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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DIANA PAUL, Case No. 09-10611

Plaintiff, Marianne O. Battani

 United States District Judge

vs.

Michael Hluchaniuk

LOWE’S HOME CENTERS, INC., United States Magistrate Judge

Defendant.

 /

ORDER REGARDING PLAINTIFF’S

MOTION TO COMPEL (Dkt. 22)

Plaintiff’s motion to compel was filed on August 11, 2009. (Dkt. 22). At

the time of the filing of the motion plaintiff sought compliance with the prior

requests for the production of documents which had been previously ordered to be

produced subject to a protective order that defendant had requested. Plaintiff’s

motion outlined the several requests that had been made of defendant for these

documents to no avail. Defendant had made a partial response to the request for

production of documents maintaining certain objections and providing a privilege

log to support a claim of privilege with respect to some of the documents.

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Defendant filed its response to the motion to compel on September 9, 2009. 

(Dkt. 25). In its response, defendant asserted that it had filed supplemental

responses to its earlier production of documents on August 12, 2009, and therefore

the motion to compel was moot. Defendant maintained its position that certain

documents were privileged.

A hearing, via conference call, on the motion to compel was held on

October 6, 2009. At the hearing plaintiff (1) expressed concern that defendant had

not fully produced all relevant documents that had been requested, (2) objected to

defendant’s limited response to certain requests for production in that defendant

had only responded with respect to the individual store where the incident had

taken place, (3) objected to defendant’s claim of privilege regarding some of the

documents and (4) requested sanctions be imposed on defendant for its failure to

respond to the discovery requests in a more timely fashion. The scheduling of

certain depositions was raised at the hearing in that the depositions, to some extent,

were dependent on the production of additional documents plaintiff had requested

from defendant.

With respect to plaintiff’s concern about the completeness of defendant’s

response to the request for production, defendant’s counsel confirmed at the

hearing that all responses, with the exception of those identified as being limited to

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the single store, were complete. Clearly the rules provide that by signing the

response to a request for the production of documents an attorney “certifies” that

the response “is complete and correct as of the time it is made” based on the

attorney’s information following a “reasonable inquiry.” Fed.R.Civ.P.

26(g)(1)(A). 

With respect to those responses limited to a single store, defendant had

objected to producing responses based on all the defendant’s stores throughout the

country due to the burden of doing so given the fact that there were a very large

number of stores. After consideration of the arguments of counsel defendant was

ordered to produce responses for all the stores within the “region” of the store

where the incident took place, or the State of Michigan, whichever is the larger

area. Defendant believed that these supplemental responses could be produced

before the depositions that had been scheduled for October 13, 2009, but if they

were not, the supplemental responses were to be produced so that the depositions

could be rescheduled in order that they would be completed prior to the end of

October, 2009.

With respect to the claims of privilege, defendant was directed to

supplement its privilege log to include additional information such as the names of

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the individuals initiating the communication and the names of the intended

recipients of the communication. The questioned documents were to be produced

for an in camera inspection on or before October 13, 2009, and the parties were to

file supplemental briefs addressing the privilege issues regarding the documents. 

The supplemental briefs were to be filed by October 20, 2009, with any reply briefs

being filed by October 27, 2009. Defendant filed its supplemental brief on October

20, 2009, (Dkt. 28) and plaintiff filed her supplemental brief on October 21, 2009. 

(Dkt. 29). Neither party filed a reply brief.

With respect to plaintiff’s request for sanctions, while defendant’s conduct

in not responding to the discovery requests in a more timely fashion was far from

exemplary it was not sufficiently egregious to warrant an award of sanctions and

plaintiff’s request is denied. 

Following the hearing on October 6, 2009, defendant narrowed the scope of

its claim of privilege. Prior to the hearing defendant had identified 11 pages of

documents, Bates numbered 41-51, as being privileged. Two of those documents

(# 41-42) were described as a “summary of reserve” and, with the actual reserve

amount redacted, were turned over to plaintiff. As to communications contained in

other documents (part of # 47 and 48-51), defendant stated were made prior to any

contact with an attorney for plaintiff and defendant provided those to plaintiff.

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The remaining communications contained in documents # 43-part of # 47

were provided for an in camera inspection and consist of a series entries in a logtype format, described by defendant as “claims notes,” running from May 23,

2008, to February 19, 2009. The entries are arranged in reverse chronological

order with the earlier entries on document # 47 and the latest entries on document #

43. Defendant’s claim of privilege regarding these communications is based on the

“work product” privilege which is codified in Fed.R.Civ.P. 26(b)(3). The

common law work product doctrine was intended to “permit an attorney to

‘assemble information, sift what [he or she] considers to be the relevant facts,

prepare [his or her] legal theories and plan [his or her] strategy without undue and

needless interference ... to promote justice and to protect [his or her] clients’

interests.’” United States v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006),

quoting, Hickman v. Taylor, 329 U.S. 495, 511 (1947). The current scope of this

doctrine, at least in civil cases, appears to go beyond the work of an attorney and

“as set forth in Federal Rule of Civil Procedure 26(b)(3), protects from discovery

documents and tangible things prepared in anticipation of litigation by or for a

party or by or for that party’s representative.” Roxworthy, 457 F.3d at 593. As

reflected in the rule, the potential “representatives” of a party include an “attorney,

consultant, surety, indemnitor, insurer, or agent.” 

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Rule 26(b)(3) appears to describe two classes of documents that are

generally included in its scope. One such class is any “document ... that [is]

prepared in anticipation of litigation or for trial by or for another party or its

representative...” The second class, a subset of the first, is any document that

contains “mental impressions, conclusions, opinions, or legal theories of a party’s

attorney or other representative concerning the litigation.” Rule 26(b)(3)(B). This

subset of documents seems consistent with the scope of the work product doctrine

established by Hickman in that it is limited to statements or conclusions of a

“party’s attorney or other representative concerning the litigation, whereas the

broader class goes beyond that to include other documents, such as documents

prepared by the party or the party’s representative that contain facts, as opposed to

opinions or theories, as long as it was done in anticipation of litigation. In ruling

on the matters presently in controversy, the undersigned has adopted a definition of

the broader class of documents that would require some inclusion of facts or

opinions that would involve the substance of the litigation in order for them to

included within the scope of the doctrine, as limited by Rule 26(b)(3). That is, 

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excluded from the scope of the rule, and thus subject to disclosure, are any

statements in the documents that relate only to dates, names of individuals, or other

non-substantive matters.

Date: November 2, 2009 s/Michael Hluchaniuk 

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on November 2, 2009, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to the following: Brian E. Jorde and Jennifer G. Damico.

s/James P. Peltier 

Courtroom Deputy Clerk

U.S. District Court

600 Church Street

Flint, MI 48502

(810) 341-7850

pete_peltier@mied.uscourts.gov

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