I. BACKGROUND

This complex commercial dispute arises out of a multi-million dollar loan between Plaintiff BMO Harris Bank, N.A. (“BMO”), a commercial bank, and its borrower, A.B.L. Farms, Inc. (“ABL”), on which ABL defaulted. BMO alleges that, in October 2014, it entered into the loan transaction with ABL based on misrepresentations that Defendants Richert Funding, LLC (“Richert Funding”), a factoring company, and its principals, Defendants Dwight Richert and Bart Garbrecht, made to BMO concerning Defendants' prior financial agreements and security interests with ABL. BMO further alleges that when it was underwriting the loan, Richert Funding prepared and submitted to BMO false and misleading financial statements and accounts receivable data.

The issues currently before the Court largely concern documents that BMO generated during its pre-suit investigation of the ABL fraud. ABL began experiencing financial difficulties in early to mid 2015. On August 14, 2015, BMO learned that ABL and its affiliate Southern Melon were involved in a purported check kite using bank accounts at BMO and BB&T in an attempt to inflate their apparent assets. (Decl. of Dawn Sparr [Doc. 102-5] ¶ 6.) The same day, BMO engaged its fraud department and its Special Asset Management Unit (“SAMU”), which are separate departments within the bank, to investigate the potential fraud.[1] (Id. ¶¶ 6-7.) Documents relating to the fraud department and SAMU's initial investigation have been produced in this case. (Id. ¶ 9.)

On Monday, August 17, 2015, one business day after BMO learned of the purported check kite, BMO engaged its in-house counsel to direct internal and external investigations of potential fraud and to evaluate potential litigation involving ABL, its principals, and others. (Sparr Decl. ¶ 10.) BMO's SAMU and fraud department also worked at the direction of BMO's in-house and external counsel in connection with the investigation. (Id. ¶¶ 11-12.) On or about August 25, 2015, BMO retained the law firm Katten Muchin Rosenman LLP (“Katten”) and William Dorsey (its lead counsel of record in this action) as outside litigation counsel. (Id. ¶ 15.) Mr. Dorsey was responsible for engaging a forensic accountant, Robert Leasure, to assist with the investigation. (Id.)

Fact discovery in this case ended on November 11, 2016, and pursuant to the parties' joint request, the District Court stayed discovery in this case through December 9, 2016, so the parties could explore settlement. Nonetheless, after the close of business on November 10, 2016 – literally the eve of the close of fact discovery – counsel for Defendants alerted the Court to two discovery issues. The first concerned BMO's assertion of the work product doctrine with respect to documents relating to its pre-suit investigation of the ABL loan default. The second related to BMO's apparent refusal to produce communications that it may have had with ABL's principals, Aaron and Danny Letsinger. Counsel told the Court that he could file a motion to compel by the close of business the following day.

*2 On Monday, November 14, 2016,[2] the Court directed expedited briefing on Defendants' issues. BMO has responded to Defendants' motion [Doc. 102], and Defendants have filed a reply [Doc. 104]. The motion is now ripe for resolution.

II. DISCUSSION

A. Defendants' motion to compel is procedurally flawed; nonetheless, the Court will consider the motion on its merits.

Before getting to the substance of Defendants' motion, the Court first addresses BMO's arguments that the motion should be denied out of hand on procedural grounds. BMO argues that Defendants' motion is procedurally defective because defense counsel failed to confer about the discovery issues presently before the Court and omitted the certification of counsel required by Rule 37(a)(1) and Local Rule 37.1.A(1).[3] BMO additionally argues that the motion fails to identify the specific discovery requests on which they are seeking to compel production of documents, also in violation of Local Rule 37.1.A. [Doc. 102 at 15-16.]

BMO is correct that Defendants' motion fails to comply with Rule 37 and Local Rule 37.1. The Court would be well within its discretion to deny Defendants' motion on those procedural grounds. With respect to the meet-and-confer requirement, the Court relies heavily on counsel to discuss discovery disputes and attempt in good faith to resolve them without court intervention. And, even when a meet-and-confer does not result in a resolution of the parties' dispute, oftentimes the parties are able to narrow the issues that they need to present to the Court. But the Court is also keenly aware that discovery in this case has been contentious, and the Court doubts that a good faith conference would have resolved all of Defendants' discovery issues. So, rather than deny Defendants' motion solely on technical grounds, the Court will consider the “discernible merits” of the motion. See Columbus Drywall & Insulation, Inc. v. Masco Corp., No. 1:04-cv-03066-JEC-RGV, 2014 WL 11352936, at *2 (N.D. Ga. July 28, 2014). Any future motions to compel—including motions filed with permission of the Court—must include the appropriate certification and follow the formal requirements of Local Rule 37.1.

*3 BMO also contends that the motion to compel is untimely under Local Rule 37.1.B, which generally requires that motions to compel be filed before the close of discovery.[4] [Doc. 102 at 15.] In light of the fact that Defendants raised potential issues before the close of discovery, and the Court specifically instructed Defendants to file their motion by Wednesday, November 16, the Court will not deny the motion to compel as untimely under the Local Rules.

B. The Court will not compel production of the documents BMO withheld on work product.

1. Defendants' arguments

Defendants urge the Court to compel BMO to produce “all records associated with [BMO's] investigation of the default on the ABL Loan that is the subject of this action” that BMO has withheld from production under the work product doctrine. [Doc. 99 at 1.] Defendants specifically challenge 159 documents, dated between August 17, 2015 and October 23, 2015, listed on BMO's privilege log: 157 documents that BMO withheld on the basis of work product; one document withheld on a joint assertion of attorney-client privilege and work product; and one document withheld solely on the basis of attorney-client privilege. [See Doc. 99-4 (privilege log).]

Defendants assert several, overlapping reasons why the documents should be produced.[5] First, Defendants contend that the work product doctrine does not apply to the documents because BMO has not met its burden to show that the documents were prepared in anticipation of litigation. The thrust of Defendants' argument is that BMO has failed to come forward with competent, nonconclusory evidence that would establish the investigation served a litigation, rather than business, purpose.

Second, Defendants assert that the withheld documents reflect conclusions of internal investigations, which BMO's representatives have used to make “allegations against Defendants,” but have not produced the “underlying data or conclusions.” [Doc. 99 at 2.] In so many words, Defendants contend that BMO must produce the documents because they contain information that forms the basis of BMO's allegations in this action.

Last, Defendants contend that the investigation concluded that BMO's own conduct invalidated its guaranty with the SBA, which Defendants believe motivated BMO's decision to sue Defendants. [Doc. 99 at 2.]

After summarizing the applicable law, the Court addresses each of those arguments.

2. Applicable law

The work product doctrine protects from discovery “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A). Work product can be reflected in “interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways.” Johnson v. Gross, 611 F. App'x 544, 547 (11th Cir. 2015) (per curiam) (quoting Hickman v. Taylor, 329 U.S. 495, 511 (1947) ) (quotation marks and alteration omitted).

*4 The party invoking the work product doctrine bears the initial burden of showing that the documents it has withheld were prepared in anticipation of litigation. Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680, 684 (N.D. Ga. 2012) (Totenberg, J.). “This burden may be satisfied through a detailed privilege log and affidavits from counsel, the party, or the expert, and also by any of the traditional ways in which proof is produced in pretrial proceedings.” Id. Thus, the Court's “first task” is to determine whether BMO satisfied its burden to show that the documents were prepared in anticipation of litigation. See Underwriters Ins. Co. v. Atlanta Gas Light Co., 248 F.R.D. 663, 667 (N.D. Ga. 2008) (Carnes, J.).

If BMO shows that the documents were prepared in anticipation of litigation, the burden shifts to Defendants “to demonstrate the existence of exceptional circumstances for the discovery of otherwise privileged documents.” Spirit Master, 287 F.R.D. at 684. Defendants can make such a showing by demonstrating a “substantial need of the materials” and an inability “without undue hardship” to obtain the materials by other means. Underwriters Ins., 248 F.R.D. at 668. “Defendant, as the party seeking to show exceptional circumstances ... carries a heavy burden.” Spirit Master, 287 F.R.D. at 684, But, “[e]ven as to documents for which [Defendants] can show substantial need, documents containing the ‘mental impressions, conclusions, opinions, or legal theories of an attorney or other representative must’ receive additional (if not complete) protection.” Underwriters Ins., 248 F.R.D. at 667 (citing Fed. R. Civ. P. 26(b)(3) ).

3. Analysis

a. BMO has met its burden to show that the documents listed on the privilege log were prepared in anticipation of litigation.

In U.S. ex rel. Bibby v. Wells Fargo Bank, N.A., this Court recognized that when assessing whether materials were created in anticipation of litigation, there are two “related, but nonetheless distinct, concepts” at play: a temporal requirement and a motivational requirement. 165 F. Supp. 3d 1319, 1324 (N.D. Ga. 2015) (Totenberg, J.); see also Fojtasek v. NCL (Bah.) Ltd., 262 F.R.D. 650, 654 (S.D. Fla. 2009) (“[A] court must determine when a contested document was created, and why that document was created in assessing the applicability of the work product doctrine.”).

To meet the temporal component, the document must have been created before or during litigation. Bibby, 165 F. Supp. 3d at 1324. Here, all the documents at issue were created between August 17, 2015 and October 26, 2015, all within ninety days before this action was filed on November 6, 2015. [See Doc. 99-4 (privilege log); see also Doc. 1.] Accordingly, there is no serious dispute that the temporal element is met here.

The parties dispute, however, whether BMO has met the motivational component, under which “the Court must determine why the documents were created in order to assess the applicability of the work product doctrine.” Bibby, 165 F. Supp. 3d at 1324. This is not a simple task where more than one factor motivates the creation of the documents at issue. Complicating the analysis is that the law in the Eleventh Circuit appears to be unsettled. Some courts in this Circuit have concluded that they are bound to follow the “primary motivating purpose” test that the former Fifth Circuit articulated in United States v. Davis, 636 F.2d 1028, 1031, 1038 (5th Cir. Unit A Feb. 1981).[6] See, e.g., Tillman v. C.R. Bard, Inc., No. 3:13-cv-222-J-34JBT, 2015 WL 1062182, at *3 (M.D. Fla. Mar. 10, 2015) (collecting cases). Under that test, a document is protected work product “as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.” Davis, 636 F.2d at 1040 (emphasis added). Other courts have concluded that Davis is inapplicable (either because it is factually distinguishable or its pronouncement was dicta), and instead apply the “because of” test adopted in other circuits. Adams v. City of Montgomery, 282 F.R.D. 627, 634 (M.D. Ala. 2012) (citing cases that recognize the “because of” test); Regions Fin. Corp. v. United States, No. 2:06-CV-895-RDP, 2008 WL 2139008, at *4 (N.D. Ala. May 8, 2008)(concluding that the primary motivating purpose test of Davis is dicta and that Davis is factually distinguishable). Under the “because of” test, the court asks whether, “in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared ... because of the prospect of litigation.” United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998) (quotation omitted); see alsoBibby, 165 F. Supp. 3d at 1325.

*5 Defendants do not address which standard the Court should apply to analyze the motivational element, much less argue in favor of one over the other. Instead, citing deposition testimony from BMO's 30(b)(6) representative Dawn Sparr and an email authored by BMO Vice President Richard Paskis, Defendants argue that BMO's own evidence shows that the investigation served a business, rather than litigation, purpose. [Doc. 99 at 6-11; Doc. 104 at 4.] Defendants further contend that Sparr's declaration, which BMO submitted in support of its response, is insufficient to establish that the investigation was for a litigation purpose. Because Defendants focus on the sufficiency of the evidence, the Court need not choose between the “primary motivating factor” or the “because of” test, or determine whether there is truly a practical difference between them. Under either test, the Court finds that BMO has come forward with sufficient evidence to show that its investigation was motivated by a litigation purpose, and that the documents created in connection with that investigation are protected by the work product doctrine.

The Court starts with Sparr's declaration testimony, because it is the most direct proof that BMO points to in support of its position that the investigation was for litigation purposes.[7] Sparr stated in her declaration that within one business day of learning about ABL's check kite, BMO's in-house counsel was engaged to oversee and direct internal and external investigations. (Sparr Decl. 10.) She further explained that “[t]he purpose of the investigations was to evaluate the litigation options for BMO to pursue against ABL, its principals, and third-parties.” (Sparr Decl. ¶ 10.) Sparr went on to state that it is not uncommon for BMO's in-house attorneys to work with the SAMU and fraud department to conduct investigations that are being performed in preparation for litigation, and that as a matter of practice, BMO does not engage internal or external counsel where litigation is not anticipated or legal experience is not needed. (Id. ¶ 13.) She also stated that one of the in-house lawyers tasked with overseeing and directing the investigations, has continued to manage BMO's internal investigations as well as its litigation regarding the ABL loan. (Id. ¶ 14.) In addition, by August 25, 2015, BMO had engaged Katten, which in turn retained forensic accountant Robert Leasure, for all litigation purposes. (Id. ¶ 15.) Contrary to Defendants' arguments that Sparr's declaration is insufficient to “provide the requisite proof,” [see Doc. 104 at 5-6], the Court readily concludes that Sparr's declaration is sufficient to demonstrate that BMO's investigation was conducted in anticipation of litigation.

Defendants argue that the Court should discount or reject Sparr's declaration because it lacks a sufficient foundation and that other witnesses are more knowledgeable than her about the circumstances of the investigation. [Doc. 104 at 7-9.] The Court rejects that argument. Sparr expressly described how she has knowledge of the facts testified to in her declaration, and the Court sees no reason why Sparr's declaration should be discounted just because other individuals might also be able to testify as to the purpose and nature of BMO's investigation.

*6 Defendants also contend that “nowhere does [Sparr] state that the investigation at issue was anything other than the standard investigation that all banks undertake when there has been a loss, irrespective of the prospect of litigation.” [Doc. 104 at 5-6.] Sparr did not testify one way or another as to what “all banks” do under such circumstances, nor does the Court see any reason why she should be expected to make such a statement. Her declaration testimony is clear that in this case BMO engaged its internal and external counsel to direct and participate in an investigation to evaluate its “litigation options.” (Sparr Decl. ¶ 10.)

Defendants also cite to Sparr's Rule 30(b)(6) deposition testimony as confirming that the investigation “was a routine business function and was not conducted by litigation divisions.” [Doc. 99 at 8.] Defendants overstate her testimony. Sparr actually testified that certain members of the fraud investigation unit are not lawyers; that the SAMU is a different group than the fraud investigation unit; and that the fraud investigation unit might be involved even if there is no litigation involved. [Id. at 8-9.] Common sense dictates that just because SAMU and the fraud department perform a business function does not mean that neither can ever be involved in a privileged internal investigation, or that no document generated by either unit can constitute work product. As this Court has explained, “a document created because of the prospect of litigation does not lose its protection just because it serves a secondary, non-litigation purpose.” Bibby, 165 F. Supp. 3d at 1325; see also Spirit Master, 287 F.R.D. at 685; Adams, 282 F.R.D. at 634)

Defendants' reliance on an email authored by BMO Vice President Richard J. Paskis (the “Paskis email”) is similarly overstated.[8] [See Doc. 99-1.] Defendants contend that the Paskis email shows that “BMO's SAMU Unit placed the consultant and indicate[s] he was placed almost two weeks before outside counsel was engaged,” which contradicts Sparr's statement that Katten engaged forensic accountant Robert Leasure to assist with the investigation. [Doc. 104 at 2.] The Court disagrees. Paskis wrote in his email that “SAMU placed a consultant on site immediately in an attempt to discern the financial condition of the borrower.” [Doc. 99-1 at 2.] Defendants go on to explain in a footnote that (1) BMO discovered the potential loss on August 14, 2015, (2) the email indicates that Leasure was placed “immediately”; and (3) counsel was retained 11 days later on August 25, 2015. [Id. at 2 n.1.] In other words, Defendants argue that when Paskis wrote that Leasure was placed “immediately,” that means Leasure started work onsite on the first day BMO learned of the potential fraud.

Defendants read far too much into Paskis's statement. For starters, Paskis's use of the word “immediately” was not necessarily intended to have its most literal definition, and therefore does not necessarily suggest that Leasure was “placed” before outside counsel was involved. It also does it contradict the possibility that Leasure, in fact, started work on August 25, 2015, only 11 calendar days, and 7 business days, after BMO learned of the purported check kite. Moreover, the privilege log seems to indicate that Leasure was first involved on August 25, 2015—the date on which outside counsel became involved. The first mention of Leasure in the privilege log is on August 25, 2015, which is consistent with BMO's representation and Sparr's declaration testimony that outside counsel engaged Leasure. [Doc. 99-4 at 17, entries 208 and 214.] Accordingly, the Court does not read the Paskis email as contradicting Sparr's statements that Katten was retained on August 25, 2015, and that Mr. Dorsey was responsible for engaging Leasure. (Sparr Decl. ¶ 15.)

*7 Defendants raise at least six other arguments that the Paskis email calls the purpose of BMO's internal investigation into question. None is convincing. Defendants assert that the email shows that two of BMO's business units “took the lead in the post-default investigation” and makes no mention of the “legal investigation BMO now contends was ongoing.” [Doc. 104 at 9.] But there is no dispute that the legal department and outside counsel were involved during the investigation, and Paskis did not write that the investigation was not being overseen by counsel in anticipation of litigation. Defendants also assert that the email “specifically states the purpose of [Leasure's] placement was to determine [ABL's] financial condition, as opposed to a litigation based-investigation.” [Doc. 104 at 10.] Defendants similarly argue that BMO undertook the investigation to seek reimbursement from the U.S. Small Business Administration Association (the “SBA”), which Defendants maintain shows that BMO was attempting to comply with “SBA regulations” “as opposed to a litigation-based investigation.” [Id.] Paskis's email does not mention litigation one way other, and the Court will not infer that Paskis's silence as to a litigation purpose means that there was none. To make such an assumption would require the Court to apply a binary analysis, under which either the investigation is for business purposes or it is for litigation purposes. As explained above, a document can serve a secondary, nonlitigation purpose and still be protected work product. See Bibby, 165 F. Supp. 3d at 1325.

Defendants also maintain that the investigation was required by the SBA, which guaranteed BMO's loan with ABL, and thus, the work product doctrine is inapplicable. [Id. at 2.] This argument fails. It is not clear what documents (if any) the SBA policies actually require BMO to prepare, much less whether “the documents would have been created in essentially similar form irrespective of the litigation.” Spirit Master, 287 F.R.D. 686 (holding the even if experts were retained to assist in determining defendant's compliance with lease obligations, the work product doctrine could still apply unless the documents would have been created in an essentially similar format regardless of whether there was impending litigation). Indeed, the SBA policy guidelines attached to Defendants' motion say nothing about the form in which documents should be prepared. [Doc. 99-5.]

The Court also rejects Defendants' argument that a document must have been communicated to counsel to constitute work product. [See Doc. 99 at 6; Doc. 104 at 5-6.] While the attorney-client privilege generally requires that there be a confidential communication with an attorney, Rule 26(b)(3)(A) makes it clear that documents prepared by non-attorneys may constitute work product. Fed. R. Civ. P. 26(b)(3)(A) (“Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or trial by or for another party or its representative....”) (emphasis added); see also Bibby, 165 F. Supp. 3d at 1323 n.1 (“It is well settled that materials prepared by non-attorney ‘investigators and other agents’ may be entitled to protection if they were created in anticipation of litigation.”); Adams, 282 F.R.D. at 633 (recognizing that the fact that a nonlawyer conducted interviews and drafted a report “does not vitiate the application” of the work product doctrine).

The bottom line is that each of the challenged documents on BMO's privilege log is described as having been created at the direction of counsel or pertaining to an investigation of potential litigation, and nothing in the record leads the Court to believe that those descriptions might be inaccurate. The Court therefore concludes that BMO has made a sufficient showing that the documents at issue in Defendants' motion were prepared in anticipation of litigation.[9]

b. Defendants have not shown a “substantial need” or “undue hardship” for records.

*8 Defendants briefly argue that the Court should order that records of BMO's forensic accounting be produced because BMO has not identified “invoices it claims Richert fraudulently listed.” [Doc. 99 at 11.] BMO responds that the identity of fraudulent invoices is properly the subject of expert discovery, and that, in any event, there are no documents (privileged or otherwise) that identify by entry the invoices that BMO believes are fraudulent. [Doc. 102 at 21-22, n. 5.] Defendants make no further argument on reply as to this topic.

The Court accepts the representation of BMO's counsel that there are no documents, and thus, declines to compel the production of records relating to BMO's forensic accounting.

Last, Defendants briefly argue that the documents are not protected by work product because “BMO's internal investigation concluded that BMO's conduct invalidated the SBA guaranty, which Defendants believe to be what gave rise to the motivation to sue Defendants.” [Doc. 99 at 2.] Defendants do not explain the basis for this argument or cite any legal authority in support. Nor can the Court tell why evidence of BMO's “motivation” in bringing this suit creates a either a substantial need or undue hardship to justify overruling BMO's work product assertions.

C. The Court declines to compel production of communications with the Letsingers.

Defendants urge the Court to order BMO to produce “all documents that mention, relate to or concern any communications [BMO] or its representatives have had with Aaron or Danny Letsinger (or their representatives) since the default of the ABL loan.” [Doc. 99 at 3.] According to Defendants, those documents are necessary so that Defendants can “evaluate whether BMO has reached an express, implied, or tacit agreement to exchange [or] withhold claims against the Letsingers or referral to criminal prosecution in exchange for an [sic] unfavorable testimony.” [Doc. 99 at 12.] Defendants go on to offer several pages of what they believe is “unusual” testimony that in their view suggests some sort of quid pro quo arrangement between BMO and the Letsingers.

Defendants do not identify any request for production that calls for the communications with the Letsingers. Instead, Defendants rely on a Rule 30(b)(6) topic wherein Defendants sought a witness who could testify concerning “post-default communications with the Letsingers.” [Doc. 104 at 3.] Defendants cite no authority for the proposition that a Rule 30(b)(6) topic can somehow substitute for a request under Rule 34. To the contrary, the Court has found authority on this point that supports the opposite. See, e.g., Payless Shoesource Worldwide, Inc. v. Target Corp., No. 05-4023-JAR, 2007 WL 1959194, at *4 (D. Kan. June 29, 2007) (denying request to produce documents related to 30(b)(6) deposition topics where movant failed to specify the document requests it sought to compel). Indeed, it stands to reason that a 30(b)(6) topic would not obligate a deponent to produce documents since Rule 30(b)(2) expressly contemplates using a subpoena or Rule 34 request to obtain documents in connection with a deposition. Since it appears that Defendants did not propound a Rule 34 request for production of communications with the Letsingers, Defendants' motion to compel such documents is denied.[10]

*9 Last, the Court addresses Defendants' specific request relating to a document known as a “959 Report,” which Defendants believe may contain a reference to an arrangement between the Letsingers and BMO. [Doc. 99 at 18-19.] Defendants argue that they have been unable to identify any 959 Reports on BMO's privilege log, and they cite Sparr's deposition testimony, wherein she stated that a 959 Report would have been prepared by Lauren D'Hondt or Dan Rutishauser.[11] [Id. at 19.] Defendants demand that the 959 reports be “identified, produced in full, produced with mental impressions redacted or produced to the Court for an in-camera inspection.” [Id.]

In its response, BMO identifies the 959 Report as document 353A on the log. The log reflects that the document was authored by Lauren D'Hondt and Mr. Dorsey, and that the document is work product because it is a “Pre-litigation investigation report prepared by and at the direction of counsel.” [Doc. 99-4 at 28.] According to BMO's response brief, the 959 Report contains the following categories of information: “counsel's description of the current status of pending litigation, the bank's litigation plan and budget, and the initial results of Katten's forensic accountant analysis.” [Doc. 102 at 24.]

Defendants do not address these arguments on reply, presumably because BMO has now identified the document, which was one of the remedies Defendants requested. In any event, the Court declines to order the production of the report because the basis for Defendants' request – that the document was produced by a nonlawyer – is incorrect based on the face of the privilege log, and because, based on BMO's representation, it appears that the document is protectable work product. Moreover, the Court cannot conclude on this record that Defendants have shown “substantial need of the materials” and an inability “without undue hardship” to obtain information by other means. See Underwriters Ins., 248 F.R.D. at 668. Accordingly, the Court declines to compel the production of document 353A.

III. PAYMENT OF FEES AND EXPENSES

The Court is required to impose attorney fees and expenses on the moving party when denying a motion to compel unless the moving party was substantially justified or other circumstances make an award of expenses unjust.[12] Fed. R. Civ. P. 37(a)(5)(B); Devaney v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1159 (11th Cir. 1993) (noting that this rule was toughened to mandate that expenses be awarded unless the conduct of the losing party or person is found to have been substantially justified). “Substantially justified means that reasonable people could differ as to the appropriateness of the contested action.” Maddow v. Proctor & Gamble Co., 107 F.3d 846, 853 (11th Cir. 1997) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988) ). Here, BMO requested in its response brief that the Court award it its fees and costs under Rule 37(a)(5)(B) in responding to Defendants' motion. [Doc. 102 at 24.] Defendants do not respond to BMO's request in their reply.

*10 Whether to shift fees and expenses with respect to the portion of Defendants' motion relating to BMO's assertion of the work product doctrine is a close call. Many of Defendants' contentions were based on unsupportable interpretations of the record evidence or blanket assertions of legal principles without legal support. Nonetheless, the Court finds that a reasonable person might question whether BMO may have been over-inclusive in withholding documents as work product; thus, the Court believes that Defendants should not be sanctioned for seeking relief from the Court with respect to the documents withheld under the work product doctrine.

In contrast, the Court readily concludes that the portion of Defendants' motion to compel seeking Letsinger communications was not substantially justified. Defendants did not point to a Rule 34 document request requesting those documents, and instead moved to compel the production of documents in response to a Rule 30(b)(6) notice of deposition. Further, Defendants cited no cases to support their assumption that they could demand documents be produced under those circumstances, and the Court has found none on its own.[13]

Because the Court finds that Defendants were not substantially justified in moving to compel production of Letsinger communications, and no other circumstances make an award of expenses unjust, the Court will order Defendants to pay BMO's reasonable expenses and fees that BMO incurred in defending the motion solely as it relates to the production of Letsinger communications. BMO's counsel shall submit competent evidence to the Court outlining such fees and expenses and demonstrating their reasonableness within fourteen (14) days from the date of this Order. Defendants will have fourteen (14) days thereafter to respond to BMO's filing and the Court's decision to award expenses.

IV. CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Defendants' Motion to Compel Production of Documents Withheld Under Claim of Privilege and Others [Doc. 99] be DENIED.

It is FURTHER ORDERED that within fourteen (14) days from the date of this Order BMO's counsel shall submit competent evidence to the Court that sets forth the fees and expenses that BMO incurred in connection responding to the motion to compel attributable to Defendants' request for the Letsinger communications, and demonstrates the reasonableness of such fees and expenses. Richert Funding will have fourteen (14) days thereafter to respond to the BMO's filing and the Court's decision to award expenses.

IT IS SO ORDERED this 27th day of December, 2016.

SAMU is the unit in the bank that manages high-risk loans, including defaulted loans and related litigation. (Sparr Decl. ¶ 3.)

Due to the lateness of counsel's email on Thursday, November 10, and because Friday, November 11, 2016, was a federal holiday, the Court first became aware of the dispute on November 14.

Local Rule 37.1.A provides as follows:

Local Rule 37.1.B provides “Unless otherwise ordered by the court, a motion to compel a disclosure or discovery must be filed within the time remaining prior to the close of discovery or, if longer, within fourteen (14) days after service of the disclosure or discovery response upon which the objection is based.”

Defendants do not make a particularized argument as to why the attorney-client privilege does not apply, and instead focus its argument on whether the work product doctrine should apply. [See Doc. 99 at 5-6 (outlining “relevant authority” related to the work product doctrine).] Thus, the Court declines to overrule BMO's assertion of the attorney-client privilege as to documents 304 and 342 on the privilege log.

Davis was decided before September 30, 1981, and is therefore binding precedent in this Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

The Court pauses to address Defendants' argument that Sparr's declaration is the “only evidence” that BMO uses to support its claim of work product. [Doc. 104 at 5.] While it is true that Sparr's declaration is the only sworn statement that BMO relies on in its response brief, a party claiming privilege can also meet its threshold showing through a privilege log. See Spirit Master, 287 F.R.D. at 684; see also Fed. R. Civ. P. 26(b)(5) advisory committee's note to 1993 amendment. That is precisely what BMO has done here.

On page 10 of their motion, Defendants refer to an email that supposedly shows that BMO's failure to follow SBA underwriting and monitoring procedures invalidated the SBA guaranty. [Doc. 99 at 10.] That email does not appear in the record, and Defendants do not explain how the state of the SBA guaranty has any bearing on whether BMO's investigation was performed in anticipation of litigation.

In the final sentence of Defendants' motion, they ask the Court to perform an in camera review of the documents. Defendants have not provided a factual basis to support “a reasonable, good faith belief that in camera inspection” of those documents will reveal that they were not prepared in anticipation of litigation. In re Grand Jury Investigation, 974 F.2d 1068, 1075 (9th Cir. 1992). Moreover, the thrust of Defendants' argument is that BMO has not presented adequate proof to sustain its assertion of the doctrine, and the Court is satisfied that it can address those arguments without having to examine the documents.

The Court notes that Defendants have not been deprived of discovery as to the existence of an agreement. Defendants have deposed the Letsingers, and, with the Court's authorization, Defendants examined BMO's 30(b)(6) witness about the existence of the agreement. Apparently everyone has testified that no such agreement exists. [See Doc. 102 at 23.] Undaunted, Defendants now contend that BMO's 30(b)(6) representative was unprepared on that topic and should have been prepared to recount the substance of all conversations between BMO and the Letsingers. The Court disagrees. The Court expressly authorized Defendants to inquire about the existence of such an agreement at BMO's Rule 30(b)(6) deposition, but did not require BMO to produce a witness who could testify as to every conversation that may have taken place with the Letsingers. [See Doc. 91 at 11 (authorizing Defendants to question BMO's 30(b)(6) witness as to whether an agreement with the Letsinger exists, and, if it does, its contents).] The witness denied the existence of an agreement. In the Court's view, the witness was not required to identify every conversation between a BMO representative and either of the Letsingers. Thus, to the extent that Defendants demand the production of communications as some sort of sanction, the Court denies that request.

Presumably Lauren D'Hondt or Dan Rutishauser are nonlawyers. [See Doc. 99 at 19 (referring to D'Hondt and Rutishauser as nonlawyers).]

The award of fees and expenses under Rule 37 is a non-dispositive discovery order; thus, a magistrate judge has authority under 28 U.S.C. § 636(b)(1)(A) and Rule 72(a) to order expenses shifted under Rule 37. See In re Compl. of Boston Boat III, L.L.C., 310 F.R.D. 510, 513 n.1 (S.D. Fla. 2015) (“As a federal magistrate judge, the Undersigned has authority to enter an order, as opposed to a report and recommendation[ ], denying a motion for sanctions or granting a motion with relief less drastic than dismissal or default.”); Cleversafe, Inc. v. Amplidata, Inc., 287 F.R.D. 424, 425-31 (N.D. Ill. 2012)(collecting cases); see also Hopkins v. JPMorgan Chase Bank, NA, 618 F. App'x 959, 961-62 (11th Cir. 2015) (describing a magistrate judge's order imposing sanctions for spoliation as non-dispositive), cert. denied, 136 S. Ct. 1826 (2016).

As further illustration of the lack of legal analysis, Defendants cite to the former version of Rule 26, which permitted discovery of material “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” [See Doc. 99 at 12.] Rule 26 was amended effective December 1, 2015, to remove that language and adopt a proportionality standard.