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Skurka Aerospace, Inc v. Eaton Aerospace

October 20, 2011

SKURKA AEROSPACE, INC.,
PLAINTIFF
v.
EATON AEROSPACE, L.L.C., DEFENDANT



The opinion of the court was delivered by: Judge Solomon Oliver, Jr.

ORDER

Plaintiff Skurka Aerospace, Inc. ("Skurka" or "Plaintiff") filed a Motion to Compel and a Motion for In Camera Review (ECF No. 114.) Defendant Eaton Aerospace, L.L.C. ("Eaton" or "Defendant") also filed a Motion to Compel Discovery Responses (ECF No. 115.) On September 8, 2011, the court ordered both parties to produce certain documents for in camera review (ECF Nos. 179, 181.) The court has reviewed the documents provided for in camera review. For the foregoing reasons, the court grants in part, and denies in part, Plaintiff's Motion to Compel and Motion for In Camera Review (ECF No. 114), and grants in part, and denies in part, Defendant's Motion to Compel Discovery Responses (ECF No. 115.)

I. FACTS AND PROCEDURAL HISTORY

This case primarily involves two contracts, an Asset Purchase Agreement ("APA") that transferred assets from one of Eaton's divisions to Skurka, and a Supply Agreement that required Eaton to purchase specific products from Skurka. The parties are currently involved in discovery-related disputes.

Each party filed a Motion to Compel Discovery Responses, arguing that the opposing party had improperly classified documents as protected from disclosure by the work-product doctrine or the attorney-client privilege. Each Motion was granted in part and denied in part. After examining Plaintiff and Defendant's privilege logs, the court found that some entries did not provide enough information for the court to determine whether the documents corresponding to the entries were protected materials. The court requested that each party provide the documents (or a sample of the documents) corresponding to the inadequate entries for the court to review. The documents fall into the following categories: (1) Skurka's documents allegedly wrongfully withheld as privileged; (2) Eaton's emails allegedly similar to emails already produced to Skurka; and (3) Eaton's documents labeled as work product involving the supplier retention process.

In addition to the documents requested, Eaton, on its own accord, sent the court Confidential Exhibit A to provide more specific information regarding why the documents involving the supplier retention process are protected by the work-product doctrine or attorney-client privilege. The Exhibit consists of a memo that provides an overview of the information presented and several electronically stored documents for the court to review in camera, which Eaton purports will help the court understand why the materials are protected from disclosure. Eaton provided Skurka with a redacted version of the memo. In response, Skurka asserted, in a letter dated September 28, 2011, that Confidential Exhibit Ais an ex parte communication that it did not agree to and should be stricken from the record.

II. LEGAL STANDARD

A. Motion to Compel Production

Federal Rule of Civil Procedure 37 permits a party to move the court to compel a non-responsive party to comply with discovery if "a party fails to respond that inspection will be permitted-or fails to permit inspection-as requested under Rule 34." Fed. R. Civ. P. 37(a)(3)(B). Furthermore, Rule 37(a)(4) provides, in pertinent part, that "[f]or purposes of this subdivision (a), an evasive or incomplete disclosure, answer,or response must be treated as a failure to disclose, answer, or respond."

B. Attorney-Client Privilege

Attorney-client privilege protects "[c]onfidential disclosures by a client to an attorney made in order to obtain legal assistance." Fisher v. United States, 425 U.S. 391, 403 (1976). The purpose of the attorney-client privilege "is to ensure free and open communications between a client and his attorney." In re Grand Jury Subpoenas, 454 F.3d 511, 519-20 (6th Cir. 2006) (citing Fisher, 425 U.S. at 403); Hunt v. Blackburn, 128 U.S. 464, 470 (1888) ("The rule which places the seal of secrecy upon communications between client and attorney is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure."). The privilege is limited to "only those communications necessary to obtain legal advice" and only applies "where necessary to achieve its purpose." In re Columbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d 289, 294 (6th Cir. 2002) (citing In re Antitrust Grand Jury, 805 F.2d 155, 162 (6th Cir.1986); Fisher, 425 U.S. at 403).

The party asserting the privilege bears the burden of proving its existence. Id. (citing United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999); In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 450 (6th Cir.1983)). Claims of attorney-client privilege must be "narrowly construed because [the privilege] reduces the amount of information discoverable during the course of a lawsuit." Id. (quoting United States v. Collis, 128 F.3d 313, 320 (6th Cir. 1997)).

C. Work-Product Doctrine

The work-product doctrine is codified in Federal Rule of Civil Procedure 26(b)(3). Fed. R. Civ. P. 26(b)(3); Upjohn Co. v. United States, 449 U.S. 383, 398 (1981). It "protects against the discovery of material 'prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, ... or agent).'" ...


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