*1 Defendant Glatt Air Techniques, Inc. has filed a Motion to Compel Discovery and Recover Motion Costs (# 28), requesting that the Court compel Plaintiff Tate & Lyle Americas, LLC to provide complete responses to Defendant's First Requests for Production of Documents and Defendant's First Set of Interrogatories; and award Defendant attorney fees and costs associated with the motion. Plaintiff has filed a response in opposition (# 35), to which Defendant filed a Motion for Leave to File a Brief Reply in Further Support of its Motion to Compel Discovery and to Recover Motion Costs (# 36). The Court held a telephone status conference on July 18, 2014, and indicated that a ruling would be forthcoming.

Plaintiff, a provider of ingredients to the food and beverage industry, purchased a granulator from Defendant. On September 17, 2009, the granulator caught fire on Plaintiff's premises. On February 7, 2013, Plaintiff filed this lawsuit for breach of contract and negligence. On July 24, 2013, Defendant served its First Requests for Production and First Set of Interrogatories. Plaintiff responded on October 25, 2013. On April 1, 2014, Defendant notified Plaintiff of deficiencies in its responses. The parties conferred several times in an attempt to resolve the disputes on their own, and the present motion to compel followed.

Plaintiff's primary response to Defendant's motion to compel is that its efforts to remedy these deficiencies are ongoing. The Court takes these ongoing issues under advisement and will monitor Plaintiff's progress.

However, there are several issues in the motion that are ready for resolution at this time. The Court first addresses Plaintiff's general arguments that Defendant's motion is untimely and that Defendant failed to confer in good faith prior to filing its motion. Plaintiff cites no authority in support of its position that the motion is untimely because Defendant did not notify Plaintiff of any deficiencies in its responses for several months. The Court finds the motion timely. As to good faith, Defendant sufficiently documented its efforts to resolve the disputes at issue in the present motion without Court intervention.

Next, the Court considers the parties' disputes as to several issues of privilege. First, the Court rejects Plaintiff's claim that the common interest privilege shields from discovery documents exchanged with its property insurer (Plaintiff originally argued the insured/insurer privilege but has since withdrawn that argument). The common interest doctrine does not create an independent privilege; it only extends an existing privilege to shield a third party with which a party has a common interest. Dexia Credit Local v. Rogan, 231 F.R.D. 268, 273–74 (N.D.Ill.2004) (“Of course, to assert the common interest doctrine as a shield to production, the parties asserting it must first establish that the underlying documents or communications withheld were otherwise privileged before the common interest arose.”). Therefore, Plaintiff may not withhold documents exchanged with its property insurer under the insurer/insured privilege or solely pursuant to the common interest privilege.

*2 Defendant also seeks Plaintiff's litigation hold letters, an October 2009 request for documents sent by Plaintiff's in-house counsel, and any other documents evidencing efforts by Plaintiff to preserve documents relevant to this case. Plaintiff opposes, arguing that such documents are protected as work product and are privileged. See, e.g., Muro v. Target Corp., 250 F.R.D. 350, 360 (N.D.Ill.2007). As Defendant notes, however, some courts have compelled disclosure of a litigation hold letter once the moving party makes a preliminary showing of spoliation. See Major Tours, Inc. v. Colorel, No. CIV 05–3091(JBS/JS), 2009 WL 2413631, at *2 (D.N.J. Aug. 4, 2009) (collecting cases). Ordering disclosure of a litigation hold letter differs from the imposition of a sanction for spoliation, see Major Tours, 2009 WL 2413631, at *5 n.4, which requires a showing that evidence was destroyed in bad faith. See Trask–Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir.2008). Instead, the Court at this time decides only whether the litigation hold letters should be disclosed because it is reasonable to infer that Plaintiff destroyed relevant evidence, inadvertently or otherwise. See Major Tours, 2009 WL 2413631, at *4, 5 n.4.

A party's duty to preserve evidence begins when it knows or should know that litigation is imminent. See Trask–Morton, 534 F.3d at 681. Plaintiff did not issue its litigation hold letters until March 28, 2013, and April 4, 2013, after it filed this case on February 7, 2013. The parties dispute when Plaintiff knew or should have known that litigation with Defendant was imminent. Defendant argues that Plaintiff knew immediately after the fire occurred on September 17, 2009, that litigation was imminent. Plaintiff argues, however, that immediately after the fire, the parties worked jointly to attempt to repair the damage and determine the cause of the fire, and, therefore, it did not anticipate litigation at the time. Defendant also argues that Plaintiff's October 2, 2009, “work-product” entry in its privilege log makes clear that it anticipated litigation at that time. Plaintiff responds that it is “reconsidering” its work product privilege log entry of October 2, 2009. However, Plaintiff does not dispute Defendant's argument that Plaintiff clearly anticipated litigation by December 22, 2009, when it sent Defendant a letter stating its belief that a flaw in the granulator caused the fire and requesting that Defendant put its insurer on notice of Plaintiff's claim. Ex. 7 (# 28–21).

The Court finds that Plaintiff knew that litigation was imminent at least as of December 22, 2009. As to Defendant's argument that Plaintiff knew or should have known as of October 2, 2009, the Court requires further clarification from Plaintiff on its position regarding the work product entry in its privilege log. The Court will address this issue with the parties at the next status conference.

Defendant has provided sufficient evidence to support a reasonable inference that relevant evidence has been destroyed. Timothy Luallen, Plaintiff's Director of IT Governance, testified that, absent a litigation hold, employees may delete information in their possession as they see fit:

*3 Luallen Dep. 64:4–65:17, Ex. 5 (# 28–19). Given that Plaintiff did not impose a litigation hold on its employees until over three years after it anticipated litigation, the Court finds it reasonable to infer that relevant evidence has been destroyed. See Major Tours, 2009 WL 2413631, at *4 (“It is admittedly difficult to know exactly what evidence was lost during the window of time in which a litigation hold was not put in place. Nonetheless, given the number of relevant custodians who were not asked to preserve evidence immediately after September 11, 2003, and the significant time lapse before the November 4, 2005 or February 8, 2007 letters were issued, the Court infers that some relevant evidence was lost.” (citation omitted)).

Therefore, the Court finds that Plaintiff must disclose the March 28, 2013, and April 4, 2013, litigation hold letters. Plaintiff must also disclose any other efforts to preserve documents from December 22, 2009, forward. The Court will consider Defendant's position that Plaintiff knew litigation was imminent as of October 2, 2009, after further clarification from the parties.

For these reasons, the Court GRANTS Defendant's Motion to Compel (# 28) in part and takes the balance of the motion under advisement. Defendant's Motion for Leave to File Reply (# 36) is GRANTED. A telephone status conference is set for August 12, 2014, at 2:30 p.m., to set deadlines for Plaintiff to 1) disclose the documents discussed in this Order and 2) complete its ongoing efforts regarding the other issues raised in Defendant's motion.