Order

MARK R. ABEL, Magistrate Judge.

This matter is before the Magistrate Judge for an in camera review of the emails submitted by defendant Duke Energy pursuant to my August 8, 2014 Order (doc. 187) that provided that defendant could submit the affidavits of the senders and receivers of the emails or, alternatively, submit the emails for in camera review. Plaintiffs seek to compel production of the emails on the ground that they are not attorney-client communications or, alternatively, that they fall within the crime fraud exception. Plaintiff's January 10, 2014 motion to compel (doc. 175). This decision will continue to group emails in the categories set out in Ariane S. Johnson's December 17, 2013 Declaration, pp. 9-12, ¶¶ 30-30-31, Doc. 176-2, PageID 3638-40. The document numbers within each category are taken from defendants' privilege log. Doc. 175-1, PageID 3592-3627.

Category A. These are email chains that all appear to have begun with CG&E's Vice President for Regulatory and Legislative Strategy James Gainer's December 6, 2004, 8:49 PM email communicating CG&E's CEO's decision to alter its contracts with the 22 large customers/trade groups. That email is mostly a business communication of that decision to other business employees of CG&E. One sentence does ask for legal advice and may be redacted.1 Otherwise it is ORDERED that defendant produce Gainer's December 6, 2004 email. The fact that a business communication also seeks legal advice does not cloak the entire email in the attorney-client privilege. The communication to the business people is discoverable. The other emails in the email chains that are designated Document Numbers 1-6, 356-60 are privileged attorney-client communications.2

Category C. Doc. 40 is a communication between two lawyers asking whether the RSP settlement affected the delivery point for power to a customer. Doc. 53 appears to be a business communication, but its purpose is to circulate an attachment, Doc. 543, that states it was prepared in May 2004 at the request of counsel. Doc. 121 includes only attorney-client communications. Docs. 152-53 appear to be business communications about the cost of renegotiating a contract that are copied to lawyers. It is ORDERED that defendants produce them to plaintiffs. Doc. 154 is an attorney communication to clients. Although Doc. 155 could be read as primarily a business communication, it was sent 36 minutes later in response to advice from a lawyer communicated by Doc. 154 with the same distribution. I conclude it is part of an attorney-client communication.

Doc. 182 is a business communication copied to a lawyer. Defendants are ORDERED to produce it to plaintiffs. Docs. 194 and 211 are attorney-client communications. Doc. 278 is an email compilation beginning with a January 25, 2006, 7:35 a.m. email that is clearly a business communication copied to one lawyer. The second email, sent later that morning (10:17 a.m.), is written by a lawyer who did not receive the first. It does not appear to be a direct response to the first, and it contains no legal advice. It is a business communication. Defendants are ORDERED to produce these emails. The third email, sent at 1:11 p.m. that same day, is also a business communication with the exception of the last paragraph, which is an attorney-client communication. The last email contains no relevant information and would not be responsive to any of plaintiffs' discovery requests.

Doc. 331 consists of two emails dated July 25, 20007 that are attorney-client communications. Doc. 333 are emails containing business communications. Defendants are ORDERED to produce them.

Category D. Doc. 38 are emails containing business communications. The chain does begin with a request by a business person to three business persons and a lawyer for thought about and comments on two draft releases, but there is no indication who drafted them and business, not legal, advice is sought. The draft releases are not included in Doc. 38. There is a glancing reference in the March 1, 2007, 1:50 p.m. email to a lawyer's email that is not included in this chain. That one oblique reference to what may have been legal advice is insufficient to render these business communications privileged. Defendants are ORDERED to produce them. Doc. 335 contains two emails. The first is a business communication. The second an attorney-client communication. Defendants are ORDERED to produce the email dated July 27, 2006, 12:15 p.m., but not the second dated the same day at 1:14 p.m.

Category F. Doc. 35 is an attorney to attorneys communication and is core work product that is not discoverable. Docs. 350-54, 364-66, and 368 are Duke's undated "settlement proposals" for several customers. Each document has centered at the top: Confidential Settlement Document. Centered directly beneath is: Attorney Client Privileged. No explanation is given why these documents are subject to the attorneyclient privilege. Defendants are ORDERED to produce these documents unless they provide affidavit demonstrating that they were never disclosed to third parties and that all the other factual predicates of a claim of attorney-client privilege are satisfied.

Doc. 3764 is titled "RSP Settlement Summary". It is dated May 15, 2004. Beneath is the legend: "Privileged and Confidential Prepared at the Request of Counsel". The document appears to contain business information. There is a chart with three columns. The first identifies the "Settling Party". The second is titled: "Settlement Structure (2005-2008)". The third sets out "Lost Value" compared with the RSP value. Defendants are ORDERED to provide an affidavit demonstrating that this document, Docs. 54 and 376, was prepared at the request of counsel. The underlying business information is discoverable, and I assume that if one of plaintiffs' discovery requests sought the information defendants have produced it in response to an interrogatory or request for production of documents.

Doc. 377 is an agenda for a September 27, 2004 meeting. Its title is "RSP Options". At the top of the first page is centered: "confidential attorney-client communication; prepared at the request of counsel in anticipation of litigation". Defendants are ORDERED to provide affidavits stating who prepared the document, who requested that the document be prepared, the circumstances surrounding that request, and all the other factual predicates to claims of attorney-client privilege and/or work product protection.

Category G. Doc. 370 is an email chain that begins with an attorney to attorneys communication that includes portions of or a version of Doc. 35. It is core attorney work product. The remaining emails involve scheduling a meeting, apparently for the lawyers to discuss Doc. 35. None of the emails are discoverable.

Category H. Every page of Doc. 120 is marked "CONFIDENTIAL PROPRI-ETARY TRADE SECRET". Doc. 120 consists of a February 15, 2005 email from a business person to business people; a February 21, 2005 letter from a CG&E business person to a customer's attorney; a series of emails between Jim Ziolkowski to a Marathon Petroleum employee regarding monthly payments5; similar emails between Ziolkowski and Don Storck;6 December 20, 2004 emails between Ziolkowski and other CG&E business persons about CRES revenues;7 emails from and to Ziolkowski to Marathon Petroleum and AK Steel regarding monthly payments;8 Ziolkowski emails to Duke business persons regarding CRES payments.9 These are all communication between business employees, some communicated to CG&E's/Duke's customers, without any lawyer involvement. Defendants are ORDERED to produce Doc. 120.

Doc. 146 transmits business information to the lawyer who requested the information. It appears to be an attorney-client communication. Doc. 147 is the information requested

Category J. Doc. 261 appears to be an attorney-client communication. Doc. 265 is an email by a business person seeking business information to support recovering certain costs that was sent to five business people and one lawyer.10 A business person responded. Defendants are ORDERED to produce Doc. 265. Doc. 270 is an email chain that begins with a lawyer's email to other lawyers and clients. It is arguably an attorneyclient communication; therefore, it is not discoverable.

Category K. Docs. 166, 222 and 224 are attorney-client communication. Doc. 242 is a business communication between business people about a settlement. Defendants are ORDERED to produce Doc. 242. Docs. 387 and 390 appear to be attorney-client communications regarding information sought by one or more lawyers. These documents are not discoverable.

Non-dispositive notice right appeal

Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P., and Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by the District Judge. The motion must specifically designate the Order, or part thereof, in question and the basis for any objection thereto. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.