ECOLAB, INC., et al., Plaintiffs, v. Anthony RIDLEY, et al., Defendants Case No. 1:22-cv-050-TRM-SKL United States District Court, E.D. Tennessee, Southern Division, at Chattanooga Filed March 28, 2023 Counsel David J. Walton, Pro Hac Vice, Edward G. Winsman, Pro Hac Vice, Kathleen Marie Laubenstein, Pro Hac Vice, Fisher & Phillips LLP, Philadelphia, PA, Emmanuel L. Brown, Pro Hac Vice, Martin S. Chester, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Philadelphia, PA, David Yoshimura, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Des Moines, IA, James Michael Honeycutt, Pro Hac Vice, Fisher & Phillips LLP, Charlotte, NC, Kacie Phillips Tawfic, Pro Hac Vice, Randall E. Kahnke, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Minneapolis, MN, Pavneet Singh Uppal, Pro Hac Vice, Fisher & Phillips LLP, Phoenix, AZ, Sophie Honey Gotlieb, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Chicago, IL, Edward N. Boehm, Jr., Fisher & Phillips LLP, Atlanta, GA, J. Gregory Grisham, Fisher & Phillips, LLP, Memphis, TN, for Plaintiffs. Lee, Susan K., United States Magistrate Judge ORDER *1 On February 10, 2023, the Court entered an Order granting in part and denying in part a motion to compel filed by Plaintiffs Ecolab, Inc. (“Ecolab”), and Nalco Company, LLC (“Nalco,” and collectively, “Plaintiffs”).[1] Currently before the Court is ChemTreat's motion for reconsideration [Doc. 151] of certain aspects of the February 10 Order; specifically, those aspects related to the Court's determination that ChemTreat waived, or failed to show that it did not waive, applicable privileges as to certain categories of information and documents. The motion for reconsideration is accompanied by a supporting brief [Doc. 152] and a number of exhibits. Also before the Court is ChemTreat's motion for a partial stay of the February 10 Order [Doc. 153], in which ChemTreat asks that it not be required to produce the privileged information and documents until the motion for reconsideration is resolved.[2] Plaintiffs filed a response in opposition to each motion [Doc. 175 and Doc. 174], and ChemTreat filed replies in support [Doc. 184 and Doc. 185]. Neither side requested a hearing on the motions and the Court finds a hearing is not necessary. These matters are now ripe. I. BACKGROUND The Court's prior opinions and orders set forth the factual background as alleged by Plaintiffs, the history of certain aspects of the discovery phase of this case, and applicable legal standards regarding discovery issues [Doc. 69, Doc. 137, and Doc. 158]. The Court presumes familiarity with all such prior opinions and orders, and will only discuss background information to the extent necessary to address the issues raised by the motion for reconsideration and the motion to stay. The February 10 Order addressed a number of disputed discovery requests served on ChemTreat by Plaintiffs. ChemTreat asks the Court to reconsider its decision only as to request for production (“RFP”) nos. 8 and 35. These two RFP sought production of documents and communications “concerning the wiping, reformatting, destruction, repurposing and/or failure to preserve any computer(s) or Device(s) used by Ridley,” and “concerning Your investigation, examination, analysis and/or inspection into whether Ridley accessed or used any Ecolab Documents during his employment at ChemTreat,” respectively [Doc. 137 at Page ID # 1827]. ChemTreat objected to these RFP “to the extent [they seek] Documents protected by the attorney-client privilege, work product doctrine, or other applicable privileges.” [Id. at Page ID # 1829]. ChemTreat did not produce a “privilege log” or otherwise identify the documents being withheld and the basis for withholding the documents (i.e., attorney-client privilege versus work product protection). The Court assumed an attorney-client privilege and/or work production was properly claimed by ChemTreat as to any documents at issue. The Court also noted precedent from the United States Court of Appeals for the Sixth Circuit holding that “there is no compelling reason for differentiating waiver of work product from waiver of attorney-client privilege.” Barnard v. Powell Valley Elec. Coop., No. 3:18-CV-537-CEA-DCP, 2021 WL 6275267, at *3 (E.D. Tenn. Mar. 5, 2021) (quoting In re Columbia/HCA Healthcare Corp. Billing Pracs. Litig., 293 F.3d 289, 206 (6th Cir. 2002)). *2 In concluding ChemTreat could not rely on attorney-client privilege or the work product doctrine to withhold otherwise responsive documents, the Court relied on representations in ChemTreat's counterclaims[3] for attorney's fees based on Plaintiff's alleged bad faith in asserting claims against ChemTreat for misappropriation of trade secrets: 3. Plaintiffs have filed a lawsuit alleging that ChemTreat conspired with Plaintiffs’ former employee, Anthony Ridley, to misappropriate, use, and benefit from Plaintiffs’ purported trade secrets and otherwise protectable confidential information. Plaintiffs allege that ChemTreat conspired with Ridley to misappropriate their trade secrets or otherwise protectable confidential information, and then terminated Ridley for participating in the alleged conspiracy. Plaintiffs’ claims as to ChemTreat are illogical and find no basis in fact or law. Plaintiffs know (or should know) this. 4. Plaintiffs have nonetheless commenced and continued their lawsuit against ChemTreat in bad faith and with knowledge that they lack a good faith factual or legal basis for their claims against ChemTreat. 5. As Plaintiffs know, ChemTreat has express policies prohibiting its employees from retaining, using, or disclosing any confidential or trade secret information belonging to others, including prior employers. When Plaintiffs notified ChemTreat that they suspected Ridley had taken such information with him to his new job at ChemTreat, ChemTreat promptly and diligently investigated their allegations. 6. ChemTreat provided updates to Plaintiffs regarding the status of its ongoing investigation, engaging in extensive pre-suit communications with Plaintiffs to address their concerns and respond to their questions. ChemTreat voluntarily disclosed to Plaintiffs detailed information regarding the nature, scope, and, ultimately, the outcome of ChemTreat's investigation. .... 9. As ChemTreat ultimately informed Plaintiffs—and subsequently confirmed in sworn interrogatory responses—its investigation, which involved an outside forensic expert and included a thorough review of all ChemTreat systems to which Ridley had access, did not reveal any evidence that Ridley had used or disclosed any of Plaintiffs’ alleged trade secret information in his work at ChemTreat. 10. The investigation identified only a single Nalco document (a 2015 response to a request for quotation that was not marked confidential and did not bear any indicia of trade secret status) that Ridley had sent from his personal email account to his ChemTreat email account. ChemTreat's investigation found no evidence that this document (“the 2015 Response”) was saved in ChemTreat's network or cloud storage or transmitted further (either to other ChemTreat employees or outside of the organization). ChemTreat promptly notified Plaintiffs of its discovery of the 2015 Response in Ridley's email account and requested instructions on whether to return or dispose of the 2015 Response. Plaintiffs never provided any such instructions. 11. ChemTreat provided a copy of the 2015 Response to Plaintiffs in March 2022. Plaintiffs thus knew or should have known as of March 2022 that the 2015 Response could not satisfy the statutory requirements for trade secret misappropriation under either state or federal law. Indeed, although Plaintiffs initially insisted the 2015 Response was “confidential” and had an “inherent confidential nature,” Plaintiffs were unable to support those claims, resulting in the 2015 Response being filed on the public docket in this action. Doc. 68-1. *3 12. ChemTreat concluded that Ridley's transmission of the 2015 Response from his personal email account to his business email account violated the Certification of Compliance of Obligations to Prior Employers that ChemTreat required Ridley to sign as a condition of his employment. .... 15. Despite ChemTreat's cooperation with Plaintiffs, its candid explanation of the facts as understood by ChemTreat during the course of its ongoing investigation, the extensive information ChemTreat provided to Plaintiffs without any obligation to do so, and its prompt actions to address Plaintiffs’ concerns—all of which provided concrete evidence supporting ChemTreat's repeated statements to Plaintiffs that Plaintiffs’ allegations against ChemTreat lacked a good faith basis in fact and law—in April 2022, Plaintiffs sued ChemTreat for misappropriation of trade secrets under the Defend Trade Secrets Act (“DTSA”) and, in June 2022, for misappropriation of trade secrets under the Tennessee Uniform Trade Secrets Act (“TUTSA”). .... 17. Rather than facts, Plaintiffs’ DTSA and TUTSA claims against ChemTreat rely on spurious accusations that ChemTreat wiped a laptop that Ridley used while employed by ChemTreat to conceal evidence of wrongdoing by ChemTreat. Plaintiffs know or should know those accusations lack any good faith basis. 18. At Plaintiffs’ request, ChemTreat recalled the laptop Ridley was using while employed by ChemTreat so that the laptop could be forensically imaged. As ChemTreat voluntarily disclosed to Plaintiffs in March 2022, when that laptop was received at ChemTreat's offices, an administrative assistant mistakenly routed the laptop to the IT department rather than the legal department per its shipping label. As a result of this inadvertent error, Ridley's laptop was placed with laptops designated for reformatting and redeployment and was subsequently cleaned and redeployed. 19. When ChemTreat discovered the administrative assistant's error, it took prompt and diligent steps to recall the laptop from its redeployment and used an outside forensic expert to examine the laptop to determine what data could be recovered. Although ChemTreat had no obligation to disclose this information to Plaintiffs, it voluntarily did so in March 2022. ChemTreat further informed Plaintiffs at that time that it had logs from its digital loss prevention software (“CrowdStrike logs”) that replicated much of the data that would have been available from a forensic image of the laptop used by Ridley. ChemTreat subsequently confirmed this course of events, and provided further detail regarding it, under oath. 20. Plaintiffs thus had and have no good faith basis to believe that ChemTreat deliberately spoliated the laptop used by Ridley or that the inadvertent cleaning and reformatting of that laptop constitutes anything other than an unfortunate but innocent mistake. .... 38. On information and belief, Plaintiffs commenced and have continued their DTSA and TUTSA claims against ChemTreat based on a bad faith motive to harass ChemTreat and its employees, and to chill the willingness of Plaintiffs’ current or former employees to accept employment with ChemTreat. [Doc. 78 at Page ID # 871-76, 880]. *4 The Court further relied on caselaw holding, for example, that “privilege may be implicitly waived when defendant asserts a claim that in fairness requires examination of the protected communication[.]” [Doc. 137 at Page ID # 1839-40 (quoting In re United Shore Fin. Servs., LLC, No. 17-2290, 2018 WL 2283893, at *2 (6th Cir. 2018)]. The Court therefore granted Plaintiffs’ motion to compel as to RFP nos. 8 and 35. II. FEDERAL RULE OF CIVIL PROCEDURE 54(b) Rule 54(b) provides: [A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities. “District courts have authority under both common law and Rule 54(b) to reconsider interlocutory orders and to reopen any part of a case before entry of final judgment.” Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 Fed. App'x 949, 959 (6th Cir. 2004) (citation omitted). “Traditionally, courts will find justification for reconsidering interlocutory orders when there is (1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent manifest injustice.” Id. (citation omitted). The standard “obviously vests significant discretion in district courts,” id. at 959 n.7, and “allows district courts to afford such relief from interlocutory orders as justice requires.” Id. (internal brackets, quotation marks and citations omitted). Nevertheless, motions to reconsider should be “used sparingly and in rare circumstances.” Grogg v. Clark, No. 2:15-CV-298-JRG-MCLC, 2016 WL 1394534, at *1 (E.D. Tenn. Apr. 7, 2016). III. ANALYSIS ChemTreat contends new evidence justifies reconsideration of the Court's decision. First, on March 9, ChemTreat filed an amended answer [Doc. 177] withdrawing the counterclaims which described the disclosures on which the Court relied in concluding ChemTreat waived any attorney-client privilege or work product protection. ChemTreat asserts that the amendment constitutes new evidence which “makes it clear that ChemTreat does not and will not rely on the advice of its counsel, or any other privileged information, in support of any claim or defense in this action.” [Doc. 152 at Page ID # 2145-46]. Second, on February 22, 2023, ChemTreat produced the expert report of James Vaughn. ChemTreat explains that it retained Vaughn “in early 2022” to investigate “whether there was evidence that Ridley had stored Plaintiffs’ confidential information on ChemTreat's systems or distributed Plaintiffs’ confidential information using ChemTreat's systems.” [Id. at Page ID # 2150]. ChemTreat argues the report shows that all of the prior disclosures made by ChemTreat to Plaintiffs regarding the laptop and systems investigations—those described in the counterclaims quoted above—did not involve disclosure of any information protected by the attorney-client privilege or the work product doctrine. Rather, ChemTreat argues, it disclosed only “nonprivileged, factual information” [id. at Page ID # 2143], and fully discoverable conclusions reached by Vaughn [id. at Page ID # 2152 (“the opinions disclosed by ChemTreat in its March 21 and 25, 2022 communications were not those of its counsel, but were instead those of the ‘independent forensic examiner’ to whom the communications referred—James Vaughn”)]. It claims this information differs from, for example, “counsel's advice to ChemTreat regarding their assessment of the litigation, or their work product created in connection with the litigation” [id. at Page ID # 2143]. *5 Ultimately, ChemTreat's position is that it has not disclosed any protected information, and furthermore, it will not be “forced to draw upon the privileged[4] material at trial in order to prevail.” [Doc. 184 at Page ID # 2808 (quoting Lott, 424 F.3d at 453)]. Instead, it has and will continue to only rely on the unprotected information revealed by Vaughn's work. The Court will first consider the impact of the Vaughn expert report and the revelation that the forensic investigations previously disclosed were undertaken by ChemTreat's testifying expert, such that they are subject to discovery under the Rule 26 expert witness provisions. ChemTreat argues “the evidence now before the Court demonstrates that ChemTreat disclosed only the nonprivileged ‘underlying facts’ regarding its investigation—the same facts disclosed and relied on in Vaughn's expert report—such that there has been no voluntary disclosure of ChemTreat's privileged information.” [Doc. 152 at Page ID # 2147]. In the February 10 Order, the Court cited information ChemTreat alleged it disclosed to Plaintiffs prior to the filing of this lawsuit or shortly thereafter, concerning its investigations and the results of the investigations. The Court found ChemTreat failed to establish that, in making these seemingly extensive disclosures, ChemTreat had not disclosed information protected by either the attorney-client privilege or the work-product doctrine.[5] “As a general rule, the ‘attorney-client privilege is waived by voluntary disclosure of private communications by an individual or corporation to third parties.’ ” In re Columbia/HCA Healthcare Corp., 293 F.3d at 306 (quoting In re Grand Jury Proceedings Oct. 12, 1995, 78 F.3d 251, 254 (6th Cir. 1996)). ChemTreat is correct that only confidential communications are protected by the attorney-client privilege, not the underlying facts. Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981) (“[T]he protection of the privilege extends only to communications and not to facts.... The client cannot be compelled to answer the question, ‘What did you say or write to the attorney?’ but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.”). “While the attorney-client privilege protects only confidential communications, the work product doctrine generally protects from disclosure documents prepared by or for an attorney in anticipation of litigation.” Reg'l Airport Auth. of Louisville v. LFG, LLC, 460 F.3d 697, 713 (6th Cir. 2006) (citation omitted). Like the attorney-client privilege, the protection of the work-product doctrine can be waived when work-product materials are disclosed to third parties. In re Columbia/HCA Healthcare Corp., 293 F.3d at 306. To constitute a waiver, however, the disclosure of work product must be to an “adversary.” Id. *6 ChemTreat now clarifies that the references in its counterclaims to the “pre-suit communications” with Plaintiffs, refer only to emails and letters ChemTreat sent to Plaintiffs in February and March 2022, which are in the record [Doc. 52-1, Doc. 52-2, Doc. 52-3]. Plaintiffs do not point to the disclosure of any confidential communications in these documents, or in the subsequent interrogatory responses. The March 25 email specifically states that the “diligent investigation” into Plaintiffs’ allegations was undertaken by ChemTreat “in concert with litigation counsel and an experienced forensic examiner.” [Doc. 52-3 at Page ID # 508 (emphasis added)]. As such, even if no confidential communications were disclosed, information revealed and documents generated from the investigations could constitute work product, as the investigations were undoubtedly performed in anticipation of litigation. Moreover, the information concerning the investigations were disclosed to an adversary (Plaintiffs), which potentially implicates waiver as discussed above. However, the fact that Vaughn, a testifying expert, is the source of the information ChemTreat disclosed information is significant. This is because “the work-product protection of Rule 26(b)(3) does not extend to materials prepared by or for a testifying expert.” Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1192-93 (11th Cir. 2013) (citing Tenth Circuit's holding in Republic of Ecuador v. For Issuance of a Subpoena Under 28 U.S.C. § 1782(a), 735 F.3d 1179, 1183-85 (10th Cir. 2013)); In re Davol, Inc./C.R. Bard, Inc., No. 2:18-md-2846, 2021 WL 2280657, at *4 (S.D. Ohio June 4, 2021) (“Rule 26(b)(3)’s work-product protection applies to attorney work product and generally does not extend to experts[.]”); Fed. R. Civ. P. 26(b)(4) advisory committee note to 2010 amendment (“Rules 26(b)(4)(B) and (C) do not impede discovery about the opinions to be offered by the expert or the development, foundation, or basis of those opinions.”).[6] Although the February and March 2022 communications do not indicate the forensic expert was ChemTreat's testifying expert, and neither do ChemTreat's interrogatory responses, he clearly now has been so designated.[7] Even if he was initially retained as a consulting or non-testifying expert (or was a non-retained or non-specifically employed), any protection applicable to a non-testifying expert would apply “only [to] those materials generated or considered uniquely in the expert's role as consultant.” In re Davol, Inc./C.R. Bard Inc., 2021 WL 2280657, at *4 (citation omitted) (emphasis in original). The record reflects Vaughn did consider the early stage investigations, the disclosure of which is described in the counterclaims, when forming his opinion as a testifying expert [Doc. 152-6 at Page ID # 2217-18]. *7 Further, ChemTreat emphasizes that it only disclosed “underlying facts” that are not entitled to attorney-client or work product protection, regardless of who gathered them. Indeed, similar to the attorney-client privilege, courts hold the work product doctrine “does not protect underlying facts from disclosure.” Askew v. City of Memphis, No. 14-cv-2080-STA-tmp, 2015 WL 12030096, at *2 (W.D. Tenn. July 23, 2015) (citing cases); see also Graff v. Haverhill North Coke Co., No. 1:09-cv-670, 2012 WL 5495514, at *50 (S.D. Ohio Nov. 13, 2012) (“neither the attorney-client privilege nor the work product doctrine applies to prevent the disclosure of underlying facts, regardless of who obtained those facts.” (citing Upjohn, 449 U.S. at 395)).[8] Plaintiffs point out that ChemTreat's counterclaims alleged, for example, that ChemTreat “provided concrete evidence supporting ChemTreat's repeated statements to Plaintiffs that Plaintiffs’ allegations against ChemTreat lacked a good faith basis in fact and law.” [Doc. 78 at Page ID # 874; Doc. 175 at Page ID # 2643 (emphasis in original)]. However, the Court finds the recitation of such form language does not change the nature of the disclosure. Plaintiffs now have Vaughn's expert report, and they are entitled to “all materials,” including privileged materials, that Vaughn “reviewed or considered” regardless of whether he “ultimately refers to those materials as a basis for his ... opinions.” Avanos Med. Sales, LLC v. Medtronic Sofamor Danek USA, Inc., No. 19-cv-2754-JPM-tmp, 2021 WL 3276608, at *3 (W.D. Tenn. July 30, 2021) (citations omitted). They will be entitled to depose Vaughn and explore any deficiencies in his investigation. Plaintiffs are therefore incorrect when they contend that Vaughn, his investigation, and/or his report will be “shield[ed] ... from any meaningful discovery.” [Doc. 175 at Page ID # 2643]. In other words, Plaintiffs are entitled to “documents related to how the investigation was conducted and what was considered during the investigation.” In re United Shore Fin. Servs., 2018 WL 2283893, at *2. Plaintiffs argue ChemTreat clearly knew prior to the submission of Vaughn's expert report in February 2023 that Vaughn was the forensic expert referenced in the February and March 2022 letter and emails and that he was or would be a testifying expert. Therefore, ChemTreat could have made the Vaughn-related arguments in connection with the underlying motion to compel. And the Court acknowledges Plaintiffs referenced Vaughn in the motion to compel, albeit in connection with a separate issue [see Doc. 97 at Page ID # 1300]. Regardless, the Vaughn expert report clearly sheds new light on the existing facts—in the sense that it is now clear Vaughn is a testifying expert and furthermore that he “considered” his early stage investigations when forming his expert opinion. ChemTreat now explicitly states that the early stage investigations are “nonprivileged,” which the Court interprets as indicating ChemTreat affirmatively disclaims protections of the work-product doctrine [Doc. 152 at Page ID # 2158]. As such, and in the exercise of its considerable discretion in the context of a Rule 54(b) motion for reconsideration, the Court finds it appropriate to consider the Vaughn expert report and arguments related to the report in the context of ChemTreat's motion for reconsideration. *8 As for the withdrawal of ChemTreat's counterclaims, the Court finds it is not bound by its brief comment about the lack of authority to unwaive a waiver of privilege in the middle of a hearing, which was made during the extensive hearing on the motion to compel in response to ChemTreat's comment that it would withdraw its counterclaims if the Court were inclined to find waiver based on the counterclaims. As mentioned above, the record at that time did not clearly reflect what was being withheld and on what basis due in part to the lack of a privilege log. It appeared to the Court at that time that ChemTreat selectively revealed information about the investigations, presumably only the information that benefitted ChemTreat. Indeed, the March 25 email from counsel for ChemTreat to Plaintiffs [Doc. 52-3] expressly states ChemTreat was withholding information. Further, given that the information was pressed in counterclaims, it appeared ChemTreat would rely on its self-selected information to affirmatively pursue a claim for attorney's fees without allowing Plaintiffs proper discovery into any aspects of the investigations that may have been unfavorable to ChemTreat. ChemTreat has now clarified that it does not claim the investigations are protected by the work product doctrine or that they are “privileged” (to the extent an investigation can be “privileged”), and ChemTreat concedes Plaintiffs are entitled to all discovery concerning the investigations properly permitted by Rule 26 and discovery of testifying, retained experts. Plaintiffs argue “it is abundantly clear that ChemTreat intends to use the findings of its investigations to prove or argue that it neither had possession of nor used the many gigabytes of confidential information which Defendant Ridley stole from the Plaintiffs.” [Doc. 175 at Page ID # 2645]. But Plaintiffs fail to acknowledge ChemTreat can rely on Vaughn's expert report in support of any such argument or factual contention. Plaintiffs do not point to any deficiencies in the report that will hinder them from effective cross-examination regarding “how the investigation was conducted and what was considered during the investigation.” [Id.]. By withdrawing its counterclaims, ChemTreat is not “forced to draw upon” the earlier disclosures to Plaintiffs expressly described in the counterclaims. In re Lott, 424 F.3d 446, 453 (6th Cir. 2005) (citation omitted). ChemTreat did fairly extensively cite to the earlier disclosures of the investigations in its June 2022 motion to dismiss [see Doc. 52]. And at least one court has held that where a litigant makes the “tactical decision” to rely on an investigation by presenting it in a motion for summary judgment, the litigant cannot “ ‘unwaive’ privilege and work-product protection.” Reitz v. City of Mt. Juliet, 680 F. Supp. 2d 888, 894-95 (M.D. Tenn. 2010). In Reitz, the employer-defendant expressly relied on the Faragher-Ellerth affirmative defense to show that, by retaining an investigator who concluded the plaintiff-employee's sexual harassment complaint was without merit, the employer-defendant exercised reasonable care “to prevent and correct promptly any sexually harassing behavior,” such that it could not be vicariously liable for any harassing behavior that did occur. Id. at 892 (quoting Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 275 (6th Cir. 2009)). The employee-plaintiff abandoned her hostile work environment claim in response to the defendant-employer's motion for summary judgment. The court held that the defendant-employer waived attorney-client privilege and work product protection by relying on the investigation to assert the Faragher-Ellerth defense and attaching a memorandum from the investigator to its motion for summary judgment, regardless of whether the plaintiff-employee voluntarily dismissed her claims the investigation was meant to defeat. 680 F. Supp. 2d at 894-95. ChemTreat's motion to dismiss, by contrast, argued that Plaintiffs failed to allege facts sufficient to show that ChemTreat was aware of, or could otherwise be vicariously liable for Ridley's alleged misappropriation. See Robinson v. Morgan Stanley, No. 06 C 5158, 2010 WL 1050288, at *5 (N.D. Ill. Mar. 17, 2010) (noting that waiver of attorney-client privilege or work product protection “usually occurs, if at all, when the holder asserts an affirmative defense.” (citation omitted)); see also Plate, LLC v. Elite Tactical Systems, LLC, No. 3:18-CV-264-CLC-HBG, 2020 WL 5209303, at *9-10 (E.D. Tenn. Sept. 1, 2020) (finding no waiver where attorney's letter was cited, inter alia, “as evidence of [Plaintiffs’] knowledge after receiving it” (alteration in original)). *9 For these reasons, the Court finds reconsideration of its waiver determination is necessary and appropriate under the unusual circumstances of the instant dispute. The Court will therefore grant ChemTreat's motion for reconsideration and hold that ChemTreat has sufficiently demonstrated that it did not waive the protections of the attorney-client privilege or the work product doctrine as to the investigations conducted by Vaughn into the deletion of information from Ridley's laptop and into whether Ridley used Plaintiffs’ confidential information while working for ChemTreat.[9] IV. CONCLUSION For the foregoing reasons, ChemTreat's motion for reconsideration [Doc. 151] is GRANTED to the extent set forth herein. The Court VACATES IN PART its February 10 Order [Doc. 137], specifically the portion finding that ChemTreat waived, or failed to demonstrate it did not waive, the protections of the attorney-client privilege and/or the work product doctrine. The Court addressed ChemTreat's other objections to RFP nos. 8 and 35 in the February 10 Order in connection with other RFP addressed in the February 10 Order, and this Order does not alter the Court's findings as to those other objections. That is, nothing about this Order or the February 10 Order should be construed as requiring ChemTreat to search all of its employee’ personal text messages, personal social media accounts, or personal messaging apps for ESI that is not within ChemTreat's possession, custody, or control. The Court also previously addressed ChemTreat's objections to the defined terms in Plaintiffs’ RFP. Nothing about this Order alters the Court's conclusions regarding the defined terms. In short, the Court sustains ChemTreat's objections to RFP nos. 8 and 35 only to the extent the objections pertain to the attorney-client privilege and the work product doctrine. All responsive documents not protected by the attorney-client privilege or the work product doctrine that have not already been produced, if any, SHALL be produced within THREE DAYS of entry of this Order. ChemTreat's motion for a partial stay of the February 10 Order [Doc. 153] is hereby GRANTED nunc pro tunc to the date production was required by the February 10 Order. Plaintiffs’ “Emergency Motion for an Order Requiring Defendant ChemTreat to Appear and Show Cause Why It Should Not Be Held in Contempt and Sanctioned for Its Failure to Comply with the Court's February 10, 2023 Order (Doc. 137) Granting Plaintiffs’ Motion to Compel with Respect to Plaintiffs’ RFPs 8 and 35; and Motion for Extension of Discovery Deadline Due to ChemTreat's Noncompliance” [Doc. 187] is hereby DENIED WITHOUT PREJUDICE. *10 SO ORDERED. Footnotes [1] The defendants are ChemTreat, Inc. (“ChemTreat”), and Anthony Ridley (“Ridley,” and collectively, “Defendants”). [2] There is a third related motion: “Plaintiffs’ Emergency Motion for an Order Requiring Defendant ChemTreat to Appear and Show Cause Why It Should Not Be Held in Contempt and Sanctioned for Its Failure to Comply with the Court's February 10, 2023 Order (Doc. 137) Granting Plaintiffs’ Motion to Compel with Respect to Plaintiffs’ RFPs 8 and 35; and Motion for Extension of Discovery Deadline Due to ChemTreat's Noncompliance” [Doc. 187]. As that motion will be impacted by this Order, the motion is denied without prejudice. [3] All references to ChemTreat's counterclaim or counterclaims herein are made with the acknowledgement that the counterclaims have been withdrawn [Doc. 177]. [4] ChemTreat uses “privileged” to mean protected by attorney-client privilege or the work product doctrine. [5] The Court did not explicitly draw a distinction between an “at issue” waiver and a “voluntary disclosure” waiver in the February 10 Order. The Court determined that by selectively disclosing what certainly appeared to be protected information (as described by ChemTreat itself in its counterclaims and not adequately rebutted in the motion to compel), and further by making allegations in its counterclaims that appeared to rely upon protected information, ChemTreat put the investigations at issue and waived any applicable protections to information or documents regarding the investigations. On a related note, ChemTreat argues in a fair amount of detail that Plaintiffs argued only an “at issue” waiver in the motion to compel [see Doc. 152 at Page ID # 2143]. The Court finds Plaintiffs’ arguments in the motion to compel sufficiently addressed disclosure of protected information such that it is proper for the Court to consider the issue in connection with the instant motions [see, e.g., Doc. 97 at Page ID # 1298 (arguing ChemTreat “is withholding documents concerning its investigation into its own spoliation on the basis of privilege.... ChemTreat should not get away with this. Doing so would allow ChemTreat to hide behind its internal investigation and cherry pick favorable information to disclose.”)]. [6] Rule 26(b)(4) provides work-product protection for expert draft reports and for communications between experts and attorneys. However, an expert's notes are discoverable. See In re Davol, Inc./C.R. Bard, Inc., 2021 WL 2280657, at *5 (citation omitted). Plaintiffs do not contend a draft report produced by Vaughn or a communication between Vaughn and counsel was disclosed. [7] ChemTreat identifies Vaughn as the forensic expert in its response to Plaintiffs’ interrogatory no. 2. The Court observed in the February 10 Order that “the record does not indicate whether the requested information actually comes within the scope of required disclosures for testifying experts.” [Doc. 137 at Page ID # 1841]. [8] The Court acknowledges ChemTreat argued in opposition to the underlying motion to compel that it only disclosed “underlying facts.” [Doc. 107 at Page ID # 1368-70]. ChemTreat argued “merely referencing an internal investigation, or disclosing summaries of findings, does not waive the attorney-client privilege or work product protection over documents related to the investigation,” and cited cases it claimed supported that argument [Doc. 107 at Page ID # 1369]. The Court found that in ChemTreat's counterclaims, ChemTreat itself characterized its disclosures as far more extensive than those discussed in the cases ChemTreat cited. It further appeared to the Court that ChemTreat asserted work product protection and/or attorney-client privilege over the investigations while attempting to rely on the results of the investigations to show Plaintiffs’ claims were brought in bad faith. [9] As discussed above, application of these protections may be limited by virtue of Vaughn's designation as a testifying expert, but the Court has inadequate information to address such issues. ChemTreat “recognizes” that the “lack of a privilege log complicates the Court's task” but points out the parties mutually “agreed that communications involving counsel on or after [February 9, 2022] were presumptively privileged, such that they need not be logged.” [Doc. 152 at Page ID # 2157 n.11 (citing Doc. 91 at Page ID # 1077)]. The parties’ agreement is reflected in the Agreed ESI Protocol Order [Doc. 91]. The Court finds ChemTreat's “recognition” to be a gross understatement of the difficulties created in addressing this situation without a privilege log. However, in light of this agreement the Court will not require a privilege log as to any documents withheld on the basis that they constitute a communication involving counsel.