*1 On October 4, 2019, Classic Soft Trim, Inc. and Roadwire, LLC (collectively, “CST”) filed a motion in the form of a joint stipulation seeking an order finding that ClearLight Partners, LLC (“ClearLight”) and/or its subsidiary Katzkin Leather, Inc. (“Katzkin”) waived the attorney-client privilege asserted over emails responsive to a subpoena by “fail[ing] to comply with this Court's directive issued April 10, 2019” regarding “rule-compliant privilege logs.” (Dkt. 11 at 4.)[1] Alternatively, CST asks this Court to conduct an in camera review of the emails and attachments identified in ClearLight's privilege log. (Id.) ClearLight responds that CST's motion is based on misrepresentations and that CST abandoned the “meet and confer” process prematurely, because ClearLight offered to supplement its log but expected a comparable log from CST. (Id. at 14-15, 27.) Both sides seek recovery of the expenses they incurred in filing or opposing the motion under Federal Rule of Civil Procedure 37(a)(5). (Id. at 4, 15, 23.)

For the reasons explained below, CST's motion is DENIED without prejudice to the parties litigating their discovery disputes in the Florida District Court where this lawsuit is pending. Both sides' requests for expenses under Federal Rule of Civil Procedure 37(a)(5) are also DENIED.

I. BACKGROUND

In November 2018, CST served a third-party subpoena on ClearLight to produce electronically stored information (“ESI”), documents, and things (i.e., electronic devices). (Dkt. 1-1 at 145-51.) The subpoena sought information for use in a civil action pending in the U.S. District Court for the Middle District of Florida (“the Florida Court”). Classic Soft Trim, Inc. v. Classic Designs Automotive, LLC, et al., No. 6:18-cv-01237-PGB-GJK (M.D. Fla.). When the subpoena was served, ClearLight was not a party to that action.

However, in December 2018, CST named ClearLight and its subsidiary Katzkin as defendants in its first amended complaint. Id., Dkt. 35. CST alleged that the defendants had violated the Florida and Ohio Deceptive and Unfair Trade Practices Acts, the federal Computer Fraud and Abuse Act, the federal Sherman Act, and Florida and/or Ohio common law by attempting to “monopoliz[e] the automotive leather aftermarket,” “inducing CST's top local executives to breach their loyalty to CST, coercing employees to leave under false pretenses, interfering with CST's existing contracts and business relationships, and stealing CST's products [and] intellectual property....” (Dkt. 1 at 4; see also Dkt. 11 at 4.)

In February 2019, ClearLight and Katzkin moved to dismiss the first amended complaint for failure to state a claim and for lack of personal jurisdiction, arguing they had insufficient contacts with Florida because they are Delaware corporations with principal places of business in California. Classic Soft Trim, No. 6:18-cv-01237-PGB-GJK, Dkt. 74. In response, CST sought leave to amend the pleadings; the Florida Court granted such leave and deemed the proposed second amended complaint filed as of April 10, 2019. Id., Dkt. 104, 107.

*2 Around the same time, on April 3, 2019, CST filed a motion in this Court to compel ClearLight to comply with the subpoena, to which ClearLight had objected. (Dkt. 1.) On April 10, 2019, this Court issued an order declining to set the motion for a hearing and ordering the parties to meet and confer further. (Dkt. 6 at 1.) The Court directed that “the parties' efforts to meet and confer” should be “guided by” the “comments and questions” in the minute order. (Id.) The Court chose this procedure, in part, because the pleadings in the Florida litigation were still in flux and it was unclear whether ClearLight, although initially served with a third-party subpoena, would remain a party to that action.

Regarding privilege logs, the Court made the following comment:

(Id. at 3.) The Court directed the parties to file a joint status report about their meet-and-confer efforts by May 10, 2019. (Id. at 1.) The parties timely filed a status report stating that they had “reached full agreement and resolution of all issues.” (Dkt. 10 at 2.)

On April 23, 2019, in the Florida litigation, ClearLight and Katzkin moved to dismiss the second amended complaint, again arguing failure to state a claim and lack of personal jurisdiction. Classic Soft Trim, No. 6:18-cv-01237-PGB-GJK, Dkt. 114, 115. Briefing on these motions was delayed several times. First, briefing was stayed at CST's request, so that CST could review documents ClearLight had produced in response to the subpoena. Id., Dkt. 128, 135. Next, the Florida Court struck briefing from both parties due to their failure to comply with the formatting requirements of the Florida Court's local rules. Id., Dkt. 165.

Amended briefing was completed on October 30, 2019, and the Florida Court has not yet ruled on the motions. Id., Dkt. 169, 170, 172, 176.

II. THE INSTANT MOTION

The instant discovery motion, filed on October 4, 2019, was the next filing in this action. In it, CST explains that after the parties ran search terms to locate potentially relevant ESI, ClearLight served a privilege log identifying 24 email threads as privileged. (Dkt. 11 at 5-8 [5-page log].) After CST objected that the log was insufficient, ClearLight offered to amend the log if CST agreed to amend its own privilege log. (See Dkt. 11-13 [email from counsel stating, “If our proposed supplemental privilege log per the attached sample is sufficient to resolve any dispute, you must also agree, as a part of this arrangement, to supplement your own log to include the same categories of information.”].) ClearLight provided a sample of the proposed amended log for 6 of the email threads. (Dkt. 11-3.) The amended log identifies the persons sending and receiving the emails as Katzin employees and outside counsel, and the purpose of the emails as “legal advice from outside counsel.” (Id.)

CST contends that the log violated this Court's April 10 order because (1) it fails to state how many email messages are in each thread, (2) it does not identify which emails have attachments or whether the attachments were withheld or produced, (3) it fails to explain why privilege is claimed other than “legal advice.” (Dkt. 11 at 8.)

Procedurally, the instant motion fails to comply with Local Rule 37-3 because CST did not notice the motion for a specific hearing date. This is particularly important because the hearing date determines the due date of supplemental memoranda under Local Rule 37-2.3.

*3 Additionally, the more appropriate venue for this discovery dispute is the Florida Court, given that all of the parties involved have been parties to the Florida lawsuit since December 2018, shortly after the subpoena at issue was served. To the extent CST thought that it was enforcing an “order” of this Court concerning privilege logs, only a very strained reading of the Court's April 10 order would support that position.[2] This Court's order provided “comments and questions” to “guide” the parties' negotiations. It did not explicitly order either party to produce a privilege log or provide detailed instructions on how to format such logs. It simply reviewed the context in which privilege logs are usually produced, in order to explain why CST's request for one was premature at that time.

From a case management standpoint, the magistrate judge in Florida is better positioned to adjudicate discovery disputes and ensure that all parties are fulfilling their mutual discovery obligations. Although ClearLight's amended motion to dismiss the operative second amended complaint remains pending, the Florida Court has set a discovery deadline of April 24, 2020 and advised the parties “that the pendency of a dispositive motion, such as a motion to dismiss ..., does not stay the deadline for completion of discovery.” Id., Dkt. 80 at 2 (amended case management order). Multiple discovery motions have already been filed and adjudicated in that case as to Katzkin, see, e.g., Classic Soft Trim, No. 6:18-cv-01237-WWB-GJK, Dkts. 127, 134, 157, who appears to be the holder of the attorney-client privilege at issue in the present dispute (see Dkt. 11 at 37-38, 42 [discussing the fact that the emails are between Katzkin employees and Katzkin's outside counsel]).

The magistrate judge in Florida may also be in a better position to adjudicate this discovery dispute to the extent that the attorney-client privilege issues (such as, for example, the propriety of in camera review) are governed by Florida law. Different states' law can differ significantly on privilege issues, and neither party's briefing explicitly discusses whether federal, Florida, or Ohio law governs. See generally Fed. R. Evid. 501 (providing that federal common law governs claims of privilege except in civil cases where “state law governs privilege regarding a claim or defense for which state law supplies the rule of decision”); Classic Soft Trim, No. 6:18-cv-01237-WWB-GJK, Dkt. 1 at ¶ 10 (notice of removal based on diversity jurisdiction), Dkt. 104 at ¶ 41 (second amended complaint invoking both diversity and federal question jurisdiction).