The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MULTIPLE ENERGY )
)
TECHNOLOGIES, LLC,
)
)
Plaintiff ) 2:20-CV-664-NR
)
)
v. )
)
UNDER ARMOUR, INC., )
)
)
Defendant.
MEMORANDUM ORDER ADOPTING AND MODIFYING SPECIAL
MASTER’S REPORT AND RECOMMENDATION
Special Master George Bibikos has submitted a comprehensive Report &
Recommendation regarding discovery disputes primarily related to privilege issues.
ECF 216. Under Armour, MET, and non-party Stuart Williams filed objections. ECF
221; ECF 222; ECF 225. Under Armour and MET filed responses and replies. ECF
228; ECF 229; ECF 232; ECF 233. After reviewing R&R No. 3, the entire record, the
parties’ briefing, and certain material documents at issue, and on a review,
the Court hereby adopts, in part, the R&R with certain modifications to account for
the parties’ objections, as described below.
FACTUAL & PROCEDURAL BACKGROUND
The parties are familiar with the facts underlying this action, and the Court
will not repeat them here. Relevant to the instant objections, the Special Master
issued Report and Recommendation No. 2, which resolved discovery issues related to
a subpoena that Under Armour issued to non-party Stuart Williams. ECF 187. The
Court adopted R&R No. 2 with one modification, which is not at issue here. ECF 192.
After the Court adopted R&R No. 2, the parties raised additional disputes
related to the subpoena with the Special Master. ECF 216, p. 2. Specifically, Under
Armour challenged the sufficiency of Mr. Williams’s production, privilege log, and
assertions of attorney-client privilege and the work-product protection.
After speaking with the parties, reviewing information, and performing an
review of the documents at issue, the Special Master issued the report and
recommendation now at issue. ECF 216. The Special Master recommended that the
Court: “(a) order Mr. Williams to produce certain documents to which privilege or
work-product protections either never attached or have been waived; and (b) modify
R&R No. 2 to reflect that Under Armour should reimburse Mr. Williams for no more
than six months of e-discovery hosting charges and for the other charges reflected on
the invoice as the Court previously approved.” ECF 216, pp. 2-3.
As to attorney-client privilege and the work-product doctrine, the Special
Master made five specific recommendations: (1) that Mr. Williams should be required
to produce emails and attachments he forwarded to Washington Wild Things
employees because forwarding the emails waived the privilege ( at 15); (2) that Mr.
Williams should not be required to produce emails he forwarded to his wife, Francine
Williams, because such emails are protected by the spousal privilege ( at 16); (3)
that Mr. Williams should be required to produce emails in which his daughter, Dr.
Nicole Williams, was copied on the chain or that he forwarded to her because there is
no parent-child privilege ( at 17); (4) that Mr. Williams should not be required to
produce emails involving consultants on legal matters because such emails are
protected by the attorney-client privilege ( at p. 19); and (5) that Mr. Williams
should be required to produce blank transmittal emails (to the extent that the emails
do not fall into categories (1)-(4)) because blank transmittal emails are not privileged.
at 19.
Under Armour “does not take issue with the Special Master’s rationale in
resolving” the discovery dispute. ECF 221, p. 2. However, Under Armour seeks
clarification on two issues: (1) whether two specific documents are privileged; and (2)
whether all documents shared with Dr. Williams must be produced. at 2-4.
MET, on the other hand, raises five substantive objections to the Special
Master’s decision. First, MET argues that the Special Master did not undertake the
proper analysis of the documents. ECF 222, p. 10. MET argues that, at all relevant
times, Mr. Williams was acting as MET’s lawyer and thus the documents are non-
responsive because the scope of the subpoena only covers documents related to Mr.
Williams’s actions as MET’s owner/investor. Second, MET lists certain
documents that it argues were “inadvertently” ordered to be produced based on the
Special Master’s reasoning. at 11. MET argues that these documents are
privileged and Under Armour has not met its burden to show that the privilege was
waived with respect to these documents. Third, MET objects to the Special
Master’s finding that forwarding documents to Washington Wild Things employees
waives the privilege, and further argues that, regardless of any waiver regarding the
emails, the documents attached to emails would remain privileged. at p. 14.
Fourth, MET argues that emails forwarded to Mr. Williams’s daughter, Dr. Williams,
are privileged because she was acting as a consultant to MET. at 14. Fifth, MET
argues that that R&R No. 3 requires Mr. Williams to produce documents that are
unresponsive, and that Mr. Williams should not be required to produce documents
that have already been produced by other parties. at p. 15-16.
Separate from its merits objections, MET also raises a process objection. MET
argues that the Special Master only relied on informal conferences and emails instead
of formal briefing, and that such an informal process is not appropriate when deciding
the privilege issues. at p. 17.
Non-party Stuart Williams reiterates MET’s objection that he should not have
to produce any documents, regardless of privilege, because he was acting as MET’s
lawyer and thus the documents are non-responsive because the scope of the subpoena
only covers documents related to his actions as MET’s owner/investor. ECF 225.
STANDARD OF REVIEW
Because the parties objected to the Special Master’s Report and
Recommendation, the Court must review all findings of fact and legal conclusions
. Fed. R. Civ. P. 53(f)(3)-(4).
DISCUSSION & ANALYSIS
Before turning to the merits of the objections, the Court will address MET’s
process objection that it did not have an opportunity to fully brief the relevant issues
because the Special Master “never requested any formal briefing or submission of
evidence.” ECF 222, p. 17. The Court overrules this objection. Contrary to MET’s
assertion that “the Special Master’s entire recommendation is based solely on the
parties’ counsels’ informal conversations with the Special Master over Zoom and a
few emails” ( ), the Special Master submitted a 245-page appendix along with R&R
No. 3 that includes numerous emails from the parties stating their positions and
engaged in an review of the documents at issue. ECF 217. Additionally,
both parties, as well as Mr. Williams, had the opportunity to fully brief the issues in
their objections, responses, and replies thereto. The Court is satisfied that it has all
the information it needs to consider the parties’ objections to R&R No. 3.
Neither party objected to the Special Master’s recommendations (1) that emails
Mr. Williams shared with his wife are protected by spousal privilege; and (2) to modify
R&R No. 2, and so the Court adopts those recommendations after finding no clear
error in the Special Master’s legal conclusions as to those recommendations only.1
1 Rule 53 does not specify the scope of review as to a Special Master’s findings of fact
and conclusions of law to which the parties do not object. , No. 17-
2684, 2019 WL 3557688, at *2 (E.D.N.Y. Aug. 5, 2019) (analogizing special master
rule to statute governing magistrates and concluding that clear error review of
unobjected-to factual findings and legal conclusions appropriate). However, federal
Having addressed these initial matters, the Court turns to the parties’
objections.
I. MET’s objections.
A. Mr. Williams’s role as owner/investor.
MET argues that the Special Master did not undertake the proper analysis of
the documents. ECF 222, p. 10. MET states that it provided a privilege log in the
interest of transparency even though “Mr. Williams was always wearing his lawyer
hat[.]” ECF 222, p. 5. In other words, MET logged documents as privileged, even
though it considered them non-responsive. MET argues that, at all relevant times,
Mr. Williams was acting as MET’s lawyer and thus the documents are non-responsive
because the scope of the subpoena only covers documents related to Mr. Williams’s
actions as MET’s owner/investor. Mr. Williams submitted a declaration stating
that he “provide[d] MET with legal advice on numerous matters including this civil
action.” RR3 App., p. 240. MET also submitted MET’s financial documents from
2017 and 2018, which show that Mr. Williams invested in the company in 2018 but
not in 2017. ECF 233-2; ECF 233-3.
On the other hand, Under Armour claims that the lines are too blurred
between investor and lawyer. For example, it argues that Wilson Sonsini, Mr.
Williams’s law firm, is also an investor in MET. ECF 228, p. 2. Under Armour also
argues that MET did not introduce “any engagement letter, nor any law firm billing
records” to support its conclusion that Mr. Williams was always acting as counsel,
and not as investor. . at 3. While MET asserts that Mr. Williams did not become
“an owner or investor in MET until 2017,” ECF 229, p. 2, Under Armour refutes this
district courts routinely review objected-to portions of a special master’s report and
recommendation and unobjected to portions for clear error, and the Court
will do so here. ; , No. 20-551,
2023 WL 6221774, at *4 (E.D. Va. Sept. 25, 2023) (“Any non-objected-to portions of a
Special Master’s report and recommendation are reviewed for clear error.”) (collecting
cases).
by citing to deposition testimony from Shannon Vissman, MET’s founder, who stated
that Mr. Williams funded MET “over the years” from “about 2015, ’16, ’17 time[.]”
ECF 232, p. 4.
After carefully reviewing the parties’ arguments and the records, the Court
makes the two following findings.
First, there is no evidence in the record that that Mr. Williams was an investor
before 2015, and so any documents on the privilege log that reflect communications
by and between Mr. Williams that pre-date 2015 are non-responsive, and need not be
produced.
Second, documents that reflect 2015-forward communications on the privilege
log shall be considered responsive, unless otherwise noted elsewhere this order.
While MET technically raises a responsiveness argument, this issue really concerns
privilege, and Mr. Williams bears the burden of establishing attorney-client
privilege—specifically, that he was solely acting in his capacity of counsel. Mr.
Williams has not met his burden, as there is evidence that he was an investor as early
as 2015, and there has been no evidence put forward as to any engagement letter,
billing records, firewalls, or other procedures to establish that he was communicating
solely as counsel as part of the communications at issue. On balance, the Court is
unconvinced by MET and Mr. Williams’s arguments as to non-responsiveness given
the information submitted to it, and so will analyze the Special Master’s report and
recommendations as they related to the attorney-client privilege and work-product
doctrine.
B. Miscategorization errors.
MET lists certain documents that it argues were “inadvertently” ordered to be
produced based on the Special Master’s reasoning. ECF 222, pp. 10-11. MET argues
that these documents are privileged and Under Armour has not met its burden to
show that the privilege was waived with respect to these documents. MET
identifies the following specific documents the Special Master ordered Mr. Williams
to disclose that it believes are protected by attorney-client privilege: “(1)
REV0006991, REV0016492-3, REV0012658-70, REV0017886-8, REV0018630, and
REV0018641-2 are emails and attachments from Dr. Vissman to Mr. Williams
regarding draft agreements involving MET; (2) REV0007258 and REV0017927-8 are
draft agreements involving MET that Mr. Williams emailed to himself; (3)
REV0007256, REV0013242, REV0014272-74, REV0017898, REV0017924,
REV0018650-7, and REV0018993 involve Mr. Williams’ discussions of draft MET
agreements with his colleagues at WSGR; (4) REV0007024-5, REV0007239-42,
REV0007256-7, REV00072659-60, REV0007626, REV0017909-11, REV0017931-3,
REV0018665-8, REV0018995, and REV0026585 are emails with attachments
involving Mr. Williams, other MET personnel, and WSGR employees regarding draft
agreements[;] (5) A few emails that the Special Master found were protected by the
spousal privilege (R&R at 16) were inadvertently included in the list of documents to
be produced. These documents include REV0011992-4 and 11999-12002.” ECF 222,
p. 11.
As an initial matter, the Court did not review REV0012658-60, REV0017886,
REV0014272-74, REV0007024-5, REV00072659-60, REV0017909 because the
parties did not provide those documents to the Special Master or the Court for review.
After an review of the remaining documents, the Court makes the
following rulings:
• REV0007258—this is an email that Mr. Williams forwarded to himself
regarding legal advice to MET and is protected by the attorney-client
privilege.
• REV0016492-3—portions of this email are privileged; however, the
Special Master ordered that the privileged portions be redacted. The
Special Master’s ruling on these documents was correct and MET should
comply with that portion of the Special Master’s order.
• REV0006991, REV0012661-70, REV0017887-8, REV0013242,
REV0017898, REV0017924, REV0017927-8, REV0018650-4
REV0018993, REV0007626, REV0017931-3, REV0018665-8,
REV0018995, REV00017910, and REV0026585—these documents are
attachments to emails, but the Court does not have the cover emails
associated with them, and so cannot perform an appropriate privilege
review. In light of this, the Court orders the parties (including non-
party, Mr. Williams) to confer on these documents, in light of this order,
to determine if they can resolve or narrow this dispute. If the parties
cannot come to an agreement, MET and/or Mr. Williams shall submit
the associated email to the Court so the Court can make a privilege
determination.
• REV0018630—this document is an attachment to an email from Dr.
Vissman to Mr. Williams, asking Mr. Williams to review it. Thus, this
document is privileged and need not be produced.
• REV0018641-2—these documents are emails and attachments from Mr.
Williams to Dr. Vissman and are protected by the attorney-client
privilege.
• REV0018655-7—this email and its attachments are between Mr.
Williams and a Wilson Sonsini colleague and are protected by the
attorney-client privilege.
• REV0007256-7—this email and attachment involve discussions of draft
MET agreements between MET, its consultants, and Mr. Williams, and
is protected by attorney-client privilege.
• REV0007024-5—the Court did not review these documents and they are
addressed separately in Section II.A of this Order.
• REV0007239-42—these documents are emails and attachments from
Mr. Williams to Dr. Vissman and are protected by the attorney-client
privilege.
• REV0017911—this is a blank document that need not be produced
because it is unresponsive.
• REV0011992-4 and 11999-12002—these documents are emails and
attachments that Mr. Williams forwarded to his wife, are protected by
the spousal privilege, and need not be produced.
In light of the Court’s above determinations, if any disputes about these
documents remain, the Court orders the parties to confer on any such disputes, in
light of this order. If the parties cannot agree, they should submit to the Court the
documents in dispute and the parties’ positions as to the documents.
C. Emails forwarded to Washington Wild Things employees for
printing.
The Special Master concluded that Mr. Williams’s forwarding of documents to
Washington Wild Things employees destroyed attorney-client privilege because: (1)
there was nothing in the record suggesting that the employees were “agents” of Mr.
Williams or were assisting him with providing legal advice to MET; and (2) the emails
did not include an admonition to maintain confidentiality or instruct the employees
what to do with the emails once the documents were printed. ECF 216, pp. 14-15.
MET objects to the Special Master’s finding that forwarding documents to
Washington Wild Things employees waives the privilege, and argues that the
documents attached to emails would remain privileged. ECF 222, p. 14. Under
Armour presented evidence that Mr. Zavacky was the general manager of the
ballpark, and not a personal assistant to Mr. Williams. ECF 228, pp. 5-6. The Court
agrees with the Special Master.
As the Special Master correctly noted, federal common law governs the
application of the attorney-client privilege because this case involves federal question
and diversity jurisdiction. ECF 216, p. 7. n.2;
, 671 F.2d 100, 104 (3d Cir. 1982). However, because the Third Circuit and
Pennsylvania apply the same test for attorney-client privilege, the Court may look to
both federal and Pennsylvania courts for guidance.
, 32 F.3d 851, 862 (3d Cir. 1994); , No. 05-1059,
2006 WL 2642525, at *2 n.2 (W.D. Pa. Sept. 14, 2006) (McVerry, J.).
The attorney-client privilege “applies only if (1) the asserted holder of the
privilege is or sought to become a client; (2) the person to whom the communication
was made (a) is a member of the bar of a court, or his subordinate and (b) in
connection with this communication is acting as a lawyer; (3) the communication
relates to a fact of which the attorney was informed (a) by his client (b) without the
presence of strangers (c) for the purpose of securing primarily either (i) an opinion on
law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the
purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and
(b) not waived by the client.” , 599 F.2d 1224, 1233
(3d Cir. 1979) (cleaned up).
The party claiming privilege bears the burden of proving that the
communication is privileged. , 2006 WL 2642525, at *4;
, 210 A.3d 967, 982 (Pa. 2019). Once the party has established that privilege
applies, the burden shifts to the seeking party to show that the privilege doesn’t apply
or has been waived.
, 227 F.R.D. 382, 390 (W.D. Pa. 2005) (Gibson, J.).
Both federal and Pennsylvania law recognize that the attorney-client privilege
can be extended to a third party who is acting as the attorney’s agent.
, 296 F.2d 918, 921 (2d Cir. 1961); , 210 A.3d at 985. This is often
the case for ministerial employees, such as “secretaries, file clerks, telephone
operators, messengers, clerks not yet admitted to the bar, and aides of other sorts.”
, 296 F.2d at 921. In examining whether communications with a third party
are covered by attorney-client privilege, the Third Circuit and Pennsylvania courts
both look to whether the third party’s presence is necessary to the attorney’s provision
of legal advice. , No. 08-2992, 2009 WL 2392887,
at *2 (D.N.J. Aug. 3, 2009) (“While the Third Circuit has adopted the approach,
it has been loath to construe the privilege broadly and has viewed what assists an
attorney in rendering legal advice narrowly.”); , 210 A.2d at 985 (“[T]he
critical fact is that the third-party’s presence was either indispensable to the lawyer
giving legal advice or facilitated the lawyer’s ability to give legal advice to the client.”).
Thus, the key consideration here is whether Mr. Zavacky’s2 presence here was
necessary to facilitate Mr. Williams’s provision of legal advice to MET.
Mr. Williams forwarded emails to Messrs. Zavacky, Heider, Blaine, and other
Washington Wild Things employees to be printed. ECF 216, pp. 13-14. Mr. Williams
owns the entity that owns the stadium where the Washington Wild Things play. RR3
App., p. 240. According to MET, Mr. Zavacky is “the individual in charge” of the
entity that owns the stadium and “a confidential executive assistant” to Mr. Williams.
at 241. Mr. Williams used an office at the stadium to perform legal services for
MET and other clients. at 240.
If Mr. Zavacky was employed by Mr. Williams directly or by his law firm, he
would be a clear-cut example of a ministerial employee who facilitated Mr. Williams’s
2 The Special Master referenced multiple employees, but MET’s objections and Under
Armour’s response focus on Mr. Zavacky.
provision of legal advice to MET, as well as to Mr. Williams’s other clients. But he is
not. Mr. Zavacky is instead employed by a separate entity that Mr. Williams owns.
There is no evidence in the record that Mr. Williams had a separate agreement with
Mr. Zavacky through which Mr. Zavacky assisted him with client representation.
There is similarly no evidence that Mr. Williams instructed Mr. Zavacky to keep any
legal-related documents confidential.
In a similar factual scenario, a special master, applying federal attorney-client
privilege law, concluded that a client’s board member who worked for two different
entities waived attorney-client privilege by copying his outside executive assistant on
privileged communications. , No.
19-2075, 2022 WL 17976702, at *16 (D. Colo. Oct. 21, 2022),
, No. 19-2075, 2023
WL 2824300 (D. Colo. Mar. 13, 2023). The special master observed that “a client is
not free to designate every conceivable person under the sun as their ministerial
agent.” (cleaned up). The district court adopted the special master’s report and
recommendation, stating that client corporation did not meet its burden to show that
the board member’s copying of privileged emails to an executive assistant not
employed by the corporate client should be privileged.
, 2023 WL 2824300, at *13. The Court finds this decision to be persuasive here.
Even though here it was the attorney, Mr. Williams, and not the client, who
forwarded the emails to an outside executive assistant, the reasoning in
, combined with the general admonitions about privilege as applied to agents
found in federal and Pennsylvania law, are persuasive. As such, the Court agrees
with the Special Master and concludes that Mr. Williams waived the privilege by
forwarding emails to Mr. Zavacky and any other employee of the Washington Wild
Things. Mr. Zavacky cannot be considered Mr. Williams’s agent because Mr. Zavacky
was not employed by Mr. Williams and there is nothing in the record suggesting that
his presence was necessary for Mr. Williams to provide legal advice.
Protection under the federal work-product doctrine was also waived because
disclosure to third parties waives this protection unless “disclosure furthers the
doctrine’s underlying goal.” , 951
F.2d 1414, 1429 (3d Cir. 1991). Here, Mr. Williams was forwarding documents to a
third party for printing, which does not further the underlying goal of the work
product doctrine of protecting the mental impressions and opinions of attorneys.
One more thing. MET cites to
, No. 20-292, 2023 WL 8358117 (M.D. Pa. Dec. 1, 2023) (subsequent
history omitted) for the proposition that because at least some of the emails that Mr.
Williams sent to Mr. Zavacky were attachments to blank transmittal emails, the
attachments are still privileged. ECF 222, p. 14. The reasoning in is
inapplicable here because in that case, the emails were internal to the law firm and
thus remained privileged. , 2023 WL 8358117 at *8. While it is
true attachments to blank transmittal emails may retain their privilege even if the
blank transmittal email is not privileged, forwarding the attachments to a non-
privileged third party waives the privilege. , 296 F.R.D.
323, 336 (M.D. Pa. 2013).
D. Emails copying Dr. Nicole Williams.
Mr. Williams also sent emails on which his daughter, Dr. Williams, was copied.
ECF 216, pp. 16-17. The Special Master found that these documents were not
privileged because “there is nothing in the record or the documents reviewed to
suggest that she assisted Mr. Williams or his firm (or any other lawyers) with legal
advice provided to MET or other clients.” at 17. MET argues that emails
forwarded to Dr. Williams are privileged because she was acting as a consultant to
MET. ECF 222, p. 14.
While there is no “consultant” privilege, the attorney-client privilege can apply
to a consultant if she is acting as the attorney’s agent. As discussed in more detail
above, the key consideration is whether the consultant is necessary for the lawyer’s
provision of legal advice to the client. , 296 F.2d at 921; , 210 A.3d at
985.
Dr. Williams is a medical doctor who is a sales consultant for MET. ECF 228-
2, 102:15-103:2. According to MET, Dr. Williams has been “a contracted consultant
for MET since 2021 tasked with developing new and prospective customers.” ECF
222-1, Declaration of Nicole Sullivan, ¶ 26. MET identifies the following documents
that Dr. Williams is copied on that it believes are privileged: “(REV00) 8420-22,
11995-98, 12003-6, 12028, 12032-41, 13755-6, 14405-6, and 14415[.]” ECF 222, p. 15
n.3. Considering the facts that MET has alleged with respect to Dr. Williams’s role,
and after conducting its own review of (REV00) 8420-22, 11995-98, 12003-
6, 12028, 12032-41, 13755-6, 14405-6, and 14415, the Court concludes that the
purpose of these documents relates to legal matters because the documents generally
relate to communications about draft agreements that the recipients are being asked
to weigh in on. As such, Mr. Williams will not be required to produce documents on
which Dr. Williams is copied. Thus, MET’s objection on this issue is sustained, and
this aspect of R&R No. 3 will not be adopted.
E. Documents that are unresponsive.
MET argues that that the R&R requires Mr. Williams to produce documents
that are unresponsive. ECF 222, p. 15. MET lists the following documents that it
deems to be unresponsive: REV0002487; REV0002659; REV00014278-90;
REV00018294. REV0002487 and REV00014278-90 are not included on any
privilege log in the record and were not provided to the Special Master or this Court
for review. If a dispute still exists as to these documents, the parties shall
confer, and if they cannot agree, MET shall submit the documents to the Court for
review.
As to the other documents, the Court has performed an review and
finds the documents to be unresponsive, thus, Mr. Williams need not produce them.
F. Documents that have already been produced.
MET argues that Mr. Williams should not be required to produce emails that
have already been produced in the discovery process. ECF 222, p. 16. Under Armour
does not contest this in its briefing. ECF 228; ECF 232. If documents have already
been produced, they need not be re-produced if it would be “unreasonably cumulative”
to produce them. , No. 18-1310, 2022 WL 1597834, at *4 (M.D. Pa.
May 19, 2022). Because MET has identified with specificity which documents are
duplicates of documents that have already been produced, the Court will not require
Mr. Williams to re-produce those documents.
II. Under Armour’s objections.
A. REV0007024 and REV0007025.
The parties engaged in extensive discussion regarding these documents in
their briefing. ECF 221, pp. 2-3; ECF 229, pp. 2-3; ECF 232, pp. 2-4. MET claims
that they are non-responsive because (1) they relate to Mr. Williams’s role as counsel;
and (2) they are related to the provision of legal advice. ECF 229, p. 2. Under Armour
claims that the documents are not privileged because they are between two non-
lawyers and Mr. Williams is only copied on the chain, and MET and Mr. Williams
have not met their burden to show the documents are privileged. ECF 232, pp. 3-4.
These documents were not provided to the Special Master for
review. The parties asked the Special Master to clarify whether these documents
need to be produced (ECF 222-2, p. 3), but the Special Master declined to take a
position on these documents in light of the lack of review. ECF 222-5, p. 1
(“(REV000) 7024-7025 are not in the materials I reviewed and I cannot determine the
content based on the description.”). The Court does not appear to have these
documents, either. Thus, as to these two documents, the Court orders the parties
(including non-party, Mr. Williams) to confer on these documents, in light of this
order, to determine if they can resolve or narrow this dispute. If the parties cannot
come to an agreement, MET and/or Mr. Williams shall submit the documents to the
Court so the Court can make a privilege determination.
B. Documents involving Dr. Williams.
In light of the Court’s modification of the Special Master’s recommendation as
to emails involving Dr. Williams, Mr. Williams is not required to produce such emails
and Under Armour’s request for confirmation is overruled.
III. Remaining issues.
After R&R No. 3 was issued, the parties identified a number of discrepancies
in the ordering paragraphs that caused confusion. ECF 222-3. The Special Master
issued clarifying statements via email to the parties. The parties shall confer on
this to determine whether any additional guidance from the Special Master and Court
is needed.
CONCLUSION
For the foregoing reasons, the Report & Recommendation (ECF 216) prepared
by Special Master Bibikos is ADOPTED as the opinion of the Court, as modified
herein. It is hereby ORDERED that:
• Mr. Williams must produce emails he forwarded to Washington Wild Things
employees for printing;
• Mr. Williams is not required to produce emails on which Dr. Nicole Williams
is copied;
• Mr. Williams is not required to produce documents that have already been
produced by any other party;
• To the extent disputes exist over any remaining documents, including any
documents not provided to the Special Master or the Court for
review, the Court orders the parties (including, if appropriate, non-party, Mr.
Williams) to confer on these documents, in light of this order, to determine if
they can resolve or narrow this dispute. If the parties cannot come to an
agreement, they shall file a joint notice that identifies the disputes, and the
Court will then issue a separate order, to address any submissions
and supplemental briefing. Any such joint notice must be filed by December
1, 2024.
* * *
DATE: November 14, 2024 BY THE COURT:
/s/
United States District Judge