Opinion
Case No. 4:18-cv-54 Case No. 4:18-cv-434
03-13-2019
ERIN E. KIS, on behalf of herself and all others similarly situated, Plaintiffs, v. COVELLI ENTERPRISES, INC., Defendant.
OPINION & ORDER :
In January 2019, the Court ordered Defendant Covelli Enterprises, Inc. to un-redact some 1,200 documents it had partially withheld. If Defendant believed any of those documents were privileged, the Court required it to produce them for in camera review. In February 2019, Defendant produced fifty-two such documents, claiming attorney-client and work product privilege.
Doc. 157.
Id.
The party asserting privilege bears the burden of proving it exists. Because this case is here under the Court's federal question jurisdiction, the Court applies federal common law in determining whether the documents are privileged.
United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999).
Hancock v. Dodson, 958 F.2d 1367, 1372-73 (6th Cir. 1992). See Fed. R. Evid. 501.
"Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are [protected by attorney-client privilege]." A document is also protected as "work product" if it was prepared in anticipation of litigation by a party or his representative.
Reed v. Baxter, 134 F.3d 351, 355 (6th Cir. 1998) (internal numbering omitted).
Forty-two of Defendant's submitted documents are privileged under either the attorney-client privilege or as work product. Ten are not.
Defendant argues that all ten are privileged because they are attached to an attorney-client communication. However, the mere fact that a document is attached to a privileged communication is not enough. Further, it appears that these are either independent documents created outside the attorney-client relationship or documents Defendant sent to Plaintiffs' counsel. Defendant has thus not shown that they are privileged.
Defendant labels these documents as: DEFPRIV03, DEFPRIV04, DEFPRIV08, DEFPRIV16, DEFPRIV24, DEFPRIV25, DEFPRIV32, DEFPRIV34, DEFPRIV35, and DEFPRIV45.
E.g., Hilton-Roar v. State & Federal Communications Inc., No. 5:09-cv-1004, 2010 WL 1486916, at *7 (N.D. Ohio April 13, 2010).
The documents include: a stock letter to employees about a pay-change, a wage conversion formula, an employee's wage history, a letter to Plaintiffs' counsel, and an apparent tolling agreement with Plaintiffs.
Defendant claims that one of the ten documents is also protected as "attorney work product." Nothing, however, indicates that this document—a stock letter to Defendant's employees about a pay-change—was prepared in anticipation of litigation.
Defendant labels this document as: DEFPRIV45.
The document appears to have been drafted more than a year before this case began and its content appears largely unrelated to this suit. --------
Thus, the Court ORDERS Defendant to produce to Plaintiffs non-redacted versions of the documents Defendant labeled DEFPRIV03, DEFPRIV04, DEFPRIV08, DEFPRIV16, DEFPRIV24, DEFPRIV25, DEFPRIV32, DEFPRIV34, DEFPRIV35, and DEFPRIV 45.
IT IS SO ORDERED. Dated: March 13, 2019
s/ James S . Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE