Subsequently, Wolverine filed a Motion to Supplement the Record (ECF No. 2044) (“Motion to Supplement”) and North River filed a Response (ECF No. 2072). Wolverine's Motion for Leave to file a Reply to North River's Response to its Motion to Supplement was denied (ECF No. 2099). The Motion to Supplement was granted (ECF No. 2099).

Also, since this Motion was filed, Counsel for Wolverine and SPARTA have informed the Special Master that they have reached a settlement. A stipulation to dismiss SPARTA should be forthcoming. Consequently, this Opinion and Order pertains only to North River.

The Special Master has reviewed the Parties submissions and all appended exhibits. Oral Argument was requested by Wolverine, however, the Special Master finds that this Motion was extensively briefed, and oral argument would not be helpful to a decision on this Motion. For the reasons stated herein, the Motion is Granted.

I. Background

This Motion follows an Order Granting in Part and Denying in Part Wolverine's Motion to Compel In Camera Review of Certain Defendants’ documents (“First Motion,” ECF No. 1867). Wolverine's Objections to that Order are pending (ECF No. 1880). Since then, North River produced two new Phase II privilege logs and clawed back 1,400 documents. Wolverine argues that these privilege logs, which include a single categorical entry purporting to describe thousands of documents, are devoid of any information establishing privilege and fail to satisfy Defendants’ burden under Federal Rule of Civil Procedure 26(b)(5)(A).

Wolverine requests that the Court find that North River has waived any privileges to the documents categorically logged on North River's Phase II privilege log, or in the alternative, order North River to produce all the documents categorically logged to the Court for In Camera inspection.

North River argues that this Motion and the relief requested is the same as in Wolverine's First Motion. North River contends that when the parties met and conferred, it took the position that the parties should just agree that whatever ruling the Court makes with respect to the categorical logs at issue in the First Motion would equally apply to the same sort of categorical logs subsequently provided to Wolverine and which are the subject of this Motion. Wolverine disagreed and filed this Motion.

North River admits that subsequent to the Special Master's Opinion and Order (ECF No. 1867), North River provided Wolverine with an additional privilege log with a single categorical entry for documents withheld from North River's Phase II document production. The log entry described the withheld documents as email exchanges, reports, notes, draft letters and/or pleadings between various claim handling personnel and/or in-house counsel and/or outside counsel for various dates after this litigation commenced, the subject matter for which were Wolverine's coverage claim and this declaratory judgment action (ECF No. 1980, PageID.137066).

*2 In its Motion to Supplement the Record, Wolverine asserts that after it filed this Motion, Wolverine deposed four of North River's witnesses who Wolverine contends confirm that North River is withholding claim notes dating from January 2, 2019 to present and all “Evaluations” and “Claim Reports.” Excerpts of these four depositions were attached to the Koss Declaration (Koss Decl. Exhibit B, C, and D) which the Special Master has reviewed.

II. Motions to Compel Standards

“Rule 26 is to be liberally construed to permit broad discovery.” State Farm Mut. Auto. Ins. Co. v. Warren Chiropractic & Rehab Clinic, P.C., 315 F.R.D. 220, 222 (E.D. Mich. 2016). As such, Rule 26 “encompass[es] 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.” Marsico v. Sears Holding Corp., 370 F. App'x 658, 664 (6th Cir. 2010) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).

District Courts have broad discretion over docket control and the discovery process. In re Air Crash Disaster, 86 F.3d 498, 516 (6th Cir. 1996). “It is well established that the scope of discovery is within the sound discretion of the trial court.” Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir. 1993); Pittman v. Experian Info Sols., Inc, 901 F3d 619, 642 (6th Cir. 2018).

In exercising its discretion on a motion to compel discovery, a court must be mindful that parties are permitted to obtain discovery regarding any matter, not privileged, which is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1).

III. In Camera Review Standards

Federal Rule of Civil Procedure 26(b)(5)(A) “requires a party who withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial preparation material to: (i) expressly make the claim and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed - and to do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. “Grand Traverse Band of Ottawa and Chippewa Indians v. Blue Cross Blue Shield of Michigan, No. 14-11349, 2021 WL 3021267 at *3 (E.D. Mich., July 16, 2021).

Rule 26(b)(5) does not state specific information that must be present in a privilege log, however, “a party asserting either privilege must make the claim expressly and ‘describe the nature of the documents ... in a manner that ... will enable other parties to assess the claim.’ ” Star Lodge LLC v. Endurance American Specialty Insurance Co., No. 2:19-cv-10905, 2020 WL 8187478 at *5 (E.D. Mich., Nov. 10 2020). The “proponent of the privilege log is not required to reveal the content of the communications to prove the privileged nature of the information.” Grand Traverse, supra at *3. To assert the privilege, the log should generally contain the following information: “... date, author and all recipients of the document, subject matter, and an explanation as to why the document should be privileged and not produced in discovery.” Id., citing, Carhartt, Inc. v. Innovative Textiles, Inc., 333 F.R.D. 118, 120 (E.D. Mich. 2019).

*3 The Court is not required to “undertake an in camera inspection of items purportedly subject to the attorney client privilege simply because such review has been requested.” Stryker Corp. v. Ridgeway, No. l:13-CV-1066, 2015 WL 4425947 at *3 (W.D. Mich. July 20, 2015); see also, United States v. Zolin, 491 U.S. 554, 572 (1989). An in camera review is “a ‘discretionary measure’ based on a number of considerations besides a party's request, including judicial economy, bad faith, and public interest.” Stryker, supra at *3 (quoting Rugiero v. US. Dept. of Justice, 257 F.3d 534, 543-44 (6th Cir. 2001); see also, State Farm Mut. Auto. Ins. Co. v. Elite Health Centers, Inc., No. 2:16-CV-13040, 2019 WL 1242716 at *8 (E.D. Mich., March 18, 2019).

IV. Analysis

In the Opinion and Order on the First Motion, the Special Master dismissed Wolverine's efforts to compel Phase I discovery against North River solely based on the length of time that had passed since the discovery was produced and when the request was made by Wolverine (ECF No. 1867, PageID.135567).

In denying Wolverine's First Motion, the Special Master held:

(ECF No. 1867, PageID.135567) (Emphasis added). Because the Special Master dismissed Wolverine's First Motion with respect to Phase I documents based on the length of delay in requesting relief, she did not rule on the separate, substantive question as to whether North River's use of categorical entries on its Phase I privilege log violated the Federal Rules (Id.).

In further reviewing the Opinion and Order on the First Motion, it is apparent that the issue of categorically logged documents was not decided as to Phase II logs. This is because North River's Phase II logs at issue in Wolverine's First Motion did not include the same “categorical” entries that appeared in its Phase I log.

Defendant contends that the Special Master issued a blanket ruling that permits their use of categorical log entries. See, e.g., Response Brief ECF No. 1980, PageID.137067 (stating that “Wolverine has previously argued that North River's categorical log entries are deficient... and its arguments were rejected by the Special Master”). However, in ECF No. 1867, the Special Master stated:

The Special Master found North River's Phase II log to be deficient. It is apparent that the issue of categorically logged documents was not decided as to Phase II logs in the First Motion and therefore will be addressed herein.

As stated above, North River clawed back over 1,400 documents on the basis of privilege (Kyureghian Decl., Ex. A). Wolverine requested a privilege log as to the clawed back documents, the Parties met and conferred, and thereafter North River produced an amended privilege log. There was a single categorical entry that purportedly described the 1,400 documents North River had clawed back as “email exchanges and/or reports and/or notes and/or draft letters and/or pleadings” by and between “various Riverstone personnel and/or in-house and/or outside counsel” (Kyureghian Decl., Ex. B). The date was various dates from December 18, 2018, the authors were listed as various Riverstone Personnel, in house or outside counsel, the subject was listed as Wolverine claim and DJ. The grounds for withholding these documents were stated as attorney client privilege, work product, reserves and or reinsurance. Id. The issue of reserves and reinsurance was addressed in prior orders and will not be addressed here.

Wolverine contends that North River's log which includes the single categorical entry lack any information establishing privilege and fail to satisfy Defendants’ burden under Rule 26(b)(5)(A). Wolverine further argues that Defendants’ logs are so deficient that they constitute waiver of the asserted privilege under federal law citing Star Lodge, supra at *4-5 (quoting United States v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006)). The Court in Star Lodge found that where the information provided on a privilege log is deficient, Defendants have waived its right to assert privilege as a defense to producing documents or, in the alternative, to order in camera review of these documents. Id.

The attorney-client privilege exists to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The work product privilege “protects from discovery documents and tangible things prepared in anticipation of litigation by or for a party or by or for that party's representative.” United States v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006) (citing Fed. R. Civ. P. 26(b)(3)). Documents prepared in the ordinary course of business are not privileged. “[A] document will not be protected if it would have been prepared in substantially the same manner irrespective of the anticipated litigation.” Roxworthy, 457 F.3d at 593-94.

The courts uniformly hold that communications between an insurance company and outside counsel retained to provide legal advice regarding coverage, rather than to perform routine claims adjustment, remain protected by the attorney-client privilege.” U.S. Fire Ins. Co. v. City of Warren, No. 2:10-CV-13128, 2012 WL 1454008 at *5 (E.D. Mich., Apr. 26, 2012); see also Arch Ins. Co. v. Com. Steel Treating Corp., No. 11-15535, 2012 WL 12930397 at *1 (E.D. Mich., Sept. 11, 2012) (holding that communications with outside counsel regarding coverage were protected by both attorney-client privilege and the work product doctrine); Barton Malow Co. v. Certain Underwriters at Lloyd's of London Subscribing to Pol'y No. 509/QF004706, No. 10-10681, 2012 WL 4668868 at *2 (E.D. Mich., Oct. 3, 2012) (holding that attorney-client privilege protects from production communications with outside counsel containing legal advice “regarding the extent, if any, to which [the insured's] claim was covered. They show counsel's legal opinions regarding the scope of potential liability.”); AMI Stamping LLC v. ACE Am. Ins. Co., No. 14 -10176, 2015 WL 12990251 at *3 (E.D. Mich., Oct. 7, 2015), objections sustained in part and overruled in part on other grounds, 2015 WL 7252479 (E.D. Mich., Nov. 17, 2015) (observing that under Michigan law, attorney-client privilege “protects communications from an attorney to a client, including the attorney's opinions, conclusions, and recommendations based upon the facts furnished by the client,” including communications from “counsel...hired to provide legal advice regarding coverage”); Patrick v. State Farm Fire & Cas. Co., No. 15-13925, 2016 WL 10519131 at *2 (E.D. Mich., Oct. 17, 2016) (denying the plaintiff's motion to compel the production of redacted documents, concluding that the letter of outside counsel “regarding coverage” to an insurer was a confidential communication between the insurer's outside counsel and its claims personnel and therefore remained privileged).

*5 Communications including emails and letters from North River's attorneys to North River are clearly protected by the attorney client privilege and should be readily identifiable. However, the categorical log provided by North River does not separate communications to and from its attorneys from other documents withheld from production. Accordingly, it is impossible to determine the veracity of the log which does not even name the attorneys. These documents need to be individually and properly logged and the log produced to Wolverine within fourteen days.

No case law is cited from a Michigan State or Federal Court or the Sixth Circuit regarding the use of categorical privilege logs. North River cites to Benson v. Rosenthal, No. 15-782, 2016 WL 1046126 (E.D. La., Mar. 16, 2016), quoting Fed. R. Civ. P. 26(b)(5), Advisory Committee Notes to 1993 amendment, West pamph. at 162 (rev. ed. 2015) for the proposition that “[d]etails concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories.” See also id. at *10, citing Mfrs. Collection Co. v. Precision Airmotive, LLC, No. 3:12-cv-853-L, 2014 WL 2558888, at *3 (N.D. Tex., June 6, 2014) (“courts have allowed a privilege log to employ a categorical approach when the discovery request on its face seeks ‘wholesale production of documents’ that are ‘ordinarily covered by’ work-product protection and/or the attorney-client privilege”); S.E.C. v. Thrasher, No. 92 CIV.6987 (JFK), 1996 WL 125661 at *1 (S.D. N.Y., March 20, 1996) (“It is equally apparent that, in appropriate circumstances, the court may permit the holder of withheld documents to provide summaries of the documents by category or otherwise to limit the extent of his disclosure”). So, although a categorical log may be permissible in some jurisdictions and in some cases, it appears that within the Sixth Circuit, the courts rely on a privilege log to determine the veracity of a claim of privilege.

Rule 26(b)(5) does not state specific information that must be present in a privilege log. See Fed. R. Civ. P. 26(b)(5) 1993 advisory committee notes. A party asserting either privilege must make the claim expressly and “describe the nature of the documents ... in a manner that ... will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5). Failure to do so may constitute a waiver of privilege. Star Lodge, supra at *4-5; See Casale v. Nationwide Children's Hosp., No. 2:11-CV-1124, 2013 WL 12203243 at *2 (S.D. Ohio, Sept. 13, 2013) (citing Fed. R. Civ. P. 26(b)(5) 1993 advisory committee notes). The attorney-client privilege attaches only where legal advice is sought from an attorney acting in his capacity as such, and the communication relating to that purpose is made in confidence. In Re Professionals Direct Ins. Co., 578 F.3d at 439. “That counsel is ‘cc'd’ on an email is not enough to trigger the attorney-client privilege, nor will the privilege attach where counsel is providing business advice or conducting ‘investigative work in the capacity of an insurance claims adjuster, rather than as a lawyer.’ ” OOIDA Risk Retention Group, Inc. v. Bordeaux, 3:15-cv-00081-MMD-VPC, 2016 WL 427066 *5 (D. Nev., Feb. 3, 2016).

In Star Lodge the court held that “[w]here the information provided by [Defendant] is inadequate, the claimed privilege has been waived and the un-redacted documents must be provided to [Plaintiff].” Star Lodge, supra at *5. The Star Lodge Court found waiver even where the defendant had individually logged each document over which it asserted privilege unlike the instant case where North River lumps together 1,400 documents and says they all are privileged either as attorney-client confidential communication, work product doctrine or prepared in anticipation of litigation or reserves and reinsurance. There is no way for the opponent to test the veracity of privileges for over 1,400 documents with so little information provided. The absence of the specific author, date and recipient(s), and the lack of an adequate description of the type of document withheld renders the log deficient. Star Lodge LLC v. Endurance American Specialty Insurance Co., No. 2:19-cv-10905, 2020 WL 8187478 at *5 (E.D. Mich., Nov. 10, 2020). The Special Master concludes that North River's categorical log is clearly deficient and does not comply with the requirements of Federal Civil Rule 26(b)(5)(A).

*6 North River is ordered to produce all categorically logged documents in unredacted form to Wolverine and has waived its claim to assert privileges to them, with the exception of documents that are claimed to meet the attorney client privilege. Any communications to or from an attorney must be produced for an in camera review.

Wolverine was granted leave to supplement the record and filed exhibits containing portions of deposition transcripts of North River's corporate designee Cathryn Vaughn, and Claims Analysts Kurt Fisher and Garry Lane (See Koss Decl.). Wolverine contends North River's witnesses have confirmed that North River is withholding claim notes dating from January 2, 2019 to present, and all “Evaluations” and “Claim Reports” it has made since the inception of Wolverine's claims, as those terms are used in RiverStone's 2014 and 2020 Claims Handling Guidelines.

Ms. Vaughn agreed that the claims analysts assigned to Wolverine's claims would have entered additional notes into its ClaimCenter after January 2, 2019. (Koss Decl., Ex. B, 158:1- 8). Similarly, Kurt Fischer, the Claims Analyst assigned to Wolverine's claim between approximately February 2018 and March 2020, testified that he did not see any notes in the ClaimsCenter report post-dating December 28, 2018 and indicated that he would have entered notes into ClaimCenter between December 28, 2019 and March 2020. (Koss Decl., Ex. C, 243:3- 13; 244:20-246:9). Lastly, Garry Lane, the current Claim Analyst assigned to Wolverine's claim, testified that he too has entered notes into ClaimCenter, and stated that he did not see any of his notes in the “report” Wolverine's counsel showed him, nor any of his other activity in ClaimCenter since being assigned to Wolverine's claim in March 2020. (Koss Decl., Ex. D, 35:2- 13).

The Special Master previously ruled that North River must produce documents that appear “to constitute routine claims handlers notes done in the ordinary course of an insurance company's business” because such documents “neither constitute attorney client communications or attorney work product.” (ECF No. 1914, PageID.136622). It appears from the subsequent deposition testimony that North River is withholding documents from its claim files.

North River is compelled, again, to produce its claim notes from January 2, 2019 to present and any and all coverage evaluations and analyses its claims analysts have performed while handling Wolverine's claim, including “Evaluations” and “Claim Reports” as those terms are used in River Stone's Claims Handling Guidelines, in unredacted format to Wolverine. Any claimed privileges have been waived and the unredacted routine claims handlers’ notes, evaluations, and claim reports must be provided to Wolverine within fourteen days from entry of this order or be subject to sanctions.

V. Conclusions and Orders

For the reasons stated above, the Special Master finds that North River's document logs are deficient and Wolverine's Motion to Compel Discovery or Alternatively for an In-Camera Review of North River's Categorically Logged Documents (ECF No. 1964) is GRANTED as follows:

IT IS ORDERED that the documents withheld by North River on the basis of communications to or from its attorneys that are claimed to meet the attorney client privilege must be properly logged and produced for an in camera review to the Special Master within fourteen days of date of this Order.

*7 IT IS FURTHER ORDERED that North River is compelled to produce the remainder of the categorically logged documents unredacted to Wolverine within fourteen days of date of this Order. North River has waived its right to assert privilege as a defense to producing these documents or alternatively request an in camera review.

IT IS FURTHER ORDERED that North River is compelled, again, to produce to Wolverine all claims handlers’ notes, evaluations, and claim reports from January 2, 2019 to present while handling Wolverine's claims including “Evaluations” and “Claim Reports” as those terms are used in River Stone's Claims Handling Guidelines, in unredacted format within fourteen days from entry of this Order. North River has waived its right to assert privilege as a defense to producing these documents or alternatively request an in camera review. and if not so produced North River will be subject to sanctions.

IT IS SO ORDERED.