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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`SOHYON WARNER,
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` Plaintiff,
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`v.
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`GILBARCO, INC., GILBARCO, INC.
`(d/b/a GILBARCO VEEDER-ROOT), and
`VONTIER CORPORATION,
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` Defendants.
`
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`Case No. 2:24-cv-12333
`District Judge Gershwin A. Drain
`Magistrate Judge Anthony P. Patti
`___________________________________/
`ORDER DENYING PLAINTIFF’S MOTION FOR SANCTIONS BASED ON
`NON-COMPLIANCE WITH A COURT ORDER (ECF No. 68), GRANTING
`IN PART, DENYING IN PART, AND DEEMING WITHDRAWN IN PART
`DEFENDANTS’ MOTION TO COMPEL (ECF No. 80), and STRIKING
`THE NON-JOINT STATEMENT (ECF No. 89)
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`A. Pending Matters
`On August 28, 2025, the Court entered an amended scheduling order, which
`set the fact discovery deadline for December 5, 2025. (ECF No. 41.) To date, the
`Undersigned has handled several discovery-related motions (see, e.g., ECF No. 45,
`47, 48, 49, 50) via orders dated September 26, 2025 (ECF No. 56) and October 30,
`2025 (ECF No. 66).
`Currently pending before the Court are: (1) Plaintiff’s November 10, 2025
`notice of Defendants’ non-compliance with the Court’s October 30, 2025 order and
`request for sanctions under Fed. R. Civ. P. 37 (ECF No. 68), as to which
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`Defendants filed a response (ECF No. 73), and Plaintiff filed a reply (ECF No. 77);
`and, (2) Defendants’ December 23, 2025 motion to compel and request for
`sanctions (ECF No. 80), as to which Plaintiff has filed a response (ECF No. 86)
`and Defendants have filed a reply (ECF No. 87). Additionally, the parties have
`filed statements of resolved and unresolved issues. (See ECF Nos. 89, 90.)1
`Judge Drain has referred each of these motions to me for hearing and
`determination (ECF No. 69, 81). The Undersigned conducted a video status
`conference on January 12, 2026. (ECF Nos. 85, 93.) Pursuant to the Court’s
`January 13, 2026 notice, Plaintiff, on her own behalf, and defense counsel
`(Attorney Richard W. Warren) appeared on February 5, 2026 in person for a
`hearing on these motions. (ECF Nos. 82, 88.)
`B. Order
`1. Plaintiff’s motion (ECF No. 68) is DENIED.
`Upon consideration of the motion papers and the parties’ arguments and
`representations at the hearing, and for all the reasons stated on the record by the
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`1 Plaintiff’s “notice” (ECF No. 68) has been treated as a motion. The usual path to
`gaining relief from the Court is to file a motion, and notices are generally not
`permitted unless previously requested by the Court (e.g., ECF No. 51); more often
`than not, they are stricken. Plaintiff is cautioned about filing notices going
`forward, as she has, on more than one occasion, filed unauthorized “notices” on the
`docket. (See, e.g., ECF No. 58, 68.) Also, Plaintiff’s emergency supplement (ECF
`No. 72) was stricken pursuant to the Court’s November 26, 2025 text-only order.
`Finally, at the February 5, 2026 motion hearing, the Court struck the non-joint
`statement (ECF No. 89) from the record.
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`Court, which are hereby incorporated by reference as though fully restated herein,
`Plaintiff’s motion (ECF No. 68) is DENIED as set forth in the prayer for relief
`(see ECF No. 68, PageID.662-663 ¶¶ 1-6.):
`• To the extent Plaintiff asked the Court to “[f]ind Defendants in non-
`compliance with ECF 66 and the Federal Rules of Civil Procedure[,]” the motion is
`DENIED. Inter alia, the Court agrees that Defendants complied with the direction
`regarding Bates ranges 162-462 (see ECF No. 66, PageID.630 ¶ 4), when it
`submitted its November 7, 2025 supplemental response (see ECF No. 73,
`PageID.735; ECF No. 73-1). To the extent that Defendants provided additional
`information after Court-ordered deadlines, the Court is satisfied that it did so in
`compliance with its duty to supplement under Fed. R. Civ. P. 26(e).
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`• To the extent Plaintiff asks Defendants to “[o]rder immediate,
`complete production of all comparator files, HR investigations, and ESI—requiring
`Defendants to re-run all searches using the expanded custodian and term list
`provided on October 27, 2025, and to re-produce the results in an organized,
`labeled format consistent with Rule 34(b)(2)(E)[,]” the motion is DENIED.
`Defense counsel, as an officer of the Court, provided answers to the Court’s
`extensive questioning on this subject, and the Court is satisfied that Defendants
`have produced the comparator files (see ECF No. 68, PageID.651-653) within their
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`“possession, custody, or control[,]” Fed. R. Civ. P. 34(a)(1); thus, there is nothing
`for the Court to order. The two investigation reports listed in the privilege log will
`be addressed below.
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`Although not spelled out in her prayer for relief, Plaintiff complains that
`Defendants’ production of Bates range 463-4427 on October 27, 2025 and
`November 7, 2025 did not comply with the Court’s October 30, 2025 order (ECF
`No. 66). (ECF No. 68, PageID.656-658). However, Defendants’ November 7,
`2025 supplemental response reads: “Not long before Plaintiff’s counsel withdrew
`their representation, Defendants agreed to run an ESI search with specific search
`parameters—date range: December 1, 2021 to December 31, 2023—custodians:
`Ivan Ayma, Emily Heuser, Rosanna Hurst and Robert Steffler—and the search
`terms below[,]” below which appears a list of search terms. (ECF No. 73-1,
`PageID.754.) Immediately below the chart of search terms, Defendants state: “As
`a result of this search, see documents at Bates Nos. G000463-1378 and G001379-
`4427.” (ECF No. 73-1, PageID.754 [No. 16].) The Court finds that this suffices
`and complies with its prior order.
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`• To the extent Plaintiff asked the Court to “[r]equire Defendants to
`serve an updated, itemized privilege log identifying each withheld document with
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`sufficient detail to assess the claim of privilege, and to produce all non-privileged
`portions of the HR investigations[,]” the motion is DENIED. Instead, the Court
`performed Plaintiff’s suggested in camera review. Having considered the two
`investigation reports listed on Defendants’ November 21, 2025 privilege log (ECF
`No. 73-3), one by compliance counsel Kathy Martorell dated March 3, 2023 (see
`ECF No. 73-6) and the other by compliance investigator Kate S. Gibson dated
`December 14, 2022 (see ECF No. 73-4), along with the declarations filed in
`support of privileges with respect to those two documents, one by Kate Gibson,
`Esq. (ECF No. 73-5) and the other by Kathy Hunt, Esq. (ECF No. 73-7), the Court
`concludes these investigations and the reports they generated were done in
`anticipation of litigation, both subjectively and objectively, as opposed to the
`ordinary course of business. See, e.g., Upjohn Co. v. United States, 449 U.S. 383,
`386 (1981); Lee v. EUSA Pharma US LLC, No. 2:22-CV-11145, 2024 WL 250064
`(E.D. Mich. Jan. 23, 2024) (Patti, M.J.) (order after in camera review); United
`States v. Nobles, 422 U.S. 225, 238–39 (1975) (“the doctrine protect[s] material
`prepared by agents for the attorney as well as those prepared by the attorney
`himself.”). Because these documents are protected by both the attorney-client
`privilege and the work product doctrine, the Court will not order their production.
`Although Plaintiff argued that any factual accounts given in those reports should
`be produced, the Court extensively questioned defense counsel at the hearing and
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`is satisfied that no witnesses interviewed by in-house counsel gave written,
`recorded, sworn, or transcribed verbatim statements. As this Court has noted,
`“even attorney interview notes of fact witnesses (if any exist), which are inevitably
`funneled through the attorney-interviewers’ ears, minds, fingers and/or voices (if
`dictated), are also protected as work product and, thus, not discoverable.” Lee,
`2024 WL 250064, at *4. See In re General Motors LLC Ignition Switch Lit., 80
`F.Supp.3d 521, 532 (S.D.N.Y. 2015) (“[i]nterview notes and memoranda produced
`in the course of ... internal investigations have long been considered classic
`attorney work product.”) As the Supreme Court has explained: “Forcing an
`attorney to disclose notes and memoranda of witnesses’ oral statements is
`particularly disfavored because it tends to reveal the attorney’s mental processes . .
`. .” Upjohn, 449 U.S. at 399 (citation omitted). See also United States v. One Tract
`of Real Prop. Together With all Bldgs., Improvements, Appurtenances & Fixtures,
`95 F.3d 422, 427 (6th Cir. 1996); 6 Moore’s Federal Practice § 26.70[2][a]
`(Matthew Bender 3d ed.) (“Thus, while the facts themselves are not privileged, a
`chart or other compilation of facts may be protected as work product.”).
`2 The
`Court confirmed that Plaintiff was provided with all of the names of the people
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`2 This is in contrast with government documents protected by the deliberative
`process privilege, where factual summaries may be discoverable because they are
`not “deliberative.” See EEOC v. Peoplemark, Inc., No. 1:08-cv-907, 2010 WL
`748250, at *2 (W.D. Mich. Feb. 26, 2010).
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`interviewed by in-house counsel in the internal investigation, and, though she had
`the opportunity to depose them to obtain whatever factual information they had,
`she did not.
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`• To the extent Plaintiff asked the Court to “[i]mpose sanctions under
`[Fed. R. Civ. P. 37(b) and Fed. R. Civ. P. 26(g)] . . . [,]” such as assessing
`expenses and fees, deeming facts established, imposing an adverse inference /
`spoliation, imposing an evidentiary preclusion, deeming a privilege waived, or
`providing a warning of further sanctions, the motion is DENIED;
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`• To the extent Plaintiff asked the Court to “[d]irect Defendants to
`certify, under oath, the preservation and completeness of all ESI and hard-copy
`materials associated with departed custodians (Schoultz, Hurst, Blaser, McClellan,
`Posada, Heuser, and Martorell) and to describe their data-retention measures in
`writing[,]” the motion is DENIED, as that certification was given on the record in
`open court; and,
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`• To the extent Plaintiff sought an extension of the discovery period “to
`ensure Plaintiff receives a meaningful opportunity to review all compelled
`productions, conduct follow-up discovery, and complete depositions after
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`compliance is achieved[,]” the motion is DENIED. For example, although
`Plaintiff claims to have requested depositions of Human Resources (HR) in
`September 2025, she never took a deposition, purportedly because she did not have
`related documents. She also never sought to compel that deposition at any time, let
`alone within the discovery period. Nonetheless, defense counsel confirmed that
`Plaintiff was given a list of those witnesses interviewed in the investigation, and, as
`the Court explained from the bench, although documents may be beneficial in
`deposing a witness, they are not absolutely necessary; indeed, a deposition may
`sometimes be used to identify documents to be sought in discovery, the revelation
`of which may occasionally become the basis for continuing a deposition. If
`Plaintiff was concerned about the completeness of personnel records produced to
`her, she was free to explore the contents that she had been given and whether other
`material exists or should have been included in document productions by deposing
`the HR director or some other appropriate custodian. She did not avail herself of
`this opportunity.
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`Given the Court’s denial of Plaintiff’s motion, the Court has considered
`whether to require Plaintiff to pay Defendants their “reasonable expenses incurred
`in opposing the motion, including attorney’s fees[,]” but the Court declines to do
`so, finding “the motion was substantially justified or other circumstances make an
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`award of expenses unjust[,]” Fed. R. Civ. P. 37(a)(5), particularly the need for the
`Court to engage in its in camera review. Plaintiff can hardly be faulted for making
`that request under these circumstances.
`2. Defendants’ motion (ECF No. 80) is GRANTED IN PART,
`DENIED IN PART, and DEEMED WITHDRAWN IN PART.
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`Upon consideration of the motion papers and the parties’ arguments and
`representations at the hearing, and for all the reasons stated on the record by the
`Court, which are hereby incorporated by reference as though fully restated herein,
`Defendants’ motion (ECF No. 80) is GRANTED IN PART, DENIED IN PART,
`and DEEMED WITHDRAWN IN PART. Preliminarily, the initial and amended
`scheduling orders provide: “Discovery shall be completed on or before the date set
`forth in the scheduling order. The court will not order discovery to take place
`subsequent to the discovery cutoff date.” (ECF No. 14, PageID.81; ECF No. 41,
`PageID.257 (emphasis in original).) Judge Drain’s and the Undersigned’s Practice
`Guidelines contain similar provisions. (See www.mied.uscourts.gov.) Plaintiff
`served her responses to Defendants’ second request to produce on October 23,
`2025 (ECF No. 80-4), she was deposed on November 25, 2025, and the discovery
`deadline in this case was extended to December 5, 2025 (ECF No. 41,
`PageID.257.) Defendants have made no showing that it was impossible or
`impractical to have filed the December 23, 2025 motion before the close of
`discovery, nor did Defendants file a motion to extend discovery or otherwise
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`demonstrate good cause for filing their motion outside of the discovery period.
`Therefore, the motion is DENIED AS UNTIMELY, except as specified below.
`See Santifer v. Inergy Auto Sys., LLC, No. 5:15-cv-11486, 2016 WL 4011268, at
`*2 (E.D. Mich. Jul. 27, 2016) (E.D. Mich. July 27, 2016) (requiring good cause for
`bringing a motion to compel after the close of discovery). Alternatively, as set
`forth in the prayer for relief:
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`• To the extent Defendants seek production of “all documents and
`information concerning her use of third-party AI tools in connection with this
`lawsuit, as requested in Defendants’ discovery requests,” this request is DENIED,
`as the information sought is not discoverable. See Fed. R. Civ. P. 26(b)(3)(A)
`(“Ordinarily, a party may not discover documents and tangible things that are
`prepared in anticipation of litigation or for trial by another party or its
`representative ….”) (emphases added). Moreover, it is not relevant, or, even if
`marginally relevant, is not proportional. See Fed. R. Civ. P. 26(b)(1).3
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`3 Notably, the Court previously confirmed that Defendants have no evidence of
`Plaintiff having violated the protective order by uploading documents marked
`confidential onto an AI platform. (ECF No. 93, PageID.1002.) The Court also
`reviewed pertinent and highlighted portions of Plaintiff’s deposition transcript
`(ECF No. 80-2), which reveals an inordinate amount of questioning about
`Plaintiff’s use of AI, but again, no suggestion that she uploaded prohibited items.
`Defendants’ preoccupation with Plaintiff’s use of AI needs to abate.
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`• To the extent Defendants ask the Court to “[o]verrule[] Plaintiff’s
`attorney–client privilege and work-product objections to the AI materials,” or
`alternatively, “if the Court sustains any privilege or protection as to any item,
`require Plaintiff, within seven days, to serve a Rule 26(b)(5)(A)-compliant
`privilege log[,]” the request is DENIED. Even if this information were
`discoverable, it is subject to protection under the work-product doctrine, which
`Plaintiff is permitted to assert. See, e.g., Systemes v. Childress, No. 09-10534,
`2013 WL 12181774 (E.D. Mich. Nov. 22, 2013) (Hluchaniuk, M.J.) (order
`granting in part and denying in part motion to quash subpoenas); Anderson v.
`Furst, No. 2:17-12676, 2019 WL 2284731, *4 (E.D. Mich. May 29, 2019) (Patti,
`M.J.) (“Plaintiff, as a pro se litigant, has a right to assert work product protection
`over such material.”); see also Fed. R. Civ. P. 26(b)(3). Moreover, to the extent
`Defendants argue that Plaintiff waived the work-product protection by using
`ChatGPT, the work-product waiver has to be a waiver to an adversary or in a way
`likely to get in an adversary’s hand. In re Columbia/HCA Healthcare Corp.
`Billing Pracs. Litig., 293 F.3d 289, 306 n.28 (6th Cir. 2002) (explaining
`differences in waiver of attorney-client privilege and work product protection);
`Schanfield v. Sojitz Corp. of Am., 258 F.R.D. 211, 214 (S.D.N.Y. 2009) (“It is
`well-established that voluntary disclosure of confidential material to a third party
`waives any applicable attorney-client privilege.”). See also United States v. Am.
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`Tel. & Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980) (“while the mere showing of
`a voluntary disclosure to a third person will generally suffice to show waiver of the
`attorney-client privilege, it should not suffice in itself for waiver of the work
`product privilege.”). And ChatGPT (and other generative AI programs) are tools,
`not persons, even if they may have administrators somewhere in the background.
`As Plaintiff noted in her response, Defendants’ motion “asks the Court to compel
`Plaintiff’s internal analysis and mental impressions—i.e., her thought process—
`rather than any existing document or evidence, which is not discoverable as a
`matter of law. The motion seeks intrusive post-discovery production based on
`speculation about what might exist in Plaintiff’s internal drafting process,
`untethered from Rule 26 relevance, disregarding the heightened protection
`afforded to opinion work product, and improperly attempting to manufacture a
`waiver where none exists. At its core, Defendants’ request is a fishing expedition.
`. . .” (ECF No. 86, PageiD.917.) Additionally, the Court agrees with Plaintiff that
`the pursuit of this information is “a distraction from the merits of this case[,]” and
`that Defendants’ theory, which is supported by no case law but only a Law360
`article posing rhetorical questions,
`4 “would nullify work-product protection in
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`4 See ECF No.80, PageID.825-826. But as Plaintiff points out, “no cited case
`orders the production of what Defendants seek here: a litigant’s internal mental
`impressions reformatted through software.” (ECF No. 86, PageID.933.)
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`nearly every modern drafting environment, a result no court has endorsed.” (Id.,
`PageID.920, 930.)
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`• To the extent Defendants ask the Court to compel Plaintiff “to execute
`HIPAA-compliant medical authorizations for the medical and mental-health
`providers Plaintiff identified in her deposition[,]” this request is GRANTED.
`Notwithstanding the untimeliness of this motion, pursuant to the Court’s broad
`authority under Fed. R. Civ. P. 1 and Fed. R. Civ. P. 16(a)(2) & (d), Plaintiff is
`required to produce signed HIPPA releases for Therapists Maria Yoo and Lemica
`Cox, and Dr. Shazia Qumar (see ECF No. 80, PageID.818; ECF No. 80-2,
`PageID.840 [pp. 23-24]) no later than Thursday, February 12, 2026. While
`Plaintiff claims that her prior attorney obtained these releases from her and would
`have given them to defense counsel, defense counsel represented that he did not
`receive them. Even a minimal amount of cooperation on Plaintiff’s part could
`have avoided this portion of Defendants’ motion to compel.
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`• To the extent Defendants seek an order requiring Plaintiff “to bear
`Defendants’ reasonable expenses, including attorneys’ fees, incurred in bringing
`this Motion, pursuant to Rule 37(a)(5),” the request was WITHDRAWN at the
`hearing.
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`(ECF No. 49, PageID.810-811.)
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` In the end, both sides of this dispute seek to obtain each other’s thought
`processes, while shielding their opponent from discovery of their own. The Court
`will uphold the protections afforded the thought processes and litigation strategies
`of both sides and will order production of neither.
`IT IS SO ORDERED.5
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`Dated: February 10, 2026
` Anthony P. Patti
` UNITED STATES MAGISTRATE JUDGE
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`5 The attention of the parties is drawn to Fed. R. Civ. P. 72(a), which provides a
`period of fourteen (14) days after being served with a copy of this order within
`which to file objections for consideration by the district judge under 28 U.S.C. §
`636(b)(1).
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