1

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

____________________________________ 

 ) 

DENNIS BLACK, et al., ) 

 ) Case No. 2:09-cv-13616 

 Plaintiffs, ) Hon. Arthur J. Tarnow 

 ) Magistrate Judge Mona K. Majzoub 

 ) 

 v. ) 

 ) 

PENSION BENEFIT GUARANTY ) 

CORPORATION, et al., ) 

 ) 

 Defendants. ) 

____________________________________) 

PENSION BENEFIT GUARANTY CORPORATION’S OBJECTIONS TO 

MAGISTRATE JUDGE’S ORDER OF AUGUST 21, 2013, GRANTING IN PART 

PLAINTIFFS’ RULE 37 MOTION TO ENFORCE COURT ORDER 

 Pursuant to 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(a), and Local Rule 72.1(d), 

Defendant PBGC hereby submits its objections to Magistrate Judge Majzoub’s Order Granting in 

Part Plaintiffs’ Rule 37 Motion to Enforce Court Order, dated August 21, 2013 (the “Order”). 

 PBGC objects to the Order on the basis that it is clearly erroneous and contrary to law. 

With no prior warning to PBGC that the Court was not satisfied with the discovery process 

PBGC and the plaintiffs have been following, or with the pace of PBGC’s production of 

hundreds of thousands of pages of documents and a privilege log containing thousands of entries, 

the Court has imposed on PBGC the most severe sanction available – denial of PBGC’s right to 

protect privileged documents. The Order misapprehends the situation and is thereby clearly 

erroneous and contrary to law, because it does not reflect PBGC’s regular and good faith 

coordination with the plaintiffs throughout this massive document production effort, nor the 

Case 2:09-cv-13616-AJT-MKM ECF No. 234, PageID.10288 Filed 09/04/13 Page 1 of 20
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parties’ understanding that PBGC would first review and produce all responsive, non-privileged 

documents to plaintiffs before it turned to the task of logging the privileged documents – a 

process that by necessity must come at the end of the production process. The Order likewise 

does not reflect that the parties memorialized their understanding in a written report to the 

District Court and that the Court both acknowledged and acquiesced to that understanding, 

without any questions or comment, by “so ordering” the parties’ joint report. 

Finally, by suggesting that PBGC must produce the detailed information require by Fed. 

R. Civ. P. 26(b)(5) immediately after receiving a massive document request, at the pain of losing 

its privileges for failing to do so, the Order takes no notice of the practicalities of producing a 

detailed privilege log given the magnitude of plaintiffs’ discovery demands. Fair consideration 

of these factors requires the Court to vacate the Magistrate Judge’s imposition of the 

extraordinarily severe sanction imposed in her Order. Therefore, PBGC respectfully requests 

that the Order be vacated and that the plaintiffs’ Rule 37 Motion to Enforce Court Order be 

denied. 

 A brief in support of this objection is attached in accordance with L.R. 7.1. 

Case 2:09-cv-13616-AJT-MKM ECF No. 234, PageID.10289 Filed 09/04/13 Page 2 of 20
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Dated: September 4, 2013 Respectfully submitted, 

 /s/ C. Wayne Owen, Jr.____ 

 ISRAEL GOLDOWITZ 

 Chief Counsel 

 KAREN L. MORRIS 

 Deputy Chief Counsel 

 JOHN A. MENKE 

Local Counsel: Assistant Chief Counsel 

 C. WAYNE OWEN, JR. 

BARBARA L. McQUADE CRAIG T. FESSENDEN 

United States Attorney ERIN C. KIM 

PETER A. CAPLAN Attorneys 

Assistant United States Attorney 

Eastern District of Michigan Attorneys for the Defendant 

211 West Fort Street, Suite 2001 PENSION BENEFIT GUARANTY 

Detroit, MI 48226 COPORATION 

Phone: (313) 226-9784 Office of Chief Counsel 

 1200 K Street, N.W. 

 Washington, D.C. 20005 

 Phone: (202) 326-4020 ext. 3204 

 Fax: (202) 326-4112 

Emails: owen.wayne@pbgc.gov and 

efile@pbgc.gov 

Case 2:09-cv-13616-AJT-MKM ECF No. 234, PageID.10290 Filed 09/04/13 Page 3 of 20
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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

____________________________________ 

 ) 

DENNIS BLACK, et al., ) 

 ) Case No. 2:09-cv-13616 

 Plaintiffs, ) Hon. Arthur J. Tarnow 

 ) Magistrate Judge Mona K. Majzoub 

 ) 

 v. ) 

 ) 

PENSION BENEFIT GUARANTY ) 

CORPORATION, et al., ) 

 ) 

 Defendants. ) 

____________________________________) 

MEMORANDUM IN SUPPORT OF PENSION BENEFIT GUARANTY 

CORPORATION’S OBJECTIONS TO MAGISTRATE JUDGE’S ORDER 

OF AUGUST 21, 2013, GRANTING IN PART PLAINTIFFS’ RULE 37 

MOTION TO ENFORCE COURT ORDER 

Case 2:09-cv-13616-AJT-MKM ECF No. 234, PageID.10291 Filed 09/04/13 Page 4 of 20
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Statement of Issues 

1. A Magistrate Judge’s decision is clearly erroneous and contrary to law if, after reviewing 

the entirety of the evidence, the District Court is left with the definite and firm conviction that a 

mistake has been committed. Here, the Order in question (1) failed to account for PBGC’s 

understanding with the plaintiffs that it would produce a privilege log at the conclusion of its 

production; (2) failed to acknowledge that the District Court was informed of the parties’ 

understanding and approved it by “so ordering” the parties joint discovery report and stipulation; 

(3) failed to consider the practicalities involved in creating a privilege log for a document 

production of the massive scope demanded by plaintiffs; and (4) without prior warning to PBGC 

of the Court’s concerns, and without taking any intermediate steps to address them, imposed the 

most severe sanction -- denying PBGC its right to protect its privileged material from discovery. 

In consideration of these errors, should this Court vacate the Magistrate Judge’s Order on the 

grounds that it is clearly erroneous and/or contrary to law? 

 

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Authority PBGC Relies Upon 

Statutes and Rules 

28 U.S.C. §§ 631-39 

Fed. R. Civ. P. 26(d)(5) & 72(a) 

Local Rule 72.1(d) 

United States Circuit Court Cases

Teleglobe Communs. Corp. v. BCE, Inc., 493 F.3d 345, 386 (3d Cir. 2007) 

U.S. v. Philip Morris, Inc., 347 F.3d 951, 954 (D.C. Cir. 2003) 

US. v. British Am. Tobacco (Inv.) Ltd., 387 F.3d 884, 885 (D.C. Cir. 2004)

United States District Court Cases 

Berryman v. SuperValu Holdings, Inc., No. 05 cv 169, 2008 WL 4934007 at *10 (S.D. Ohio, 

Nov. 18, 2008) 

Best Buy Stores, L.P. v. Manteca Lifestyle Center, LLC, No. 2:10 cv 1089, 2011 WL 2433655 

(E.D. Cal. 2011) (unpublished) 

Coalition for a Sustainable Delta v. Koch, No. 1:08–CV–00397 OWW GSA, 2009 WL 3378974 

(E.D. Cal. 2009) (unpublished). 

Carl Zeiss Vision Int’l GmbH v. Signet Armorlite, No. CIV 07CV–0894DMS POR, 2009 WL 

4642388, (S.D. Cal. 2009) (unpublished). 

Dynetix Design Solutions, Inc. v. Synopsys, Inc., No. 07 cv 1989, 2008 WL 5100203 at *4 (E.D. 

Cal. Nov. 26, 2008) 

Other 

8 Charles Alan Wright, Arthur R. Miller & Richard L Marcus, FEDERAL PRACTICE AND 

PROCEDURE § 2016.1 (3d ed.) 

6 James Wm. Moore et al., MOORE’S FEDERAL PRACTICE - CIVIL § 26.47 (3d ed.) 

2 James Wm. Moore et al., MOORE’S MANUAL--FEDERAL PRACTICE AND PROCEDURE § 15.26 

1993 Advisory Committee Notes to Fed. R. Civ. P. 26(d)(5) 

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Preliminary Statement 

On August 21, 2013, the Magistrate Judge granted, in part, Plaintiffs’ Rule 37 Motion to 

Enforce Court Order (the “Order”). The ruling requires that PBGC produce to plaintiffs, by 

September 30, 2013, plan participant census data (pursuant to a negotiated protective order) and 

documents about PBGC’s recoveries. PBGC will fully comply with this portion of the Order. 

However, the Order also found that PBGC had waived its rights to claim attorney-client, work 

product, or deliberative process privileges for any documents, and that PBGC must produce all 

such privileged documents by September 30, 2013. Because that portion of the Order is clearly 

erroneous and contrary to law, PBGC now objects to the Order and requests that the Court vacate 

the Order and deny plaintiffs’ Rule 37 Motion to Enforce this Court’s Order Granting Plaintiffs’ 

Second Motion to Compel Discovery with respect to assertions of privilege. 

Standard of Review

 The Federal Magistrate’s Act, 28 U.S.C. §§ 631-39, sets forth the standards by which a 

district court reviews the findings of a magistrate judge. With respect to orders on 

nondispositive matters, a district judge must “modify or set aside any portion of the order that is 

clearly erroneous or contrary to law.”1

 A decision by a magistrate judge is clearly erroneous if 

the district court, after reviewing the entirety of the evidence, “is left with the definite and firm 

conviction that a mistake has been committed.”2 A court’s review under the “contrary to law” 

                                                            

1

 § 636(b)(1)(A); Fed. R. Civ. P. 72(a). See also United States v. Curtis, 237 F.3d 598, 603 (6th 

Cir. 2001) (citing United States v. Raddatz, 447 U.S. 667, 673 (1980)). 

2 Sandles v. U.S. Marshal's Serv., No. 04-cv-7246, 2007 WL 4374077, at *1 (E.D. Mich. Dec. 

10, 2007) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). 

Case 2:09-cv-13616-AJT-MKM ECF No. 234, PageID.10294 Filed 09/04/13 Page 7 of 20
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standard is plenary, and the court “may overturn any conclusions of law which contradict or 

ignore applicable precepts of law, as found in the Constitution, statutes, or case precedent.”3

 

Factual and Procedural Background 

The facts of this case demonstrate PBGC’s diligent and good faith efforts to comply with 

plaintiffs’ discovery requests, the Federal Rules of Civil Procedure, and all orders of this Court, 

including the ultimate intention to provide a detailed privilege log. PBGC has produced all 

documents sought by the plaintiffs except those protected by law or privilege. Further, pursuant 

to the Magistrate Judge’s Order, PBGC intends to produce documents regarding plan participant 

census data subject to a protective order that PBGC is currently preparing with the plaintiffs, as 

well as documents relating to PBGC recoveries. 

In September 2011 and October 2011, plaintiffs served PBGC with unbounded document 

requests, demanding every document possessed by PBGC that referred, in any way, to Delphi.4 

PBGC timely responded to the plaintiffs’ requests by producing only the few documents outside 

of the administrative record that PBGC believed were relevant to the actual claims asserted in the 

                                                            

3 Itskin v. Gibson, No. 10-cv-689, 2012 WL 787400, at *1 (S.D. Ohio Mar. 9, 2012) (citing 

Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992), aff’d without op., 19 F.3d 1432 (6th 

Cir. 1994). See also Hood v. Midwest Sav. Bank, No. C2–97–218, 2001 WL 327723, at *2 (S.D. 

Ohio Mar. 22, 2001) (A decision is contrary to law “if the magistrate has misinterpreted or 

misapplied applicable law.”). 

4

 The District Court, in its September 1, 2011 Order, overturned the Magistrate Judge’s previous 

ruling that the Court’s review would be limited to PBGC’s administrative record and the 

plaintiffs were not entitled to discovery absent this Court’s ruling that the record was inadequate. 

While the Magistrate Judge and plaintiffs state that the plaintiffs served their discovery requests 

at issue approximately two years ago, the issue of PBGC’s obligation to comply with such 

requests was and is still highly contested. In fact, PBGC was not ordered to comply with such 

requests until the Magistrate Judge’s March 9, 2012 Order. PBGC’s objections to the March 9, 

2012 Order remain pending before District Judge Tarnow. 

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Amended Complaint,5 and objected to requests that PBGC believed exceeded those limitations. 

In that response, PBGC expressly reserved its right to assert the attorney-client, attorney work 

product, and any other legal privilege available to the agency.6 PBGC did not specifically 

identify any documents subject to those privileges, because there were no privileged documents 

within the universe of documents that were relevant under PBGC’s view of the case, based on 

the counts of plaintiffs’ complaint. 

In her March 9, 2012 Order (“March 9 Order”), however, the Magistrate Judge granted 

plaintiffs’ Motion to Compel, overruling all of PBGC’s relevance objections to plaintiffs’ 

requests and ordering PBGC to comply with the outstanding document requests. Although 

PBGC’s objection to the March 9 Order remains pending before Judge Tarnow, PBGC has done 

everything within its power to comply with the March 9 Order. 

The magnitude of plaintiffs’ discovery demands cannot be overstated. Plaintiffs 

demanded that PBGC produce every document in PBGC’s possession mentioning Delphi and 

created over a 4-year period from January 1, 2006, to December 31, 2009. During that time, 

Delphi was in bankruptcy and was one of PBGC’s largest cases. In response to the March 9 

Order, PBGC’s legal team first assembled all documents requiring review and processing before 

production to plaintiffs. The total page count exceeded 1.5 million.7

 

As PBGC assembled the documents, it became apparent that the production could not be 

completed in 120 days as PBGC has initially projected. PBGC also realized that a document 

                                                            

5

 The additional documents PBGC produced were the agreements effectuating termination and 

trusteeship of Delphi’s six pension plans, including the Salaried Plan. 

6 See Exhibits C and D to plaintiffs’ Rule 37 Motion (Dkt. No. 218). 

7 See Exhibit A. 

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review project of this size and scope could not be completed using solely agency resources. In 

light of this, PBGC asked plaintiffs to agree to a limitation on the scope of their demands to 

allow PBGC to complete production more quickly and reasonably, e.g., by topic or additional 

search terms. Plaintiffs declined, insisting PBGC locate and produce every non-archived 

document containing the word “Delphi.”8

 Plaintiffs’ counsel did, however, agree to a rolling 

production of documents, after PBGC completed its collection of all responsive documents.9

To get the largest quantity of responsive documents into the hands of the plaintiffs as 

quickly as reasonably possible, PBGC informed plaintiffs that it would first provide the most 

quickly reviewable documents, then move to documents requiring additional processing such as 

redaction, and then lastly, would compile the log of the privileged documents that had been 

located during the document review process. The parties documented their understanding about 

the process of producing the documents covered by the March 9 Order in a Joint Discovery 

Report and Stipulated Order dated August 20, 2012. With respect to PBGC’s privileged 

documents and the production of the log required by the Federal Rules of Civil Procedure, the 

parties acknowledged that such a log could not possibly be created until after the potentially 

responsive documents had all been reviewed and the privileged documents actually had been 

located. In the Joint Discovery Report, the parties described that process as follows: 

PBGC has not produced a privilege log identifying the document withheld or the 

privileges asserted, though it intends to produce such a log at the conclusion of its 

production of Non-Archived documents. Plaintiffs and PBGC reserve the right to 

litigate issues of privilege if necessary when a privilege log is in fact produced.”10 

                                                            

8 See id. 

9 See id. 

10 See id. and Joint Discovery Report and Stipulated Order (Dkt No. 215) (emphasis added). 

Case 2:09-cv-13616-AJT-MKM ECF No. 234, PageID.10297 Filed 09/04/13 Page 10 of 20
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Not only was the District Court aware of the parties’ intentions with respect to the production of 

the privilege log, but it affirmatively stated its approval of the procedure by “so ordering” the 

parties’ Joint Report and Stipulation. 

Following the procedures described in the Joint Report and Stipulation, PBGC has made 

several rolling productions to plaintiffs: 

Date Bates Number Page Count 

06/07/2012 PBGC-BL-0000001 to PBGC-BL-0062059 62,059 

06/15/2012 PBGC-BL-0062060 to PBGC-BL-0171363 109,303 

07/03/2012 PBGC-BL-0171364 to PBGC-BL-0216831 94,274 

08/17/2012 PBGC-BL-0216832 to PBGC-BL-0265638 48,806 

09/07/2012 PBGC-BL2-00000001 to PBGC-BL2-00310112 310,112 

09/14/2012 PBGC-BL2-00310113 to PBGC-BL2-00538687 228,574 

10/26/2012 PBGC-BL2-00538688 to PBGC-BL2-00714585 175,897 

12/03/2012 PBGC-BL2-00714586 to PBGC-BL2-00736828 22,242 

12/20/2012 PBGC-BL2-00736829 to PBGC-BL2-00769214 32,385 

07/29/2013 PBGC-BL2-00769215 to PBGC-BL2-00782871 13,657 

PBGC ultimately procured a litigation support firm to assist in reviewing the documents. 

At various times during the review process, as many as 50 contract attorneys were reviewing 

documents on PBGC’s behalf. PBGC has spent hundreds of hours of attorney time and nearly 

$2 million in contractor costs to comply with plaintiffs’ discovery requests.11 As the chart above 

reflects, PBGC has collected, reviewed, and produced more than a million pages of responsive, 

                                                            

11 See id. 

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non-privileged documents to plaintiffs. PBGC was able to maintain the pace of production in 

part due to the parties’ mutual understanding that PBGC would not halt the production to create 

a privilege log—but would only do so after giving plaintiffs all responsive, non-privileged 

documents.12 

Upon completion of the document review and the production to the plaintiffs, PBGC has 

worked diligently over the past few months to construct a detailed privilege log identifying 

documents being withheld. Initially, PBGC had collected about 30,000 documents identified by 

PBGC’s contractor as potentially subject to privilege. At a given point, PBGC has had up to 10 

of its 60 attorneys in the Office of the Chief Counsel reviewing those 30,000 documents. 

Through that review process, PBGC has reduced the number of privileged documents to about 

10,000 documents for which a privilege claim is appropriate. PBGC gave plaintiffs the first 

tranche of its privilege log, covering about 3,500 of those documents, on August 23, 2013. 

PBGC plans to produce the second tranche of its privilege log to plaintiffs in September. 

 As these facts demonstrate, the document production has been a long and arduous process 

that has taken longer than PBGC and this Court initially hoped. Nonetheless, PBGC moved 

expeditiously to produce the documents and when it became apparent that additional time would 

be required, it routinely and regularly contacted counsel for plaintiffs and kept them informed at 

every step of the process along the way. The parties cooperatively worked out a process for 

production and jointly informed the Court of that process. 

 At no point did the Court express any concern with the pace of PBGC’s efforts, nor did it 

suggest that PBGC has not been diligently working to comply with the Court’s March 9 Order 

and the plaintiffs’ document requests as quickly as practicable. Now, despite these facts, the 

                                                            

12 See id. 

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Magistrate Judge has, without taking any intermediate steps, imposed the most severe sanction 

upon PBGC – denial of its right to claim any privilege whatsoever. Because the record does not 

support any sanction in this case, this Court should vacate the Magistrate Judge’s Order. 

Argument 

I. A Review of the Entirety of the Evidence in This Case Reveals that Magistrate 

Judge Erred in the Issuance of Her Order. 

A. The Magistrate Judge failed to account for the parties’ understanding that PBGC 

would produce a privilege log at the conclusion of its production. 

The Magistrate Judge erred in failing to consider the parties’ constant communications 

about the document production process and the timing of the privilege log. The parties’ 

understanding about the exchange of the privilege log directly impacts a court’s analysis of the 

timeliness of a privilege objection.13 

Since the very beginning of its production process, PBGC has been in regular 

communication with plaintiffs’ counsel, apprising them of the document production schedule.14 

Upon recognizing the magnitude of documents covered by plaintiffs’ demands, PBGC contacted 

plaintiffs’ counsel to work out a reasonable plan for production, with realistic deadlines. 

Plaintiffs, being fully informed of PBGC’s production plan, agreed to a rolling production where 

PBGC would first provide plaintiffs with the most quickly reviewable documents, next move on 

to documents requiring additional processing such as redaction and finally work on privilege 

determinations. Plaintiffs’ counsel clearly understood that PBGC would begin compiling the 

privilege log only after completing production to plaintiffs of all non-privileged documents. The 

                                                            

13 Best Buy Stores, L.P. v. Manteca Lifestyle Center, LLC, No. 2:10 cv 1089, 2011 WL 2433655 

(E.D. Cal. 2011) (unpublished) 

14 See Exhibit A, which describes in detail the parties’ regular discussions during the document 

production process. 

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parties then informed the Court of how they intended to proceed, including informing the Court 

that PBGC would not prepare a privilege log until after the document review and production was 

completed. The Court acknowledged and approved the parties’ understanding by signing and 

“so ordering” the report. 

Having reached this understanding with plaintiffs’ counsel and with the Court, PBGC 

began compiling a privilege log after producing all non-privileged documents to the plaintiffs. 

Notably, from the time the Magistrate Judge entered the March 9 Order until the plaintiffs filed 

their Rule 37 Motion to Enforce Court Order, the plaintiffs did not object to PBGC’s plan to 

compile the privilege log after producing non-privileged documents. 

The cases cited by the Magistrate Judge to support its conclusion that PBGC’s objections 

filed in November 2011 are “tantamount to filing no objections at all,” and sanctioning PBGC by 

denying it the right to protect its privileged documents, PML North Am., LLC v. World Wide 

Personnel Servs. of Virginia, Inc. and Cumberland Truck Equip. Co. v. Detroit Diesel Corp., are 

readily distinguishable. In both cases, the party at issue failed to show any indication that a 

privilege log would follow.15 That is not the case here. PBGC and the plaintiffs had a clear and 

documented understanding that PBGC would compile and produce a privilege log after 

reviewing and producing all non-privileged documents. The Court was aware of and approved 

that understanding. PBGC gave plaintiffs the first tranche of its privilege log on August 23, 

2013. PBGC plans to produce the second tranche of its privilege log to plaintiffs in September. 

Even if PBGC’s objections filed in November 2011 were considered to be insufficient, PBGC’s 

                                                            

15 PML North Am., LLC v. World Wide Personnel Servs. of Virginia, Inc., No. 06-14447, 2008 

WL 1809133 at *1 (E.D. Mich. April 21, 2008); Cumberland Truck Equip. Co. v. Detroit Diesel 

Corp., No. 05-74594 and 05-774930. 2007 WL 4098727, at *1 (E.D. Mich. Nov. 16, 2007). 

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production of a detailed privilege log as contemplated by the parties will cure such 

insufficiency.16 

B. The Magistrate Judge failed to account for the practicalities involved in creating a 

privilege log for a document production of the massive scope in the case at hand. 

Although the Order is not completely clear about what actions PBGC failed to take to 

preserve its privilege claims, the court’s rejection of the PBGC’s November 11, 2011 objections 

as “mere boilerplate” suggests that PBGC was required to submit, within 30 days of the 

Document Requests or, alternatively, within 30 days after the Magistrate Judge’s March 9 Order, 

a privilege log meeting the specificity required under Fed. R. Civ. P. 26(d)(5)(A). Such a 

timeline is simply not reasonable or possible given the expansive nature of the plaintiffs’ 

document requests approved by this Court. Therefore, the Magistrate Judge’s holding is clearly 

erroneous in light of the known circumstances of this case. 

When privilege review is a “‘herculean task’ ... providing the specifics [as required 

under Fed. R. Civ. P. 26] by the due date for a Rule 34(b) response would be unrealistic.”17 As 

the parties agreed, PBGC must review a document before it can determine whether a privilege 

applies. The privilege objection then must contain the detail set out in Fed. R. Civ. P. 

26(d)(5)(A).18 Given the huge volume of documents covered by plaintiffs’ demands, there was 

no possible way that PBGC could have reviewed each document and compiled a privilege log 

                                                            

16 See Dynetix Design Solutions, Inc. v. Synopsys, Inc., No. 07 cv 1989, 2008 WL 5100203 at *4 

(E.D. Cal. Nov. 26, 2008); Best Buy Stores L.P. v. Manteca Lifestyle Center, LLC, No. 10 cv 

0389, 2011 WL 2433655 (E.D. Cal. June 14, 2011). 

17 See 8 Charles Alan Wright, Arthur R. Miller & Richard L Marcus, FEDERAL PRACTICE AND 

PROCEDURE § 2016.1 (3d ed.). 

18 Plaintiffs’ Rule 37 Motion at 12 (Dkt No. 218). 

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within 30 days of the Document Requests or, alternatively, within 30 days after the Magistrate 

Judge’s March 9 Order. 

Further, it is not reasonable to require PBGC to begin the labor-intensive task of 

reviewing and logging privileged documents while its objections to the breadth of those requests 

were still pending before the Court. Fed. R. Civ. P. 26(d)(5)(A) specifically states that when a 

party “withholds information otherwise discoverable (emphasis added)” by claiming privilege, it 

must “expressly make the claims” and “describe the nature of the documents, communications, 

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.” As 

stated in the 1993 Advisory Committee Notes to Fed. R. Civ. P. 26(d)(5), this requirement only 

applies to items that are “otherwise discoverable.” If a broad discovery request is made and the 

responding party objects to the breadth of the request, the party need not log the allegedly 

privileged documents that fall within the scope of its objection until the court rules on the 

objection.19 

Here, PBGC clearly objected to the breadth of plaintiff’s First and Second Requests for 

Production of Documents and thus was not required to begin logging its privileged documents at 

minimum until after the Magistrate Judge issued her March 9 Order. It was obviously impossible 

for PBGC to produce the documents and a privilege log in a matter of 30 or even 90 days after 

Magistrate Judge Majzoub ordered PBGC to respond to the plaintiffs’ discovery requests. 

Therefore, PBGC conferred with plaintiffs on the document production timeline, routinely 

                                                            

19 See 1993 Advisory Committee Notes to Fed. R. Civ. P. 26(d)(5); U.S. v. Philip Morris, Inc., 

347 F.3d 951, 954 (D.C. Cir. 2003) (party is required to note its privilege objection and to 

describe document only when document is "otherwise discoverable"); 6-26 MOORE'S FEDERAL 

PRACTICE - CIVIL § 26.47[1][b]. 

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agreed to reasonable extensions of the discovery deadlines, which the Court approved, and 

continued to keep plaintiffs apprised of expected production dates and of PBGC’s intention to 

compile a privilege log following completion of the document production.20 

And finally, after the Magistrate Judge issued her March 9 Order, PBGC filed objections 

to the March 9 Order, which have been fully briefed by the parties and are currently pending 

before the Court. Therefore, considering that PBGC’s objection questioning whether plaintiffs’ 

First and Second Requests for Production of Documents is “otherwise discoverable” has yet to 

be finally resolved by this Court, there still remains ambiguity as to when PBGC’s privilege log 

is due. PBGC nevertheless has been compiling the log as it finished its contested production. 

C. The severity of the Magistrate Judge’s sanction denying PBGC the right to assert 

privilege claims is inappropriate in this case. 

Finding a waiver of privilege is a most severe sanction, not an automatic consequence of 

every technical failure to comply with the rule 34(b)’s time limit for responding to a discovery 

request with sufficient detail.21 For instance, if objections to discovery on the basis of privilege 

have been stated, but the objections do not fully comply with the rule, the court may allow the 

responding party to make a more complete response, 22 not simply reject the attempt to claim the 

privilege as “mere boilerplate.” 

                                                            

20 See Exhibit A. 

21 See 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, FEDERAL PRACTICE AND 

PROCEDURE § 2016.1 (3d ed.); Berryman v. SuperValu Holdings, Inc., No. 05 cv 169, 2008 WL 

4934007 at *10 (S.D. Ohio, Nov. 18, 2008); see also Teleglobe Communs. Corp. v. BCE, Inc. 

493 F.3d 345, 386 (3d Cir. 2007) (“Disclosure is a serious sanction, but one that may be imposed 

only if the District Court finds bad faith, wilfulness, or fault”) (citing Am. Nat'l Bank & Trust Co. 

of Chicago v. Equitable Life Assur. Soc'y of U.S., 406 F.3d 867, 877-80 (7th Cir. 2005)); US. v. 

British Am. Tobacco (Inv.) Ltd., 387 F.3d 884, 885 (D.C. Cir. 2004) (“‘[W]aiver of privilege is a 

serious sanction’ that a court should impose only if a party behaves unreasonably or worse.”).

22 See 2-15 Moore's Manual--FEDERAL PRACTICE AND PROCEDURE § 15.26[6][e]. 

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Because waiver of privilege is considered a serious sanction, it is generally only found in 

cases of unjustified delay, inexcusable conduct, and bad faith.23 There was no unjustified delay, 

inexcusable conduct, or bad faith in this case. As discussed above, PBGC has been diligent in its 

efforts to comply with plaintiffs’ discovery requests, the Federal Rules of Civil Procedure, and 

all orders of this Court and to act in accordance with the parties’ understanding, including the 

ultimate production of a privilege log. At no time did the Court or plaintiffs suggest that PBGC 

was acting in bad faith by hewing to the parties’ understanding that it would produce the 

privilege log last, after it completed the production of the non-privileged documents. To the 

contrary, in the Order, the Magistrate Judge notes PBGC’s good faith efforts to produce 

documents responsive to plaintiffs’ requests.24 

Responding to the plaintiffs’ discovery, particularly as their demands lacked any 

reasonable limitations, has required more time than PBGC could have anticipated when the 

demands were made. As mutually understood by the parties, PBGC has been constructing a 

detailed privilege log to identify with specificity those remaining responsive documents for 

which PBGC claims privilege, and PBGC has now produced the first half of its privilege log. 

Therefore, given PBGC’s compliance with the plaintiffs’ discovery requests, the parties’ mutual 

understanding on the timing of the privilege log production, and PBGC’s good faith efforts in 

                                                                                                                                                                                               

23 See 6-26 MOORE’S FEDERAL PRACTICE – Civil 26.47[5]. See e.g., Coalition for a Sustainable 

Delta v. Koch, No. 1:08–CV–00397 OWW GSA, 2009 WL 3378974, at *11–14 (E.D. Cal. 

Oct.15, 2009) (unpublished) (in a case dealing with a universe of 80,000 documents and 

thousands of emails, defendants' assertion of privilege two months after the production of 

documents was reasonable); Carl Zeiss Vision Int'l GmbH v. Signet Armorlite, No. CIV 07CV–

0894DMS POR, 2009 WL 4642388, at *3–4 (S.D. Cal. Dec.1, 2009) (unpublished) (despite a 

nine-month delay in production of privilege log, privilege objection held not to be waived). 

24 Order at 7 (Dkt. No. 231). 

Case 2:09-cv-13616-AJT-MKM ECF No. 234, PageID.10305 Filed 09/04/13 Page 18 of 20
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completing the production of the privilege log, sanctioning PBGC by enforcing privilege waiver 

is inequitable and unwarranted. 

Conclusion 

 For these reasons, PBGC respectfully requests that the Court vacate the Magistrate 

Judge’s Order of August 21, 2013, and deny plaintiffs’ Rule 37 Motion to Enforce this Court’s 

Order Granting Plaintiffs’ Second Motion to Compel Discovery with respect to assertions of 

privilege. 

Dated: September 4, 2013 

Washington, D.C. Respectfully Submitted: 

 /s/ C. Wayne Owen, Jr. 

 ISRAEL GOLDOWITZ 

 Chief Counsel 

 KAREN L. MORRIS 

 Deputy Chief Counsel 

 JOHN A. MENKE 

Local Counsel: Assistant Chief Counsel 

 C. WAYNE OWEN, JR. 

BARBARA L. McQUADE CRAIG T. FESSENDEN 

United States Attorney ERIN C. KIM 

PETER A. CAPLAN Attorneys 

Assistant United States Attorney 

Eastern District of Michigan Attorneys for the Defendant 

211 West Fort Street, Suite 2001 PENSION BENEFIT GUARANTY 

Detroit, MI 48226 COPORATION 

Phone: (313) 226-9784 Office of Chief Counsel 

 1200 K Street, N.W. 

 Washington, D.C. 20005 

 Phone: (202) 326-4020 ext. 3204 

 Fax: (202) 326-4112 

Emails: owen.wayne@pbgc.gov and 

efile@pbgc.gov 

Case 2:09-cv-13616-AJT-MKM ECF No. 234, PageID.10306 Filed 09/04/13 Page 19 of 20
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CERTIFICATE OF SERVICE 

I hereby certify that on September 4, 2013, I electronically filed the foregoing Pension 

Benefit Guaranty Corporation’s Objections to Magistrate Judge Majzoub’s Order 

Granting in Part Plaintiffs’ Rule 37 Motion to Enforce Court Order, dated August 21, 2013 

via the court’s CM/ECF system which will send notification of such filing to all registered users, 

including the following: 

Michael N. Khalil 

mkhalil@milchev.com 

Timothy P. O'Toole 

totoole@milchev.com, ktafuri@milchev.com 

Alan J. Schwartz 

alan@jacobweingarten.com 

Anthony F. Shelley 

ashelley@milchev.com, ktafuri@milchev.com, mkhalil@milchev.com 

/s/ C. Wayne Owen, Jr. 

 C. WAYNE OWEN, JR. 

Case 2:09-cv-13616-AJT-MKM ECF No. 234, PageID.10307 Filed 09/04/13 Page 20 of 20