United States District Court, S.D. Ohio, Western Division
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS' MOTION TO COMPEL (Doc. 53) FOLLOWING IN
TIMOTHY S. BLACK JUDGE
civil action is before the Court on Plaintiffs' motion to
compel (Doc. 53), as well as the parties' responsive
memoranda (Docs. 64, 68, 124, 126).
Annette Navarro McCall and Navarro Photography LLC
(collectively “Navarro”) and Defendant The
Procter & Gamble Company (“P&G”) are
currently locked in a copyright dispute. (Doc. 88). Navarro
is a world-renowned photographer, residing Cincinnati, Ohio.
(Id. at ¶ 2). P&G is a multi-national
consumer goods corporation, headquartered in Cincinnati,
Ohio. (Id. at ¶ 4).
August 20, 2018, P&G produced a privilege log to Navarro
(the “Privilege Log”). (Doc. 116 at ¶ 15;
Doc. 116-1 at 119). On September 13, 2018, Navarro filed a
motion to compel against P&G (the “Motion to
Compel”). (Doc. 53). In the Motion to Compel, Navarro
sought the production of all the documents listed on the
Privilege Log. (Id. at 22; Doc. 116 at ¶ 15;
Doc. 116-1 at 119).
5, 2019, the Court issued an order on the Motion to Compel
(the “Motion to Compel Order”). (Doc. 118). In
the Motion to Compel Order, the Court held that P&G had
failed to support its claims of privilege with competent
evidence. (Id. at 8-17). And the Court held that
P&G had failed to produce the Privilege Log in a timely
fashion. (Id. at 5-6). However, the Court refused to
order the production of all the documents listed on the
Privilege Log. (Id. at 6, 18-19).
Court noted that while document production was a possible
remedy for P&G's failure to support its claims of
privilege with competent evidence, and while privilege waiver
was a possible remedy for P&G's failure to produce
the Privilege Log in a timely fashion, the disclosure of
(potentially) privileged information was a serious matter.
(Id. at 6, 18). As a result, the Court decided to
take a different approach. (See Id. at 6, 18-19).
Court ordered P&G to submit five categories of documents
for in camera review: the N3, N6, N10, N11, and N13
entries (collectively the “In Camera
Documents”). (Id. at 18-19). The Court ordered
P&G to file any affidavits needed to “evaluate the
privilege(s) asserted.” (Id. at 19). And the
Court deferred any decision on document production/privilege
waiver until after the Court had reviewed the documents
submitted. (Id. at 6, 19, 21).
12, 2019, P&G submitted the In Camera Documents
to the Court. (See Id. at 19, 21). Also on July
12, 2019, P&G filed two declarations on CM/ECF: the
Declaration of Robert Zimmerman and the Declaration of Debbie
Woelfel (collectively the
“Declarations”). (Docs. 120-21).
Declarations assert that:
• P&G anticipated litigation with Navarro on August
28, 2015. (Doc. 120 at ¶ 5 (“August 28, 2015 [i]s
the latest date on which P&G reasonably contemplated a
specific threat of litigation from [Navarro]. . . . In an
email sent to [a] P&G employee on August 28, 2015,
[Navarro] referenced ‘the serious nature of Copyright
infringement' and said ‘I could pursue a more
aggressive approach.' . . . After receiving that email,
the P&G . . . employee requested legal assistance from
• The In Camera Documents fall under either the
attorney-client privilege, the work-product doctrine, or
both. (Id. at ¶¶ 6-8 (setting out, on a
document-by-document basis, which entries were prepared
“to facilitate the delivery of legal advice, ”
which entries were prepared in response to/“in
anticipation of litigation by [Navarro], ” and which
entries were prepared in response to/“in anticipation
of litigation by [Navarro] . . . and involve legal advice
sought from or given by” P&G's attorneys/legal
• The documents prepared by P&G's legal team
were created at the direction of P&G's attorneys.
(See Doc. 121 at ¶¶ 7-8 (stating the
entries authored by Debbie Woelfel were created at the
direction of P&G's attorneys to relay legal advice or
prepare for litigation); id at ¶¶ 9-10
(stating that, pursuant to P&G's “protocols,
” the entries prepared by P&G's legal team were
created at the direction of P&G's attorneys)).
• And that P&G would turn 14 documents over to
Navarro by July 15, 2019, instead of submitting them to the
Court for in camera review. (Doc. 120 at ¶ 11).
Court has reviewed the In Camera Documents and the
Declarations. The Court issues this Order to resolve the two
main issues deferred in the Motion to Compel Order: (1)
whether P&G has properly designated the In
Camera Documents as privileged, and (2) whether P&G
has waived its claims of privilege in their entirety.
STANDARD OF REVIEW
provides that a party may:
[O]btain discovery regarding any nonprivileged matter that 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.
Fed. R. Civ. P. 26(b)(1). Rule 37(a)(3)(B) authorizes a party
to move for an order compelling the production of information
wrongfully withheld from discovery.
burden of establishing a claim of privilege rests with the
party asserting it. United States v. Roxworthy, 457
F.3d 590, 593 (6th Cir. 2006); Glazer v. Chase Home
Fin. LLC, No. 1:09-CV-1262, 2015 WL 12733393, at *2
(N.D. Ohio June 15, 2015). If a claim of privilege is
challenged, the party asserting it must establish each
element by competent evidence. See Cooey v. Strickland,
269 F.R.D. 643, 649 (S.D. Ohio 2010); Comtide Holdings,
LLC v. Booth Creek Mgmt. Corp., No. 2:07-CV-1190, 2010
WL 4117552, at *5 (S.D. Ohio Oct. 19, 2010) (stating that a
party must establish the factual predicate for a claim of
privilege by “competent evidence”).
district court enjoys broad discretion in managing discovery,
and, as a result, a district court's decision to grant or
deny a motion to compel is reviewed for an abuse of
discretion. See Lavado v. Keohane, 992 F.2d 601, 604
(6th Cir. 1993).
Navarro must assert her spoliation claim in a new
addressing the primary issues at-stake in this
Order-privilege and waiver-the Court must tackle a threshold
26, 2019, Navarro filed a “response” to Mr.
Zimmerman's declaration (the “Response”).
(Doc. 124). In the Response, Navarro argues that, if P&G
anticipated litigation on August 28, 2015 (as asserted in Mr.
Zimmerman's declaration), then P&G has a
“spoliation of evidence problem” on its hands.
(Id. at 2, 4). Navarro notes that P&G did not
implement a formal litigation hold until June 22, 2017-a
little over a year and a half after August 28,
2015.,  (Id. at 4; Doc. 124-1 at 6-7,
Court has carefully considered Navarro's argument.
(See Doc. 124). However, the Court will not reach
its merits at this time. It is well-established that a party
cannot raise a new issue in a reply brief. United States
v. Campbell, 279 F.3d 392, 401 (6th Cir. 2002); In
re FirstEnergy Corp. Sec. Litig., 316 F.Supp.2d 581, 599
(N.D. Ohio 2004). The rationale is that a court should only
decide an issue after adequate briefing-i.e., after
a motion, a response, and a reply. 3LI Consultant Grp. v.
Catholic Health Partners, No. 1:15-CV-455, 2016 WL
3866596, at *1 (S.D. Ohio July 13, 2016).
same token, Navarro's attempt to raise a new issue
(spoliation), in the context of a “response” to a
declaration, is not well-taken. (Doc. 124). Spoliation is a
very serious allegation. See, e.g., The Olinde
Rodrigues, 174 U.S. 510, 528 (1899) (characterizing
spoliation as a “serious offense”); Williams
v. CVS Caremark Corp., No. 2:15-CV-5773, 2016 WL
4409190, at *7 (E.D. Pa. Aug. 18, 2016) (stating that
spoliation is a “very serious offense, ” and
“the accusation of spoliation is also serious”).
The Court will not analyze so serious an allegation absent
the benefit of adequate briefing.
Navarro truly contends that P&G has failed to preserve
documents for discovery, then Navarro must set forth her
concerns in a new motion. As with other discovery-related
disputes, Navarro can only file such a motion after
she has exhausted the extrajudicial means at her disposal.
S.D. Ohio Civ. R. 37.1 (requiring parties to meet and confer
before filing “motions, applications, and requests
relating to discovery”); (accord Notation
Order dated July 30, 2019). These procedural steps are
important. The Court will not issue a half-cocked decision on
so weighty a matter. And given the significance of
allegations of spoliation, the Court will not address them at
an informal discovery dispute conference and instead grants
Navarro leave to file a motion without an antecedent informal
discovery dispute conference.
All but one of the In Camera ...