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RTC Industries, Inc. v. Fasteners for Retail, Inc.

United States District Court, N.D. Illinois, Eastern Division

October 8, 2019

RTC INDUSTRIES, INC., Plaintiff,
v.
FASTENERS FOR RETAIL, INC., Defendant.

          Pacold, District Judge

          MEMORANDUM OPINION AND ORDER

          SIDNEY I. SCHENKIER, MAGISTRATE JUDGE

         In this patent infringement case, plaintiff RTC Industries, Inc. ("RTC") and defendant Fasteners for Retail, Inc. ("FFR") have filed dueling motions to compel (doc. # 226: Pl.'s Mot. to Compel; doc. # 232: Def.'s Mot. to Compel), each challenging certain of the other side's assertions of attorney-client privilege as a basis to withhold documents or information from production. Pursuant to a protocol established by the Court, RTC sent a Rule 37.2 letter to FFR, to which FFR responded (Pl.'s Mot. to Compel, Ex. 1, at 2-13: Pl.'s Rule 37.2 Ltr.; Pl.'s Mot. to Compel, Ex. 2, at 2-20: Def.'s Rule 37.2 Resp.). Similarly, FFR sent a Rule 37.2 letter to RTC, to which RTC responded (Def.'s Mot. to Compel, Ex. A, at 2-28: Def.'s Rule 37.2 Ltr.; Def.'s Mot. to Compel, Ex. B, at 2-16: Pl.'s Rule 37.2 Resp.). Thereafter, the parties engaged in several hours of court-reported meet and confer sessions (Pl.'s Mot. to Compel, Ex. 3: 8/7/19 Tr.; id., Ex. 4: 8/13/19 Tr. (Part 1); Def.'s Mot. to Compel, Ex. D: 8/13/19 Tr. (Part 2)).[1] Although this protocol resolved some issues, the parties still present a litany of disputes for our resolution.

         We have reviewed the parties' Rule 37.2 letters and responses, the relevant attachments, the transcripts of the meet and confer sessions, and the withheld and redacted documents provided by the parties for our in camera review. Our rulings on the parties' motions are set forth below.

         I.

         The attorney-client privilege protects from disclosure "[confidential communications between a client and her lawyer for the purpose of receiving legal advice." United States v. Bey, 772 F.3d 1099, 1101 (7th Cir. 2014); see also United States v. Leonard-Allen, 739 F.3d 948, 953 (7th Cir. 2013) (stating that the attorney-client privilege "covers only those communications which reflect the lawyer's thinking or are made for the purpose of eliciting the lawyer's professional advice or other legal assistance") (internal alteration and quotations omitted).[2] The attorney-client privilege, however, "is in derogation of the search for the truth," so "it is construed narrowly." United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997).

         When a party withholds an otherwise discoverable document based on the attorney-client privilege, it must expressly claim that privilege, and it generally does so by identifying that document on a privilege log. See Fed. R. Civ. P. 26(b)(5)(A); RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 218 (N.D. Ill. 2013). The proponent of the privilege bears the burden of showing that the attorney-client privilege is applicable to each of the documents identified on the log. See United States v. BDO Seidman, 337 F.3d 802, 811 (7th Cir. 2003) ("The mere assertion of a privilege is not enough; instead, a party that seeks to invoke the attorney-client privilege has the burden of establishing all of its essential elements"); Evans v. City of Chicago, 231 F.R.D. 302, 311 (N.D. Ill. 2005) ("The party asserting the attorney-client privilege has the burden of establishing each of [the privilege's] elements on a document-by-document basis").

         Each party has served multiple privilege logs. The parties first exchanged privilege logs on January 18, 2019 (doc. # 227-2, at 196-1404: Pl.'s Orig. Priv. Log; doc. # 227-1, at 132-201: Def.'s Orig. Priv. Log). FFR served an amended privilege log a little more than a month later (doc. # 227-1, at 15-81: Def.'s 1st Am. Priv. Log). On August 2, 2019, FFR served a second amended privilege log, and RTC served a second supplemental privilege log (doc. # 227-2, at 47-194: Def.'s 2d Am. Priv. Log; doc. # 227-2, at 1406-40: Pl.'s 2d Suppl. Priv. Log).[3] About a week later, and after the parties had already exchanged their Rule 37.2 correspondence regarding FFR's challenges to RTC's privilege log, RTC again supplemented its privilege log (8/13/19 Tr. (Part 2) at 88:5-22).[4]As of its second supplement, RTC's privilege log contains 16, 267 entries; FFR's second amended privilege log contains 1, 289 entries.

         II.

         We start by addressing an issue common to both parties' motions: the adequacy of certain descriptions frequently used by each side to describe its withheld or redacted documents. A privilege log entry should include "a description of the subject matter in sufficient detail to determine if legal advice was sought or revealed[.]" M.J. Schenkier's Case Procedures, Privilege Logs, available at https://www.ilnd.uscourts.gov/judge-info.aspx?EBclBxz8ceU= (last visited Oct. 8, 2019); see also Fed. R. Civ. P. 26(b)(5)(A)(ii) (a party must describe the nature of the withheld document "in a manner that... will enable other parties to assess the claim" of privilege). Put another way, the description of the subject matter of a withheld or redacted document "must be sufficiently detailed to allow the court to determine whether the discovery opponent has discharged its burden of establishing the requirements" of the asserted privilege. Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 145 F.R.D. 84, 88 (N.D. Ill. 1992). Each party complains that certain descriptions from the other party's privilege log fail to meet this requirement.

         A.

         RTC asserted that FFR's descriptions of documents as "regarding intellectual property," "regarding intellectual property issues," "regarding contracts," or "regarding product samples" (found in 183 entries) were inadequate (Pl.'s Mot. at 3; Pl.'s Rule 37.2 Ltr. at 10-11; 8/13/19 Tr. (Part 1) at 135:11-136:5). As examples of the purportedly inadequate descriptions, RTC identified three log entries, which describe the corresponding documents as constituting (1) privileged and confidential information; (2) reflecting, or prepared for the purpose of requesting; (3) legal analysis and advice from or of counsel; (4) regarding intellectual property, contracts, or product samples (Pl.'s Rule 37.2 Ltr. at 10-11).

         FFR, "in an effort to compromise," responded by saying that it provided additional detail for the challenged log entries "where feasible" (Def.'s Rule 37.2 Resp. at 12-13). FFR's Rule 37.2 response did not explain what this additional level of detail entailed (see id), but according to the parties' subsequent meet and confer, examples where FFR provided additional detail included changing the phrases "regarding intellectual property" to "regarding intellectual property strategy," "regarding contracts" to "regarding contract compliance," and "regarding product samples" to "regarding product samples legal strategy" (8/13/19 Tr. (Part 1) at 135:6-136:19 (emphases added); compare, e.g., Def.'s 1st Am. Priv. Log at 7-8, 20 (log entries 82, 108, and 313), with Def.'s 2d Am. Priv. Log at 12, 16, 48 (log entries 82, 108, and 313)). RTC contends that FFR's additional descriptions still do not provide sufficient detail and that FFR should be made to produce the documents corresponding to these log entries (8/13/19 Tr. (Part 1) at 136:20-25; Pl.'s Rule 37.2 Ltr. at 11-12).

         B.

         For its part, FFR argues that RTC's description of documents that relate to legal advice regarding "patent prosecution," which is found in more than 13, 000 entries, is inadequate (Def.'s Mot. at 4-5; Def.'s Rule 37.2 Ltr. at 15-16). FFR also contends that RTC's log entries that describe a document as providing or requesting legal advice "re: contract issues," "re: sales issues," or "re: business transaction" are inadequate because the level of detail provided by these log entries is similar to the level of detail provided by the "intellectual property," "contracts," and "product samples" log entries provided by FFR that RTC has challenged as inadequate (Def.'s Mot. at 5-6; Def.'s Rule 37.2 Ltr. at 19-20; see also Def.'s Rule 37.2 Resp. at 13-14). FFR identified exemplary RTC log entries that described the documents at issue as (1) reflecting, or requesting and providing information for the purpose of obtaining or rendering, legal advice; (2) re: contract issues, sales issues, or business transaction (Def.'s Rule 37.2 Ltr. at 19-20). In short, FFR argues that if similar descriptions provided by FFR are inadequate, so are these descriptions from RTC.

         FFR asked RTC to provide its position on "what level of detail is needed with respect to" the descriptions challenged by both parties so that FFR could consider it "and, if appropriate, conform its log so that this issue can be resolved without court intervention" (Def.'s Rule 37.2 Ltr. at 20). RTC did not directly address the "level of detail" that was necessary from the parties' log entries in its response or, as far as we can tell, at the parties' subsequent meet and confers. Instead, RTC responded by amending the descriptions of the "contract issues," "sales issues," and "business transaction" log entries identified by FFR or, alternatively, removing the log entry and producing the previously withheld and logged document (Pl.'s Rule 37.2 Resp. at 7-15).[5] RTC did this for approximately 100 individual log entries (Id.). RTC also argued that its "patent prosecution" description "provided more than enough information for FFR to assess RTC's claim of privilege or other protection for these documents" (Id. at 6). FFR now moves to compel RTC to conduct a global re-review of its withheld documents; produce any document that is not subject to a proper claim of privilege; and, for any document that RTC maintains is still privileged, revise the entry to provide additional information that enables FFR to evaluate RTC's privilege claim (Def.'s Mot. at 4-6).

         C.

         The parties' extensive back-and-forth has done regrettably little, if anything, to help us resolve this particular dispute. RTC, which first raised the inadequacy issue, has refused to explain to FFR (and to us) what additional information it seeks in order to assess FFR's privilege claims for the 183 log entries it identified. Nor do we know what additional detail FFR wants from RTC's log entries. Indeed, the parties never discussed whether the numerous "contract issues," "sales issues," and "business transaction" log entry amendments contained in RTC's Rule 37.2 response are satisfactory (8/13/19 Tr. (Part 2) at 132:3-144:16). Instead, FFR's primary contention appears to be that RTC's descriptions are inadequate if FFR's descriptions are inadequate (and, conversely, if RTC's descriptions are adequate, so are FFR's descriptions). In that sense, FFR's challenge is more of a defense in response to RTC's challenge rather than an affirmative attack on RTC's descriptions.

         It should go without saying, but the level of specificity required for a privilege log entry is the same for both parties. Neither party is entitled to tell the other to "do as I say, not as I do." If RTC believes in good faith that the detail it has used to describe its privileged documents is adequate, it cannot expect more from FFR's log entries, and vice versa.[6] As such, the parties should have directly addressed the issue by discussing what level of detail they deem to be necessary from both of their respective privilege logs. This could have resolved this issue without our intervention and, at the very least, it would have given us insight into the level of detail each party asserts is necessary to resolve the issue. No. such discussion, however, took place.

         Thus, we order RTC and FFR to meet and confer regarding the level of detail that both parties believe should be included in their privilege log entries so their privilege claims can be adequately assessed. This discussion should address (1) what additional detail RTC wants from FFR's description of the "intellectual property," "contracts," and "product samples" log entries; (2) what additional detail FFR wants from RTC's "patent prosecution" entries; and (3) whether RTC's updated descriptions of its "contract issues," "sales issues," and "business transaction" log entries are adequate. Then, to the extent necessary after the parties' meet and confer, RTC must supplement all its privilege log entries to address the issues raised by FFR, and FFR must supplement all its privilege log entries to address the issues raised by RTC.[7]

         We further caution the parties to distinguish between privilege log challenges based on an inability to assess a privilege claim because of an inadequate description and challenges based on a generalized lack of confidence in the other party's assessment of whether a document properly can be withheld or redacted as privileged. We do not expect that either party will challenge log entries that, on their face, provide a description sufficient to support a privilege claim without some good reason.

         III.

         We now turn to the issues that are unique to RTC's motion to compel. We begin with the overarching substantive issues raised by RTC's motion. Then, we address FFR's assertion of attorney-client privilege for each of the 30 documents identified by RTC for our in camera review.

         A.

         RTC first contends that FFR has waived the attorney-client privilege for certain documents that were disclosed to employees of an entity named Olympus Partners (Pl.'s Rule 37.2 Ltr. at 5; Pl.'s Mot. at 2, 4).[8] "One of the limitations on the exercise of the [attorney-client] privilege is the recognition that it may be waived," BSP Software, LLC v. Motio, Inc., No. 12 C 2100, 2013 WL 3456870, at *2 (N.D. Ill. July 9, 2013), and "[p]erhaps the most common instance of waiver is where an otherwise privileged communication is disclosed to a third party outside the scope of the privilege." Beneficial Franchise Co. v. Bank One, N.A., 205 F.R.D. 212, 215 (N.D. Ill. 2001); see also Burden-Meeks v. Welch, 319 F.3d 897, 899 (7th Cir. 2003) ("Knowing disclosure to a third party almost invariably surrenders the [attorney-client] privilege with respect to the world at large"). RTC relies upon this general principle to argue that FFR waived any applicable attorney-client privilege that may have applied to the documents at issue when it shared the documents with third parties, i.e., employees of Olympus Partners (Pl.'s Rule 37.2 Ltr. at 3, 5).[9]

         FFR responds that there has been no waiver because a company does not waive its attorney-client privilege when it shares privileged communications with a board member or employee of its majority owner (Def.'s Rule 37.2 Resp. at 2-3). And, according to FFR, the individuals to whom the documents at issue were disclosed work for FFR's majority owner, "Olympus," and two of the individuals (James Conroy and David Haddad) are also members of FFR's Board of Directors (Id. at 2). (In a prior filing, FFR asserted that Messrs. Conroy and Haddad are also officers of FFR) (doc. # 72 at 1, 8). However, FFR's Rule 37.2 response is notable in its failure to clearly lay out the actual relationship between FFR and any of the Olympus entities (Def.'s Rule 37.2 Resp. at 2-4), which is information presumably known by FFR. Instead, relying upon the doctrine of judicial estoppel, which "prevents parties from playing 'fast and loose' with the courts by prevailing twice on opposing theories," In re Airadigm Commc'ns, Inc., 616 F.3d 642, 661 (7th Cir. 2010), FFR points to instances in this litigation and another proceeding where RTC asserted that FFR is owned by "Olympus Growth Fund V, L.P." and owned, managed, and/or controlled by "Olympus" (Def.'s Rule 37.2 Resp. at 3-4).

         1.

         We start with Messrs. Conroy and Haddad. FFR points to one case to argue that FFR's attorney-client privilege encompasses these individuals: Jones v. National Council of Young Men's Christian Associations of the United States of America, No. 09 C 6437, 2011 WL 1740122 (N.D. Ill. May 3, 2011) (Def.'s Rule 37.2 Resp. at 2). In Jones, a court in this district found that the distribution of a PowerPoint presentation to the defendant's Board of Directors did not waive the defendant's attorney-client privilege. 2011 WL 1740122, at *1. In doing so, the court noted that the scope of attorney-client privilege for a corporate party "may extend to corporate decision makers or those who substantially influence corporate decisions," and that a court should consider "whether the communications were made with the intent of providing legal advice, whether the communications concerned matters within the scope of the employees' duties, and whether the employees were well aware that the information was being used for providing legal advice." Id. The Jones court found that the PowerPoint presentation satisfied these factors, but it did so without any extended analysis. Id.

         We are satisfied that, as board members and officers of FFR, Messrs. Conroy and Haddad are properly within the scope of FFR's attorney-client privilege. If "the power to waive the corporate attorney-client privilege ... is normally exercised by its officers and directors," Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343, 348 (1985), those officers and directors must be encompassed by the attorney-client privilege in the first place. See also Brainerd & Bridges v. Weinger off Enter., Inc., No. 85 C 493, 1986 WL 10638, at *2 (N.D. Ill. Sept. 19, 1986) ("[I]t is the client who holds the privilege, and the power to waive it is his alone"). And cases from this district support extending a company's attorney-client privilege to its board members. See, e.g. Jones, 2011 WL 1740122, at *1; Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 454 (N.D. Ill. 2006) (finding "conversations among the board members discussing their attorney's legal advice, and conversations among the board members and their attorney about potential litigation risk and legal strategy" attorney-client privileged); Wilstein v. San Tropai Condo. Master Ass'n 189 F.R.D. 371, 378-80 (N.D. Ill. 1999) (finding that the attorney-client privilege applied to "litigation strategy or confidential information communicated between the board and its attorney" and to "conversations among the board members discussing their attorney's legal advice about potential litigation risk and legal strategy"). Thus, if the only Olympus-affiliated individuals involved with a privileged communication are Mr. Conroy and/or Mr. Haddad, the redacted or withheld communication need not be produced.

         2.

         We come to a different conclusion regarding the other Olympus Partners employees who, unlike Messrs. Conroy and Haddad, do not also hold positions with FFR. In doing so, we note that Olympus Partners is not necessarily the same as "Olympus" (or Olympus Growth Fund V, L.P., for that matter). It appears that both RTC and FFR have defined Olympus broadly or narrowly depending on what best suits them at the time. For instance, when asserting earlier in this litigation that Olympus owned and managed FFR, RTC defined "Olympus" as Olympus Growth Fund V, L.P.; Olympus Advisors, LLC; and affiliated investment funds (doc. # 133 at 1 n.l). Then, to define "Olympus" in a separate proceeding involving FFR's petition to institute an inter partes review (IPR) against one of the patents-in-suit, RTC added Olympus Partners, L.P. to this list of entities (doc. # 227-2 at 32 n.l). FFR, for its part, identified both Olympus Advisors, LLC (which it also referred to as Olympus Partners) and Olympus Growth Fund V, L.P. as separate, non-parties when moving to quash subpoenas that RTC served on these entities (doc. # 72 at 1). Now, for the question of whether a privilege has been waived, the roles are reversed: RTC wants to define "Olympus" narrowly, while FFR wants to define "Olympus" broadly.

         We decline to resolve this dispute based on what one party or the other asserted elsewhere about the FFR-Olympus relationship when addressing different issues. See In re Knight-Celotex, LLC, 695 F.3d 714, 721 (7th Cir. 2012) ("Judicial estoppel is a matter of equitable judgment and discretion"). Instead, we have sought to determine the actual relationship between FFR and Olympus Partners, and for that, we look to the decision of the Patent Trial and Appeal Board ("PTAB") in denying FFR's petition to institute an IPR, which contains an explanation from a neutral third-party (the PTAB) about the relationship between FFR, Olympus Partners, and the other Olympus entities (see doc. # 155-5: IPR Denial).

         As set forth in the PTAB's decision, FFR is solely owned by FFR DSI Intermediate Holdings, Inc., which, in turn, is owned by FFR DSI Holdings, Inc. (IPR Denial, at 6; see also doc. # 17 (stating that FFR is wholly owned by FFR DSI Intermediate Holdings)). The majority shareholder of FFR DSI Holdings, Inc. is Olympus Growth Fund V, L.P. (IPR Denial, at 7). Olympus Advisors LLC, which does business under the name Olympus Partners, is a private equity and venture capital firm that provides advisory services to Olympus Growth Fund V, L.P. (Id. at 6-8). Looking at this in the opposite direction, i.e., from top to bottom, Olympus Partners (the entity at issue) provides "advisory services" to Olympus Growth Fund V, L.P., which is the majority shareholder of FFR DSI Holdings, Inc., which owns, through FFR DSI Intermediate Holdings, Inc., FFR.

         Thus, the question is whether FFR has shown that, given this relationship, communications to and from Olympus Partners' employees (at least those who are not also board members or officers of FFR) are encompassed by FFR's attorney-client privilege. We find that it has not.

         In doing so, we do not quarrel with the general proposition "that confidential documents shared between members of a corporate family do not waive the attorney-client privilege." In re JP Morgan Chase & Co. Sec. Litig, No. 06 C 4674, 2007 WL 2363311, at *6 (N.D. Ill. Aug. 13, 2007). But FFR has not shown that Olympus Partners is a member of FFR's "corporate family." Olympus Partners is not in a typical parent-subsidiary or shareholder relationship with FFR. Instead, it provides "advisory services" to an entity that is in that sort of relationship-Olympus Growth Fund V., L.P., which is the majority shareholder of an entity that indirectly owns FFR.

         Ultimately, it was FFR's burden to show that disclosure to Olympus Partners did not waive its attorney-client privilege. Glenwood Halsted LLC v. Vill. of Glenwood, No. 11-CV-6772, 2013 WL 140794, at *2 (N.D. Ill. Jan. 11, 2013) (the party asserting the privilege bears the burden of establishing "that the document was not disclosed to non-privileged recipients"); Square D Co. v. E.I. Elecs., Inc., 264 F.R.D. 385, 390 (N.D. Ill. 2009) ("The party asserting the privilege bears the burden of showing that the privilege .. . has not been waived"). FFR could have attempted to do so by spelling out its relationship with Olympus Partners-one where Olympus Partners provides advisory services to an entity that indirectly owns a majority of FFR-and then arguing that case law supports extending the attorney-client privilege to communications between entities in identical or similar set-ups. Instead, FFR chose to merely rely on RTC's assertions about the "Olympus" relationship with FFR and case law that addresses, in general terms, the attorney-client privilege in the context of corporate relationships. In these circumstances, and given that the attorney-client privilege must be construed narrowly, Evans, 113 F.3d at 1461, FFR did not meet its burden. FFR must therefore produce any withheld documents or information that was disclosed to or by employees of Olympus Partners who are not also board members or officers of FFR.

         B.

         The second issue raised by RTC concerns documents that FFR "clawed back."[10] On February 22, 2019, FFR clawed back 24 documents (hereafter the "clawback documents") that it claimed "contain or reflect privileged communications and/or attorney work product" and were inadvertently produced (Pl.'s Mot. at 2-3; doc. # 227-1 at 129). FFR reproduced the clawback documents with redactions obscuring the portions that were purportedly privileged; however, it gave the documents Bates numbers that differed from their original Bates numbers and identified the redacted clawback documents on its first amended privilege log by these new Bates numbers (see Def.'s Rule 37.2 Resp. at 7-8). Moreover, FFR did not indicate in its first amended privilege log which entries corresponded to the redacted and reproduced clawback documents (Def.'s 1st Am. Priv. Log at 50, 62, 64-67). On May 30, 2019, RTC asked FFR for this information (doc. # 227-1 at 90) and after FFR failed to provide it, RTC raised the issue again in its July 17, 2019 Rule 37.2 letter (Pl.'s Rule 37.2 Ltr. at 6). In its Rule 37.2 response, FFR included a table identifying the original Bates numbers of the clawback documents, the corresponding Bates numbers for the reproduced versions of the clawback documents, and the corresponding privilege log entries (Def.'s Rule 37.2 Resp. at 7-8).

         FFR's table resolves this aspect of RTC's Rule 37.2 letter-RTC can use the table to identify the clawback documents on FFR's privilege log and assess FFR's asserted basis of privilege for each document.[11] Going forward, however, if either party claws back a document and then withholds it or reproduces a redacted version of it with new Bates numbers, the party must identify the clawed-back document as such in its representative privilege log entry. Even though the production or disclosure of a privileged document does not waive any applicable privilege, given the existence of an order in this case pursuant to Federal Rule of Evidence 502(d), the mere fact that a party claws back a document does not mean that the document is, in fact, privileged (see doc. #201: Modified Protective Order, at ¶ 5). Indeed, the receiving party is permitted to challenge the producing party's privilege assertion over clawed-back information (id., at ¶ 5(b)), and we can envision that in assessing whether such a challenge is warranted, the party would want to know which withheld or redacted documents were initially produced so that it can take a closer look at the privilege log descriptions for those documents.[12]

         C.

         Next, RTC asserts that FFR made several unexplained changes to more than 250 log entries when it served its amended privileged log (RTC calls these entries the "altered log entries") (Pl.'s Mot. at 3; Pl.'s Rule 37.2 Ltr. at 6-9 & Ex. D.7). These changes included: changing the individual identified in the From/Author field (which, in many instances, involved changing the author from a non-attorney to an attorney or law firm); replacing one author with several different alleged authors; and removing an individual from the log entirely, such that authors who appeared on FFR's original privilege log no longer appear on FFR's amended privilege log (Pl.'s Rule 37.2 Ltr. at 6-9). RTC contends that these changes are so fundamental that any presumption of privilege has been destroyed, and it seeks the production of the documents corresponding to these log entries (Id. at 6, 9; 8/7/19 Tr. at 97:14-101:2).

         FFR counters that it made the changes to its log entries in response to a request from RTC for additional information and supplementation (Def.'s Rule 37.2 Resp. at 9). FFR explained the changes to the log entries at issue as follows:

When initially preparing its log, FFR used the "Author" metadata-where available-to generate the "from/author" column. However, upon conducting its re-review at RTC's request, FFR determined that many documents are saved locally by custodians in a manner that updated the author data, or are templates (created by one author) that are then edited by an author different than the creator of the template. For example, if an FFR employee sent an E-Document to attorney Jay Moldovanyi and asked Mr. Moldovanyi to update the document and send it back, in some circumstances the document metadata would still list an FFR employee as the author, but the "author" for purposes of evaluating privilege, i.e., the attorney-revised document, is the author of the revised attachment, i.e., the attorney. Consistent with its February letter [in response to RTC's request], FFR reviewed and updated its log with this clarified author information and provided it to RTC less than two weeks later.

(Id.). FFR contends that a finding of waiver for the entries at issue, which would require the production of the corresponding documents, is inappropriate given "FFR's good-faith efforts to work with RTC to resolve issues without Court intervention" (Id. at 9-10).

         To start, we do not find that FFR has forfeited its claim of privilege over log entries merely by re-reviewing documents and amending its privilege log to fix what it says was incorrect information. In fact, this is what Federal Rule of Civil Procedure 26(e) requires. See Fed. R. Civ. P. 26(e)(1)(A). Notably, RTC did not cite any case law in either its Rule 37.2 letter or the parties' meet and confer that would support a finding of forfeiture in these circumstances (Pl.'s Rule 37.2 Ltr. at 6-9; 8/7/19 Tr. at 97:14-124:19). Based on our review of the sample documents submitted in camera on this issue, we also do not see anything indicating that FFR made its changes for a nefarious purpose. For instance, where FFR changed the author from a non-attorney to an attorney or a law firm (log entries 977 and 984), the corresponding documents show that the change was correct, and the documents themselves are protected by the attorney-client privilege, as discussed below.

         At the same time, the type and number of changes made by FFR concern us. FFR should have identified the correct authors from the get-go, as assessing the author(s) of a document is a fundamental step in determining whether that document is privileged. FFR's initial authorship errors also are not limited to a small subset of log entries. Rather, FFR mistakenly identified the authors for more than 250 log entries, which amounts to almost 20 percent of the entries on its privilege log. Moreover, although the accuracy of FFR's changes to log entries 977 and 984 gives us some faith that FFR's other authorship changes are likewise correct, many of the sample documents submitted on this issue do not clearly indicate their authors or the authors of the redacted information at issue, so we cannot be entirely sure that FFR's second attempt at identifying authorship for these documents was in fact more successful than its first.

         Nor does FFR's bare bones explanation for the changes in its Rule 37.2 response allay our concern. FFR does not explain how it determined that "the 'Author' metadata" it relied upon "[w]hen initially preparing its log" was incorrect or how it decided that certain authors identified by this metadata should be removed from its privilege log (Def.'s Rule 37.2 Resp. at 9). And although FFR says that "many documents are saved locally by custodians in a manner that updated the author data, or are templates (created by one author) that are then edited by an author different than the creator of the template," it does not identify which or how many log entries fall into either of these separate categories of documents (Id.). Similarly, FFR does not explain in what "circumstances the document metadata would still list an FFR employee as the author" or which or how many log entries were changed due to these circumstances (Id.).

         Given all this uncertainty, RTC is entitled to know exactly how FFR went about modifying the authors for the 250-plus altered log entries. Accordingly, we order FFR to supply RTC with a detailed written explanation of how, for each of the altered log entries, it concluded that the original author metadata was incorrect and how it determined the authors that are currently identified in FFR's privilege log. Moreover, we order FFR to identify the company and role of those individuals who were originally named as authors on the altered log entries but were then removed. FFR should have provided this information to RTC with its original log, and although FFR has now determined that those individuals did not author the documents at issue, its initial identification of them suggests that they may have had access to the withheld documents. If that is the case, and the individual is a third party, that may present an issue of waiver that RTC is entitled to explore.

         D.

         The last overarching issue addressed by RTC's motion pertains to FFR's removal of certain documents from its privilege log and its subsequent production of these documents (Pl.'s Mot. at 3-4). RTC has asked FFR to provide the Bates numbers corresponding to these previously withheld or redacted documents (Pl.'s Rule 37.2 Ltr. at 12; e.g., 8/13/19 Tr. (Part 1) at 159:3-14, 160:12-16). FFR has refused. FFR asserts that RTC already has the requested information because the produced documents have Bates numbers on them, and it further asserts that providing "[t]he Bates number of a document that used to be on a privilege log and is now not being maintained as privileged" is not an "appropriate use of [its] resources" (8/13/19 Tr. (Part 1) at 159:21-160:11, 160:17-18, 164:25-165:5).

         We disagree. FFR must already know which previously withheld or redacted documents pertain to which Bates numbers; otherwise, it could not represent that the documents were, in fact, produced. Indeed, FFR already provided the production volumes (e.g., FFR006, FFR010) where certain previously withheld or redacted documents are found (Def.'s Rule 37.2 Resp. at 15), which indicates that FFR knows exactly where the documents at issue can be found in its production. Moreover, providing information to help RTC identify documents that ...


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