333 F.R.D. 118 (E.D.Mich. 2019), 17-13604, Carhartt, Inc. v. Innovative Textiles, Inc.

Docket Nº:17-13604
Citation:333 F.R.D. 118, 104 Fed.R.Serv.3d 1413
Opinion Judge:R. STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE
Party Name:CARHARTT, INC., Plaintiff, v. INNOVATIVE TEXTILES, INC., Defendant/Third Party Plaintiff, v. Gentry Mills, Inc., Third Party Defendant.
Attorney:Erin M. Pawlowski, Carhartt, Inc., Dearborn, MI, Emily L. Turbiak, Salina M. Hamilton, Dickinson Wright PLLC, Detroit, MI, John B. Dolan, Dickinson Wright, Troy, MI, for Plaintiff. Colleen H. Burke, David C. Anderson, Collins, Einhorn, Jeffrey R. Hicks, Collins Einhorn Farrell PC, David F. Hansma...
Case Date:October 24, 2019
Court:United States District Courts, 6th Circuit, Eastern District of Michigan

Page 118

333 F.R.D. 118 (E.D.Mich. 2019)

104 Fed.R.Serv.3d 1413

CARHARTT, INC., Plaintiff,

v.

INNOVATIVE TEXTILES, INC., Defendant/Third Party Plaintiff,

v.

Gentry Mills, Inc., Third Party Defendant.

No. 17-13604

United States District Court, E.D. Michigan, Southern Division

October 24, 2019

Page 119

Erin M. Pawlowski, Carhartt, Inc., Dearborn, MI, Emily L. Turbiak, Salina M. Hamilton, Dickinson Wright PLLC, Detroit, MI, John B. Dolan, Dickinson Wright, Troy, MI, for Plaintiff.

Colleen H. Burke, David C. Anderson, Collins, Einhorn, Jeffrey R. Hicks, Collins Einhorn Farrell PC, David F. Hansma, Ronald L. Cornell, Jr., Seyburn Kahn, Southfield, MI, for Defendants.

OPINION AND ORDER

R. STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE

Before the Court is Defendant / Third Party Plaintiff Innovative Textiles, Inc.’s ("ITI’s") Motion to Compel a More Detailed Privilege Log from Plaintiff Carhartt, Inc. ("Carhartt") [ECF No. 64]. For the reasons discussed below, the motion is DENIED.

I. BACKGROUND

Carhartt is a Dearborn, Michigan based clothing company that markets a line of flame-resistant garments. Beginning in 2009, ITI supplied Carhartt with flame-resistant fabric. Carhartt alleges that around June of 2016, its internal testing revealed that ITI’s fabrics "did not satisfy the standards they were required to satisfy...and did not live up to the representations that [it] had made about the fabrics." Complaint, ECF No. 1, PageID.11. As a result, Carhartt recalled products containing the allegedly non-conforming (i.e., defective) fabric, and seeks damages associated with the recall.

As discovery proceeded, ITI served two sets of document requests on Carhartt. Those requests are reproduced at Exhibits A and B of ITI’s motion. Carhartt’s response included a 136-page privilege log, withholding over 1,000 documents as protected by the attorney-client or work product privileges. See ICI’s Exhibit C and revised privilege log at Exhibit G. In this motion, ICI argues that the privilege log does not contain sufficient information for it to assess the claim of privilege.1

II. DISCUSSION

Fed.R.Civ.P. 26(a)(5) states as follows:

(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:

(i) expressly make the claim; and

(ii) 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.

Because the Rule does not delineate the precise information that must be contained in a privilege log, there is understandably tension between what a requesting party and a producing party might consider the minimum standards for disclosure. However, case law provides guidance. In this motion, both parties have cited Ypsilanti Comm. Utilities Auth. v. Meadwestvaco Air Sys. LLC, 2009 WL 3614997 (E.D. Mich. Oct. 27, 2009), which described the requirements of Rule 26(a)(5) as follows: "The information for each document must include the express privilege or protection which Defendant claims and include a summary of the contents of the document (the "subject"...

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