procedures for dealing with the disclosure of privileged documents as it does with
respect to confidential documents, but this does not change the fact that the plain
text of Paragraph 7 unequivocally treats them as two separate categories.
Paragraph 7 makes clear that inadvertent disclosure of documents that fall within
the protections of the attorney-client privilege or work product doctrine, regardless
of whether they are also confidential documents, does not waive attorney-client
privilege as to those documents. The Court therefore rejects this argument.

Plaintiff also takes issue with the Court’s reliance on Rainer v. Union
Carbide Corp., 402 F.3d 608, 625 (6th Cir. 2005), opinion amended on reh'g (Mar.
25, 2005), arguing that Rainer is inapposite because it did not address “the length
of time from [the] date of discovery until an effort to protect the document is
made.” (Pl.'s Mot. at 11.) This statement is accurate but immaterial. Rainer was
cited only for the proposition that a protective order clause like the one in this case
can support a finding that a party did not waive attorney-client privilege by
inadvertently disclosing a privileged document. See Rainer, 402 F.3d at 625
(“[W]e are not persuaded by the argument that the defendants waived their
privilege when producing the document. The Agreed Protective Order signed by
all the parties was clear in stating that a producing party waived no rights in the

event a privileged document was accidentally produced.”). The Court did not rely


The language of the Protective Order does not support Plaintiff's position,
and in fact compels a contrary interpretation. Paragraph 7 of the Protective Order

provides in full:

The inadvertent or unintentional disclosure of any Confidential
Information by the designating party shall not be construed to be a
waiver, in whole or in part, of that party’s claim of confidentiality
either as to the specific Confidential Information disclosed or as to
any other related information. If a party produces multiple identical
copies of a document (but with different bates numbers) and one has
not been designated as confidential, all identical copies shall be
treated according to the most restrictive designation. Similarly, the
inadvertent or unintentional disclosure of any documents, information
or testimony protected by the attorney-client privilege and/or work
product doctrine shall not be construed to be a waiver, in whole or in
part, of that party’s claim to privilege; nor shall any discreet waiver
of privilege constitute a general waiver of privilege or protection.
Any documents or information inadvertently produced and all copies
and records thereof shall be immediately returned to the producing or
providing party.

(ECF No. 15 {7 (emphasis added.)

Roughly the first half of Paragraph 7 applies to “confidential information,”
which could reasonably be interpreted to include to documents designated as
‘CONFIDENTIAL’ in the manner set forth in Paragraph 2. The third sentence of
Paragraph 7 (emphasized above) refers to a separate category of documents,
however, and this is clear from that sentence’s use of the words “similarly” and

“any documents.” The Protective Order as a whole does not lay out as many clear
4


on Rainer in finding that the length of time that elapsed between the inadvertent
disclosure and the privilege claim in this case did not amount to a waiver of the
privilege. That conclusion was supported both by the Court’s citation to Quinn v.
Griffith, 515 F. App'x 543, 550 (6th Cir. 2013) (upholding the district court’s
determination that a party did not waive attorney-client privilege by invoking it
only after it became clear that the opposing party intended to use the documents in
question as substantive evidence), and by the Court’s analysis of the waiver issue
under the “intermediate approach” as set forth in Grace Community Church v.
Lenox Township, 2007 WL 2534179 (E.D. Mich. 2007) (Borman, J.). Plaintiff has
not identified a valid basis for distinguishing these authorities or otherwise
revisiting this holding.

For these reasons, the court DENIES Plaintiff's Motion for Reconsideration.

IT IS SO ORDERED.
Ta.
Paul D. Borman
United States District Judge
Dated: APR 25 2017


UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION
MICHELLE H. BAILEY,
Plaintiff, Case No. 15-11799
v. Paul D. Borman

United States District Judge
OAKWOOD HEALTHCARE, INC.,

d/b/a OAKWOOD HOSPITAL Elizabeth A. Stafford
& MEDICAL CENTER, United States Magistrate Judge
Defendant.
/

ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION

This Court previously entered an Opinion and Order that granted
Defendant’s Motion to Strike Attorney-Client Privileged Communication. (ECF
No. 56.) Specifically, the Court held that Defendant had demonstrated that the
attorney-client privilege applied to two pages of handwritten notes that were taken
by David Squire (a Director of Human Resources employed by Defendant) during
a conversation he had with Defendant’s in-house counsel Patrice Baker, and which
were attached to Plaintiff's Response to Defendant’s Amended Motion for
Summary Judgment. (ECF No. 41 Ex. A, Squire Notes.) The Court further held
that Defendant had not waived the privilege in the course of discovery, that the
notes were not exempted from the privilege as related to a serious crime or fraud,

and that the notes could therefore not be considered by this Court in evaluating


Defendant’s summary judgment motion.

Now before the Court is Plaintiff's Motion for Reconsideration of that
Opinion and Order. (ECF No. 58, Pl.'s Mot.) In that Motion, Plaintiff argues that
this Court erred in finding that Defendant had not waived the attorney-client
privilege as to those notes. For the reasons articulated below, the Court will deny
Plaintiff's Motion.

Plaintiff's Motion is brought under E.D.Mich. LR 7.1(h)(3), which provides:

Generally, and without restricting the court's discretion, the court will
not grant motions for rehearing or reconsideration that merely present
the same issues ruled upon by the court, either expressly or by
reasonable implication. The movant must not only demonstrate a
palpable defect by which the court and the parties and other persons
entitled to be heard on the motion have been misled but also show that
correcting the defect will result in a different disposition of the case.

“A ‘palpable defect’ is a defect which is obvious, clear, unmistakable,
manifest, or plain.” Ososki v. St. Paul Surplus Lines Ins. Co., 162 F. Supp. 2d 714,
718 (E.D. Mich. 2001). “A motion for reconsideration which presents the same
issues already ruled upon by the court, either expressly or by reasonable
implication, will not be granted.” Ford Motor Co. v. Greatdomains.com, Inc., 177
F. Supp. 2d 628, 632 (E.D. Mich. 2001). See also Maiberger v. City of Livonia,
724 F. Supp. 2d 759, 780 (E.D. Mich. 2010) (“It is an exception to the norm for the

Court to grant a motion for reconsideration. . . . [A]bsent a significant error that

2


changes the outcome of a ruling on a motion, the Court will not provide a party
with an opportunity to relitigate issues already decided.”).

In her Motion, Plaintiff argues that Defendant’s failure to designate the notes
as “confidential” pursuant to certain provisions of the parties’ Stipulated Protective
Order (ECF No. 15) waived the attorney-client privilege as to those notes. The
Protective Order provided that Defendant could “designate business records
containing trade secrets, proprietary business information, budgetary information,
internal policies, strategic planning information, pricing information or financial
information as ‘Confidential’ by placing a ‘CONFIDENTIAL’ stamp on the
document(s).” (ECF No. 15 { 2.) The Protective Order also provided that
Defendant could do the same as to “personnel-related documents and information,
including but not limited to disciplinary memoranda, compensation and Social
Security Numbers,” and that “[bJoth parties may designate documents as
‘CONFIDENTIAL’ in a separate document, or on the record.” (/d.) The Protective
Order then listed a series of rules applicable to confidential information, including
a general prohibition on its disclosure as well as procedures for dealing with such
disclosure. (ECF No. 15 {{ 3-5.) That Defendant did not designate the notes as
confidential under these provisions, Plaintiff argues, precludes Defendant from

claiming now that the documents are protected by the attorney-client privilege.