Three of these motions involve the attorney-client privilege between Plaintiff and her attorney in the underlying action, Frank Morse.[1] These motions raise the issues of whether Plaintiff's attorney-client privilege with Morse was waived by a disclosure, without Plaintiff's knowledge or consent, of documents in a separate lawsuit to which Plaintiff was not a party and whether Morse should be compelled to answer deposition questions that Plaintiff argues are protected by attorney-client privilege. Tangentially related is a motion to strike the errata sheet from Morse's deposition or, in the alternative, for leave to re-open Morse's deposition. Similarly, a fourth motion involves the discoverability of communications between Weldon Earl Brennan and Peter Macaluso, also attorneys for Plaintiff in the underlying action subsequent to Morse's representation, which took place during the period of time immediately prior to Plaintiff signing a retainer agreement with Brennan. Finally, Defendant seeks an in camera inspection of documents withheld on Plaintiff's Fourth Amended Privilege Log challenging the assertion by Plaintiff of work-product doctrine and attorney-client privilege as to those documents.

The instant case rests on diversity of citizenship, and, as such, state law determines whether the attorney-client privilege applies. Hallmark Ins. Co. v. Maxum Cas. Ins. Co., No. 6:16-cv-2063-Orl-37GJK, 2017 WL 3730376, at *3 (M.D. Fla. Aug. 14, 2017). “While Rule 501, Federal Rules of Evidence, provides that a state's law of privilege governs in federal diversity cases, the work product doctrine is a limitation on discovery in federal cases and, thus, federal law provides the primary decisional framework.” Id. at * 2 (citing Kemm v. Allstate Prop. & Cas. Ins. Co., No. 8:08-cv-299-T-30EAJ, 2009 WL 1954146, at *2 (M.D. Fla. July 7, 2009).

Rule 26 permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case .... Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). The term “relevant” is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

I. Plaintiff's Motion for Order on Privilege

*2 Plaintiff moves this Court for an order declaring Plaintiff's attorney-client privilege has not been waived by the disclosure, without her knowledge or consent, of attorney-client privileged documents in a separate lawsuit to which she was not a party. Defendant argues that the attorney-client privilege does not apply or has been waived by Plaintiff, or, in the alternative, Plaintiff has injected the issue of willingness to settle into the present bad faith action thereby making the privileged documents discoverable.

When Defendant took Morse's deposition in the case at bar on June 26, 2018, it attempted to introduce a document obtained from the court record of the malpractice case brought by the insured Eli Villareal against his attorneys in Florida state court (the “Villareal Malpractice Case”). The document was a letter from Morse to Plaintiff dated February 5, 2009, which Plaintiff asserts renders legal advice and is protected by attorney-client privilege (the “Morse Letter”). Morse's 2016 deposition transcript (“Morse Deposition Transcript”) taken in the Villareal Malpractice Case was also discussed by Defendant during Morse's 2018 deposition as it contained testimony regarding the content of the Morse Letter and other attorney-client communications. Plaintiff asserts that her attorney-client privilege has not been waived as to either of these documents. Defendant concedes that the Morse Letter is prima facie privileged but argues that the communications are no longer confidential and thus the privilege has been waived.

Pursuant to Federal Rule of Evidence 501, attorney-client privilege is governed by the law of the forum state in a federal diversity action. Fed. R. Evid. 501; Bradt v. Smith, 634 F.2d 796, 800 (5th Cir. 1981).[2] In Florida, the attorney-client privilege is codified in Florida Statute § 90.502, which provides, in pertinent part:

Fla. Stat. § 90.502(1)(c). Moreover, “[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” Fla. Stat. § 90.502(2). The attorney-client privilege belongs to the client alone and is not intended to protect the attorney. Neu v. Miami Herald Publ'g Co., 462 So.2d 821, 825 (Fla. 1985). This privilege survives the termination of the attorney-client relationship. GEICO Cas. Co. v. Beauford, No. 8:05-CV-697-T-24EAJ, 2006 WL 2990454, at *1 (M.D. Fla. Oct. 19, 2006)(citing Hoyas v. State, 456 So.2d 1225, 1228 (Fla. 3d DCA 1984)). “A client is entitled to prevent a former attorney from divulging information that would violate the attorney-client privilege.” Id. (citing Roberts v. Jardine, 366 So.2d 124, 126 (Fla. 2d DCA 1979)(client entitled to prevent former counsel from answering questions during deposition that would violate attorney-client privilege). Because assertion of the privilege serves to obscure the truth, courts construe the privilege as narrowly as is consistent with its purpose, i.e., to promote freedom of consultation between client and lawyer without fear of subsequent compelled legal disclosure of confidential communications. United States v. Suarez, 820 F.2d 1158, 1160 (11th Cir. 1987). The party invoking the privilege bears the burden of proving its existence and applicability. In re Grand Jury Investigation, 842 F.2d 1223, 1225 (11th Cir. 1987).

*3 Federal Rule of Evidence 502(c) governs the applicability of waiver of privilege as follows:

Fed. R. Evid. 502(c).

As Defendant concedes, the Morse Letter clearly falls within the scope of Plaintiff's attorney-client privilege. It was written by Morse during the period that he represented Plaintiff and rendered legal advice addressed to Plaintiff. See Absolute Activist Value Master Fund Ltd. v. Devine, 262 F. Supp. 3d 1312, 1319 (M.D. Fla. 2017). Moreover, because the privilege belongs to Plaintiff, and not to Morse, Morse could not have waived the privilege. Neu, 462 So.2d at 825; Beauford, 2006 WL 2990454, at *1. Accordingly, Morse's disclosure of privileged communications in the Villareal Malpractice Case fails to serve as a waiver of the attorney-client privilege. The substance of the Morse Letter being testified to during Morse's 2016 deposition, the Morse Letter being attached as an exhibit to a motion for summary judgment (and is thereby still available as part of the public record of that case), and the Morse Letter being part of the record on appeal to the Florida Second District Court of Appeal does not constitute a waiver by Plaintiff of her attorney-client privilege as she was not a party to the Villareal Malpractice Case, was not given notice of the 2016 deposition, and has not otherwise consented to the disclosure of the privileged communications. Defendant has not cited any case law that supports its proposition that, in order to preserve her privilege, Plaintiff has the ability and duty to take proactive steps to seal or remove the letter from the public record in the Villareal Malpractice Case.

Defendant next argues that Plaintiff has impliedly waived any privilege with regards to the Morse Letter and Morse Deposition Transcript because Plaintiff has injected the issue of willingness to settle into the present bad faith action. The Court is unpersuaded by this argument. See Lee v. Progressive Express Ins. Co., 909 So.2d 475, 477 (Fla. 4th DCA 2005)(rejecting issue-injection argument); Tolz v. GEICO Gen. Ins. Co., No. 08-80663-CIV, 2010 WL 384745, at *4 (S.D. Fla. Jan. 27, 2010)(holding that plaintiff did not inject the issue of her alleged unreasonable refusal to accept the insurer's tender of the policy limits by suing for bad faith and would thus not be deemed to have waived its attorney-client privilege merely by doing so). Plaintiff's and her attorneys’ motives regarding the rejection of Defendant's settlement offer are not elements that Plaintiff has to prove to establish a bad faith claim against Defendant despite Defendant's attempt to construe the language in a paragraph of Plaintiff's bad faith count as such. Lee, 909 So.2d at 477 (citing Berges v. Infinity Ins. Co., 896 So.2d 665 (Fla. 2004)). In a failure to settle action such as this, the focus “is on the insurer's conduct in fulfilling its obligations to the insured, not on the action[s] of the claimant.” Id.; see also Moore v. GEICO Gen. Ins. Co., 633 F. App'x 924, 929 (11th Cir. 2016)(“the [district] court erroneously focused on the conduct of the Krupp estate's attorney ... rather than on the conduct of GEICO”). As such, “matters known only to other parties – e.g., a party's motive in making a settlement offer – are not relevant to whether an insurer has acted in bad faith.” Abruscato v. GEICO Gen. Ins. Co., No. 3:13-cv-962-J-99MMH-JBT, ECF No. 38 at 7, slip op. (M.D. Fla. Dec. 20, 2013)(citing Lee, 909 So.2d at 477). The Supreme Court of Florida recently reiterated its “well-established bad faith jurisprudence which places the focus on the actions of the insurer – not the insured.” Harvey v. GEICO Gen. Ins. Co., No. SC17-85, 2018 WL 4496566, slip op. at *9 (Fla. Sept. 20, 2018)(citing Berges, 896 So.2d at 677).

*4 As such, Plaintiff has not waived her attorney-client privilege as to the Morse Letter or the attorney-client communications at issue contained in the Morse Deposition Transcript, and Plaintiff's Motion for Order on Privilege (Doc. 27) is granted.[3] Defendant shall immediately delete or otherwise destroy all electronic and hard copies of the Morse Letter.

II. Defendant's Motion to Compel Deposition Answers and Motion for Sanctions[4]

During the June 26, 2018 deposition of Morse, when Defendant's counsel sought to introduce the Morse Letter, Plaintiff's counsel objected on the basis of attorney-client privilege and instructed Morse not to answer. Defendant contends that the objection was improper because the Morse Letter is not protected by attorney-client privilege and because Plaintiff's counsel does not represent Morse and does not have standing to instruct non-party Morse not to answer.

Rulings on motions to compel discovery under Rule 37(a) are committed to the sound discretion of the trial court. See NetJets Aviation, Inc. v. Peter Sleiman Dev. Grp., LLC, No. 3:10-cv-483-J-32MCR, 2011 WL 6780879, at *2 (M.D. Fla. Dec. 27, 2011) (citing Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984)). The party moving to compel discovery bears the initial burden of proving that the information sought is relevant. Bright v. Frix, No. 8:12-cv-1163-T-35MAP, 2016 WL 1011441, at *1 (M.D. Fla. Jan. 22, 2016).

Defendant argues that a major issue of contention in this case is whether Defendant could have settled Plaintiff's claims for the available policy limits and that the issue was raised by Plaintiff. Defendant specifically points to a paragraph in Plaintiff's Complaint that alleges “Progressive breached the above duties to [the insured] by failing to properly and promptly settle the claims against him within the Policy's limits when it could and should have done so.” See Doc. 2 at ¶ 29. Defendant continues that evidence of whether Defendant “could” have settled the Plaintiff's claims within the policy limits is, therefore, discoverable in this action, including the communications with her counsel regarding these specific issues. Plaintiff counters that the information sought by Defendant is privileged and not relevant and, therefore, not discoverable.

The Court, as discussed in the section above, finds that the Morse Letter is protected by attorney-client privilege and is unpersuaded by Defendant's argument that Plaintiff injected the issue of whether Defendant could have settled Plaintiff's claims for the available policy limits. See Lee, 909 So.2d at 477 (rejecting issue-injection argument); Tolz, 2010 WL 384745, at *4 (holding that plaintiff did not inject the issue of her alleged unreasonable refusal to accept the insurer's tender of the policy limits by suing for bad faith and would thus not be deemed to have waived its attorney-client privilege merely by doing so); Harvey, 2018 WL 4496566, slip op. at *7-9. Defendant has failed to demonstrate any extraordinary circumstances warranting the disclosure of protected information. Accordingly, the deposition answers being sought through the motion to compel are protected by attorney-client privilege and, even if not privileged, are not relevant. As such, Defendant is not entitled to discover Plaintiff's attorney-client communications with Morse, and counsel's objections thereto were proper.

*5 As for Plaintiff's counsel's ability to instruct non-party Morse not to answer questions during his deposition on the basis of privilege, the attorney-client privilege belongs to the client, not the attorney, and may only be waived by the client. Neu, 462 So.2d at 825; Beauford, 2006 WL 2990454, at *1. Morse confirmed that Plaintiff never gave him permission to waive her attorney-client privilege with respect to the Morse Letter or any other communication they had in the rendering of his legal services. See Doc. 44, Ex. A at 65:18-25. In addition, a client is entitled to prevent a former attorney from divulging information that would violate the attorney-client privilege. Beauford, 2006 WL 2990454, at *1. Accordingly, it was appropriate for Plaintiff's counsel to protect Plaintiff's attorney-client privilege by instructing Morse not to answer questions regarding privileged communications and information. Defendant did not cite to any case law to the contrary. For these reasons, Defendant's Motion to Compel Deposition Answers and Motion for Sanctions (Doc. 34) is denied.

III. Plaintiff's Motion for Protective Order Regarding Progressive's Notice of Production from Non-Party

Plaintiff seeks a protective order as to the non-party subpoena issued by Defendant to her former counsel Brennan. Defendant's subpoena seeks documents regarding communications between Brennan and Macaluso as follows:

March 9, 2009 to May 8, 2009 is the time period immediately prior to Plaintiff signing a retainer agreement with Brennan on May 8, 2009 and during which Plaintiff asserts Brennan consulted with Macaluso regarding the rendition of legal services on Plaintiff's behalf. Plaintiff contends the subpoena impermissibly seeks only documents protected by attorney-client privilege and the work-product doctrine. Specifically, Plaintiff argues that the communications between Brennan and Macaluso all relate to the strategy and mental impressions of the attorneys and constitute opinion work product. Plaintiff further contends that even those communications that relate only to dates and times are protected by the work product doctrine, and Defendant cannot demonstrate the requisite substantial need for these documents. Defendant counters that Plaintiff's blanket assertion of work-product and attorney-client privilege is not well-founded and improper. More specifically, Defendant again contends that Plaintiff has injected the issue of willingness to settle into the present bad faith action and that, accordingly, evidence of whether Defendant could have settled Plaintiff's claims within the policy limits is discoverable in this action.

*6 Federal Rule of Civil Procedure 45 “provides the framework for securing documents, electronically stored information, and tangible things by subpoena in federal cases.” Allstar Elecs., Inc. v. Honeywell Int'l, Inc., No. 8:10-CV-1516-T-30TGW, 2011 WL 4908853, at *1 (M.D. Fla. Oct. 13, 2011). Courts treat the scope of discovery under Rule 45 the same as the scope of discovery under Rule 26. See, e.g., Am. Fed'n of State, Cty. & Mun. Emps. v. Scott, 277 F.R.D. 474, 476 (S.D. Fla. 2011); see also Fed. R. Civ. P. 45 advisory committee's note to the 1970 Amendments (stating the 1970 amendments “make it clear that the scope of discovery through a subpoena is the same as that applicable to Rule 34 and the other discovery rules”).

Under Rule 26(c), “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ....” Fed. R. Civ. P. 26(c)(1); Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). The moving party has the burden to demonstrate good cause and must make “a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements” supporting its need for the protective order. Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429-30 (M.D. Fla. 2005) (citation omitted). In deciding whether a movant has established good cause, a court balances the respondent's interest in obtaining the discovery against the movant's stated harm that would result from allowing the discovery. Celentano v. Nocco, No. 8:15-cv-1461-T-30AAS, 2016 WL 4943939, at *2 (M.D. Fla. Sept. 16, 2016).

Defendant argues that Plaintiff's blanket assertion of these privileges is not well-founded and improper. The Court agrees with the proposition that blanket assertions are generally unacceptable. See United States v. Davis, 636 F.2d 1028, 1044 n. 20 (5th Cir. 1981) (“Blanket assertions of privilege before a district court are usually unacceptable.”), cited with approval in In re Grand Jury Subpoena, 831 F.2d 225, 226 (11th Cir. 1987)(assertion of the attorney-client privilege must be specifically asserted on a document-by-document basis). The Court, however, finds that the discovery sought is not relevant to any party's claim or defense and is not proportional to the needs of the case. As to Defendant's issue injection argument, the Court reiterates its rejection of the same as discussed above. Accordingly, Plaintiff's Motion for Protective Order Regarding Progressive's Notice of Production from Non-Party (Doc. 39) is granted.

IV. Defendant's Motion for In Camera Inspection of Documents Withheld on Plaintiff's Fourth Amended Privilege Log[5]

Defendant seeks an in camera review of 22 of the 32 documents included on Plaintiff's Fourth Amended Privilege Log Regarding Response to First Request for Production.[6] Plaintiff asserts both attorney-client privilege and work product protection in her privilege log. Defendant argues that it reasonably believes that Plaintiff has asserted privilege over documents that are not privileged and are directly relevant to this case because the communications likely relate to Plaintiff's settlement demand, Defendant's response thereto, and whether the claim Defendant had a realistic opportunity to settle the claim. Plaintiff counters that Defendant's assertion that the filing of a bad faith lawsuit waives a plaintiff's work-product protection and attorney-client privilege has been repeatedly rejected by the courts, and Defendant cannot otherwise demonstrate any legal basis by which to obtain these privileged documents such that the Court should decline conducting an in camera review.

*7 The Court agrees that an in camera review is not an entitlement as a matter of course, and Defendant's argued basis for an in camera review is tenuous. Nevertheless, the Court went ahead and conducted an in camera review of the documents at issue.

While both privileges protect documents and other information from disclosure, there are differences between the two. The underlying purpose of the attorney-client privilege is to encourage the client to communicate freely with the attorney. Work product protection, on the other hand, encourages careful and thorough preparation by the attorney. Both doctrines may apply to a single communication. An email or memo may contain confidential legal discussions between client and attorney while at the same time disclose preparations by the attorney in anticipation of legal proceedings. When a party claims both privileges or protections as to the same document, the Court must analyze the applicability of each privilege or protection separately.

The work product doctrine is set forth in Federal Rule of Civil Procedure 26(b)(3). Pursuant to this rule, the work product doctrine protects documents prepared in anticipation of litigation or for trial from discovery. The rule provides qualified protection to “documents and tangible things ... prepared in anticipation of litigation or for trial” by or for a party, or by or for a party's representative. Fed. R. Civ. P. 26(b)(3)(A). Opinion work product, as opposed to fact work product, includes material that “reflects an attorney's mental impressions” and is not discoverable even upon a showing of substantial need and undue hardship, as this material is “almost always protected from disclosure.” United Kingdom v. United States, 238 F.3d 1312, 1322 (11th Cir. 2001); see also Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir. 1994)(opinion work product enjoys “nearly absolute immunity”). However, the work product doctrine does not protect facts contained in documents prepared in anticipation of litigation. See United States v. Pepper's Steel & Alloy, Inc., 132 F.R.D. 695, 698 (S.D. Fla. 1990).

After carefully conducting an in camera inspection and review of the disputed documents, the Court finds that the disputed documents are protected by work-product privilege. They are documents prepared in anticipation of litigation or for trial. Defendant argues that, pursuant to Rule 26(b)(3), work product materials may be discovered if “the party [seeking the information] shows that it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their subsequent equivalent by other means.” Fed. R. Civ. P. 26(b)(3). Defendant's argument directed to its need for the materials, i.e., proving whether Defendant had a realistic opportunity to settle the claim based on the motives of Plaintiff, has been addressed and rejected by the Court as set forth above. Lee, 909 So.2d 475; Cawthorn v. Auto-Owners Ins. Co., No. 6:16-cv-2240-ORL-28GJK, 2017 WL 8812753, at *4 (M.D. Fla. June 28, 2017)(“Defendant does not demonstrate that Plaintiff's willingness to settle requires using documents protected by the attorney-client privilege or work-product doctrine.”); Harvey, 2018 WL 4496566, slip op. at *7-9.

*8 Defendant also seeks an in camera review of the documents listed on the privilege log as protected by attorney-client privilege because Defendant “reasonably questions whether Plaintiff's assertion of attorney-client privilege is accurate.” Doc. 41 at p. 15. While the Court finds the Defendant's reasoning less than persuasive, it conducted a review of the withheld documents and finds that they are clearly confidential communications between Plaintiff's counsel for the purposes of securing legal advice or assistance and regarding the specific matter of representation at issue in this case. See Drummond Co., Inc. v. Conrad & Scherer, LLP, 885 F.3d 1324, 1334-35 (11th Cir. 2018). Therefore, the withheld documents are privileged. Accordingly, Defendant's Motion for In Camera Inspection of Documents Withheld on Plaintiff's Fourth Amended Privilege Log (Doc. 41) is granted to the extent that the Court undertook an in camera review of the documents but is otherwise denied.

V. Defendant's Motion to Strike Errata Sheet of Frank Morse

Defendant seeks to strike Morse's errata sheet for his June 26, 2018 deposition asserting improper changes. Morse's errata sheet contains five changes as follows with the original deposition testimony in bold and the changes in italics:

See Doc. 49, Exh. A (19: 24 through 20: 5; 25: 21 through 26: 4; 41: 5-9; 43: 8-13; 44: 20 through 45: 2); cf. Exh. B (20: 3; 26: 4; 41: 9; 43: 13; 45: 1).

Defendant argues that the five changes made by Morse to clarify his answers are substantive, clearly contradictory, and improper. The case law cited by Defendant, however, is distinguishable, and this Court finds the case law cited by Plaintiff more persuasive and more in line with the factual circumstances before the Court, i.e., that Morse's changes are clarifications consistent with other testimony he provided during his deposition.

Rule 30(e)(1) of the Federal Rules of Civil Procedure provides:

Fed. R. Civ. P. 30(e)(1) (emphasis added). Despite the plain language of the rule, courts are split as to whether substantive changes to a deposition transcript are permissible. See In re: Abilify (Aripiprazole) Prods. Liab. Litig., No. 3:16-md-2734, 2018 WL 1627812, at *2 (N.D. Fla. Apr. 4, 2018). The Eleventh Circuit has not explicitly adopted a position on this issue. Id. at *3. It has, however, seemed to signal that substantive changes are permissible under Rule 30(e) if the changes are clarifications and not wholly contradictory to prior testimony. Id. at *4; see also Mason v. United Parcel Serv. Co. Inc., 674 F. App'x 943, 953 (11th Cir. 2017)(affirming district court's denial of a motion to strike a deposition errata sheet; “[t]he district court's determination that the errata sheets were merely ‘clarifications’ was not a clear error in judgment, as the changes were consistent with other evidence presented....”).

The Court finds that Morse's changes are permissible under Rule 30(e), even under a narrower reading of the rule, because his changes clarify and are consistent with and generally supported by his other deposition testimony. While the Court denies Defendant's request to re-open Morse's deposition regarding the changes, both versions of the deposition testimony, as well as the reasons for the changes shall be subject to examination by the trier of fact. See Allstate Ins. Co. v. Vizcay, No. 8:11-CV-804-T-17EAJ, 2013 WL 12157570, at *3 (M.D. Fla. Aug. 2, 2013). Defendant's Motion to Strike Errata Sheet of Frank Morse, or in the Alternative, Motion for Leave to Re-Open Deposition of Frank Morse (Doc. 49) is denied.

Accordingly, it is hereby ORDERED:

DONE AND ORDERED in Tampa, Florida, this 7th day of November, 2018.

The facts of this case have been repetitively set forth in every motion and response under consideration with little to no dispute regarding the facts affecting this Court's determination, and the Court finds no need to repeat them here.

In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981.

Defendant's bare-bones request that the Court review the Morse Deposition Transcript in camera is not adequately supported by reasoning, good cause or case law (Doc. 32 at p. 5 n.4 and p. 9 n. 5). The Court, thus, declines the request.

Defendant acknowledges that this motion is “intricately related to Plaintiff's Motion for Order on Privilege.” See Doc. 34 at p. 1 n.1.

Defendant points out that its Motion for In Camera Inspection of Documents Withheld on Plaintiff's Fourth Amended Privilege Log is “intrinsically related” to its response to Plaintiff's Motion for Protective Order Regarding Progressive's Notice of Production from Non-Party. See Doc. 48 at p. 4 n.2.

Seven of the documents listed on the privilege log were previously reviewed in camera by this Court and were the subject of a previous Order (Doc. 33), in which the Court overruled Plaintiff's objection to production based on work-product privilege as to five of the documents and sustained the objection as to the other two documents. Plaintiff has appealed to the District Judge as to two of those five documents - ERES 00110 and ERES 00113 (Doc. 43). Moreover, Defendant has not included three of the documents on the privilege log in its request for an in camera inspection because those documents -- the Morse Letter, its envelope and its certified return receipt -- are the subject of Plaintiff's Motion for Order on Privilege (Doc. 27) and Defendant's Motion to Compel Deposition Answers (Doc. 34).