United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON TECNOMATIC'S MOTION TO COMPEL
MARK J. DINSMORE, Magistrate Judge.
This matter comes before the Court on Tecnomatic S.p.A.'s ("Tecnomatic") Motion to Compel Regarding Privilege, filed on December 16, 2013. [Dkt. 586.] For the following reasons, the Court hereby DENIES Tecnomatic's motion.
This is a consolidated case wherein Remy, Inc. ("Remy") initially alleged claims of Breach of Express Warranty, Breach of Implied Warranty, and Revocation of Contract against Tecnomatic in 2008. [Dkt. 584-2 at 2.] Specifically, Remy alleged that it was "forced to buy replacement equipment from various suppliers because the equipment [provided by Tecnomatic] did not work." [ Id. (quotations omitted).] In 2011, the case was consolidated to include allegations by Tecnomatic that Remy breached their Mutual Confidentiality Agreement ("MCA") by using Tecnomatic's confidential information to improperly replicate its property in a manner that violated several statutes. [ Id. at 3.]
During the discovery process, Tecnomatic has made several requests for production, which encompass several documents that Remy claims are protected by attorney-client privilege ("the Documents"). [Dkt. 592.] The first document, ECF Docket Entry 587-2 at pages two through three ("Document One"), is an email to Remy's in-house counsel and two other individuals. After Remy initially produced Document One without any privilege designation, Remy inadvertently included Document One on a subsequent privilege log. [Dkt. 586-1.] Remy and Tecnomatic have both since acknowledged in their memoranda and at oral argument that Document One is not privileged. [Dkts. 593 at 5, 596-1 at 2.]
ECF Docket Entry 587-2 at pages six through seven ("Document Two"), pages eight through eleven, ("Document Three") and pages four through five ("Document Four") are strings of emails that contain exchanges between a Remy employee and Remy's in-house counsel. In all three documents, only the portions constituting emails sent to in-house counsel or sent by in-house counsel have been redacted on privilege grounds. [Dkt. 583-2 at 6, 8.] The next three documents, ECF Docket Entry 587-2 at pages twelve through thirteen ("Document Five"), pages fourteen through fifteen ("Document Six"), and seventeen through eighteen ("Document Seven"), consist of email exchanges between a Remy employee and in-house counsel, which documents have been withheld in their entirety on privilege grounds. The email exchanges of Document Six are included within Documents Five and Seven, which two documents are identical and include one additional email from in-house counsel that is not included in Document Six. [Dkt. 587-2 at 12-18.] Finally, ECF Docket Entry 587-2 at page sixteen ("Document Eight"), an email string containing emails between a Remy employee, a paralegal, and in-house counsel, has been withheld in its entirety on privilege grounds.
Tecnomatic filed a Motion to Compel on December 16, 2013 seeking the production of the Documents that Remy has withheld in whole or in part on privilege grounds. [Dkt. 587.] Remy thereafter submitted the Documents to Tecnomatic and to the Court for in camera review. Remy retains its claim of privilege under the Court's Order Governing Disclosure of Privileged Documents and pursuant to Rule 502(d) of the Federal Rules of Evidence. [Dkt. 583.] The Court conducted a hearing on the motion on January 23, 2014, which motion the Court now addresses.
Rule 26 of the Federal Rules of Civil Procedure allows parties to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). While Rule 26 generally provides for broad, open discovery, materials may be shielded from discovery in certain instances, such as when they are protected by attorney-client privilege. See Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010). Remy has withheld in their entirety, or redacted portions thereof, Documents Two through Eight on the basis of attorney-client privilege. [Dkt. 592 at 2.] Tecnomatic now moves to compel the production of those documents in their entirety, asserting (1) that the Documents are not privileged or, in the alternative, (2) that Remy has waived any privilege claimed with respect to the Documents. [Dkt. 597.]
A. Attorney-Client Privilege
The purpose of attorney-client privilege is to encourage open and honest communication between clients and their attorneys. Upjohn Co. v. United States, 449 U.S. 383, 388 (1981). The attorney-client privilege protects "communications made in confidence by a client and client's employees to an attorney, acting as an attorney, for the purpose of obtaining legal advice." Sandra, 600 F.3d at 618. Before finding that a document is privileged, the court must first determine "(1) whether legal advice was sought from an attorney in her capacity as an attorney; and (2) whether any communications between the client and her attorney or attorney's agent were germane to that purpose and made confidentially." F.D.I.C. v. Fid. & Deposit Co. of Maryland, 3:11-CV-19-RLY-WGH, 2013 WL 2421770, at *2 (S.D. Ind. June 3, 2013) (citing Sandra, 600 F.3d at 618). It is the burden of the party asserting that such privilege exists to "make a prima facie showing of these elements." Id. (citing Rockies Express Pipeline LLC v. 58.6 Acre s, 1:08-CV-0751-RLYDML, 2009 WL 5219025, at *3 (S.D. Ind. Dec. 31, 2009)). The court must determine whether a document is privileged on a document-by-document basis. Long v. Anderson Univ., 204 F.R.D. 129, 134 (S.D. Ind. 2001).
Tecnomatic contends that Documents Two through Eight "do not seek legal consultation and merely relay facts." [Dkt. 596-1 at 2-3.] However, the court has reviewed Documents Two through Eight on a document-by-document basis and finds that the communications withheld explicitly request, render, arrange for, or act in furtherance of rendering legal assistance. Such actions fall squarely within the Seventh Circuit standard of a client or client's employees communicating with an attorney, who is acting as an attorney, for the purpose of obtaining or rendering that attorney's legal services, as explicated in Sandra. Accordingly, the Court finds that the withheld and redacted portions of Documents Two through Eight are protected by attorney-client privilege.
Once the protection of attorney-client privilege has been established, the party seeking the production of the privileged communications bears the burden of showing that the withholding party has waived the privilege. See Rehling v. City of Chicago, 207 F.3d 1009, 1019 (7th Cir. 2000); FDIC v. Fid. & Deposit Co of Md., 3:11-CV-19-RLY-WGH, 2013 WL 2421770 (S.D. Ind. June 3, 2013). On the issue of waiver, Tecnomatic argues (1) that Remy has implicitly waived ...