*1 Pending before the Court is Plaintiffs' Motion [ECF No. 319] to Compel, filed on March 3, 2023.[1] Plaintiffs also filed a Memorandum in Support of their Motion to Compel. See ECF No. 321. On March 13, 2023, Defendants filed a Response [ECF No. 329], and Plaintiffs filed a Reply [ECF No. 333] on March 15, 2023. As the matter has been fully briefed and the contested documents have been submitted for in camera review, the Court will rule on the Motion without a hearing. Accordingly, the evidentiary hearing and argument scheduled for March 20, 2023, is CANCELLED. For the reasons outlined below, Plaintiffs' Motion [ECF No. 319] to Compel is DENIED.

Plaintiffs served their Sixth Set of Requests for Production on November 4, 2022. ECF No. 265. Defendants objected to many of the requests, and Plaintiffs ultimately filed a motion to compel on January 4, 2023. ECF No. 289. Requests for Production 87, 88, 89, and 93 were objected to on attorney-client privilege grounds; however, Defendants had not yet completed its search nor provided Plaintiffs with a privilege log of the responsive documents withheld on that basis. ECF No. 311 at 4, 12-14. On February 3, 2023, as amended February 6, 2023, the Court ordered Defendants to collect and review the responsive documents to Requests for Production 87, 88, 89, and 93 and provide a privilege log to Plaintiffs by February 10, 2023. Id. at 13-14. Further, subsequent to their review, Plaintiffs were afforded leave to file a motion related to any remaining disputes over the withheld documents, at which point the Court could review them in camera to make the appropriate privilege determinations. Id.

On February 10, 2023, Defendants sent Plaintiffs the privilege log. ECF No. 319 at 3. After conferring with Defendants and identifying the documents in dispute, Plaintiffs filed the instant Motion to Compel on March 3, 2023. Id. at 3-4. On March 6, 2023, the Court ordered Defendants to produce the contested documents[2] under seal for in camera review. ECF No. 325. The Court received the documents on March 8, 2023.

Pursuant to Federal Rule of Civil Procedure 37, Plaintiffs move to compel Defendants to produce certain documents that have been withheld as privileged and to compel upcoming deposition testimony on subject matters that counsel for Defendants may object to on attorney-client privilege grounds. The Court notes that the majority of the documents originally in contention have been produced and, according to the parties, are no longer in dispute. For the remainder, the Court holds that the documents are protected by attorney-client privilege and that Plaintiffs' Motion is premature as it pertains to the deposition testimony.

*2 The fourteen documents listed below were previously produced to Plaintiffs in discovery but were still included in the privilege log, presumably because they were attachments to emails that the Defendants contend are privileged. However, given the attached documents have already been produced, Plaintiffs' Motion is DENIED AS MOOT with respect to the following documents: PPG_CTL00000018, PPG_CTL00000019, PPG_CTL00000020, PPG_CTL00000021, PPG_CTL00000022, PPG_CTL00000023, PPG_CTL00000024, PPG_CTL00000025, PPG_CTL00000026, PPG_CTL00000027, PPG_CTL00000028, PPG_CTL00001615, PPG_CTL00005954, and PPG_CTL00009540. Likewise, Defendants recently produced nine more of the contested documents without redaction on March 13, 2023, further limiting the issues before the Court. Accordingly, Plaintiffs' Motion is DENIED AS MOOT as it relates to the following documents: PPG_CTL00005942, PPG_CTL00005953, PPG_CTL00005960, PPG_CTL00006005, PPG_CTL00006017, PPG_CTL00006024, PPG_CTL00009749, PPG_CTL00009751, and PPG_CTL00010783.

Thus, of the thirty-one documents originally submitted to the Court for in camera review, only eight remain in dispute. The Court has carefully reviewed these documents and concurs with the Defendants that they are protected from disclosure under the attorney-client privilege. In sum, Plaintiffs' Motion to Compel the production of attorney-client communications withheld on the basis of privilege is DENIED for the remaining documents: PPG_CTL00000017, PPG_CTL00001614, PPG_CTL00001632, PPG_CTL00001964, PPG_CTL00001966, PPG_CTL00009526, PPG_CTL00009528, and PPG_CTL00009539.

Lastly, the parties have depositions scheduled for PPG employees Karen Rathburn, Marla Sheets, and Darla Stepp as well as for a corporate designee under Rule 30(b)(6). At these depositions, Plaintiffs plan to ask questions about the withheld documents listed above, the Karen Rathburn declaration, and Defendants' search efforts for responsive documents. ECF Nos. 319 at 5, 321 at 3. Anticipating Defendants' counsel will object on attorney-client privilege grounds and “instruct the witnesses not to answer most or all of the questions Plaintiffs' counsel intends to ask,” Plaintiffs seek an advisory order from this Court to compel deposition testimony on matters that may be objected to by Defendants' counsel based on attorney-client privilege. ECF No. 319 at 4-5. The Court declines to issue such an order. The depositions should proceed in the normal course. If necessary, Plaintiffs may bring the specific dispute(s) to the Court for resolution.

For the reasons set forth above, Plaintiffs' Motion [ECF No. 319] to Compel is DENIED. In accordance with this Court's discretion, each party shall bear its own attorney's fees and costs incurred as a result of this Motion because the Motion was substantially justified, and the circumstances make an award of expenses unjust. See Fed. R. Civ. P. 37(a)(5)(B).

Any party may, within fourteen (14) days of this Order, file with the Clerk of the Court written objections identifying the portions of the Order to which objection is made, and the basis for such objection. Fed. R. Civ. P. 72(a). A copy of such objections should also be submitted to the Honorable Gina M. Groh, United States District Judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a).

Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. See 28 U.S.C. § 636(b)(1); Wright v. Collins, 766 F.2d 841, 845–48 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984); see also Thomas v. Arn, 474 U.S. 140, 155 (1985).

The Court directs the Clerk of the Court to provide a copy of this Order to all counsel of record, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.