*1 This Report and Recommended Order addresses Plaintiff Contour Data Solutions LLC's Motion to Compel Identification/Production for In Camera Review of All Relevant Communications with Certain Lawyers/Law Firms and All David W. Minor Communications and/or Authorization to Subpoena Same. (ECF No. 178) (the “Motion”). For the reasons set forth below, it is respectfully recommended the Court enter an order denying the Motion in its entirety.

A. BACKGROUND

On November 4, 2021, Contour filed the Motion seeking to compel Defendant Gridforce Energy Management, LLC to: (1) produce all such communications to the Special Discovery Master for review; and (2) identify and describe with specificity communications with counsel before August 11, 2017, regarding Contour or a dispute over the Contour services agreement. (ECF No. 178). In addition, Contour moved for permission to subpoena such communications from Gridforce's counsel, including “the [RuyakCherian] and any other law firms identified by Gridforce.” (Id.). Gridforce filed its opposition on November 18, 2021, (ECF No. 181), Contour replied on November 22, 2021, (ECF No. 183), and on January 14, 2022, the Motion was referred to me for decision. (ECF No. 198).

B. ANALYSIS

Distilled, Contour's Motion turns on three principal complaints predicated on a distrust of Gridforce and its counsel. First, Contour complains Gridforce's privilege log is missing purported attorney-client communications. Second, Contour complains the disclosed communications are inadequately described. Third, Contour complains David Miner's communications necessarily require further examination to determine if they were uttered as officer or counsel to Gridforce and NAES Corporation. As redress, Contour asks that all privileged communications be produced for in camera inspection to determine the veracity of Gridforce's designations, that Gridforce provide more detailed descriptions of certain withheld documents on its privilege log, and that Contour be permitted to subpoena communications between Gridforce and various law firms. Contour's confusing Motion, however, presents no facts or on-point legal authority to support its request to vitiate the attorney-client privilege or take discovery of Gridforce's outside legal counsel at this late date.

Contour argues that a single entry on Gridforce's privilege log suggests unlogged communications exist. That entry lists a May 18, 2016 email from CJ Ingersoll (at the time, Gridforce's Senior Vice President and Associate General Counsel) to Robert Ruyak, leader of the RuyakCherian firm. (ECF No. 178, Ex. H). The communication is described as “Email with attachment(s) requesting legal advice re contract(s) with Contour,” and was withheld as attorney-client privileged. (Id.). Contour believes the entry, combined with Gridforce's accounts payable chart indicating retention of the RuyakCherian firm around the same time, means Gridforce and RuyakCherian have additional communications concerning Contour. Moreover, according to Contour, because these withheld entries pre-date the start of the instant litigation by several years, they demonstrate Gridforce's breach of contract counterclaim is barred by the statute of limitations. To fortify its defense, Contour asks not only that the Court compel in camera review of the logged communication with the RuyakCherian firm, but also that it now be permitted to subpoena documents from the firm.

*2 Contour's desire to substantiate its defense to Gridforce's counterclaim, however, is not a sufficient basis to unsettle the attorney-client privilege. Neither is Contour's wholly speculative suspicion that Gridforce has intentionally failed to disclose the existence of dozens of withheld communications on its privilege log. Significantly, Contour does not cite authority supporting its position that the timing of a privileged communication warrants in camera review or permission to subpoena a law firm for privileged—and potentially unresponsive—documents outside the discovery period. Rather, Contour cites inapt cases describing when an attorney consultation is sufficient to trigger the statute of limitations. While Contour can certainly raise this argument on a motion for summary judgment, it does not support the relief requested in the Motion. See Bouman v. Smith & Nephew, Inc. (In re Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant Prods. Liab. Litig.), 2019 U.S. Dist. LEXIS 179691 (D. Md. Oct. 16, 2019) (applying California law on a motion to dismiss to find that allegations in a complaint that plaintiff first contacted a lawyer regarding injuries from a defective product were sufficient evidence that the statute of limitations had expired); Hess v. Firestone Plastics Co., 1989 U.S. App. LEXIS 22349 (4th Cir. Mar. 14, 1989) (granting summary judgment in favor of defendants because the evidence demonstrated that plaintiff first contacted an attorney outside the applicable statute of limitations). In its opposition, among other arguments, Gridforce maintains it does not have additional responsive documents with the RuyakCherian firm, stating that its privilege log “only includes this one document with the [RuyakCherian] firm [because] none of Contour's search terms or requests for production hit on any other [RuyakCherian] communications.” (ECF No. 181 at 1.).

For these reasons, Contour's requests to compel in camera review of the RuyakCherian firm communication and to subpoena additional documents from the firm should be denied.

Contour next argues that 49 documents—45 withheld as attorney-client privilege, and the balance as attorney work product—on Gridforce's privilege log contain inadequate descriptions. Contour seeks an order compelling more detailed descriptions pursuant to Rule 26(b)(5). (ECF No. 178 at 10, Ex. H). Contour focuses on the timing of these communications and Gridforce's breach of contract counterclaim, arguing the withheld communications are “substantial evidence that Gridforce (and its controlling parent NAES) were long, well aware of the alleged breach(es) of contract by Contour.” (ECF No. 178 at 9). Here again, Contour's desire to substantiate its statute of limitations defense to Gridforce's counterclaim is infirm ground to grant a motion to compel, and Contour cites no law demonstrating otherwise.

To the extent Contour challenges the sufficiency of Gridforce's descriptions, however, that challenge is also lacking. “A proper claim of privilege requires a specific designation and description of the documents within its scope ....” Smithkline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 482 (E.D. Pa. 2005) (quoting Foster v. Berwind Corp., 1990 U.S. Dist. LEXIS 17045, at *5 (E.D. Pa. Dec. 10, 1990)). A party claiming 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.” Fed. R. Civ. P. 26(b)(5)(A)(ii). Documents withheld under the work-product doctrine can be produced only “upon a showing that the party seeking discovery has a substantial need for the materials and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Stanziale v. Career Path Training Corp. (In re Student Fin. Corp.), 2006 U.S. Dist. LEXIS 86603, at *14 (E.D. Pa. Nov. 30, 2006) (citing In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir. 2003)).

Each of the log entries at issue identifies the date of the communication, the participants, the specific claim of privilege, and a description of the substantive topic(s) or subject matter. For example, and as Contour notes in the Motion, the withheld communications address issues such as: “legal advice re contract(s) with Contour”; “rights and remedies for Contour-managed IT system”; “legal advice from David Miner re WECC/NERC mitigation”; and “Gridforce transition to NAES ownership”. (See ECF No. 178, Ex. H). Moreover, the privilege log clearly articulates whether the communication reflects, requests, or provides legal advice. (See id.). Contour has not presented any persuasive facts or legal argument that Gridforce's descriptions are wanting. Rather, Contour simply declares Gridforce failed to identify “the actual topic at hand,” which is belied by the log's clear descriptions. (ECF No. 178 at 10). That Contour would prefer additional detail does not make Gridforce's log entries deficient.

*3 Regarding the four documents withheld under the work product doctrine, Contour has neither demonstrated it has a substantial need for the documents, nor shown that it cannot obtain the substantial equivalent of the information contained in the work product by other means without undue hardship. See Peerless Heater Co. v. Mestek, Inc., 1999 U.S. Dist. LEXIS 19105, at *16–17 (E.D. Pa. Dec. 6, 1999) (explaining that “mere need for information contained in work product does not establish substantial need for the work product itself”) (citing Delco Wire & Cable Co. v. Weinberger, 109 F.R.D. 680, 689–690 (E.D. Pa. 1986)); Utsech v. Lannett Co., 2020 U.S. Dist. LEXIS 232413 (E.D. Pa. Dec. 10, 2020) (denying a motion to compel because the plaintiff “has not even attempted to make the requisite showing of substantial need and undue hardship to obtain [the requested] document”). Again, Contour's desire to boost its statute of limitations defense is not a “substantial need.” Peerless Heater Co., 1999 U.S. Dist. LEXIS 19105, at *18 (finding that, although plaintiff may have a substantial need for the information sought to substantiate its allegations, it did not need the actual work product because it could obtain the information through other avenues). Indeed, Contour's Motion clearly lays out its statute of limitations argument using the information already in its possession.

Finally, without any factual or legal support, Contour argues the Court must review in camera all logged communications withheld from disclosure involving Mr. Miner. Because Mr. Miner occupies two roles—Gridforce's Corporate Secretary and Assistant General Counsel to NAES—Contour contends the Court must independently assess whether Mr. Miner was acting in his capacity as officer or attorney. (ECF No. 178 at 11–12). Contour's argument is misplaced, and turns the law on its head.

A party asserting attorney-client privilege “demonstrates the applicability of the privilege by submitting the documents in question, an affidavit by the attorney, or a privilege log.” McCrink v. Peoples Benefit Life Ins. Co., 2004 U.S. Dist. LEXIS 23990, at *23 (E.D. Pa. Nov. 30, 2004) (emphasis added) (citing Saldi v. Paul Revere Life Ins. Co., 224 F.R.D. 169, 194 (E.D. Pa. 2004)). That Mr. Miner has two titles does not automatically make his communications suspect, and does not warrant review by the Court. In this case, the privilege log entries at issue are clear on their face—Mr. Miner was in each instance acting as counsel. See Paramount Fin. Commc'ns., Inc. v. Broadridge Inv. Commc'ns. Sols., Inc., 2016 U.S. Dist. LEXIS 133105, at *13–14 (E.D. Pa. Sept. 28, 2016) (stating dually-appointed employee's communications warrant review when it is unclear whether the communication in question was made in a legal or business advisory capacity).

Indeed, Gridforce has more than met its burden of demonstrating the attorney-client privilege applies, both by submitting a privilege log, and then an affidavit from Mr. Miner, in which he states his involvement in the instant litigation “has been and remains exclusively in my capacity as internal counsel for NAES.” (ECF 181-2, Declaration of David W. Miner). Penn Mut. Life Ins. Co. v. Rodney Reed 2006 Ins. Trust, 2011 U.S. Dist. LEXIS 46781, at *8–9 (D. Del. Apr. 25, 2011) (providing evidence, including affidavits, sufficient to demonstrate that dually-appointed employee was acting in a legal capacity for the communications in question). Gridforce even took the additional step of substantiating Mr. Miner's statement by directing its database manager to generate a “random sample of 40 attorney-client privileged documents withheld on the basis of Mr. Miner's counsel,” which Mr. Miner reviewed. (ECF No. 181 at 2; ECF Nos. 181-1, 181-2). Following his review, Mr. Miner confirmed—under penalty of perjury—that he was “involved in each in [his] role as internal counsel for NAES, and not as an officer for Gridforce.” (ECF No. 181-2). Contour has presented no legitimate reason to question the privilege log or Mr. Miner's sworn statement. It is respectfully recommended that Contour's request for in camera review of communications involving Mr. Miner be denied.

C. CONCLUSION AND RECOMMENDATION

*4 Based on the foregoing, the Special Master respectfully recommends the Court issue an order denying Contour's Motion (ECF No. 178).

Respectfully submitted,

Aliza. R. Karetnick Special Discovery Master