298 F.R.D. 369
S.D. Ohio2013Background
- Case is in class certification discovery; 38 documents withheld by Aramark are challenged.
- Plaintiffs sought production of documents/information Aramark asserted as protected.
- Aramark claimed work product and attorney-client privilege for the items.
- Court conducted in camera review of the contested materials.
- Court granted production for some items and allowed limited production/redactions for others.
- Clerk ordered the original 38 documents returned to Aramark after ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the disputed documents are protected by work product. | Plaintiffs established relevance and seek production. | Aramark prepared the documents in anticipation of litigation. | Work product protection not established; 34 items not protected; 2 specific items produced. |
| Whether the disputed documents are protected by attorney-client privilege. | Plaintiffs contend most documents are not properly privileged. | Documents were communications for legal advice between in-house counsel (and agents) and employees. | 32 documents properly privileged; PRIV1938 improper; PRIV2137 first two pages privileged, remainder produced; overall production with redactions where ordered. |
Key Cases Cited
- In re Powerhouse Licensing, LLC, 441 F.3d 467 (6th Cir. 2006) (test for work product requires anticipation of litigation)
- Roxworthy v. United States, 457 F.3d 590 (6th Cir. 2006) (two-prong test for anticipating litigation, including subjective anticipation)
- Biegas v. Quickway Carriers, Inc., 573 F.3d 365 (6th Cir. 2009) (need for specificity to show subjective anticipation of litigation)
- Reed v. Baxter, 134 F.3d 351 (6th Cir. 1998) (elements of attorney-client privilege and confidentiality)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (attorney-client privilege protects communications for legal advice; protects communications, not underlying facts)