I. Relevant Factual and Procedural History These cases involve alleged events of sudden unintended acceleration in certain Ford vehicles manufactured between 2002 and 2010. In particular, Plaintiffs claim that their vehicles were equipped with defective electronic throttle control ("ETC") systems that were not fault tolerant, resulting in open throttle events during which the drivers ofthe vehicles lacked the ability to control acceleration. Plaintiffs assert that the mechanisms causing the throttles to open unexpectedly were numerous, included electromagnetic interference, resistive shorts, and other voltage and resistance fluctuations, and that these issues were known to Ford. According to Plaintiffs, despite having knowledge of the potential for sudden unexpected acceleration, Ford nonetheless failed to properly design the ETC system to correct the events when they occurred, and further neglected to install fail-safes, such as a Brake Over Accelerator system, which would allow the drivers to physically prevent or mitigate sudden acceleration.
In the course of discovery, Plaintiffs requested that Ford produce documents, including studies, reports, analyses, and memoranda, related to alleged unintended acceleration in the class vehicles. (ECF No. 536-2 at 4, 28-29). Specifically at issue here, Plaintiffs requested that Ford produce the ASO reports and databases for any alleged unintended acceleration event in a Ford vehicle equipped with the ETC system. (Id. at 27-28). Plaintiffs also requested the production of documents related to any government correspondence or investigations concerning unintended accelerations in Ford vehicles equipped with the ETC system. (Id. at 33-34). On October 24, 2014, after producing non-privileged documents created as part of a 2010 ASO investigation into sudden unintended acceleration, Ford provided Plaintiffs with a privilege log listing additional documents from the 2010 ASO investigation that were withheld from discovery. (ECF No. 536-1 at 2-67; ECF No. 551 at 3). Ford explained that the ASO investigation into complaints of sudden unintended acceleration was undertaken after the Wall Street Journal published an article in 2010 concerning sudden unintended acceleration in Ford vehicles. (ECF No. 551 at 2-3). The article was based on findings from vehicle owner questionnaires ("VOQs") issued by the National Highway Transportation Safety Administration ("NHTSA"). (Id. at2). At the time that the article was released, Ford asserts it was defending several lawsuits related to claims of unintended acceleration, including a case styled Schanel v. Ford, which was initiated in the District Court for El Paso County, Colorado in February 2010 and proceeded to trial in December 2010. (Id. at 2-3). Consequently, in connection with those lawsuits and the article, its Office of General Counsel ("OGC") began an investigation of the VOQs and Transportation Recall Enhancement, Accountability, and Documentation ("TREAD") Act submissions with the assistance of Ford's ASO. (Id. at 3). Ford subsequently produced the underlying data analyzed by the ASO, as well as any non-privileged information. However, Ford claims that the remaining documents were prepared exclusively for the use of Ford's OGC in order to render legal advice to Ford and were not shared or disclosed beyond Ford's employees involved in the project.
On March 25, 2015, the parties met and conferred about the sufficiency of Ford's ASO privilege log. (ECF No. 536 at 2). Plaintiffs' counsel informed Ford's counsel that the ASO privilege log failed to adequately describe each document withheld by Ford. (Id.) Plaintiffs' counsel also questioned whether the "vast majority" of documents were indeed shielded from disclosure given their descriptions as "spreadsheets" or "charts," which Plaintiffs interpreted to mean that those documents contained only "raw data or factual information." (Id.) In addition, Plaintiffs' counsel expressed their belief that the documents may not be privileged because they were not authored by an attorney or anyone at Ford's OGC, and the documents were sent to both attorneys and non-attorneys. (Id. at 2-3). The following day, Ford's counsel sent an e-mail confirming that Ford would review its privilege logs and determine whether additional information could be provided. (ECF No. 536-3 at 2). On April 6, 2015, Plaintiffs' counsel inquired about the status of Ford's counsel's privilege log review, and Ford's counsel replied the next day, verifyingthat Ford would supplement its privilege logs. (ECF No. 536-4 at 2; ECF No. 536-5 at 2). On April 15, 2015, the Court conducted a regularly scheduled telephonic discovery conference and addressed the privilege log issue. (ECF No. 536-6 at 3-4). Specifically, the undersigned pointed out that Federal Rule of Civil Procedure 26 required a privilege log to contain enough information that the receiving party could determine whether to challenge assertion of the privilege. (Id. at 4).
On May 19, 2015, Ford produced a supplemental ASO privilege log to Plaintiffs. (ECF No. 536-7 at 3-68). Distinguishing the supplemental privilege log from the original privilege log was the addition of file names for the documents listed. (Id.) By way of example, the first two rows of the privilege log appeared as such:
(Id. at 3). All 132 documents listed in the privilege log were described in one of two ways—the first was the description in the table above, and the second stated that the document was a "[c]onfidential communication containing an analysis prepared by authorized agentconsultant of Ford for and at the request of Ford's OGC to assist Ford's attorneys with pending and anticipated litigation." (Id. at 3-68).
On June 9, 2015, Plaintiffs filed a motion to compel production of the documents listed in the log and for sanctions. (ECF No. 536). On August 28, 2015, the Court issued a memorandum opinion and order finding that Ford's privilege log was insufficient under Federal Rule of Civil Procedure 26(b)(5)(A) because the log's document descriptions did not enable Plaintiffs "to make an intelligent determination about the validity of the assertion of the privilege." (ECF No. 598 at 14) (quoting Auto. Club of N.Y., Inc. v. Port Auth. of N.Y. & N.J., No. 11 Civ. 6746, 2014 WL 2518959, at *5 (S.D.N.Y. June 4, 2014)). Accordingly, the Court ordered Ford to supplement the ASO privilege log with more detailed descriptions of the withheld documents. (Id. at 15). The Court declined to find that Ford had waived its privilege related to the withheld ASO investigation documents, but cautioned Ford that a finding of waiver would likely result if the supplemental log did not comply with Federal Rule of Civil Procedure 26(b)(5)(A) and the Court's opinion and order. (Id. at 15-16).
Ford supplemented its ASO privilege log on September 8, 2015. (ECF No. 700 at 5; ECF No. 700-6 at 2-67). The updated privilege log contains a "Supplemental Description" column. Some of the supplemental descriptions include: "VOQ data selected for ASO...
