*1 Melissa Price brings this complaint against Bloomfield Orchard Acquisition Company (“Bloomfield Orchard”) and Ciena Health Care Management (“Ciena”) (collectively “defendants”) alleging wrongful termination and retaliation in violation of Title VII, the Family Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA). (ECF No. 1.)

On July 14, 2022, Price moved to compel defendants to respond to Price's requests for production and interrogatories. (ECF No. 17.) The motion is fully briefed. The Court held a motion hearing on September 14, 2022.

For the reasons stated on the record and below, the Court DENIES Price's motion to compel.

I. Background

Price was a Licensed Practical Nurse (LPN) for Bloomfield Orchard and its parent company, Ciena, from 2013 until they terminated her in 2019. Price received favorable performance evaluations during the course of her employment. Defendants promoted Price to Assistant Director of Nursing (ADON). In her role as the ADON, she reported to Rod Mencer. (ECF No. 1, PageID.3.) Price alleges that Mencer “regularly and openly denigrated African immigrants.” (Id.) “Mencer generalized Africans as illiterate, unable to read, write or speak properly, and stated that Bloomfield Orchard should rid itself of African employees.” (Id.)

Price is a white woman who had a personal relationship and a child in common with an African immigrant. (ECF No. 1, PageID.4.) Price alleges that Mencer criticized and harassed her because of her relationships with African immigrants in both her personal life and in the workplace. (Id.) Price claims she attempted to report Mencer's harassment and discrimination but Mencer threatened to terminate her. (ECF No. 1, PageID.5.) Defendants “began papering her personnel file upon learning of her seeking legal counsel to address her concerns and seeking her personal file.” (ECF No. 1, PageID.6.)

At some point during her employment, Price took FMLA for a disabling condition related to kidney disease. However, defendants disciplined her for absenteeism. Price also alleges that while she was on FMLA, defendants posted a job posting for her job. (ECF No. 1, PageID.7.)

On October 14, 2019, Price reported the wrongful treatment to the head of human resources. (Id.) Price claims that in retaliation of her report, on October 17, she was falsely accused of misconduct related to administering tuberculin (TB) tests. Price was suspended for her alleged misconduct. On October 23, defendants terminated her. (Id.)

Price filed a charge of discrimination and retaliation with the EEOC. Shortly after her filing with the EEOC, defendants allegedly reported spurious allegations of misconduct by Price to the State of Michigan's Department of Licensing and Regulatory Affairs (“LARA”). (Id.)

Bloomfield Orchard Villa is no longer in operation.

II. Legal Standard

Parties may obtain discovery on any non-privileged matter that is relevant to any party's claim or defense, and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). Courts have broad discretion over discovery matters. Trepel v. Roadway Express, Inc., 194 F.3d 708, 716 (6th Cir. 1999).

III. Analysis

*2 Price filed her motion to compel to seek discovery responses from Ciena; supplemental responses from both defendants; and email communications to and from Steve Miller, Ciena's Assistant General Counsel and Human Resources Director.

During the hearing, the parties expressed that they worked out discovery responses from Ciena and defendants provided supplement responses, albeit after Price filed the motion to compel.

The remaining disputes are whether Price is entitled to certain email communications and whether the Court should impose sanctions on the defendants.

A. Attorney-Client Privilege

In response to Price's discovery requests, defendants produced a number of emails. (Exhibit I, ECF No. 17–10.) Many of the emails pertain to communications about Price's use of FMLA and her alleged falsification of TB tests. The senders and recipients of the emails include various personnel from defendants. Defendants produced a majority of the emails in their original, unredacted form. However, defendants redacted approximately eleven emails on the grounds that they contain privileged attorney-client communications. (ECF No. 18, PageID.372.)

Price argues that defendants should be compelled to produce the redacted emails for two reasons: (1) defendants did not carry their burden in asserting the attorney-client privilege; and, in the alternative, (2) defendants waived the privilege as some of the unredacted emails contained attorney-client communications. (ECF No. 17, PageID.115.)

Price is correct that defendants’ privilege log is deficient. (Exhibit B, ECF No. 23-3, PageID.542.) The privilege log defendants sent to Price contains three columns: description, page, and bate stamp #. In the description column, defendants provide a one line, general description of the document. For example, the first document description says, “[e]mail from Steve Miller to Brenda LaVigne dated 8/28/19 re: Price FMLA strategy.” (ECF No. 23-2, PageID.542.) This description provides neither Price nor the Court with enough information to determine whether the email is privileged, especially since Miller is the Director of Human Resources and Assistant General Counsel.

Federal Rule of Civil Procedure 26(a)(5) provides that:

Defendants did not provide the requisite detail in the privilege log. “The [privilege log] entries [should] clearly state who authored the document, the date it was created, the recipients, including carbon copies, whether the sender or recipient is an attorney, the type of document (e.g., an email chain), the privilege claimed (e.g., attorney-client and/or work product), and a description of why privilege is claimed (e.g., it discusses or contains reflections on confidential legal advice or work product).” Carhartt, Inc. v. Innovative Textiles, Inc., 333 F.R.D. 118, 121 (E.D. Mich. Oct. 24, 2019).

*3 As stated on the record, defendants SHALL submit a revised privilege log containing sufficient information for Price and the Court to assess whether privilege attaches.

The elements of attorney-client privilege are: (1) where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at this instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived. Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir. 1998).

“The attorney-client privilege is waived by voluntary disclosure of private communications by an individual or corporation to third parties.” U.S. v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999). “Once the privilege is waived, waiver extends to all information ‘that clearly pertains to the subject matter of the specific points on which the waiver occurred.’ ” Prudential Def. Solutions, Inc. v. Graham, 517 F.Supp.3d 696, 703 (E.D. Mich. 2021) (citing In re Grand Jury Proceedings Oct. 12, 1995, 78 F.3d 251, 256 (6th Cir. 1996)).

Defendants argue that the unredacted emails are not privileged because they did not include communications made for the purpose of securing legal advice from Miller in his capacity as legal adviser. (ECF No. 18, PageID.373.) Defendants are correct.

“When an attorney acts in both a legal and a business capacity, the resulting communications are only privileged if the legal aspect predominates.” Carhart, 333 F.R.D. at 117 (citations omitted). If an attorney serves in a non-legal capacity that can be performed by a non-lawyer, then the information is generally not protected by attorney-client privilege. Id.

In the unredacted emails, Miller is one of many recipients of the emails. According to the content of the unredacted emails, the various senders of these emails are not seeking legal advice from Miller. The communications are not privileged merely because Miller is one of the multiple recipients. Allowing privilege in this instance would broaden the privilege beyond its intended scope. Miller sent two of the unredacted emails. In these emails, Miller is not providing legal advice, services or work product; thus, they cannot be privileged.

The Court's position is bolstered by the fact that Antonio Oddo, a human resources professional at Ciena and a non-lawyer, is the main contact on most of the email chains. Oddo's significant involvement in the emails establishes that the subject matter – FMLA and TB tests – can be navigated by a non-lawyer.

Price also argues that defendants produced numerous documents that were not identified on any privilege log; therefore, defendants waived privilege to those documents as well. (ECF No. 23, PageID.524.) However, as defendants explained in the hearing, they did produce a privilege log containing all the documents they claimed as privileged.

The Court DENIES Price's motion to compel production of the redacted emails and any documents on defendants’ privilege log. (ECF No. 23-3.) However, defendants SHALL provide a revised, detailed privilege log to Price.

B. Sanctions

*4 In her reply brief, Price requests that the Court impose sanctions on the defendants because of their delay in producing responsive documents. (ECF No. 23, PageID.528.) Price claims that defendants did not supplement initial discovery responses until moments before defendants filed their response to the motion to compel. (ECF No. 23, PageID.521.) Price argues that it should not have taken defendants seven months to answer discovery and this delay prejudiced Price. (ECF No. 23, PageID.526.)

Under Rule 37(a)(5)(A), the Court must impose sanctions if the movant's motion to compel is granted or if the disclosure or requested discovery is provided after the motion was filed. The rule also says the Court must not order sanctions if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a).

Defendants contend that they began to respond to discovery requests shortly after they received the requests. (ECF No. 18, PageID.366.) Defendants also claim that Bloomfield Orchard is no longer in operation which prolonged the process to identify and produce responsive documents. (Id.)

Price served her first set of interrogatories, requests to produce, requests for admission, and request for inspection on January 13, 2022. (ECF No. 17, PageID.103.) Defendants claim they provided Price with answers, responses, and objections on February 17, 2022. Defendants also claim they provided over 600 documents on March 4, 2022 and more documents on six dates between March 16, 2022 and June 29, 2022. Price concedes that defendants answered requests “in pieces over many months.” (ECF No. 17, PageID.103.)

Although it may have been a long process and not as quick as Price would have liked, defendants did in fact produce discovery responses prior to the motion to compel.

Even if the Court did not credit defendants’ responses dating back to February 17, 2022, and determined that defendants did not respond to requests until after Price filed her motion, the defendants’ lack of response was justified and/or an award of expenses would be unjust.

Bloomfield Orchard's closing coupled with defendants’ assertion that they “performed numerous time-consuming, good faith, and diligent searches as to the outstanding discovery requests and additional responsive documents ...” (ECF No. 18, PageID.367.) indicates that defendants were not resisting discovery or acting in bad faith to warrant sanctions. The Court finds the defendants’ assertions credible, having reviewed the record, heard argument, and reviewed documents submitted by the parties.

IV. Conclusion

Accordingly, for the foregoing reasons, the Court DENIES Price's motion to compel and to impose sanctions.

Defendants SHALL provide Price with a revised privilege log no later than October 3, 2022.

SO ORDERED.