Opinion
Civil Action 2:08-cv-1048.
June 17, 2010
ORDER
This matter is before the Court pursuant to an in camera review of certain documents which the Court required in its Order of June 1, 2010 (Doc. 48). These documents comprised entries 2, 9, 28, 42, 52, 103, 105, 107, 111, 115, 123, 127, 178, 188, 224, and 237 on Plaintiff's privilege log. In its June 10, 2010 correspondence to the Court and to opposing counsel, Otterbein's attorneys represent that they no longer claim privilege with respect to documents 2, 105, 107, and 188. The Court will accordingly evaluate the remaining challenged documents for privilege:
• #9: The first page, OC 002708, is correspondence between two of Otterbein's counsel, David Oberdick and Ronald Kuis ("Kuis"), and is protected by attorney-client privilege. The remainder of the document should be, and Plaintiff represents that it already has been, produced to Defendant.
• #28: This document is a fax cover sheet sent between Otterbein and Bruce Bailey ("Bailey"), one of Otterbein's counsel. It is protected by attorney-client privilege.
• #42: This document is correspondence between Kuis and Otterbein, attaching a copy of a letter sent by Kuis to R. M. Fields International, LLC ("Fields"). The Fields letter does not appear to contain material upon which Otterbein's Rule 30(b)(6) deponent, David L. Mead, based his claim of personal knowledge as to the location of certain insurance records; q.v. Doc. 48 at 6-7. Accordingly, it has not lost its privileged status and is protected by attorney work product privilege.
• #52: This document is correspondence between Kuis and Otterbein. It is protected by attorney-client privilege.
• #103: This document is correspondence from Kuis to Otterbein, attaching a copy of an interim report by Fields. The first page, OC 005345, is protected by attorney-client privilege. The remainder of the document should be, and Plaintiff represents that it already has been, produced to Defendant.
• #111: Pages OC 005405-005407 of this document appear to be, as Plaintiff characterizes them in its letter, handwritten notes made during a meeting with counsel, and accordingly are protected as work product. Page OC 5408 appears to be a rough draft of an engagement letter from Fields to Kuis confirming the consulting engagement. Pages OC 5409-5412 comprise correspondence from Kuis to Ernst Young LLP, Otterbein's accountants concerning anticipated litigation. These are protected work product under Fed.R.Civ.Pro. 26(b)(3)(A) as communications to Plaintiff's representative.
• #115: The first page, OC 005421, is correspondence from Kuis to Otterbein, and is protected by attorney-client privilege. Pages 005422-005423 are an attached letter from Kuis to Fields, which does not appear to contain information relevant to Mead's testimony. Accordingly, it has not lost its privileged status and is protected by attorney work product privilege.
• #123: This document is correspondence between Kuis and Otterbein. It is protected by attorney-client privilege.
• #127: This document is correspondence between Otterbein and Bailey. It is protected by attorney-client privilege.
• #178: The first page, OC 005954, is correspondence from Kuis to Fields, which does not appear to contain information relevant to Mead's testimony. Pages OC 5955-5965 comprise correspondence from Fields to Kuis concerning form insurance policies and attached documents. These may be relevant to Mead's testimony, and Plaintiff is accordingly ORDERED to produce Pages OC 5955-5965.
• #224: This document comprises correspondence from Kuis to Otterbein, and is protected by attorney-client privilege.
• #237: The first page, OC6528, is correspondence from Kuis to Otterbein, and is protected by attorney-client privilege. Pages OC006529-006531 comprise an interim report by Fields. These appear to be identical to documents in Document #103 which Plaintiff represents that it has already produced.
Accordingly, Plaintiff is ORDERED to produce Pages OC 5955-5965 of Document #178, as materials placed at issue by Mead's deposition testimony concerning the finding of Otterbein's insurance records.
Under the provisions of 28 U.S.C. § 636(b)(1)(A), Rule 72(a), Fed.R.Civ.P. and Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by the District Judge. The motion must specifically designate the order, or part thereof, in question and the basis for any objection thereto. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.