ChampionX, LLC v. Resonance Sys., Inc.
ChampionX, LLC v. Resonance Sys., Inc.
2024 WL 1235551 (E.D. Tenn. 2024)
January 18, 2024
McCook, Jill E., United States Magistrate Judge
Summary
The court denied a motion to compel the production of instant messages between the plaintiff and defendant, citing the protection of spousal privilege under federal law. The defendant had provided a privilege log and evidence to establish the privilege, while the plaintiff failed to provide sufficient evidence to rebut the presumption of confidentiality. The court also denied the defendant's request for attorneys' fees, finding the plaintiff's motion to be substantially justified.
Additional Decisions
CHAMPIONX, LLC, f/k/a WINDROCK, INC., Plaintiff,
v.
RESONANCE SYSTEMS, INC., et al., Defendants
v.
RESONANCE SYSTEMS, INC., et al., Defendants
No. 3:21-CV-288-TAV-JEM
United States District Court, E.D. Tennessee, Northern Division
Filed January 18, 2024
Counsel
Bradley E. Trammell, Baker, Donelson, Bearman Caldwell and Berkowitz, PC, Memphis, TN, Christopher J. Barrett, Pro Hac Vice, Jeremy D. Ray, Kenneth A. Weber, Baker Donelson, Nashville, TN, for Plaintiff.Cheryl G. Rice, John L. Wood, Rameen J. Nasrollahi, Egerton, McAfee, Armistead & Davis, PC, Knoxville, TN, for Defendants Resonance Systems, Inc., Josh Kelley, Viper Monitoring and Analysis, LP, Viper Machinery Monitoring Corporation, Edward Flanagan, Paul Beam, Steve McNair.
McCook, Jill E., United States Magistrate Judge
MEMORANDUM AND ORDER
*1 This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.
Now before the Court is Plaintiff's Motion to Compel Improperly Withheld Documents Under Claim of Spousal Privilege [Doc. 198]. Defendant Josh Kelley (“Defendant Kelley”) filed an opposition to the motion [Doc. 207], and Plaintiff filed a reply [Doc. 211]. The parties appeared before the Court on January 10, 2024, for a motion hearing [See Doc. 235].[1] Attorneys Christopher Barrett and Kenneth Weber appeared on behalf of Plaintiff. Attorneys Cheryl Rice and John Wood appeared on behalf of Defendants Resonance Systems, Inc. (“RSI”), Kelley, Viper Monitoring and Analysis, LP (“Viper LP”), Viper Machinery Monitoring Corporation (“Viper Corp.”), Edward Flanagan (“Flanagan”), Paul Beam (“Beam”), and Steve McNair (“McNair”).[2] The motion is ripe for adjudication. See E.D. Tenn. L.R. 7.1(a). For the reasons explained below, the Court DENIES the motion [Doc. 198].
I. BACKGROUND
In response to a discovery request from Plaintiff, Defendant Kelley inadvertently produced to Plaintiff 138 instant messages sent between him and his wife (“Martial Communications”) [Doc. 207 p. 1]. During a meet and confer, Plaintiff asked Defendant Kelley to produce the metadata associated with the Martial Communications [Doc. 199-3 p. 1].[3] According to Plaintiff, defense counsel agreed to reproduce the Marital Communications with the metadata [Id.]. But in an email dated November 23, 2022, defense counsel asserted that the Marital Communications are privileged:
You pointed out that certain documents did not have metadata. We have identified 145 documents that were produced without metadata. Due to their format, our vendor is not able to process the associated metadata for these. We have looked at the original files and it turns out that the documents in the attached list were all exchanged between Mr. Kelley and his wife and are subject to spousal privilege.
We are requesting that all of the documents in the attached list be destroyed.
[Id. at 1–2]. On November 27, 2022, Plaintiff's counsel responded that he had “planned to use these documents during [Defendant] Kelley's deposition” and that if Defendant Kelley did “not reverse his position[,]” Plaintiff would seek “appropriate relief” with the Court, which would include a request to re-depose Defendant Kelley about these documents [Id. at 1].
*2 According to Plaintiff, during Defendant Kelley's deposition on November 28, 2022, its counsel stated:
I just want to make a statement on the record that we were planning on asking Mr. Kelley questions about the documents that you all told us last Wednesday you're claiming spousal privilege on. And so, I'm not going to ask him any questions since you're claiming that privilege. But if we litigate that issue and the Court overrules your objection, we are going to ask that the Court allow us to ask Mr. Kelley questions about those documents.
[Doc. 199 p. 2 (citation omitted)].
Following Defendant Kelley's deposition, the parties filed a joint motion to stay the case, which United States District Judge Thomas A. Varlan granted [Doc. 58]. The Court lifted the stay on March 14, 2023 [Doc. 70]. Plaintiff represents that after the Court lifted the stay, it asked Defendant Kelley “for an updated privilege log to assess [his] assertion of the spousal privilege” [Doc. 199 p. 3]. “Up to this point,” Plaintiff asserts, Defendant Kelley “had not served an updated privilege log with references to these withheld messages even though doing so was mandatory under Federal Rule of Civil Procedure 26(5)(A)(ii)” [Id.]. On August 21, 2023, Defendant Kelley served an updated privilege log, but it did not include the Martial Communications [Id.; Doc. 199-4]. Plaintiff pointed out this deficiency, and Defendant Kelley updated the privilege log to include the Martial Communications [Doc. 199 p. 3; Doc. 199-5]. On the August 21 privilege log, there is one entry for all the withheld messages, which states:
[One hundred forty-five] confidential chat messages sent by Josh Kelley to his wife are withheld pursuant to the spousal privilege. See Tenn. Code Ann. [§] 24-1-201; Fed. R. Evid. 501. Defendants are only providing one entry for these documents because their native file format does not contain any metadata, and therefore, Defendants do not have any additional data to provide with regard to these messages.
[Doc. 199-5 p. 5].
Plaintiff states that it told Defendant Kelley that the entry for the Martial Communications was deficient, which prompted Defendant Kelley to serve another privilege log [Doc. 199 pp. 3–4]. Defendant Kelley logged each Martial Communication as: “Document Type – Gchat Message, Date – Unavailable*, From – Josh Kelley, To – Shannon Kelley, Privilege Type – Spousal Privilege pursuant to Tenn. Code Ann. [§] 24-1-201; Fed. R. Evid. 501, Description – Privileged, confidential communication between spouses” [Doc. 199-6 pp. 5–11]. The asterisk following “Unavailable” indicates that “Defendants have no other metadata available for these files” [Id. at 11].
On October 2, 2023, Defendant Kelley responded to interrogatories that Plaintiff served to target the alleged missing information from the privilege log [Doc. 199 pp. 3, 4]. The discovery requests and responses state:
21. For the “145 confidential chat messages” listed under the “Additional Documents” section of Defendants Amended and Restated Privilege Log, identify the device(s) used to send/receive the chat messages (including the owner of the device(s)), the program/service used to send/receive the chat messages, and the timeframe in which the chat messages were sent and/or received.
*3 RESPONSE: There are only 138 chat messages that have been withheld. The privilege log will be updated to reflect the correct number of chat messages withheld and include the send/receive time for each chat message to the extent it is available. Google Chat was the program used to send/receive the chat messages. The device used to send/receive each chat message is not known.23. For the “145 confidential chat messages” listed under the “Additional Documents” section of Defendants Amended and Restated Privilege Log, identify the subject matter of each message sent and/or received including whether the chat message addressed your employment with Windrock, you leaving your employment with Windrock, the creation of Defendant RSI, and/or your efforts in creating Rmonix.RESPONSE: There are only 138 chat messages that have been withheld. The privilege log will be updated to reflect the correct number of chat messages withheld. RSI objects to this Interrogatory because it calls for information subject to spousal privilege.
[Doc. 199-7 pp. 1–4].
On October 3, 2023, Plaintiff's counsel emailed defense counsel:
[W]e will request relief from the Court regarding Defendants' continued refusal to provide information sufficient to assess Defendants' claim that certain Google chat messages are protected by the “spousal privilege.” Despite several meet and confers on this issue, Defendants refuse to supply a privilege log that complies with the Federal Rules of Civil Procedure. Rule 26(5)(A)(ii) mandates that Defendants “describe the nature of the documents ... in a manner that ... will enable the other parties to assess the claim” of privilege. However, Defendant only states in a conclusory manner that each document is a “privileged, confidential communication between spouses.” As a result, Plaintiff has no basis to assess application of the spousal privilege to these Google chat messages. As you know, Plaintiff also attempted to get this required information through written discovery requests. In deficient responses served yesterday, Defendants refused to provide any specific information regarding the subject matter of the messages. During our initial review of these documents months ago, we identified documents relevant to this case. It is apparent that Defendants are seeking to improperly withhold these documents.
[Doc. 199 p. 5 (citation omitted)].[4] In response, Defendants provided another privilege log, which provides dates for the Martial Communications [Doc. 199-9 pp. 5–14]. According to Plaintiff, it then “requested a discovery dispute conference per Section 3(i) of the Scheduling Order” [Doc. 199 p. 5 (citing Doc. 26)]. At that conference, the Court instructed Plaintiff “to file an appropriate motion” [Id.].
Pursuant to Rule 37 of the Federal Rules of Civil Procedure, Plaintiff seeks an order compelling “Defendants to immediately produce complete copies of the instant messages (with all available metadata), order Defendant Kelley to reappear for a second deposition to be questioned about the instant messages, and order Defendants and/or their counsel to pay Plaintiff the reasonable fees and expenses it incurred in bringing this motion” [Id. at 15].
For grounds, Plaintiff states that the Martial Communications are not subject to the spousal privilege [Id. at 6–7]. Plaintiff argues that Defendant Kelley has failed to show that the Martial Communications are “confidential communications” pursuant to Tennessee Code Annotated § 24-1-201 [Id. at 6–9]. In addition, according to Plaintiff, Defendant Kelley had no expectation of privacy if he used Plaintiff's devices [Id. at 10–14]. During the parties' meet and confer meetings over this issue, Plaintiff states that Defendant Kelley argued that any motion would be untimely under the Stipulated Protective Order [Id. at 14 (citing Doc. 32)]. Plaintiff asserts that its motion is timely [Id. at 14–15].
*4 Defendant Kelley responds that the Martial Communications are privileged under Tennessee Code Annotated § 24-1-201 and under federal law [Doc. 207 pp. 5–7]. He asserts that Plaintiff's argument that he did not have an expectation of privacy is based on assumptions and that Plaintiff fails to explain how it reached that conclusion [Id. at 7–10]. Instead, Defendant Kelley states that he sent the messages via Google's chat services (“Google Chat”) [Id. at 7 (citing Doc. 207-1 ¶ 5)]. And Defendant Kelley accuses Plaintiff of violating the Stipulated Protective Order by discussing the Martial Communications in its brief [Id. at 10 (citing Doc. 32)]. In any event, Defendant Kelley asserts that the motion is untimely under the parties' Stipulated Protective Order and that the Court can deny the motion on that basis [Id. at 11–13]. Defendant Kelley also seeks an award of attorneys' fees under Rule 37(a)(5)(B) [Id. at 13–14].
Plaintiff filed a reply asserting that Defendant Kelley failed to show that the Martial Communications are confidential under Tennessee Code Annotated § 24-1-201(b) [Doc. 211 pp. 2–5]. Arguing that there is no authority establishing that such communications are presumed to be confidential, Plaintiff states that in order to properly assess the privilege, Defendant Kelley is required to provide the subject matter of the communications [Id. at 3–5]. And while Defendant Kelley attempts to shift the burden, Plaintiff argues that he failed to show that he had a reasonable expectation of privacy in the messages when he sent them [Id. at 5–7]. Plaintiff denies its motion is untimely or that it violated the Stipulated Protective Order [Id. at 7–9].
At the hearing, Plaintiff argued that Defendant Kelley failed to provide the subject matter of the Martial Communications, which he is required to do. Once it received the dates of the communications, Plaintiff realized that Defendant Kelley used its computer for some of the messages. Assuming that there is a presumption of confidentiality to spousal communications, Plaintiff argued that it has rebutted that presumption because (1) Defendant Kelley provided the Martial Communications to his counsel, (2) Defendant Kelley did not provide a compliant privilege log, and (3) the dates of the Martial Communications show that he was using Plaintiff's device. In the alternative, Plaintiff requested an in-camera review of the Martial Communications.
Defendant Kelley responded that Plaintiff's argument is untimely pursuant to the parties' Stipulated Protective Order. Citing to Tennessee and federal law, Defendant Kelley acknowledged that he has the burden to show that the communications are privilege. Defendant Kelley argued that he has established that the Martial Communications are privileged, and Plaintiff has failed to rebut the presumption of privilege. He denied that producing the Martial Communications to his counsel waived the privilege. In addition, he argued that he is not required to provide the subject matter of the Martial Communications on a privilege log. Defendant Kelley further stated that Plaintiff has provided no evidence that he used its device when he sent the Martial Communications. According to Defendant Kelley, an in-camera review is not necessary and that by referencing the content of the Martial Communications, Plaintiff violated the Stipulated Protective Order.
II. ANALYSIS
Considering the unique circumstances of this issue, the Court will address the underlying merits of the privilege dispute. The Court finds that Defendant Kelley has met his burden to establish that the Martial Communications are protected by the spousal privilege. The Court further finds that Plaintiff has not set forth any facts to overcome the presumption that the Martial Communications are privileged. The Court declines to award attorneys' fees to Defendant Kelley.
A. Timeliness Under the Stipulated Protective Order [Doc. 32]
*5 Before turning to the merits, the Court must address Defendant Kelley's objection that Plaintiff's motion is untimely under the Stipulated Protective Order [Doc. 32]. Plaintiff contends that its motion is timely because Defendant Kelley did not provide a proper privilege log. At the hearing, Plaintiff also argued that Defendant Kelley did not originally provide the metadata for the Marital Communications. Without a proper privilege log and the metadata, Plaintiff argued that it could not sufficiently challenge Defendant Kelley's privilege assertion.
The parties' Stipulated Protective Order provides:
When a designating party identifies such information as privileged or protected, a receiving party: 1) shall not use or review, and shall immediately cease any prior use or review of, such information; 2) shall take reasonable steps to retrieve the information from others to which the receiving party disclosed the information; 3) shall within five (5) business days of the designating party's request: a) return the information and all copies thereof to the designating party; or b) destroy and confirm to the designating party in writing that the information and all copies thereof have been destroyed. No one shall use the fact or circumstances of production of the information in this action to argue that any privilege or protection has been waived. Within fourteen (14) days after a designating party or receiving party identifies the information, and not thereafter, the receiving party may file a motion to compel the production of the information on the basis that: (a) the information was never privileged or protected from disclosure; or (b) any applicable privilege or immunity has been waived by some act other than the production of the information in this action. The designating party and the receiving party shall meet and confer in accordance with applicable law or Court rules regarding any such motion to compel.
[Doc. 32 pp. 19–20]. See also Fed. R. Civ. P. 26(b)(5)(B) (providing that, “[a]fter being notified [that another party produced privileged information], a party ... may promptly present the information to the court under seal for a determination of the claim”).
Defendant Kelley contends that his counsel informed Plaintiff's counsel on November 23, 2022, that the Martial Communications are privileged, meaning that Plaintiff had fourteen days, or until December 7, 2022, to move to compel the production of them. That is a fair reading, and Plaintiff may not have needed to await a privilege log from Defendant Kelley. Cf. Grae v. Corr. Corp. of Am., No. 3:16-CV-2267, 2020 WL 3035915, at *4 (M.D. Tenn. June 5, 2020) (“A privilege log, in and of itself, cannot really ‘establish’ privilege in the way that matters are typically established in court, because it consists only of unrebutted assertions and second-order descriptions.”). But given how this dispute developed over time and in the context of the procedural posture of this case, the Court will address the merits of it.
B. Spousal Privilege
Both parties brief the spousal privilege as articulated in Tennessee Code Annotated § 24-1-201, but this statute does not apply in this action because federal law controls. “Under Rule 501 of the Federal Rules of Evidence, questions of privilege are generally controlled by federal common law when the court's jurisdiction is based upon a federal question, but state law generally controls when the court is exercising diversity jurisdiction.” L.W. v. Knox Cnty Bd. of Educ., No. 3:05-cv-274, 2008 WL 820007, at *1 (E.D. Tenn. Mar. 25, 2008). Indeed, in a case like this one, where Plaintiff has alleged federal and state law claims since its inception [see Doc. 1],[5] the United States Court of Appeals for the Sixth Circuit has held that federal common law controls under Rule 501. Hancock v. Dodson, 958 F.2d 1367, 1372–73 (6th Cir. 1992) (“Since the instant case is a federal question case by virtue of the appellant's section 1983 claim, we hold that the existence of pendent state law claims does not relieve us of our obligation to apply the federal law of privilege.”). The Court will therefore apply federal common law.[6]
*6 “The confidential marital communications privilege excludes confidential communications made by one spouse to the other during the marriage. This privilege is assertable by either spouse.” United States v. Porter, 986 F.2d 1014, 1018 (6th Cir. 1993) (citation omitted). “[I]t exists to insure that spouses generally, prior to any involvement in criminal activity or a trial, feel free to communicate their deepest feelings to each other without fear of eventual exposure in a court of law.” Id. (quoting United States v. Byrd, 750 F.2d 585, 590 (6th Cir. 1993)). In order to assert this privilege, a party must establish three elements: “(1) [a]t the time of communication there must have been a marriage recognized as valid by state law; (2) the privilege applies only to ‘utterances or expressions intended by one spouse to convey a message to the other,’ and (3) the communication must be made in confidence.” Id. (citations omitted). “[T]he burden of establishing privilege rests with the person asserting it.” Grae, 2020 WL 3035915, at *3 (quoting Avis Rent A Car Sys., LLC v. City of Dayton, Ohio, No. 3:12-CV-399, 2013 WL 3781784, at *8 (S.D. Ohio July 18, 2013)). Once established, however, “marital communications are presumptively confidential.” United States v. Gray, 71 F. App'x 485, 488 (6th Cir. 2003) (quoting Blau v. United States, 340 U.S. 332, 333 (1951)).
Defendant Kelley provided a declaration stating that “Shannon Kelley is my wife, and we have been married pursuant to the laws of the State of Michigan since June 9, 2002” [Doc. 207-1 ¶ 3]. He has reviewed the Martial Communications and states that he sent them “exclusively to his wife” [Id. ¶¶ 4, 6]. Defendant Kelley “expected and intended the Martial Communications to remain private and confidential when they were sent” [Id. ¶ 7]. Based on Defendant Kelley's declaration, and the information in the privilege log, the Court finds that he has shown the Martial Communications are privileged. United States ex rel. Scott v. Humana, Inc., No. 3:18-CV-61-GNS-CHL, 2019 WL 7404032, at *3–4 (W.D. Ky. Sept. 24, 2019) (finding that the privilege applied to certain messages because the relator showed that he sent the messages to his wife, they contained expressions intended to convey a message, and they were made in confidence with the intent to remain confidential).
“Because communications between spouses are presumed confidential, [the party seeking the communications] has the burden of establishing that the subject conversations are not privileged.” Procter & Gamble Co. v. Bankers Tr. Co., 909 F. Supp. 525, 527 (S.D. Ohio 1995) (citations omitted). A party may overcome this presumption “by proof of facts showing that the communications were not intended to be private.” Cross v. Dental Assisting Acad. of Louisville, LLC, No. 318CV00767GNSCHL, 2022 WL 627030, at *4 (W.D. Ky. Mar. 3, 2022) (citation omitted).
At the hearing, Plaintiff articulated three grounds for rebutting this presumption. First, Plaintiff argued that Defendant Kelley provided the Martial Communications to his counsel. But Plaintiff provided no authority to support its assertion that producing spousal communications to one's attorney waives the privilege or shows that they were not intended to remain confidential. The Court finds this argument without merit. See Curlee v. United Parcel Serv., Inc., No. 3:13-CV-344-P, 2014 WL 4262036, at *7 (N.D. Tex. Aug. 29, 2014) (explaining that the “[p]laintiffs' attorney could assert the spousal communication privilege concerning the notes [of spousal conversations] on [the p]laintiffs' behalf without also invoking the attorney-client privilege”).
Second, Plaintiff asserted that Defendant Kelley did not provide a complete privilege log. Plaintiff argued that, had Defendant Kelley provided a privilege log with the subject matter of the communications, it would be in a position to rebut the presumption. But “[u]nlike the attorney-client privilege, which depends on the content of the communications, the marital communications privilege only requires that communications be (1) private, (2) between spouses, and (3) during a valid marriage.” Estate of Julianne Crookston v. United States, No. 1:21-CV-00102, 2023 WL 8789509, at *3 n. 47 (D. Utah Dec. 19, 2023) (citation omitted). Because Defendant Kelley has properly invoked the spousal privilege by establishing these three elements, he is not required to provide the subject matter of the communications in a privilege log. See id. (finding that the privilege log was sufficient because it stated that the communications were between spouses, provided the date range, and invoked the marital privilege). This argument too is without merit.
*7 Third, Plaintiff claimed that Defendant Kelley used Plaintiff's devices to send some of the Martial Communications through his personal Gmail account. Plaintiff argues in its brief that “electronic messages sent from company-owned computers are not confidential if the employee had notice that his computer or emails could be monitored” [Doc. 199 p. 11]. Claiming that to be the case with respect to Defendant Kelley, Plaintiff cites its Code of Business Conduct & Ethics, which states, “You have no expectation of personal privacy in connection with the use of these Company resources unless otherwise permitted by local law. [Plaintiff] reserves all rights, to the fullest permitted by applicable law, to monitor and review any messages and information sent or received using Company resources” [Doc. 199-10; see also Doc. 199-11 (“Apergy Corporation Code of Business Conduct & Ethics”)].[7] Plaintiff, however, “assumes, without support, that the Martial Communications, despite not being emails sent using [Defendant] Kelley's Windrock email account or Windrock servers, were all sent from a Windrock device” [Doc. 207 p. 9]. At the hearing, Plaintiff stated that the metadata shows that Defendant Kelley sent some of the messages during a timeframe that he would have been using Plaintiff's device. But Plaintiff offered no evidentiary support for this statement.[8] Plaintiff further asserted that Defendant Kelley testified that he used Plaintiff's computer while he was an employee and a contractor for Plaintiff. But this does not necessarily mean that Defendant Kelley used Plaintiff's devices to send the Martial Communications. These unsupported allegations are insufficient to rebut the presumption.[9]
The Court therefore finds that Defendant Kelley has met his burden to show the Marital Communications are presumptively privileged and that Plaintiff has not rebutted the presumption.[10]
C. Defendant Kelley's Request for Attorneys' Fees
Defendant Kelley seeks his attorneys' fees incurred by Plaintiff's motion stating that its motion is untimely, “relies upon improper use of the Martial Communications in violation of the Protective Order and Rule 26, relies upon inapplicable caselaw, and relies upon unfounded assertions of fact” [Doc. 207 p. 13].[11]
Rule 37(a)(5)(B) states that if the court denies a motion to compel, it may “require the movant, the attorney filing the motion, or both to pay the party ... who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(B). The Court, however, “must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.” Id. A position is “ ‘substantially justified’ if it raises an issue about which ‘there is a genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.’ ” Doe v. Lexington-Fayette Urb. Cnty. Gov't, 407 F.3d 755, 765 (6th Cir. 2005) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)).
*8 The Court declines to award Defendant Kelley attorneys' fees. There were genuine disputes about the timeliness of the motion. In addition, although Plaintiff relied upon Tennessee law in its briefing, which may not carry the same presumption as federal law, see Burton v. State, 501 S.W.2d 814, 819 (Tenn. Crim. App. 1973), Defendant Kelley relied upon state law as well. Defendant Kelley cited the state statute in its privilege log and acknowledged at the hearing that he was relying on both federal and state law privileges. As for the presumption, there was a genuine dispute, initially, about whether any of the Marital Communications were sent on a Windrock device. While Plaintiff ultimately did not shore up evidence to show that they were, had they been, the outcome here may have been different. See United States v. Pugh, 162 F. Supp. 3d 97, 111 (E.D.N.Y. 2016) (“[C]ourts have held that marital communications made by employee-spouses on their work computers or over employer-owned-and-operated email servers are not protected by the marital communications privilege.” (citing cases)), aff'd, 937 F.3d 108 (2d Cir. 2019), superseded by 945 F.3d 9 (2d Cir. 2019) (affirming judgment of conviction, vacating sentence, and remanding for resentencing).
The parties also dispute whether Plaintiff violated the Stipulated Protective Order [Doc. 32] and the Federal Rules of Civil Procedure. According to Defendant Kelley, “[Plaintiff] has and continues to improperly rely upon the fact that the Martial Communications were produced, as well as their contents, in contravention of the parties' Stipulated Protective Order” [Doc. 207 p. 10]. Defendant Kelley points to references in Plaintiff's brief as an example of its alleged violation [Id. (citing Doc. 199 p. 8)].
Plaintiff denies that it “violate[d] the Stipulated Protective Order or Rules of Civil Procedure in bringing this motion or making the arguments contained therein” [Doc. 211 p. 9]. According to Plaintiff, it “is free to explain the applicable facts concerning the instant messages in order to explain the background for [its] motion” [Id.]. Plaintiff states that it “has never quoted from, or described the contents of any of the instant messages” [Id.].
Rule 26(b)(5)(B) states that after a party receives notification of an inadvertently produced privileged document, the receiving party “must promptly return, sequester, or destroy the specified information and any copies it has” and “must not use or disclose the information until the claim is resolved[.]” Fed. R. Civ. P. 26(a)(5)(B). The parties' Stipulated Protective Order likewise states, “No one shall use the fact or circumstances of production of the information in this action to argue that any privilege or protection has been waived” [Doc. 32 pp. 19]. Plaintiff argued at the hearing that the provision in the Stipulated Protective Order simply means that a party cannot rely on an inadvertent production to argue that the privilege had been waived, and Plaintiff was not making that argument.
Even so, Rule 26(b)(5)(B) provides that Plaintiff could not “use or disclose the information until the claim [of privilege was] resolved,” and it was not resolved prior to entry of this Order. See Veritas Indep. Partners LLC v. Ohio Nat'l Life Ins. Co., No. 1:18-CV-769, 2022 WL 1656758 (S.D. Ohio May 25, 2022) (discussing application of Rule 26(b)(5)(B)); In re Google RTB Consumer Priv. Litig., No. 21CV02155YGRVKD, 2022 WL 1316586, at *3 (N.D. Cal. May 3, 2022) (“Nothing in Rule 26(b)(5)(B) suggests that, having returned, destroyed, or sequestered the document, the receiving party may nevertheless examine its contents and discuss those contents in briefing before a court.” (footnote omitted)). Although Plaintiff's references to the subject matter of the Martial Communications in support of its argument that Defendant Kelley waived the privilege [see, e.g., Doc. 199 p. 1, 8–9] may have run afoul of Rule 26's instruction, the Court does not find that Plaintiff's references constitute a basis to award attorneys' fees. “[T]here is very little authority addressing the question of whether or under what circumstances a party may use the contents of a document clawed back as privileged to challenge the privilege asserted.” In re Google RTB Consumer Priv. Litig., 2022 WL 1316586, at *2 (citation omitted). Moreover, and of significance to the Court, Plaintiff did not discuss the specific content of the Martial Communications in its briefings or during the hearing. But even if Plaintiff had done so, it appears sanctions would not be mandatory. See Regions Bank v. Chicago Title Ins. Co., No. 10-CV-80043, 2011 WL 13225147, at *6 (S.D. Fla. Nov. 7, 2011) (finding that, while defense counsel's actions of using privileged documents during the litigation “were reprehensible and in blatant violation of federal law[,]” sanctions were not mandatory).
*9 The Court therefore declines to award attorneys' fees to Defendant Kelley.
III. CONCLUSION
For the reasons stated above, the Court DENIES Plaintiff's Motion to Compel Improperly Withheld Documents Under Claim of Spousal Privilege [Doc. 198].
IT IS SO ORDERED.
Footnotes
The Court also addressed the parties' discovery disputes, which it adjudicated by separate order [Doc. 237].
Defendants Signet Monitoring and Analysis, Inc., and Ethan Clark did not attend this hearing. On January 12, 2024, United States District Judge Thomas A. Varlan dismissed the claims against these Defendants with prejudice [Doc. 236].
Defendants later clarified in response to discovery that the actual number is 138 messages, not 145 messages [See Doc. 199-7 p. 2].
In its brief, Plaintiff cites to Exhibit H [Doc. 199 p. 5]. Exhibit H, however, is another version of Defendants' privilege log [Doc. 199-8], not the email correspondence.
Plaintiff acknowledged at the hearing that the Court is exercising federal question subject matter jurisdiction, not diversity jurisdiction.
Plaintiff relied on Burton v. State, 501 S.W.2d 814 (Tenn. Crim. App. 1973), in its briefing [Docs. 199 & 211]. At the hearing, however, Plaintiff acknowledged that if Tennessee law does not apply to the privilege issue, then Burton would also not apply.
Plaintiff explains that “[i]n 2015, [it] was under the corporate umbrella of Dover Corporation[,] and by 2018, [it] was under the corporate umbrella of Apergy Corporation” [Doc. 199 p. 12 n.1].
Although Plaintiff did not reference any specific messages, Defendant Kelley notes that he left his employment in 2018, and the Martial Communications were sent from 2014 to 2021 [Doc. 207 p. 10 (citation omitted)], which would mean that some of the communications likely could not have been sent from a device owned by Plaintiff. Defense counsel also surmised during the hearing that Defendant Kelley has several electronic devices from which he could have sent the communications.
Plaintiff cites caselaw for the proposition that there is not an expectation of privacy between spouses on a recorded telephone line while a spouse is imprisoned and for the proposition that an employee does not have a reasonable expectation of privacy when using an employer's computer or email account [See Doc. 199 pp. 10–14]. The Court has reviewed this caselaw and finds it inapposite given the known facts of this case.
At the hearing, Plaintiff sought alternative relief in the form of an in-camera inspection of the Martial Communications. “Rule 26, however, does not, on its face, require a court to [conduct an in-camera inspection], and the caselaw confirms that in camera review is not required merely because a party has objected to an assertion of privilege.” Grae, 2020 WL 3035915, at *4. Whether an in-camera review is necessary is within the Court's discretion, and “there is nothing inherently inappropriate about expecting the moving party to back up its request with evidence that the further review is warranted.” Id. at *5. Here, Plaintiff has provided no evidence that further review is warranted. The Court, therefore, declines an in-camera review of the Martial Communications.
Defendant Kelley requests that the Court deny Plaintiff's motion because it violated the Stipulated Protective Order [Doc. 32] and the Federal Rules of Civil Procedure by relying on the contents of the Martial Communications in support of its arguments [Doc. 207 pp. 10–11]. Given that it has denied the motion to compel on other grounds, the Court will address these issues in the context of Defendant Kelley's request for attorneys' fees.