General Electric Company v. APR Energy PLC

Background

General Electric Company (GE) brought claims against APR Energy PLC concerning an alleged breach of the October 28, 2013 Master Supply Agreement. APR Energy PLC, APR Energy Holdings Limited, Power Rental Op Co Australia LLC, and Power Rental Asset Co Two LLC asserted claims against GE concerning the October 22, 2013 Business Transfer Agreement and the Master Supply Agreement.

GE moved under Federal Rule of Civil Procedure 37 for an order compelling APR to produce documents concerning related claims APR had filed against Baker & McKenzie and the resolution of those claims. GE’s July 28, 2020 motion focused on 28 documents that APR had provided to a neutral mediator but continued to withhold based on attorney-client privilege and work-product protection. APR stated that it had produced five documents and continued to assert those protections over the remaining 23 documents.

Earlier Discovery Ruling

In an April 29, 2020 order, the court rejected APR’s assertion of mediation privilege because, under the law governing the dispute, no mediation privilege applied. The court directed APR to disclose the settlement agreement with Baker & McKenzie and the settlement amount because that information was not privileged.

The same order, however, sustained APR’s objections based on attorney-client privilege and work-product protection. The court also found that GE had not challenged APR’s privilege log and had not shown that APR placed privileged material at issue in the present action.

Parties’ Arguments

GE argued that APR waived attorney-client privilege and work-product protection by voluntarily giving the documents to a third-party mediator. GE also argued that the documents were relevant because APR allegedly sought compensation from GE for the same loss it had attributed to Baker & McKenzie in the earlier litigation.

APR argued that GE was trying to expand the April 29 order beyond its ruling on mediation privilege. APR maintained that sharing the documents with the mediator did not waive attorney-client privilege or work-product protection because the mediation was confidential and subject to Illinois law and a confidentiality agreement.

Court’s Analysis

The court applied the law-of-the-case doctrine, which generally prevents a court from reconsidering issues already decided in the same case unless there is a compelling reason, such as a change in law, new evidence, clear error, or manifest injustice. The court also noted that a party withholding otherwise discoverable information based on privilege or trial-preparation protection must identify the protection and provide enough information for the other side to evaluate the claim.

The court concluded that its April 29 order had already sustained APR’s attorney-client privilege and work-product objections. GE had not sought reconsideration of that order, had not challenged APR’s privilege log, and had not addressed APR’s argument that the earlier order resolved the privilege and work-product issues. GE also did not demonstrate a compelling reason for the court to revisit the earlier ruling.

Disposition

The court denied GE’s motion to compel, Docket Entry No. 87. The opinion did not decide anew whether disclosure to the mediator waived attorney-client privilege or work-product protection; it declined to revisit the earlier order that had upheld those protections.