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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CARMEN DENISE JOHNSON, 

Plaintiff, 

v. 

OAKLAND UNIVERSITY AND RONALD 

WATSON, 

Defendant. 

Case No. 15-12482 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

STEPHANIE DAWKINS DAVIS

 / 

ORDER OVERRULING IN PART DEFENDANT’S OBJECTIONS TO MAGISTRATE 

JUDGE’S ORDER [47]; AFFIRMING MAGISTRATE JUDGE DAVIS’ ORDER TO 

ALLOW USE [43] 

On August 1, 2016, Magistrate Judge Davis entered an Order allowing the 

use of a document [43]. On August 15, 2016, Defendants filed objections to the 

Order [47]. Plaintiff responded to the objections on September 6, 2016 [52]. 

Defendants replied on September 13, 2016 [55]. For the reasons stated below, 

these objections are OVERRULED in part and the Magistrate Judge’s Order is 

AFFIRMED. 

STANDARD OF REVIEW 

When a litigant objects to a magistrate judge’s ruling on a nondispositive 

pretrial matter, the court may “modify or set aside any part of the order that is 

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clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). The “clearly 

erroneous” standard does not permit a district court to reverse the magistrate 

judge's finding simply because it would have decided the issue differently. 

Anderson v. City of Bessemer, N.C., 470 U.S. 564, 573 (1985). Rather, a “finding 

is ‘clearly erroneous’ when, although there is evidence to support it, the reviewing 

court on the entire evidence is left with the definite and firm conviction that a 

mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 

395 (1948). 

ANALYSIS 

On August 1, 2016, Magistrate Judge Davis entered an Order allowing the 

use of a document [43]. The Order found that a six-page Unmarked GC Report 

(“document”) produced by Defendants to Plaintiff was “attorney fact work 

product” and that Defendants had waived the privilege associated with this 

document and granted Plaintiff the ability to use the six-page document. 

Defendants have eight objections to the Magistrate Judge’s Order. 

1. OBJECTION ONE: MAGISTRATE JUDGE ERRED BY NOT ENFORCING 

THE CLAW-BACK PROVISION IN THE PROTECTIVE ORDER

Defendants contend that the Magistrate Judge erred in the Order by not 

enforcing the claw-back provision in the protective order issued by the Court. 

Defendants cite the Advisory Committee Notes to Rule 26 as support that their 

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claw-back provision should be enforced. However, that note explicitly 

contemplates that not all claw-back provisions will be enforced, stating “in most 

circumstances, a party who receives information under such an arrangement cannot 

assert that production of the information waived a claim of privilege or of 

protection.” Fed. R. Civ. P. 26 Advisory Comm. Note, 2006 Amendment, 

Subdivision (f). 

Additionally, as the Magistrate Judge points out, Defendants did not 

originally argue that the claw-back provision on its own saves them from waiving 

any privilege associated with the document; instead they responded that the waiver 

needs to be considered within the framework of the five step analysis cited by the 

Magistrate in Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 

2008). In fact, in their response to the Motion to Allow Use, Defendants state 

“[t]he present state of the law requires application of the five-factor framework...to 

determine whether privilege has been waived...” [33 at 11, n. 3]. The Magistrate 

decided not to enforce the claw-back provision after analyzing the disclosure of the 

document under the five-step process from Victor Stanley, and the Court does not 

find this clearly erroneous or contrary to law. Therefore, the Court overrules this 

objection to the Magistrate Judge’s Order. 

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2. OBJECTION TWO: MAGISTRATE JUDGE’S RELIANCE ON THE FOUR 

CASES CITED ON PAGE 12 OF THE ORDER WAS ERRONEOUS AND 

CLEARLY CONTRARY TO LAW

In the Order, the Magistrate Judge stated that Defendants’ “failure to take 

any precautions against public disclosure cannot be cured,” “is deemed 

dispositive,” and “on this basis alone, there was indeed a waiver of privilege.” [43 

at 13]. In making this determination, the Magistrate relied on four cases, including 

E. Point Sys., Inc. v. Maxim, No. 13-CV-00215, 2015 WL 8023569 (D. Conn. Dec. 

4, 2015); Curto v. Med. World Commc’ns, Inc., 783 F. Supp. 2d 373 (E.D.N.Y. 

2011); Cruz v. Coach Stores, Inc., 196 F.R.D. 228 (S.D.N.Y. 2000); First Am. 

CoreLogic, Inc. v. Fiserv, Inc., No. 10-CV-132-TJW, 2010 WL 4975566 (E.D. 

Tex. Dec. 2, 2010). Defendants argue that this analysis was contrary to law, both 

because these cases are distinguishable from the case at bar, as well as because 

Plaintiff never advanced an argument that Defendants waived the privilege by 

filing it on the Court’s public docket, and therefore the Magistrate was 

impermissibly exceeding her role and creating arguments for Plaintiff. 

Plaintiff did raise this argument in the Motion to Allow Use and in the reply 

filed for that Motion. In Plaintiff’s Motion to Allow Use [29], Plaintiff referred to 

the fact that the document was discussed and present on the public docket in 

Motions filed before the Court [29 at 8]. Additionally, in the reply brief for that 

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Motion [35], Plaintiff refers to the fact that the disclosure was “a matter of public 

record” since the document “is an exhibit to Plaintiff’s first Motion to Compel filed 

and was referred to extensively by the Plaintiff in her motion and brief in support 

of her motion and again by Defendant in its response,” and was also publically 

available previously as a result of its inclusion in the record to Plaintiff’s Motion to 

Amend. [35 at 8]. Plaintiff argued that this public disclosure means that the 

disclosure is “complete and cannot be undone.” Id. While Plaintiff did not cite the 

specific case law relied on by the Magistrate Judge, Defendants have not shown 

that this was clearly erroneous and necessitates overruling of the Order. 

Defendants point out that in three of the cases relied on by the Magistrate, 

the inadvertent public disclosure was first done by the party seeking privilege. See 

E. Point Sys., Inc. v. Maxim, No. 13-CV-00215, 2015 WL 8023569 (D. Conn. Dec. 

4, 2015); Curto v. Med. World Commc’ns, Inc., 783 F. Supp. 2d 373 (E.D.N.Y. 

2011); First Am. CoreLogic, Inc. v. Fiserv, Inc., No. 10-CV-132-TJW, 2010 WL 

4975566 (E.D. Tex. Dec. 2, 2010). Defendants also argue that, in the last case, the 

party claiming privilege did not do so until after a lengthy delay, and argue that in 

the instant case, Defendants took steps to restore confidentiality as soon as they 

realized the document had been inadvertently disclosed. See Cruz v. Coach Stores, 

Inc., 196 F.R.D. 228 (S.D.N.Y. 2000). 

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The Court is not persuaded that these differences are so important as to 

render the Order clearly erroneous. While the Plaintiff did publically disclose the 

document first, it is undeniable that, when Defendants used the document as an 

exhibit to their response to Motion to Allow Use, they did not take any precaution 

to prevent public disclosure of the document. While the facts in these cases are not 

congruent with the record in this case, Defendants have not presented any case law 

finding the analysis of the Order in regards to the public disclosure by Defendants 

clearly erroneous. Moreover, while the Magistrate stated that the privilege was 

waived by the public disclosure of the documents by Defendants, the controlling 

five-factor analysis, ultimately concluding that, this analysis weighed heavily in 

favor or finding a waiver of privilege. This objection is accordingly overruled. 

3. OBJECTION THREE: MAGISTRATE ERRED IN THE ANALYSIS OF

THE FIRST FACTOR OF THE VICTORY STANLEY TEST

Defendants correctly state that the Magistrate Judge failed to consider 

Defendants’ statement that counsel read the documents prior to production in their 

in the first factor analysis and this objection is sustained. However, this fact alone 

does not render the Magistrate Judge’s conclusion as to factor one clearly 

erroneous. The Magistrate Judge also considered the pre-disclosure procedure and 

considered it inadequate, because General Counsel and in-house counsel, two 

individuals who would have been able to identify the document as confidential, 

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were not a part of the document production review. [43 at 14]. The Magistrate 

Judge also considered the number of pages included in the production, as well the 

fact that the document had been publically disclosed and relied on by both parties 

in previous filings. Given the various factors considered in the analysis, a vague 

statement that the documents were read without a description of what that review 

process entailed does not render the decision of the Magistrate clearly erroneous. 

4. OBJECTION FOUR: MAGISTRATE ERRONEOUSLY FOUND THAT THE 

SECOND FACTOR OF THE VICTORY STANLEY TEST WEIGHED IN 

PLAINTIFF’S FAVOR

Defendants correctly contend that the Magistrate erred in step two when the 

analysis considered not only the number of documents inadvertently disclosed, but 

also how many times the same document had been inadvertently disclosed. See e.g. 

Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 263 (D. Md. 2008). 

Defendants are correct in this assessment of the second factor, and the Court 

sustains this objection and finds that the second factor weighs in favor of the 

Defendants. However, this decision does not affect the Court’s opinion as to the 

Magistrate’s Order as a whole. Consideration of the other factors supporting 

waiver of the privilege, including most persuasively the fact that the document has 

been completely disclosed and extensively used in the litigation up to this point by 

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both parties, the Court does not consider this single factor favoring the Defendants 

requires overruling of the Magistrate’s Order. 

5. OBJECTION FIVE: MAGISTRATE ERRED IN THE ANALYSIS OF THE 

FOURTH FACTOR OF THE VICTORY STANLEY TEST

Defendants argue that the Magistrate Judge mistakenly concluded that they 

delayed taking remedial measures to address the inadvertent disclosure. The Court 

does not agree that the Magistrate Judge made a clearly erroneous decision in this 

conclusion. In its response to the Motion to Allow Use, Defendants stated that 

“[u]pon realizing that the Unmarked GC Report should not have been disclosed, 

defense counsel verbally informed Plaintiff’s counsel in an in-person meeting on 

March 23, 2016...” [33 at 4]. This statement is unclear as to a specific day of 

discovery, and there is no information provided about who discovered this or how 

the discovery was made. Additionally, while the response contains two affidavits 

concerning the document, there is no evidence concerning the circumstances 

surrounding discovery that the document was privileged. The Magistrate Judge 

also stated that the Defendants should have, at a minimum, discovered the 

privileged document sometime between the filing of Plaintiff’s Motion to Amend 

Complaint on January 31, 2016 and Defendants’ filing of a response to that same 

motion on February 15, 2016, since the document was an exhibit to this Motion, 

and the document was discussed by both parties in their briefs. [43 at 16]. 

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Therefore, the Court is not persuaded that the Magistrate Judge’s analysis is clearly 

erroneous. 

6. OBJECTION SIX: MAGISTRATE JUDGE ERRED IN ANALYZING THE 

FIFTH FACTOR OF THE VICTORY STANLEY TEST

Defendants contend that the Magistrate erred in the analysis of the fifth 

factor of the Victory Stanley test by concluding that the document “contains 

information that Plaintiff has no other way of obtaining concerning the alleged 

bases for her firing.” This was not the only factor supporting the Magistrate 

Judge’s decision concerning the fifth factor of the interests of justice. The 

Magistrate Judge also gave weight to the fact that the document was “produced 

over six months ago, was placed on the court’s public docket by both parties, and 

has been extensively used in this litigation.” [43]. Regardless of the validity of the 

challenged statement, the Court finds that the Magistrate’s analysis of this factor is 

not impacted because of the other strong bases cited by the Magistrate in her 

decision that Defendant waived privilege on the document. Therefore, this 

objection is overruled. 

7. OBJECTION SEVEN: MAGISTRATE ERRED BY GRANTING PLAINTIFF’S 

MOTION TO ALLOW USE OF DOCUMENTS

In Objection seven, Defendants ask the Court to reverse the Magistrate 

Judge’s decision based on the merits of all of their previous objections. As stated 

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above, the Court does not believe that the Magistrate’s Order is clearly erroneous, 

despite sustaining objections three and four. Therefore, this objection is overruled 

and the Magistrate Judge’s Order is affirmed. 

8. OBJECTION EIGHT: DEFENDANTS REQUEST A CLARIFICATION OF 

WHAT WAS MEANT BY THE STATEMENT “ALLOW [ING] USE” OF THE 

DOCUMENT AS ORDERED BY THE MAGISTRATE

In this final objection, Defendants request that, if the Court overrules all the 

objections and affirms the Magistrate Judge’s decision, the Court clarify whether 

Defendants can file a motion in limine at an appropriate time prior to trial, asking 

the Court to exclude the Unmarked GC Report at trial based on relevancy and 

other possible grounds. The Court sustains this objection. Defendants remain able 

to file a motion in limine regarding the document at a later appropriate time. 

IT IS ORDERED that Defendants’ Objections [47] to Magistrate Judge’s 

Order to Allow Use are OVERRULED in part. 

 IT IS FURTHER ORDERED that the Magistrate Judge’s Order [43] is 

AFFIRMED. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: October 12, 2016 Senior United States District Judge 

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