UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

DEBRA BARTH, Individually and as

Conservator for James Barth,

an incapacitated person,

Plaintiff, CASE NO: 09-13667

v. DISTRICT JUDGE THOMAS L. LUDINGTON

MAGISTRATE JUDGE CHARLES E. BINDER

HARDINGE, INC.,

PRODUCTION TOOL SUPPLY CO.,

Defendants,

and

HARDINGE, INC.,

Third Party Plaintiff,

v.

PRODUCTION TOOL SUPPLY CO.,

Third Party Defendant.

/

ORDER ON PLAINTIFF’S MOTION TO COMPEL

AFTER IN-CAMERA INSPECTION

(Doc. 36)

This order is entered under the authority given to this magistrate

judge in an order of reference issued by U.S. District Judge

Thomas L. Ludington pursuant to 28 U.S.C. § 636(b)(1)(A).

I. Introduction and Procedural Background

This is a products liability action involving a Hardinge “Talent” Model 10/78 rotary turning

machine manufactured by a Taiwanese entity pursuant to a Joint Venture Agreement, and sold by
1

Under the Health and Safety at Work etc. Act 1974 (as amended) (HSWA) HSE has been set up in order

to “support the Government’s strategic aims and current targets for health and safety at work. Its main aim is to

secure the health, safety and welfare of people at work and protect others from risks to health and safety from work

activity.” See < http://www.hse.gov.uk/aboutus/howwework/management/dwphse.pdf >.

2

Defendant Hardinge, Inc. (hereafter “Defendant”) to a small machine shop operated by James

Barth (hereafter “Plaintiff”) and his son in Spruce, Michigan.

On July 5, 2007, Plaintiff was forming a 27-pound piece of metal in the Talent 10/78

machine when the piece was ejected from the machine. As it was ejected, it impacted the

machine’s clear polycarbonite observation window, severely warping the window and its

surrounding frame. According to the complaint, the window and frame struck Plaintiff in the head,

causing permanent disabling injuries.

During discovery, counsel for Plaintiff learned of an incident in Wales, the United

Kingdom, which took place a few weeks prior to the accident at issue in this case. On April 30,

2007, a metal piece was ejected from a Talent machine, striking and killing the machine operator.

In that case, as the metal piece was ejected, it shattered and penetrated the viewing window on the

machine. Counsel for Plaintiff represents that both Defendant and the UK equivalent of the

Occupational Health and Safety Administration (“OSHA”), known as the Health and Safety

Executive (“HSE”)1

 investigated the incident, and a number of documents were generated in the

process. Counsel for Plaintiff also believes that although Defendant initiated a recall of the

windows in all Talent machines sold in the UK, replacing the original windows with new material

three times thicker, no similar recall was initiated in the United States. The incident in Wales,

coming less than 3 months prior to the incident giving rise to this case, forms the backdrop for the

instant motion.
3

Originally at issue in this motion (Doc. 36) were Plaintiff’s Second Set of Interrogatories

and Fourth Request for Production of Documents. Plaintiff filed a supplemental brief on October

15, 2010 (Doc. 46), and Defendant filed a response opposing the motion on the basis of relevance,

the attorney-client privilege, and the work product privilege. (Doc 47.) The parties have narrowed

the issues to four areas: a Joint Venture Agreement between Defendant and the Taiwanese entity;

a series of memos written between employees of Defendant’s United Kingdom affiliate; a report

and revisions authored by an outside expert during the investigation of the UK incident; and

information relating to Talent machines sold in the United States.

Oral argument was held October 25, 2010. At the close of the hearing, the Court ordered

a set of documents presented for in camera inspection. The documents were promptly submitted,

their inspection is now complete, and the matter ready is for decision.

II. Joint Venture Agreement

Citing deposition testimony of employees of Defendant that they have gone to Taiwan to

inspect machines built there, as well as the scope of allowable discovery under the Federal Rules,

Plaintiff seeks the Joint Venture Agreement in order to see if the Agreement authorizes or requires

Defendant to inspect the output of the Taiwanese factory. Defendant objects on relevancy

grounds, arguing that there is no dispute as to the ownership of the machine and that Defendant

acknowledges that the machine is theirs.

After in camera review of the Joint Venture Agreement, along with an accompanying

Employment Agreement, two Consultant Agreements, and a Lease Agreement, the Court finds no

provisions explicitly authorizing or requiring Defendant to inspect or certify the output of the
2

These documents include Bates stamped pages HI 1021-22, HI 1176-1206, HI 1215-1238, HI 1242-1243,

and HI 1320-1324.

4

Taiwanese joint venturer. As I find the Agreement wholly silent on this subject, I conclude that

Defendant’s arguments are well taken and that the document is not discoverable.

III. Intra-Corporate Memos2

Plaintiff seeks a series of memos circulated amongst Hardinge UK employees subsequent

to the UK incident. These memos purport, among other things, to memorialize meetings involving

Hardinge employees and representatives of the HSE. Defendant resists production of these

memos, citing attorney-client privilege.

The burden of establishing the existence of the attorney-client privilege rests with the

person asserting it. See In Re: Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 450 (6th Cir.

1983). “The elements of the attorney-client privilege are as follows: (1) where legal advice of any

kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications

relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance

permanently protected (7) from disclosure by himself or by the legal advisor, (8) unless the

protection is waived.” Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir. 1998) (citing Fausek v.

White, 965 F.2d 126, 129 (6th Cir. 1992)). Generally, the “attorney-client privilege is waived by

voluntary disclosure of private communications by an individual or corporation to third parties.”

In Re: Grand Jury Proceedings October 12, 1995, 78 F.3d 251, 254 (6th Cir. 1996).

In Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981), the

communications at issue were conveyed to the organization’s attorney by lower-level employees

as the result of an investigation or fact-finding mission. The United States Supreme Court
5

determined that these employees were bound by the attorney-client privilege not to reveal

confidential communications between themselves and counsel given within the scope of the

employees’ duties to enable the organization to obtain legal advice. The Court held that the

privilege applies even though these employees were not “decisionmakers” of the organization. It

explained that “the privilege exists to protect not only the giving of professional advice to those

who can act on it but also the giving of information to the lawyer to enable him to give sound and

informed advice . . . [because] [t]he first step in the resolution of any legal problem is ascertaining

the factual background and sifting through the facts with an eye to the legally relevant.” Id. at 390-

91 (citation omitted).

However, the Upjohn Court also clarified that the protection of the privilege extends only

to communications, and not to facts. Id. at 394-95. “A fact is one thing and a communication of

that fact is an entirely different thing.” Id. (citation omitted). Thus, while a client may not be

compelled to reveal what it said or wrote to its attorney, it may not refuse to disclose any relevant

fact within its knowledge merely because it incorporated a statement of that fact into its

communication to the attorney. Id. at 396.

Applying these principles to the circumstances of this case, I conclude that, with one

exception, the memoranda submitted for in camera inspection are not privileged. With one

exception, none of the documents seek attorney advice. All of the documents except one recount

facts, and many of these documents memorialize meetings in which outside persons participated,

particularly members of HSE. Thus, the privilege either does not attach, or if attached, has been

waived. However, I conclude that one document (H 1242-1243) clearly seeks legal advice, and

expresses concern as to how to proceed in the absence of that advice. That document is, I

conclude, privileged.
3

Bates stamped pages H 1067-1161.

6

IV. “Compliance Assessment Report”3

Three versions of this report have been presented for in camera inspection. The original

is dated August 16, 2007, and the two revisions are both dated August 24, 2007. The report relates

entirely to the UK incident and was authored by Robin J. Carver, a “Chartered Safety Practitioner”

in the United Kingdom. Pointing to the first paragraph of the report, Defendant argues that the

report and its revisions are attorney work product. Plaintiff resists this characterization. At oral

argument, neither party could confirm whether this report has been shared with HSE.

According to Defendant, this report presents a classic example of attorney work product.

As mentioned, Defendant’s argument centers on the opening paragraph of the report, which states

as follows:

This report was commissioned by the solicitors, Mundays LLP[]. Mundays LLP is

instructed on behalf of Hardinge Machine Tools Ltd.[] to advise them following an

incident which involved machinery supplied and manufactured by them.

The work product doctrine “is designed to allow an attorney to ‘assemble information, sift

what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan

his strategy without undue and needless interference . . . to promote justice and to protect [his]

clients’ interests.’” In re Columbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d

289, 294 (6th Cir. 2002) (quoting Hickman v. Taylor, 329 U.S. 495, 510, 67 S.Ct. 385, 91 L.Ed.

451 (1947)) (alteration in original). It protects “documents and tangible things that are prepared

in anticipation of litigation or for trial by or for another party or its representative” unless the party

shows “substantial need” and “undue hardship.” Fed. R. Civ. P. 26(b)(3)(A). “However, absent

waiver, a party may not obtain the ‘opinion’ work product of his adversary; i.e., ‘any material
4

See http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=health+and+safety+

at+work+etc+act+&Year=1974&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment

=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=1316700&ActiveTextD

ocId=1316739&VersionNumber=24&filesize=54242

7

reflecting the attorney’s mental impressions, opinions, conclusions, judgments, or legal theories.’”

Id. (quoting In re Antitrust Grand Jury, 805 F.2d 155, 163-64 (6th Cir. 1986)).

The burden to show that a matter is not discoverable rests upon the party asserting the

privilege. Id. To demonstrate privilege or work-product protection, the Federal Rules of Civil

Procedure require the party asserting privilege or protection to “describe the nature of the

documents, or tangible things not produced or disclosed – and do so in a manner that, without

revealing information itself privileged or protected, will enable other parties to assess the claim.”

Fed. R. Civ. P. 26(b)(5)(A)(ii). I conclude at the threshold that Defendant’s privilege log and

production for in camera inspection meet this obligation.

Under these standards, I conclude that this report and its revisions are privileged. While

facts are recounted, the report is replete with specific conclusions and recommendations. As the

first paragraph makes clear, the report was commissioned by attorneys after an accident and has

as its purpose to allow the attorneys to “assemble” and “sift” information in preparation for

potential litigation. I further conclude that even if the report was shared with HSE, the result does

not change. Section 28 of the HSE’s enabling statute (the Health and Safety at Work Act 1974 (c.

37)4

) severely restricts the disclosure of “relevant information . . . without the consent of the person

by whom it was furnished.” Section 28(2). Finally, Plaintiff has made no showing of “substantial

need” or “undue hardship.” For these reasons, I conclude this report and its revisions are not

discoverable in this case.
8

V. Interrogatory 6, Second Set

The last matter at issue involves this interrogatory, which asks for the identity of all

purchasers of replacement observation window units for the Talent 10/78 machine for a 2-year

period. Defendant responds that it cannot reply, as it keeps no separate records for the Talent

10/78, since all Talent machines have identical observation window openings. Defendant also

points out that windows were likely sold to suppliers, who then sold them out of stock to end users.

Plaintiff responds with Exhibit 6 to its Supplemental Brief, which purports to be a list of Talent

machines sold in Europe. After review of the documents and consideration of oral argument, I

conclude that the information sought by this Interrogatory is relevant and discoverable, and will

grant the motion in part as shown below.

VI. ORDER

For the reasons set forth above, Plaintiff’s motion is GRANTED IN PART and DENIED

IN PART as follows:

• As to the Joint Venture Agreement, Plaintiff’s motion is DENIED.

• As to the intra-corporate memos, Plaintiff’s motion is GRANTED as to Documents HI

1021-22, HI 1176-1206, HI 1215-1238, and HI 1320-1324; and DENIED as to Document HI

1242-1243.

• As to the “Compliance Assessment Report,” Plaintiff’s motion is DENIED.

• As to Interrogatory 6 of the Second Set, Plaintiff’s motion is GRANTED IN PART.

Defendant shall produce a listing of all Talent machine observation windows sold in North

America from January 1, 2004, through June, 2006.
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Defendant shall produce the required materials no later than 21 days from the date of this

Order.

The documents submitted for in camera inspection shall be returned to Defendant.

Review of this order is governed by 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72, and E.D.

Mich. LR 72.1(d).

 s/ Charles` E Binder 

CHARLES E. BINDER 

Dated: November 16, 2010 United States Magistrate Judge

CERTIFICATION

I hereby certify that this Order was electronically filed this date, electronically served on

Joseph Lucas, Anthony Kostello, William Kiriazis, and Michael Swogger, and served on District

Judge Ludington in the traditional manner.

Date: November 16, 2010 By s/Jean L. Broucek 

Case Manager to Magistrate Judge Binder