. Whether Thomas Nelson's Privilege Log is Adequate

1. Issue Presented

*4 EPAC argues that Thomas Nelson's privilege log does not describe the withheld documents with the particularity required by Rule 26(b)(5) of the Federal Rules of Civil Procedure. (Docket Entry 80, p. 12-14). As part of this argument, EPAC requests the Court to order Thomas Nelson to provide better descriptions of these documents and separately itemize e-mail threads on Thomas Nelson's privilege logs. (Docket Entry 80, p. 13-14).

2. Rule: Adequacy of Privilege Log Descriptions

Pursuant to Rule 26(b)(5)(A)(ii) of the Federal Rules of Civil Procedure, a party withholding information on the basis of privilege must “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.” Previously, courts concluded that Rule 26(b)(5) was satisfied when the party's privilege log contained each entry's date, author, recipient, type of privilege asserted, and a brief summary of the document. Lincoln Elec. Co. v. Nat'l Standard, LLC, No. 1:09 CV 1886, 2012 WL 1424777, at *1 (N.D. Ohio Apr. 24, 2012); Sid Mike 99, L.L.C. v. Suntrust Bank, No. 2:07-CV-02453-STADKV, 2009 WL 3255209, at *6 (W.D. Tenn. Oct. 6, 2009).

An issue arises when e-mail threads are included in a privilege log. Namely, courts disagree as to whether each e-mail in the thread should be separately listed on the log. Muro v. Target Corp., 250 F.R.D. 350, 362-63 (N.D. Ill. 2007) aff'd, 580 F.3d 485 (7th Cir. 2009). Courts finding that e-mail threads should not be itemized on privilege logs use the following rationale:

Id. at 363 (emphasis added); see also Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 641-42 (D. Nev. 2013) (separate itemization of e-mail not required, but “this does not mean the e-mails that were part of an e-mail chain that are not privileged in and of themselves should not have been produced if they existed separately ....”); Dawe v. Corr. USA, 263 F.R.D. 613, 621 (E.D. Cal. 2009) (focusing on the most recent e-mail in an e-mail thread to determine whether the string is privileged).

Taking the opposite view, some courts require separate itemization of e-mail threads on privilege logs to facilitate evaluations of and challenges to claims of privilege over e-mails within the string. BreathableBaby, LLC v. Crown Crafts, Inc., No. 12-CV-94 PJS/TNL, 2013 WL 3350594, at *10-11 (D. Minn. May 31, 2013) report and recommendation adopted, No. 12-CV-0094 PJS/TNL, 2013 WL 3349999 (D. Minn. July 1, 2013); In re Universal Serv. Fund Tel. Billing Practices Litig., 232 F.R.D. 669, 672-74 (D. Kan. 2005). “[R]equiring individual entries for each e-mail in a chain helps to ensure that parties do not bury non-privileged communications in e-mail chains that were forwarded to counsel for legal advice.” BreathableBaby, LLC, No. 12-CV-94 PJS/TNL, 2013 WL 3350594, at *11. Even though the court in In re Universal Service Fund Telephone Billing Practices Litigation found that separate itemization of e-mails was required, it offered the following dicta:

232 F.R.D. at 673.

3. Application and Conclusion

The Magistrate Judge agrees with EPAC that Thomas Nelson's privilege log as of September 2014 (Docket Entry 78-4) did not satisfy Rule 26(b)(5). Primarily, the September 2014 log did not adequately describe the basis for withholding documents in which no attorney was involved. For instance, Entries 124-126 consisted of e-mails between employees and were described as “Series of emails providing information prepared at the direction of counsel and in preparation of litigation.” (Docket Entry 78-4). EPAC was understandably concerned with these descriptions. The withholding party's burden of proving privilege is not met with such a nondescript justification.

Thomas Nelson addressed these deficiencies in its July 2015 privilege log. (Docket Entry 167-1). The July 2015 log contains the date, sender, recipient(s), a description of the document, and the basis for redacting or withholding the document. As with the earlier privilege log, members of the Thomas Nelson legal team are identified with an asterisk. Most importantly, Thomas Nelson supplemented its description of the documents in which no attorney was involved. While it would have benefited both parties if this information had been in the earlier privilege logs, the Magistrate Judge concludes that Thomas Nelson's July 2015 privilege log contains enough information to satisfy Rule 26(b)(5).

With respect to EPAC's request that the e-mail threads be listed separately on Thomas Nelson's privilege log, this issue has not yet been addressed by the Sixth Circuit. The Magistrate Judge, however, finds persuasive the standard set forth in Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 641-42 (D. Nev. 2013) whereby e-mail threads are not required to be separately itemized on privilege logs, but nonprivileged portions of e-mail chains should be produced. Thomas Nelson is not required to itemize the e-mail threads on its privilege logs, but it must produce any nonprivileged e-mails from these chains that exist separately.

C. Whether the November 23, 2010 E-mail Thread is Protected by the Work Product Privilege

1. Issue Presented

EPAC argues that Thomas Nelson improperly designated a November 23, 2010 series of e-mails as protected by the work product privilege. (Docket Entry 80, p. 14-15). This date corresponds with Entry 32 on Thomas Nelson's privilege log. (Docket Entry 167-1).

According to Thomas Nelson, the November 23, 2010 e-mail from the thread is not privileged and was provided to EPAC in December 2012. (Docket Entry 102, p. 10). Thomas Nelson states that its in-house attorney printed the e-mail thread sometime after Thomas Nelson anticipated litigation and made handwritten notes on the document. (Docket Entry 102, p. 10). According to Thomas Nelson, the notes are privileged. (Docket Entry 102, p. 10).

2. Rule: Work Product Privilege

The rule is discussed supra III.A.3.

3. Application and Conclusion

In briefing the motion, the parties appear to have resolved this issue.[5] After in camera review of the document, the Magistrate Judge concludes that the November 23, 2010 e-mail is not privileged, but Mr. Wentworth's handwritten notes on the e-mail thread are properly withheld under the work product privilege.

D. Whether the Litigation Hold Notices Should be Produced

1. Issue Presented

*6 EPAC argues that Thomas Nelson's litigation hold notices should be produced because “there has been a preliminary showing of spoliation.” (Docket Entry 80, p. 15). Thomas Nelson responds that litigation hold notices are generally not discoverable, and even if they were, EPAC has not shown any spoliation. (Docket Entry 102, p. 14).

2. Rule: Duty to Preserve Information

It is well established “that a party to civil litigation has a duty to preserve relevant information, including ESI, when that party ‘has notice that the evidence is relevant to litigation or ... should have known that the evidence may be relevant to future litigation.’ ” John B., 531 F.3d at 459 (citations omitted). “[O]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” In re Glob. Technovations, Inc., 431 B.R. 739, 780 (Bankr. E.D. Mich. 2010) aff'd, No. 10-12781, 2011 WL 1297356 (E.D. Mich. Mar. 31, 2011) aff'd sub nom. In re Glob. Technovations Inc., 694 F.3d 705 (6th Cir. 2012) (citation omitted). Failing to preserve ESI may result in discovery sanctions. John B., 531 F.3d at 459; see also Fed. R. Civ. P. 37(b), (e).

3. Rule: Discoverability of Litigation Hold Letters

Generally, litigation holds letters are privileged and are not discoverable. Little Hocking Water Ass'n, Inc. v. E.I. Dupont de Nemours & Co., No. 2:09-CV-1081, 2013 WL 5311292, at *3 (S.D. Ohio Sept. 20, 2013) (citing Major Tours, Inc. v. Colorel, No. CIV 05-3091(JBS/JS), 2009 WL 2413631, at *2 (D.N.J. Aug. 4, 2009)). This rule is not absolute, however. If a party makes a preliminary showing of spoliation, the court may order production of the litigation hold letters. Id. (discussing the application of this rule in Major Tours, Inc., No. CIV 05-3091(JBS/JS), 2009 WL 2413631, at *2). This is a fact-intensive inquiry, and the court should consider “proportionality and reasonableness” in assessing the party's preservation obligations. Id. at *4 (citing Tracy v. NVR, Inc., No. 04-CV-6541L, 2012 WL 1067889, at *9 (W.D.N.Y. Mar. 26, 2012)). Speculative claims do not satisfy the party's obligation of making a preliminary showing of spoliation. Id.

4. Application and Conclusion

The following instances convince the Magistrate Judge that EPAC has made a preliminary showing of spoliation and Thomas Nelson's litigation hold notices should be produced: (1) Thomas Nelson should have instituted its litigation hold in April 2011 but instead waited to send its first litigation hold notice on January 20, 2012; (2) after receiving EPAC's notice to retain records, Thomas Nelson employees destroyed the remaining EPAC-printed products within their control; and (3) Thomas Nelson's third-party document retention provider Google/Postini failed to preserve communications created between December 2011 and the fall of 2012. Combined, these instances rise above the level of speculation. EPAC has satisfied its burden of making a preliminary showing of spoliation.[6]

To begin, the Magistrate Judge is troubled by the date chosen by Thomas Nelson's in-house counsel to distribute Thomas Nelson's first litigation hold. As early as April 12, 2011, Thomas Nelson's in-house counsel, Mr. Wentworth, was on notice that steps should be taken to preserve records relating to Thomas Nelson's contract with EPAC. On that date, EPAC's attorney, Mr. Beattie, informed Mr. Wentworth that “Thomas Nelson is directed to preserve all records in connection with this matter to avoid claims of destruction of evidence.” (Docket Entry 68-1). Indeed, Thomas Nelson admits that it anticipated litigation in April 2011. (Docket Entry 167, p. 4). Several months later, on July 26, 2011, Mr. Beattie gave Mr. Wentworth “another reminder to take whatever steps may be necessary to prevent the destruction of any relevant records.”(Nonprivileged Portion of Privilege Log Entries 66-68). It was not until Mr. Wentworth received a draft complaint from EPAC on January 20, 2012 that he sent out the first litigation hold notice to George Gower, Stuart Bitting, Tom Harris, Troy Edens, Mark Schoenwald, Rick Proctor, and Matt McCurry. (Docket Entry 80, p. 15) (Docket Entry 167-2). A second notice was sent on May 10, 2012 to the aforementioned individuals as well as to Dean Nelson.[7] (Docket Entry 167-2). As a result of this unexplained delay in distributing a litigation hold notice, relevant evidence was destroyed.

*7 First, and perhaps the most obvious example of spoliation, Thomas Nelson destroyed all of the books printed by EPAC. These books are relevant to determining Thomas Nelson's claims that EPAC's printed products were of poor quality and justified terminating the EPAC contract. According to George Gower, Thomas Nelson was in possession of EPAC books in April 2011 and underwent a “cleansing” around May 2011 in which all of the books were discarded. (Docket Entry 71, p. 20-26). Had Thomas Nelson's counsel taken steps to preserve this evidence as was demanded by Mr. Beattie in April 2011, the evidence would not have been destroyed.

Next, Thomas Nelson's third-party document retention provider, Google/Postini failed to store documents created between December 2011 and the fall of 2012. Thomas Nelson hired Google/Postini to retain Thomas Nelson's litigation hold documents for ten years, beginning in December 2011. (Docket Entry 102-7, p. 3-4). In the fall of 2013, Thomas Nelson employees learned that Google/Postini had mistakenly only retained e-mails for one year. (Docket Entry 102-7, p. 3). Only documents created between December 2011 and the fall of 2012 were lost. (Docket Entry 119-1, p. 6-7, 25, 52, 60). Thomas Nelson argues that the information deleted by Google/Postini may be stored in other locations. (Docket Entry 102, p. 15). Alternatively, Thomas Nelson argues that the documents created between December 2011 and the fall of 2012 are not relevant because the EPAC contract was terminated in April 2011. (Docket Entry 102, p. 15). Whether or not these assertions are true, the fact remains that e-mails were destroyed after Thomas Nelson was on notice that it should preserve information. The Court is not currently in a position to determine whether the deleted e-mails are relevant or whether the e-mails were saved in additional locations. Though not itself determinative, this is another factor weighing in favor of producing the litigation hold notices.

EPAC has made a preliminary showing of spoliation that rises above the level of speculation. Thomas Nelson's privilege hold letters must be produced.

IV. Conclusion

Based on the foregoing discussion, the Magistrate Judge finds that the nonprivileged entries on Thomas Nelson's privilege log are discoverable, Thomas Nelson's July 2015 privilege log (Docket Entry 167-1) is adequate, the November 23, 2010 e-mail is not privileged but Mr. Wentworth's handwriting on the e-mail thread (Privilege Log Entry 32) is privileged, and Thomas Nelson's litigation hold notices should be produced to EPAC.

It is so ORDERED.