*1 This matter is before the Court on the renewed Motion to Compel ESI Production (ECF No. 285) filed by Defendant Voith Hydro, Inc. Plaintiff American Municipal Power (“AMP”) and third-party Stantec Consulting Services, Inc. (“Stantec”) have filed Responses. (ECF Nos. 290, 291.) Voith has filed a Reply. (ECF No. 331.) By Order dated June 9, 2022, the Court directed AMP/Stantec to submit to the Court for in camera review the remaining 25 items at issue in Voith's renewed motion. (ECF No. 337.) AMP/Stantec submitted those documents as ordered on June 16, 2022. The Court has conducted its in camera review and DENIES the motion to compel as it is directed to the 22 remaining items discussed below.[1]

Briefly, by Opinion and Order dated March 31, 2022 (ECF No. 243) as clarified by Order dated May 17, 2022 (ECF No. 330), the Court found that AMP had retained Stantec as a litigation consultant only in connection with the Powerhouse Movement Claims. As a result of that conclusion, the Court directed AMP/Stantec to provide to Voith a revised privilege log. Voith's current challenge arises from certain entries in the revised privilege log.

With respect to seventeen of the challenged items, Voith asserts that AMP/Stantec has changed the descriptions from “subjects that had nothing to do with powerhouse movement” to now “describe them as records about powerhouse movement claims.” (ECF No. 331 at 2.) For this reason, Voith asked the Court to undertake the in camera review to “determine the actual subjects of these records” and “compel their production to the extent that they are not about Stantec providing litigation consultant advice for the powerhouse movement claims.” (Id. at 3.)

The Court's review of these seventeen documents confirms that they are part of only three email threads. Accordingly, rather than the suggested seventeen distinct documents, there is notable and significant repetition. Moreover, consistent with AMP/Stantec's revised privilege log descriptions, these documents discuss issues relating to bracing and alignment beyond the information set forth in their initial descriptions. For example, REVIEW04084913, an email previously described as relating to discharge rings, also discusses issues relating to bracing. Similarly, REVIEW003882371, REVIEW003899474, REVIEW003899475, and REVIEW003902238, all part of one email thread, discuss alignment issues in addition to discharge rings. REVIEW000848450, REVIEW003706886, REVIEW003706887, REVIEW003706997, REVIEW003709850, REVIEW003710134, REVIEW003712828, REVIEW003815007, REVIEW003815009, REVIEW003815050, REVIEW003815237, and REVIEW003821396, all part of one email thread, discuss bracing and alignment issues despite the subject line designation reflecting “bulb nose design.” As Voith confirms,[2] issues of bracing and alignment relate to the Powerhouse Movement Claims. Accordingly, because, consistent with Voith's request here, the Court has confirmed that these seventeen documents address issues relating to the Powerhouse Movement Claims, it will not order AMP/Stantec to produce these documents.

*2 With respect to the five remaining disputed items, AMP/Stantec declined to produce them citing a combination of attorney-client privilege, work product protection or expert consultant communications. In response to these designations, Voith asserts that the information in the log does not establish the privileged or protected nature of these communications. More specifically, Voith contends that none of these documents are from counsel and that, while there are AMP attorney recipients, the emails are either from or to Stantec employees thereby breaking confidentiality. Voith also asserts that these documents cannot be expert consultant communications because two of the emails do not include the consultant and, in any event, the consultant was not retained until months later in September 2019.

The Court's review confirms that these documents relate to AMP's retention of Stantec employee Donald Erpenbeck as a testifying expert witness. As a result, they also mention the type of expert testimony AMP's counsel would be seeking from Mr. Erpenbeck. Although a somewhat close call, the Court is satisfied that these documents contain material that reasonably can be construed as reflecting AMP's attorney's mental impressions, judgments, or legal theories. Moreover, the Court is not persuaded that, under the surrounding circumstances, a waiver of work product protection has been demonstrated. Of these remaining documents, two are from AMP employee Pete Crusse to AMP counsel; one is from Mr. Crusse to Stantec employees with a copy to AMP counsel; and two are an email exchange between Mr. Erpenbeck and AMP counsel. Finally, Voith has not demonstrated a substantial need for this information sufficient to overcome the protection.[3] Accordingly, the Court concludes that these documents are entitled to work product protection and AMP/Stantec will not be directed to produce these five remaining documents.

For these reasons, the renewed Motion to Compel (ECF No. 285) is DENIED.

IT IS SO ORDERED.