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Hobart Corp. v. The Dayton Power & Light Co.

United States District Court, S.D. Ohio, Western Division

August 24, 2017

HOBART CORPORTION, et al., Plaintiffs,
v.
THE DAYTON POWER & LIGHT CO., et al., Defendants.

          DECISION AND ENTRY SETTING FORTH RULINGS FOLLOWING IN CAMERA REVIEW OF VARIOUS DISCOVERY DOCUMENTS

          WALTER H. RICE UNITED STATES DISTRICT JUDGE

         On July 14, 2017, the Court issued a Decision and Entry ruling on several discovery-related motions, and directed counsel to submit several documents for an in camera review. Doc. #701.

         I. Pharmacia's/Plaintiffs' Answers to Interrogatories

         Plaintiffs and Defendant Pharmacia LLC ("Pharmacia") each moved to compel answers to outstanding interrogatories. Docs. ##647, 654. The Court sustained those motions and directed counsel to submit the answers for an in camera review. Given that counsel for Pharmacia has notified the Court that she instead submitted Pharmacia's answers directly to Plaintiffs, the Court assumes that there is no need for judicial review.

         Counsel for Plaintiffs have submitted "Plaintiffs' Supplemental Responses to Defendant Pharmacia LLC's Contention Interrogatories to Plaintiffs Hobart Corporation, Kelsey-Hayes Company and NCR Corporation." As requested by Pharmacia, these answers are now in a narrative format. Having reviewed the Supplemental Responses, the Court finds that they constitute a satisfactory response to Pharmacia's contention interrogatories. Accordingly, Plaintiffs are directed to provide them to Pharmacia.

         II. Dayton Power and Light Co./Waste Management of Ohio

         Defendants Dayton Power and Light Co. ("DP&L") and Waste Management of Ohio ("WMO") also moved to compel certain discovery responses from Plaintiffs. Docs. ##651, 652. As requested, Plaintiffs' counsel has submitted one redacted copy and one unredacted copy of each of the documents at issue, along with a cover letter setting forth the reasons for each redaction. Plaintiffs maintain that these documents are protected from disclosure by the attorney-client privilege, the work product doctrine, or both.

         The attorney-client privilege protects against disclosure of communications between an attorney and his or her client. Upjohn Co. v. United States, 449 U.S. 383, 395 (1981). The work product doctrine is codified in Federal Rule of Civil Procedure 26(b)(3):

(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.

Fed. R. Civ. P. 26(b)(3).[1]

         A. Deficient Privilege Log

         As an initial matter, the Court must determine whether Plaintiffs have in any way waived the attorney-client privilege by failing to include it on their privilege log as a basis for withholding summaries of interviews of former NCR employees, conducted by Larry Strayer, Susan Chema and Larry Silver. The privilege log asserts only "attorney ...


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