The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
This action was referred to the undersigned by Hon. William M. Skretny on December 5, 2007 for determination of non-dispositive motions. The matter is presently before the court on Defendants' and Third-Party Plaintiffs' J.M. Huber Corporation and H. Milton Hoff's motion to compel and for sanctions filed October 6, 2010 (Doc. No. 304) ("Defendants' motion").
Defendants' motion was filed October 6, 2010, along with the Declaration of Paul R. Marino attaching exhibits A - M ("Marino Declaration") ("Marino Declaration Exh(s) ___") (Doc. No. 304) and Defendants' Memorandum in Support of Motion to Compel Discovery and for Sanctions (Doc. No. 304-1) ("Defendants' Memorandum"). On October 25, 2010, Robbins & Myers, Inc., and Third-Party Defendant Robbins & Myers Energy Systems, Inc. ("R&M" or "Plaintiff"), filed Plaintiff's Opposition of R&M to Defendants' October 6, 2010 Motion to Compel Discovery and For Sanctions (Doc. No. 311) ("Plaintiff's Opposition") and attaching Exhibit 1-21 ("Plaintiff's Exh(s) ___"). Defendants' Reply Memorandum in Support of Defendants' Motion was filed November 5, 2010 (Doc. No. 316) ("Defendants' Reply Memorandum"). Oral argument was conducted November 15, 2010 (Doc. No. 318). At the court's request at oral argument, Plaintiff, on November 22, 2010, delivered to the court for in camera review, Plaintiff's Privilege Log, dated September 29, 2010, together with copies of 32 documents plus attachments as to which Plaintiff asserts an attorney-client privilege in opposition to Defendants' motion (Doc. No. 324) ("Plaintiff's Privilege Log" or "the Privilege Log"). At the same time, Plaintiff also filed Plaintiff's Supplemental Memorandum in Further Opposition to Defendants' Motion (Doc. No. 321) ("Plaintiff's Supplemental Memorandum"). On the same date, Defendants filed Defendants' Memorandum in Further Support of Defendants' Motion ("Defendants' Supplemental Memorandum") (Doc. No. 320). A transcript of the hearing was filed December 7, 2010 (Doc. No. 323) ("Hearing Tr. at ___"). Further oral argument was deemed unnecessary.
Plaintiff, Robbins & Myers, Inc. ("R&M"), commenced this action on March 22, 2001, seeking to recover monetary damages, obtain a declaratory judgment and recission based on Defendants' alleged fraud in connection with Plaintiff's 1997 purchase of Flow Central Equipment, Inc. ("FCE"), a wholly-owed subsidiary of Defendant J.M. Huber Corporation ("Huber"), of which Defendant H. Milton Hoff ("Hoff") was president (together, "Defendants"). Following its purchase, R&M changed FCE's name to Robbins and Myers Energy Systems, Inc. ("R&MES"). On October 26, 2001, Defendants commenced a third-party action against R&MES, Plaintiff's legal counsel Thompson Hine, and Berkeley Forge and Tool, Inc. ("Berkeley Forge") (together, "Third Party Defendants").*fn2
Prior to Plaintiff's purchase of FCE in 1997, Plaintiff manufactured devices known as closures, or caps, for use in the oil and natural gas transmission industry.
Essentially, closures are metal mechanical devices that are attached to pipe systems that allow the flow or transmission of oil and natural gas in pipe systems under pressure. The closures, or caps, facilitate the maintenance and operation of these oil and gas transmission systems. The relevant closures in this case are designed to operate with both low and high pressure pipes which are either four or six inches in size. It is undisputed that during the 1993-1996 period, Berkeley Forge provided steel forgings ("the Berkeley forgings") for Defendants' use in producing approximately 9,000 closures manufactured and sold by J.M. Huber to its customers and distributors.*fn3
Subsequently, in February 1996, Defendants discovered that the Berkeley forgings failed to meet certain quality (ANSI) standards and ceased selling the closures produced from the forgings. Amended Complaint ¶ 10 (Doc. No. 95). When the relevant closures were fabricated from the Berkeley forgings, FCE was a division of Huber, Amended Complaint ¶ 11; however, after discovering that the Berkeley forgings did not meet the ANSI standards required by Huber, FCE was spun off from Huber as a wholly-owned subsidiary, including its assets and liabilities. Id. ¶ ¶ 10-11, 15. Thereafter, Plaintiff and Huber negotiated for a sale of FCE to Plaintiff that was completed in 1997. Id. ¶ 35.
Plaintiff generally alleges that Defendants defrauded Plaintiff by failing to sufficiently inform Plaintiff prior to Plaintiff's acquisition of FCE of the extent of the metallurgical defects in problems with the Berkeley forgings and the consequently manufactured closures by Huber ("the closures" or "affected closures") such that Plaintiff, following its acquisition of FCE, became liable for any potential for harm or actual harm to persons, property, or the environment in the event that any of the affected closures purchased by Defendants' customers, prior to Plaintiff's acquisition of FCE, used on their respective oil and gas supply pipelines, should fail as a result of the deviations in the metallurgical properties of the forgings and the closures which were manufactured by Defendants from such forgings. Following Plaintiff's discovery of this problem with the closures (which the parties refer to as the "Off-Specification Closures"), Plaintiff attempted, in 2000, to recall 429 of the 4-inch high-pressure Off-Specification Closures, Defendants' Memorandum at 2 (citing Marino Declaration Exhs. C at 246; D at 126).
As a result of Defendants' motion for sanctions based on Plaintiff's violation of the court's prior order granting Defendants' motion to compel (Doc. No. 217), requesting the court reopen fact discovery, the court permitted a limited additional period of pretrial discovery to conclude 60 days following production of the documents at issue by Plaintiff (December 1, 2009, Doc. No. 257). Thereafter, on June 24, 2010 (Doc. No. 292), the court further extended discovery for an additional 90 days. Defendants, accordingly, on August 9, 2010, sought a further deposition of Plaintiff's representative pursuant to Fed.R.Civ.P. 30(b)(6) ("the Rule 30(b)(6) deposition) to supplement prior deposition testimony "based on recent occurrences or developments," and to provide information related to documents recently produced in compliance with prior orders of the court in connection with various discovery disputes resolved by the court. Marino Declaration Exh. A (referencing documents produced by Plaintiff in compliance with Orders dated December 17, 2008, March 31, 2009 and January 7, 2010, Doc. Nos. 226, 233 and 266).
At the 30(b)(6) deposition conducted September 16, 2010, Joseph Rigot, Esq. ("Rigot"),*fn4 Plaintiff's designated witness, testified (Marino Declaration, Exh. E) (passim) about Plaintiff's decision to issue a so-called Public Service Announcement ("PSA") (Marino Declaration Exh. B). In response to Defendants' questions, Rigot revealed that the subject of the need to inform Plaintiff's customers concerning the potential for performance problems or failures of the Off-Specification Closures, arising from the deficient quality of the Berkeley forgings, was discussed at a two-hour meeting conducted on February 10, 2010 at the office of Mr. Saeid Rahimian, Plaintiff's Chief Executive ("Rahimian"), initiated by Rahimian, at Plaintiff's Dayton, Ohio corporate offices. Marino Declaration Exh. G at 19-20. , who testified without any objection based on attorney-client privilege asserted by Plaintiff's attorney, Leslie W. Jacobs, Esq., who defended Rigot's deposition ("Jacobs"), the meeting's participants included Rahimian, Rigot, Lawrence Angelo ("Angelo"), an R&M lean vice-president, Kevin Brown ("Brown"), Plaintiff's Controller and Principal Accounting Officer, Linn Harson ("Harson"), Plaintiff's general counsel, and Jacobs, who is Plaintiff's principal attorney in this matter. Id. at 20, 25. Chris Hicks, Plaintiff's Chief Financial Officer, may also have attended "parts" of the meeting. Id. at 20.
According to Rigot, who also has been described as Plaintiff's general counsel, the meeting was called by Rahimian to discuss Rahimian's concern, as expressed to the participants, that because the affected closures that had not been previously recalled by Plaintiff and had now been in service for a "longer" period of time, the closures "could present a higher level of risk than . . . when . . . first installed." Marino Declaration, Exh. G at 19-20. Rigot further stated that the participants at the meeting concluded that because of the "amount of time that has passed" in conducting the instant litigation to establish Defendants' liability for any damage caused by the defective closures and the fact that Defendants have failed to take any action with regard to the Off-Specification Closures, Plaintiff should notify its customers about possible failure of all of the Off-Specification Closures. Id. at 22. Rigot also stated that "various persons made comments about the situation," id. at 25, i.e., the need for Plaintiff to inform its customers regarding Plaintiff's opinion of the potential increased risk of failure of the affected closures. Id. Rigot recalled that Angelo reported that since Plaintiff's 2000 recall of certain high-pressure closures, no "occurrences or accidents" involving the Off-Specification Closures remaining installed in customer pipe systems had been reported to Plaintiff. Id. at 27. Rigot agreed that the decision to issue the PSA was based on business considerations and not upon recent independent expert engineering opinions regarding increased risks associated with the closures. Id. at 28-29. Rigot could not recall that he, Harson, or Jacobs provided any legal advice during the meeting. Id. at 34. Rigot also stated that the initial draft of the PSA was prepared by Angelo and was circulated to the participants at the meeting for comment. Marino Declaration Exh. E at 71. Asked whether the participants reached any conclusions as a result of their discussion of Rahimian's concerns about the closures and the need to give notice to users, Rigot answered that the conclusion was that it would be appropriate, given the amount of time that has passed, and to the extent that apparently Huber has continued to do nothing about the closure products that they sold, that Robbins & Myers should make a substantial effort to put our customers on notice with respect to the unspecified closures [sic] that were sold.
Marino Declaration Exh. G at 22.
Rigot recalled that all participants concurred in this conclusion, id. at 22-23, and the question whether the discussed closures had then become "dangerous," id., at 23, was not discussed; as such, Rigot explained that Rahimian thought Plaintiff "should do something" to give "notice to customers with respect to closures [sic]," id. at 25, because of the then "possibility that there could be a failure as time passed." Id. at 23. Rigot further stated that he, along with Harson and Jacobs, as legal counsel to Plaintiff, participated in the meeting at which the proposed PSA was discussed and that counsel commented on the various drafts of the final PSA. Marino Declaration Exh. E at 79. The documents submitted with the Privilege Log include an outline of issues for possible discussion at the meeting prepared by Jacobs (Privilege Log Doc. No. 1) ("Jacobs Outline"), Angelo's handwritten notes of the meeting's discussions (Privilege Log Doc. No. 2) ("Angelo's notes"), and counsels' email comments and drafts of the PSA and indicate such comments and drafts were also communicated to Michael Chiles ("Chiles"), M. Day ("Day"), Rodney Hobbs ("Hobbs"), Michelle Kristoff ("Kristoff"), Ashley Lusk ("Lusk") and Gene Sparkman, an R&MES vice president of closure sales ("Sparkman"). Privilege Log Doc. Nos. 3-7, 9, 20, 21, 24, 26, 28, 29, 31.
According to Rigot, Plaintiff believed that lower pressure, 300 lbs. per sq. inch, Off-Specification closures, presented a lesser risk of failure than higher pressure Off-Specification Closures, and so were not subject to any earlier recall program by Plaintiff. Marino Declaration Exh. E at 95. Based on Rigot's earlier deposition of February 24, 2004 and May 1, 2008, Defendants state that Plaintiff previously attempted to recall only 429 Off-Specification Closures and had determined that the other Off-Specification Closures (6 inch diameter, 900-pound per sq. inch closures) not subject to the Plaintiff's 2000 recall were safe. Marino Declaration Exhs. C at 233, D at 138. In 2008, Rigot testified that Plaintiff was at that time not engaged in "actively recalling" any of the nearly 9,000 Off-Specification Closures then remaining installed in customer's facilities, Marino Declaration Exh. D at 122, but also asserted that it was Plaintiff's position that the longer a particular Off-Specification Closure remained installed "it probably has a greater propensity to fail." Id. at 122. Nevertheless, in 2000, Plaintiff, through its Canadian subsidiary located in Alberta, Canada, advised a provincial safety agency that lower pressure Off-Specification Closures manufactured by Defendants prior to the sale and purchase of FCE "pose no threat to safety," but that higher pressure closures "may be subject to failure." Defendants' Reply Memorandum Exh. A. Yet, alluding to all 9,000 remaining Off-Specification Closures, Plaintiff's PSA states unequivocally that such low pressure closures "have a potential safety issue requiring user attention," Marino Declaration, Exh. B at 1, and that because the closures were manufactured with "non-conforming steel" they "may be susceptible to failures which could result in serious safety and/or environmental hazards." Id. The PSA also directed the recipient's attention to the fact that the subject Off-Specification Closures were manufactured by Defendants prior to Plaintiff's purchase of FCE, and that Defendants "should accept responsibility for these manufacturing defects and recall the closures," but that Defendants "had taken no action to notify its customers of its use of non-conforming material or the risk posed by these Huber products." Id. at 2 (underlining added).*fn5
The PSA described how a user may accurately identify the Off-Specification Closures it may have currently installed in its pipe systems, recommended that inspections be conducted to detect potential failures in the closures, offered to provide guidance on such recommended actions through a customer assistance telephone number provided by Plaintiff, and, where necessary, to replace, without charge, any Off-Specification Closures with indicia of abnormal physical failure or degrading. Id. at 2. The PSA assigned to Defendants responsibility for Plaintiff's need to give notice to users of the Off-Specification Closures together with the primary obligation to replace the Off-Specification Closures informing the recipient of Defendants' failure to take remedial action and Plaintiff's decision to do so by issuing the PSA in lieu of any similar corrective action by Defendants. Id.
At Rigot's September 15, 2010 deposition, Rigot informed Defendants that the PSA had been sent to customers and users to whom Defendants had shipped Off-Specification Closures and that Plaintiff had also published the PSA in the Pipeline & Gas Journal, Marino Declaration Exh. E at 32, a national and highly regarded trade journal Plaintiff considered to be"the gold standard" of pipeline company "journals". Id. at 16.
In response to Defendants' question as to Plaintiff's prior communications with customers regarding potential risks arising from continued use of the closures, Rigot further testified, without objection, that Plaintiff had for several years conducted so-called "lunch and learn seminars" with its customers "about the closure situation." Marino Declaration Exh. G at 30; Marino Declaration Exh. E at 32-33 ("lunch and learn 'sessions'"). While Rigot "believed" "the subject" of the PSA was discussed at such "lunch and learn 'sessions'," he was unable to state if any documents may have been distributed at these meetings or whether Plaintiff had records indicating where, when and with whom such sessions were conducted or the specific topics discussed by Plaintiff with the customer. Marino Declaration Exh. E at 32-33. Based on information he received from Sparkman, Rigot stated that the "lunch and learn seminars" included informing customers that the non-conforming closures "are more susceptible to failure." Marino Declaration Exh. E at 87-89.
When asked by Defendants why the PSA directed a reader's attention to Defendants' alleged failure to notify customers about the closures, Rigot was unable to answer. Marino Declaration Exh. E at 107 ("I don't know specifically the point [reason]").*fn6 However, Rigot was certain that modifications to the drafts of the PSA incorporated changes recommended by Plaintiff's attorneys. Id. at 107-08. Rigot was also able to summarize the five customer telephone call responses Plaintiff received in response to the PSA. Id. at 108.
According to Plaintiff, no documents related to the "lunch and learn seminars" or sessions have been located. Marino Declaration Exh. I, Letter to David S. Sager, Esq. from Matthew E. Liebson, Esq., dated October 1, 2010, ¶ 2. Plaintiff also contends that Plaintiff requested and received legal advice during the course of drafting the PSA. Id. Plaintiff argues that Rigot's testimony regarding the "business" decision to notify customers about the closure issue did not waive Plaintiff's attorney-client privilege as to communications during the drafting of the PSA which involved Plaintiff's business executives and corporate attorneys. Plaintiff's Opposition at 8-10. Plaintiff further contends that contrary to Defendants' assertion, the subject of "lunch and learn" sessions was described by Plaintiff in a 2003 deposition of Mr. Stephen L. Witte, Sr. ("Witte") (not further identified) and therefore additional discovery on this subject, as Defendants request, Defendants' Memorandum at 10; Defendants' Reply Memorandum at 4, 8; Defendants' Supplemental Memorandum at 9, is unnecessary. Plaintiff's Opposition at 3 (referencing Plaintiff's Exh. 3 at 213).
In a post-argument submission to the court, Sparkman averred that the "safety guidelines for use of closures as well as maintenance and inspection procedures" were the subject of "'lunch and learn'" sessions conducted by R&MES, Plaintiff's subsidiary, before and after the PSA was published by Plaintiff. Affidavit of Gene Sparkman (Doc. No. 321-1), attached to Plaintiff's Supplemental Memorandum (Doc. No. 321) ("Sparkman Affidavit") ¶¶ 3-4. Sparkman also stated that "[n]o documents relating specifically to Off-Specification Closures have been created or used at 'lunch and learn' sessions for closures or other products." Id. ¶ 7.
Defendants advance several grounds to support Defendants' request for disclosure of the documents referenced in Plaintiff's Privilege Log and for sanctions, including additional discovery related to the PSA, the costs of conducting such discovery and for attorneys fees incurred by Defendants in connection with Defendants' motion. At the outset, Defendants argue that Plaintiff has failed to supplement, as required by Fed.R.Civ.P. 26(e)(1)(A) ("Rule 26(e)"), its responses served in response to Defendants' Third Document Request, dated March 7, 2008 (Marino Declaration Exh. H). Specifically, Defendants contend that Plaintiff was obligated to supplement its responses to Defendants' Requests Nos. 13 and 14 which requested, respectively, documents pertinent to Plaintiff's investigation and recall of Off-Specification Closures (Request No. 13) and Plaintiff's communication with shareholders and customers "concerning the safety of Off-Specification Closures" (Request No. 14) ("Defendants' Requests"). Id. Defendants contend that Plaintiff failed to comply with Rule 26(e) in not providing information regarding preparation and publication of the PSA, Plaintiff's follow-up telephonic communications with recipients of the PSA, and "lunch and learn seminars" regarding Plaintiff's supposed safety concerns about the closures that occurred following publication of the PSA on March 1, 2010 and prior to Rigot's September 15-16, 2010 deposition. Defendants' Memorandum at 5; Defendants' Reply at 2-5. Although Plaintiff produced, following the Rigot deposition, on September 29, 2010, its Yale Closure Recall Questions and Responses, Marino Declaration Exh. M ("Q&R"), to guide Plaintiff's representatives in answering customers' questions in response to the PSA, Defendants maintain such production failed to address the data on which the Q&R was based, to whom it was distributed or how it was used by Plaintiff. Defendants' Memorandum at 6; Defendants' Reply at 4, (¶ 3). Defendants also contend that Rigot's testimony regarding the so-called "lunch and learn seminars" as they relate to the Off-Specification Closures is misleading in that Rigot had failed to state in his prior depositions that Plaintiff had utilized such customer contacts as a means to specifically address Plaintiff's belief that the 9,000 Off-Specification Closures, not recalled by Plaintiff in 2000, remained a serious risk to safety despite Plaintiff's public pronouncement to a Canadian provincial agency to the contrary. Id. at 5. As Defendants are highly skeptical that Plaintiff has produced all documents within the scope of the duty to supplement under Rule 26(e) regarding these matters, Defendants' Memorandum at 6, Defendants request further discovery related to the substantive basis of Plaintiff's opinion regarding the risk of failure of the affected closures at this time, as well as to Rigot's credibility. Id.
Second, Defendants argue that Plaintiff has waived any potential attorney-client privilege in the 31 documents enumerated in the Privilege Log along with the attachments which have been submitted to the court for in camera review because none was timely asserted as privileged during the course of Rigot's deposition testimony and that Plaintiff, through Rigot's testimony regarding the meeting and the substance of the discussions, has effected a subject matter-waiver of the privilege applicable to all of Plaintiff's withheld documents relating to the subject of the meeting, specifically the need for and the preparation of the PSA. Defendants' Reply at 6-9. Defendants also contend that the failure to provide a timely privilege log, as required by Fed.R.Civ.P. 26(b)(5)(A), prior to Rigot's disclosure, also waived any potential privilege, id. at 10, and as Plaintiff's service of such log on September 29, 2010 was untimely, such failure constituted a waiver of any attorney-client privilege that might apply to the withheld documents. Defendants' Memorandum at 8.*fn7
Third, Defendants contend that Rigot's deposition testimony was "incomplete" in several respects, relevant to the issues in this case, as regards the particulars of the discussion during Plaintiff's February 10, 2010 meeting ("the February 10, 2010 meeting," or "the meeting")*fn8 at which the subject of the PSA, its content, and the manner of its publication were discussed and approved. Defendants' Reply at 8; Defendants' Memorandum at 10-11. Specifically, Defendants cite, as relevant to Plaintiff's materiality and damage claims, and its request for declaratory relief, Rigot's inability to provide specific information as to "lunch and learn" sessions with Plaintiff's distributors and customers regarding the affected closures, Defendants' Memorandum at 10; Defendants' Supplemental Memorandum at 4-5, Plaintiff's communication, if any, with its insurance carrier regarding its decision to issue the PSA, responses received from Plaintiff's customers and users of the Off-Specification closures, and how Plaintiff determined the recipients of the PSA. Id. Defendants' Memorandum at 10-11; Defendants' Reply at 8-9; Defendants' Supplemental Memorandum at 4-5. Defendants therefore requested the court permit additional discovery to include further depositions of a representative of Plaintiff with knowledge of these matters, particularly Ms. Lisa Lee ("Lee") who was responsible for handling Plaintiff's customer hot-line to respond to customer questions regarding the PSA and Q&R, Plaintiff's Opposition at 11-12; Defendants' Memorandum at 11, and Sparkman as to relevant details regarding Plaintiff's conduct of the "lunch and learn seminars" as utilized by Plaintiff to communicate the risks Plaintiff associates with the Off-Specification Closures with Plaintiff's customers and others. Defendants' Reply at 9.
Finally, Defendants request that the court impose sanctions on Plaintiff based on Plaintiff's violations of Plaintiff's duty to supplement the responses to Defendants' Requests, including striking the Amended Complaint or awarding Defendants the expenses of Defendants' motion and the conduct of the further depositions requested by Defendants. Defendants' Reply at 9-10.
In opposition, Plaintiff makes several arguments. First, Plaintiff contends that its decision to issue, in 2010, the PSA does not constitute prejudicial surprise to Defendants as Plaintiff has throughout this litigation alleged that all the Off-Specification Closures, including the low-pressure closures not previously subject to formal recall by Plaintiff, manufactured by Defendants prior to the 1997 FCE sale to Plaintiff, created safety risks which would increase over time, and that Plaintiff's decision to issue the PSA was consistent with Plaintiff's stated position. Plaintiff's Opposition at 1. Second, Plaintiff asserts the existence of Plaintiff's use of "lunch and learn seminars" to communicate safety information, as described by Rigot and the Sparkman Affidavit, was first revealed in Witte's 2003 deposition and therefore provides no basis to find these facts were subject to a duty to supplement pursuant to Rule 26(e) warranting further depositions on this subject. Id. at 3. Third, Plaintiff argues that, in any event, Rule 26(e) imposes no duty to supplement for documents such as the PSA and related drafting documents, created after a party's response, id. at 5-6, because the duty applies only to subsequently discovered documents existing at the time responses were served that render the party's prior disclosure or response materially incomplete or incorrect when made. Id. at 6. Moreover, according to Plaintiff, no supplemental production need be directed as Plaintiff has produced the PSA, and has also produced, or asserted as privileged, documents related to the drafting of the PSA, Plaintiff's mailing list for the PSA, logs of Plaintiff's telephone hot-line customer responses to the PSA and related materials, i.e., the Q&R, and invoices for production of the PSA as evidence relevant to Plaintiff's claims for damages, thereby rendering Defendants' motion moot. Id. at 5, 8.
Plaintiff also maintained at oral argument that because the February 10, 2010 meeting was for business, not legal purposes, i.e., to obtain legal advice or services, Rigot's testimony at the Rule 30(b)(6) deposition regarding the purpose and general discussions of the purpose and results of the meeting does not create a subject-matter waiver of what Plaintiff asserts as otherwise privileged communications between Plaintiff and its attorneys who provided a memorandum to guide discussions at the meeting and comments via email messages on the series of drafts of the PSA initially prepared by Angelo, starting February 16, 2010, six days after the meeting, culminating in a final version published by Plaintiff on March 1, 2010 Plaintiff's Opposition at 9-10; Plaintiff's Supplemental Memorandum at ("Plaintiff's "decision . . . whether or not to issue a public safety announcement was not itself privileged," "the mere presence of counsel in a meeting or counsel's participation in a communication does not render that communication or meeting 'privileged.'") Id. at 4. Because Rigot gave no testimony as to the process of drafting the final version of the PSA or the preliminary memorandum prepared by Jacobs, Plaintiff maintains no subject-matter waiver occurred as to these subsequent drafts and related comments by Plaintiff's executives and attorneys, including Jacobs. Id. at 10 (citing caselaw); Plaintiff's Supplemental Memorandum at 4-5. Plaintiff also argues because of Plaintiff's recent document production following Rigot's deposition Defendants have failed to justify their request for a further Rule 30(b)(6) deposition of Plaintiff, as well as depositions of Lee as to the Q&R information and its use by Plaintiff, and Sparkman, regarding Plaintiff's use of "lunch and learn seminars" on the safety of the Off-Specification Closures. Id. at 12.
A. Plaintiff's Duty fo Supplement.
Defendants' motion is based on Defendants' Third Request for Documents dated March 7, 2008, specifically, Requests Nos. 13 and 14. Marino Declaration Exh. H at 7. As relevant, Request No. 13 directed Plaintiff provide [a]ll documents created, distributed or sent by Plaintiff since January 1, 2004 "reflecting, referring, or relating to R&M's investigation, recall, or decision not to investigate or recall Off-Specification Closures." Request No. 14 sought from Plaintiff all documents "reflecting, referring, or relating to communications to . . . customers of R&M concerning the safety of Off-Specification Closures, Off-Specification 6" Closures, Off-Specification 4" Closures, Closures, or Closure Products." Id. Although the parties have not provided copies of Plaintiff's responses to the Defendants' Document Requests, in its opposition to Defendants' motion Plaintiff argues whether Defendants' contention that pursuant to Rule 26(e) Plaintiff was under a duty to supplement Plaintiff's responses is correct, the issue is moot because Plaintiff "has produced all documents responsive to [Defendants'] new requests." Plaintiff's Opposition at 5 (underlining in original). While some documents relating to the PSA created by Plaintiff after Plaintiff served its responses to Defendants' Requests have been recently provided to Defendants, that they were not provided "in a timely manner," Fed.R.Civ.P. 26(e)(1)(A), after they were created during February 2010 by Plaintiff and following publication of the PSA on March 1, 2010, is not disputed by Plaintiff. Moreover, as the "lunch and learn seminars" had, according to Rigot's deposition, taken place on a regular basis prior to 2008 and following issuance of the PSA, and requested related documents responsive to Defendants' Requests were not produced at that time, the question of whether Plaintiff was under a duty to supplement prior to Defendants' motion, and the resulting need for additional discovery and sanctions, attributable to Plaintiff's failure to supplement timely, is not moot. However, as according to Sparkman, no responsive documents for use by Plaintiff at the "lunch and learn seminars" were "created or used" by Plaintiff "for closures . . .," Sparkman Affidavit ¶ 7, the court need not address Defendants' motion as it pertains to documents created in connection with such "lunch and learn seminars." Plaintiff does not contest Defendants' motion seeks information relevant to the claims or defenses in this case; rather, Plaintiff contends Defendants seek information not relevant to "prior discovery requests," because of the information provided by Rigot in his September 2010 deposition. Plaintiff's Opposition at 7. However, this contention ignores the question whether Plaintiff had a duty to supplement with information responsive to Defendants' Requests.
Thus, if Plaintiff was required to supplement timely Plaintiff's responses to Defendants' Requests following creation by Plaintiff of the documents at issue in connection with the discussions at the February 10, 2010 meeting, the subsequent preparation and dissemination of the PSA on March 1, 2010, customers or user responses to the PSA, and communications on the subject of the PSA during subsequent "lunch and learn seminars" conducted by Plaintiff, prior to the September 2010 Rigot Deposition, the issues raised by Defendants' motion are not rendered moot by Plaintiff's later production as a failure to comply timely with Rule 26(e) may subject a party to sanctions pursuant to Fed.R.Civ.P. 37(c)(1) including the need to reopen discovery and assess the related expenses upon Plaintiff as Defendants request. "A party's failure to supplement an earlier discovery response is sanctionable under Rule 37(c)." Patrick E. Higginbotham, 6-26 MOORE'S FEDERAL PRACTICE - CIVIL § 26.132.
(2010 Matthew Bender & Company, Inc.) (citing caselaw). The court therefore turns to whether Plaintiff was required to supplement timely their responses to Defendants' Requests by providing the documents relating to Plaintiff's decision to issue the PSA including the drafting and publication of the PSA, pursuant to Fed.R.Civ.P. 26(e) and subsequent related communications with Plaintiff's customers and users regarding the PSA and the affected closures, although created after Plaintiff's responses in 2008.
Plaintiff primarily bases its argument that Rule 26(e)(1) is
inapplicable to documents created by a responding party on its
assertion that the 1970 Revisers' Notes to Rule 26(e) support
Plaintiff's limited construction of the rule. Specifically, Plaintiff
points out that the Revisers' Note to the 1970 Amendment of Rule 26(e)
states that "Subdivision (e) provides that a party is not under a
continuing burden [to supplement] except as expressly provided."
Plaintiff's Opposition at 5 (underlining added by
Plaintiff). According to Plaintiff, "[t]here was no subsequent change
in the pertinent provision before 2007." Id. Plaintiff also asserts
that the Revisers' Notes to the 2007 amendment to Rule 26(e) "reflect
a change of language to recognize 'the duty to supplement or correct
by providing information that was not originally provided although it
was available at the time of the initial disclosure or response,'"
thus indicating there is no duty to supplement as to later created
documents such as, in this case, the PSA and related documents, i.e.,
no duty regarding "a subsequent event". Id. at 5 -6.*fn9
Plaintiff therefore concludes that ". . . unless there is a
contrary local rule or court order, supplementation is required only
to correct a prior error or omission, not as a substitute for new
discovery on a subsequent event." Id. at 5-6. Plaintiff's analysis of
the scope of Rule 26(e)'s duty to supplement is incorrect.
In 1970, Rule 26(e) was added to the Federal Rules of Procedure based on the opinion of the Advisory Committee that requiring a responding party to supplement discovery responses based on "new information [which] renders substantially incomplete or inaccurate an answer [or response] which was complete and accurate when made," would place a "continuing burden" on the responding party, the difficulty of which would require attorneys to "canvass all new information" and "recheck" a party's prior discovery responses. Appendix to Fed. Rules Civ. Proc., Rule 26, 28 U.S.C. App., at 7782. As adopted in 1970, Rule 26(e) provided that a party who had provided discovery responses that were "complete when made," was "under no duty to supplement" the response "to include information, thereafter acquired," except as to the identity of witnesses, including experts and their expected testimony, or if the newly acquired information establishes that the prior response was "incorrect when made," or if the response was correct when made it is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment," id., or upon court order or agreement of the parties. Id. Thus, contrary to Plaintiff's assertion, the 1970 version of Rule 26(e) expressly required supplementation when an original response was "no longer true," the responding party became aware of that fact, and a failure to supplement would constitute "a knowing concealment." Id.
In 1993, Rule 26(e) was amended, as relevant, to provide that a party was under a duty to supplement its responses to a prior request for production to include "information thereafter acquired, if ordered by a court, or "seasonably" "if the party learns that the response is in some material respect incomplete or incorrect," and if the additional or corrective information has not otherwise been provided to the requesting party. Title 28, Appendix-Rules of Civil Procedure at 708. The Advisory Committee comment to the 1993 amendment stated that "[t]he obligation to supplement . . . applies whenever a party learns that its prior . . . responses are in some material respect incomplete or inaccurate." Id. at 722. The 2000 and 2006 Amendments to Rule 26 effected no change to Rule 26(e). Title 28, Appendix Rules of Civil Procedure at 716 (2000); 157 (2006).
Rule 26(e) was further amended in 2007 to effect stylistic, but not substantive changes. Reviser's Note ¶ 1 ("Those changes are intended to be stylistic only."). Thus, as amended and applicable to this case, the rule now provides that a party has a duty to supplement "in a timely manner" when a "party learns" that its prior response "is incomplete or incorrect" "in some material respect" and "the additional or corrective information has not otherwise been made known to the other parties," or "in writing," Fed.R.Civ.P. 26(e)(A), or by court order, Fed.R.Civ.P. 26(e)(B).
The Revisers' Notes to the 2007 Amendment observed that the requirement to supplement based on "information thereafter acquired" under the 1993 amendment to Rule 26(e) was an "apparent limit," one "not reflected in practice," as parties understood the duty to supplement included "information that was not originally provided although it was available at the time of the . . . response." Revisers' Note 2007 Amendment ¶ 6. Accordingly, the phrase "information thereafter acquired" was deleted as a desirable "stylistic" change in order "to reflect the actual meaning of the present rule." That meaning has been unambiguously declared as follows
The 2007 restyling amendment to Rule 26 recognizes the duty to supplement or correct a disclosure or response with information that is thereafter acquired, as well as information that was not originally provided even though it was available at the time of the prior disclosure. 6-26 MOORE'S FEDERAL PRACTICE -- CIVIL § 26.131 (3d ed. 2010). Information thereafter acquired by a party cannot exclude documents subsequently created by a party, as by creating the document the party most certainly has thereby "acquired" information which it reasonably should know, i.e., "learns," has rendered its prior response materially inaccurate or incomplete.
Thus, as adopted in 1970, Rule 26(e) provided that a party was under a duty to supplement its discovery responses based on information acquired after the response if the later acquired information by a party rendered the party's original response no longer true, and a failure to provide the after acquired information amounted to an intentional, i.e., "knowing," concealment. Title 28, Appendix - Rules of Civil Procedure at 7775. Far from exempting a party from a duty to provide supplemental information coming to a party's attention after a discovery response is served which altered the completeness or correctness of its earlier response, Rule 26(e) imposed a duty to supplement where, because of the nature of the information, the party actually became aware of the information as well as the materiality of non-disclosure.
The language of the 1993 amendment referring to the requirement to supplement with information acquired by a party after a party's initial response was not, as Plaintiff contends, Plaintiff's Opposition at 5, removed by the 2007 stylistic amendment to exclude documents created after service of a response as the amendment was not intended to effectuate a substantive change to the purpose and scope of the duty to supplement under Rule 26(e). Rather, the 2007 amendment was, according to the Revisers' Note ¶ 6 intended only to eliminate any potential misreading that would restrict the supplementation duty to later acquired information in contrast to information which was available to the party prior to service of the response but not then disclosed. As the May 23, 2006 minutes of the Civil Rules Advisory Committee in considering the change effected in the 2007 amendment to Rule 26(e) stated All reference to "thereafter acquired" was deleted from the Style [proposed] Rule because this limit was thought to have disappeared from actual practice. All lawyers understand that there is an obligation to supplement or correct a disclosure or response no matter whether the omitted information was known at the time of the initial disclosure or response or whether in some sense the party "learned" of the information "later acquired."
Civil Rules Advisory Committee of the Judicial Conference, 2006 WL 2940679, *10 (J.C.U.S).
Significantly, this comment makes no distinction between a document that existed before service of a response to an earlier request or that was created at a later time, i.e., as "information thereafter acquired," once the party learns of the existence of the responsive information. As of 1993, the duty of supplementation under Rule 26(e) was therefore triggered based on the responding party's awareness that providing new information even if later acquired by the party to its adversary was necessary to support the adversary's continuing reliance on the accuracy of an earlier response when new information of which the party gains knowledge renders the prior response materially incorrect or incomplete. Title 28, Appendix -- Rules of Civil Procedure at 708.
Thus, the statement in the 2007 Reviser's Note explaining the rationale for deletion of the phrase "to include information thereafter acquired," does not denote any intention to restrict the duty of supplementation to information available but not provided at the time of the disclosure or response; rather, the duty to supplement applies to any information, whether it existed and was available at such time or was later created and became available or known to a party only after service of the response, necessary to render the disclosure or response materially complete or accurate regardless of when the information was acquired, i.e., when the responding party "learns" of the information. Significantly, in the instant case, there is nothing in the record that suggests Plaintiff's lawyers were not aware of the creation and existence of the PSA and related documents in March 2010, as they admittedly participated in the decision to issue the PSA, in formulating the general substance of its content and its subsequent ...