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Where’s the Fire? Attorneys Consider Issues of Relevance, Scope, and Privilege in Discovery

by Joshua Gilliland


What makes discovery relevant to a case? How can a court determine a time period that is both relevant and proportional to the needs of a case? A lawsuit involving a fire at a manufacturing plant turned the heat up on these issues.

In Ball Corp. v. Air Tech of Michigan, the Defendant was hired as an independent contractor to clean the Plaintiff’s industrial bake oven. A fire occurred allegedly eight hours after the Defendant cleaned the oven in the ductwork. The Defendants were sued for breach of contract and negligence for the alleged failure to clean the oven properly.

The Defendants claimed the Plaintiffs had an inadequate discovery production, improper objections, and a deficient privilege log. Magistrate Judge Andrew Rodovich reviewed each challenge in turn.

Determining the Scope for a Supplemental Production

The Defendants sought discovery for the service and maintenance activity on the oven for the ten years prior to the fire. The Plaintiffs objected to the ten-year time period and produced discovery covering only one year. The Defendants argued that the ten-year time period was relevant to establish a pattern of neglect that may have caused or contributed to the fire. According to deposition testimony by one of the Plaintiffs’ employees, the oven was cleaned once every six months and ductwork once a year. The operating manual stated the oven and ductwork should have been cleaned monthly.

The Court held that the Defendants’ request for discovery for ten years was relevant to the claims of the case. Moreover, any burden was outweighed by the value the information could provide under the proportionality analysis of Rule 26(b)(2), as the Plaintiffs had alleged $12 million in losses for the fire.

Privilege Log

The Defendants challenged the privilege log as having cryptic descriptions and the requesting party could not assess the Plaintiffs’ privilege claim.

Pursuant to Federal Rule of Civil Procedure 26(b)(5)(A), a privilege log for withheld discovery must 1) expressly make the privilege claim; and 2) 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.

The Court held that the Plaintiffs’ Privilege Log contained general descriptions that were deficient under the Rules. The Plaintiff was ordered to supplement their privilege log to comply with 26(b)(5)(A)(ii) that included the following information:

  1. Name and job title or capacity of the author(s)/originator(s);

  2. Names of all person(s) who received the document or a copy of it and their affiliation (if any) with the producing party;

  3. General description of the document by type (e.g., letter, memorandum, report);

  4. Date of the document; and

  5. General description of the subject matter of the document.

The requirements stated for the new privilege log could all be created in Everlaw. Below are strategies for review in similar cases and creating a privilege log.

Reviewing Ten Years of Documents

Collecting ten years of email and related documents can pose challenges, because data might have been destroyed pursuant to a document retention policy. If the data does still exist going back a decade, it likely is in different forms of email, as companies update their email systems over time.

In the above case, the discovery at issue was the claim the oven was cleaned once every six months and ductwork once a year. A possible search strategy is to define the date range of the search (starting in 2007 or 2008 to the date of the fire). If there is a maintenance form that documents when the oven and ductwork were cleaned, there could be a search for that specific type of record. Depending on how the company does business, it is possible maintenance forms could be electronic, such as an Excel spreadsheet where work is logged, or a printed checklist with handwritten notes. If handwritten, those documents would need to be scanned in for review. The printed text can be made searchable, depending on the quality of the scan; however, handwritten notes would need to be read manually.

Searching ten years of email can have multiple custodians over that period of time. One strategy is to start with the defined date range with content searches for “oven” or “ductwork” within 10 to 20 words from “clean.” The term “oven” alone could have false-positive hits, given the nature of the Plaintiff’s business, so proximity searches are advisable. There could be other terms as well that could be developed after conducting interviews with custodians on terms of art used to describe cleaning the oven and ductwork.

Preparing a Privilege Log in Compliance with the Federal Rules of Civil Procedure

The producing party had specific requirements to meet from the Court order for their privilege log to comply with the Federal Rules of Civil Procedure. Half of the ordered information could be meet with the metadata of the records. The other fields would need to be user editable fields customized to meet the Court order.

Court Ordered Privilege Log Requirements

Metadata Fields

User Editable Fields

Name and job title or capacity of the author(s)/originator(s);

The “Name” of the author or originator of a document or email can be identified in the Author and From metadata fields.

The job title and capacity of the individuals can be identified in a custom user field named “Job Title.”

Names of all person(s) who received the document or a copy of it and their affiliation (if any) with the producing party;

The persons who received emails with documents could be identified from the “To”, “CC”, or “BCC” metadata fields.  

Company affiliation could be stated in a custom field.

General description of the document by type (e.g., letter, memorandum, report);

Likely will need to create a custom field named “Document Type” to identify if the document is a letter, memo, or report.

Date of the document

Can be determined from the Creation Date or Sent Date from the metadata.

General description of the subject matter of the document.

A custom field can be created for attorneys to describe the claimed privilege of the document.

Have a Discovery Checklist

Cases like Ball Corp. v. Air Tech of Michigan have discovery obligations seen in almost every lawsuit:

  • What is the scope of discovery?

  • What needs to be searched to respond to discovery?

  • What are the privileges at issue?

One way to avoid any missteps in discovery is to have a defined checklist for attorneys to think about these issues at the beginning of a case. If a party knows the relevant privileges in case, document review strategies can be tailored to find privileged communications or documents. If editable user fields need to be customized to comply with the requirements of a court order, those fields can be created at the beginning of document review, so reviewing attorneys can provide the necessary information for the privilege log.