ORDER

J. RANDAL HALL, District Judge.

On December 9, 2015, this Court ordered Defendant Electrolux Home Products, Inc. ("EHP") to produce, over its attorney-client privilege and work-product objections, documents responsive to Plaintiff Whitesell Corporation's ("Whitesell") Eighth Request for Production of Documents. The Court had determined that EHP's privilege objections were overborne by Whitesell's preliminary showing of spoliation. Presently, Whitesell has filed a motion to overrule the privilege objections asserted by Defendant Husqvarna Outdoor Products, Inc.'s ("Husqvarna") to certain documents listed on Husqvarna's privilege log. Husqvarna opposes the motion, contending that Whitesell cannot establish a preliminary showing of spoliation against it and that it has, in any event, produced privileged documents responsive to Whitesell's area of concern. Husqvarna argues that compelling it to produce the requested documents would amount to an unjustified sanction under Federal Rule of Civil Procedure 37(e).

I. BACKGROUND

In order to address this motion, particularly in light of Husqvarna's response, it is necessary to provide the following context. At the heart of this controversy are missing e-mails from the custodial mailbox of Mr. Roger Leon, a former chief executive officer of Defendant EHP. Mr. Leon moved to Husqvarna at the time that Husqvarna spun off from EHP in 2006. The Leon e-mails were actually a subject area discussed between the parties in June 2008, when defense counsel represented the following in a letter to Whitesell:

(Doc. No. 767-4, Ex. D, at 4 (Letter from Perry Sentell to David Balser dated June 4, 2008).) This Court stayed discovery on June 12, 2008, so that the e-mails were not produced in 2008. At a hearing on March 12, 2015, defense counsel stated that responsive documents "right now are at the outside vendor" and would be produced a couple of weeks later. (Doc. No. 640, Hrg. Tr. of March 12, 2015, at 63, 78.) The documents were not produced, however, nas a result of oversight" by Husqvarna's outside vendor. (Doc. No. 767-2, Simon Dep. at 108.)

At a monthly discovery hearing in September 2015, Whitesell complained that it still did not have e-mails from Mr. Leon for a period of time between January 2002 and July 2004 despite the prior indications that the e-mails existed and would be produced. Consequently, at the hearing, the Court granted Whitesell's motion to take additional Rule 30(b)(6) depositions to explore the "gaps in e-mail production," specifically in response to Whitesell's request to seek information about the 2006 imaging of Mr. Leon's hard drive and about the document retention policy of Mr. Leon. (Doc. No. 722, Hrg. Tr. of Sept. 17, 2015, at 42-43, 57.)

Following the hearing, both sides served extensive Rule 30(b)(6) notices upon the other.1 Whitesell deposed Mr. Daniel Jerome, EHP's Senior Director of Infrastructure, on October 13, 2015. Through this deposition (more specifically, through EHP's objections to certain Areas of Inquiry in the Rule 30(b) (6) Notice of Deposition), and as made clear to the Court at the November discovery hearing, it was determined that at the time Husqvarna spun off from EHP, the custodial mailboxes of all transferred employees were transferred over to Husqvarna such that EHP could not produce the missing Leon e-mails or any other transferred Husqvarna employee's e-mails. It was readily apparent that further inquiry into the transfer and custody and control of Husqvarna employees' files was necessary.2 Accordingly, at the hearing of November 10, 2015, the Court deferred addressing the issue of the missing Leon e-mails until Whitesell took the deposition of Husqvarna's Rule 30(b)(6) representative.

As an offshoot to the deposition of Mr. Jerome, Whitesell served upon EHP its Eighth Request for Production of Documents, which sought very specific documents referenced in the deposition:

EHP objected to producing these documents on the grounds of privilege. In overruling its objections, the Court concluded that Whitesell had made a preliminary showing of spoliation respecting the Leon e-mails sufficient to overcome EHP's assertions of privilege. (See Order of Dec. 9, 2015.) Thus, EHP was ordered to produce the requested documents. The Court makes clear here that when the December 9th Order was entered, there still existed questions respecting issues of spoliation vis-à-vis the Leon e-mails. Thus, purge lists, litigation hold letters, and internal communications about data collection seemed relevant to Whitesell's area of concern.

Whitesell was scheduled to take the Rule 30(b)(6) deposition of Husqvarna's representative, Mr. Simon Howard,3 the day after the December 9th Order was entered. Taking note of the December 9th Order, Husqvarna produced similar documents to Whitesell prior to the Howard deposition. More specifically, Husqvarna produced preservation communications to document custodians, a list of custodians who were searched, the search terms used to conduct the search, and project documents and materials relating to such searches. At deposition, Mr. Howard explained the process of preserving, collecting and producing documents in this litigation in 2006 and 2008. He explained the production of documents in 2015 including the error in production of the Leon e-mails and an archive server crash in 2012. Mr. Howard was exhaustively cross-examined about the potential reasons for any missing Leon e-mails and about Mr. Leon's preservation practices (as well as Husqvarna's retention policies). Mr. Howard thoroughly discussed his investigation into Whitesell's 45 Areas of Inquiry identified in the Rule 30(b)(6) Notice and divulged the content of his meetings and interviews with various Husqvarna employees and counsel conducted as part of his investigation. The documents supplied by Husqvarna in response to the Rule 30(b)(6) Notice are extensive and contain matters otherwise arguably protected by the work product and attorney-client privileges. (See Howard Dep., Ex. H2.) Additionally, Husqvarna provided written "responses" to each Area of Inquiry in the Rule 30(b) (6) Notice as though the Notice contained interrogatories. (See Howard Dep., Ex. H3.)

II. LEGAL ANALYSIS

The Court provided the analytical framework for this discovery issue in the Order of December 9, 2015. That is, otherwise privileged documents may be discoverable upon a preliminary showing of spoliation.4 As the Court previously stated, xxa potential spoliator cannot stand behind a privilege to protect documents relevant to the issue of spoliation." (Order of Dec. 9, 2015, at 8 (emphasis added).)

Here, Whitesell relies upon the same facts underlying the Court's ruling on December 9th, that is, the missing Leon e-mails,5 to support its request for certain privileged, documents on Husqvarna's privilege log. It is now undisputed that the e-mails of EHP's employees that became Husqvarna employees during the spin off were transferred to Husqvarna and not retained by EHP. It is also undisputed that the first significant document production in this litigation post-dates the spin-off. Thus, the ability to produce responsive documents of Husqvarna employees for the time prior to 2006 rests with Husqvarna. Husqvarna does not dispute that there are missing e-mails from certain Husqvarna custodians. Thus, there has been a preliminary showing of spoliation on the part of Husqvarna.6

This preliminary showing of spoliation, however, does not throw open the door to Whitesell of all documents pertaining to data collection and production. Rather, the Court finds that Husqvarna has produced, through its Rule 30(b)(6) representative, all documents and information pertaining to the missing Leon e-mails that are reasonably ascertainable. Its production is not only akin to what was ordered for production in the December 9th Order, but it extends beyond the scope of that Order. The explanations offered by Husqvarna may not be satisfactory to Whitesell, but the Court is convinced that Whitesell has received all that it is entitled to receive relevant to the alleved spoliation of the Leon e-mails. The Court will not compel the production of substantive, privileged memoranda regarding data collection and production that no doubt extend far beyond the missing Leon e-mails in a case involving more extensive and substantive discovery issues. In short, Whitesell's present request-to compel production of every privileged document described as concerning data collection-is overly broad, unduly burdensome and has not been shown to relate to the issue at the forefront of this entire exercise-the missing Leon e-mails.

III. CONCLUSION

Upon the foregoing, Whitesell's motion to overrule the privilege objections asserted by Husqvarna on its privilege log (doc. no. 767) is DENIED.

ORDER ENTERED.