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McCall v. The Proctor & Gamble Co.

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

August 22, 2019

ANNETTE NAVARRO MCCALL, et al., Plaintiffs,
v.
THE PROCTER & GAMBLE COMPANY, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL (Doc. 53) FOLLOWING IN CAMERA REVIEW

          TIMOTHY S. BLACK JUDGE

         This 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).

         I. BACKGROUND

         Plaintiffs 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.[1] (Id. at ¶ 4).

         On 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).

         On July 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).

         The 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).

         The 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).

         On July 12, 2019, P&G submitted the In Camera Documents to the Court.[2] (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”).[3] (Docs. 120-21).

         The 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 in-house counsel.”)).
• 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 team)).
• 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).

         The 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.

         II. STANDARD OF REVIEW

         Rule 26 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.

         The 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.[4] 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”).

         A 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).

         III. ANALYSIS

         A. Navarro must assert her spoliation claim in a new motion

          Before addressing the primary issues at-stake in this Order-privilege and waiver-the Court must tackle a threshold matter.

         On July 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.[5], [6] (Id. at 4; Doc. 124-1 at 6-7, 10).

         The 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).

         By this 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.

         If 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.

         B. All but one of the In Camera ...


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