IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Robert A. Brown, et al., :

Case No. 2:11-cv-1122

 Plaintiffs, :

JUDGE JAMES L. GRAHAM

 v. : 

Magistrate Judge Kemp

Tellermate Holdings Ltd., : 

et al.,

Defendants. :

 

 ORDER

This order will hopefully be the last installment in the

ongoing saga of a case where issues with discovery, caused in

large part by Defendant Tellermate and its prior counsel, have

all but overwhelmed progress on getting the matter disposed of on

its merits. This order reflects the results of an in camera

review of documents submitted by Tellermate which appeared on a

privilege log Tellermate provided to Plaintiffs following the

appearance of new counsel. 

Tellermate asserted the attorney-client privilege for many

of the documents, and the Court finds most of those claims to be

valid. Many documents are emails between Tellermate and

litigation counsel, and there is no basis in this case for

overcoming that privilege. Others are clearly work product,

since they were created after and in response to the Browns’

either threatening or filing suit, and for purposes of responding

to their claims.

The Court is concerned, however, about the listing of many

documents on the log which are minutes or agendas of management

meetings. Such documents have been the subject of prior

discussion, with Tellermate claiming, somewhat disingenuously,

that it did not have minutes of “Board of Directors” meetings to

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produce; as it turns out, the persons who manage Tellermate met

in management meetings which resemble, functionally, directors’

meetings, a fact not fully disclosed until the evidentiary

hearing held on Plaintiffs’ motion for a default judgment. 

Further, even if, semantically, Tellermate had some basis for

refusing to produce these documents in response to a request for

directors’ minutes, now that the Court has had a chance to look

at many of them, it appears they are responsive to other document

requests based on their subject matter. Further, any work

product privilege which attaches to them - that is the claim -

applies, at most, to a brief section where the pending litigation

is mentioned.

Perhaps the relevant portions of these documents have now

been produced. The Court agrees that the short discussions of

the litigation are protected work product or recapitulations of

attorney-client communications. Also, much of the information in

these documents does not relate to any issues in this case. 

However, the documents contain information about recruitment for

the replacement of the Browns, about North American Sales and

Marketing, and about sales and marketing generally - including

ongoing issues with the proper use of salesforce.com - which are

at least arguably relevant to this case. If that information has

not been produced to date, the Court orders Tellermate to produce

it within seven days.

The specific documents subject to this order - which may be

redacted for totally irrelevant information not pertaining to the

Browns’ sales territory or to salesforce.com information - are

these:

From the first disk submitted by Tellermate:

81713 88440 90581 173386

86244 88480 123403 173460

82738 90356 123794 174226

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82742 90570 129863 174231

84025 90574 129879

From the second disc submitted by Tellermate:

69278 90571 173387

82739 90576 173398

82743 90582 173461

84026 129864 174227

90357 129881 174232

IT IS SO ORDERED.

Motion for Reconsideration

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,

pt. IV(C)(3)(a). The motion must specifically designate the

order or part in question and the basis for any objection. 

Responses to objections are due fourteen days after objections

are filed and replies by the objecting party are due seven days

thereafter. 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.

 This order is in full force and effect even if a motion for

reconsideration has been filed unless it is stayed by either the

Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp 

United States Magistrate Judge

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