Gazzara et al v. Pulte Home Corporation
Filing
165
ORDER granting in part and denying in part 130 Motion to Compel production of documents identified in privilege logs. Signed by Magistrate Judge Thomas B. Smith on 12/16/2016. (EC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SHAUN PARKER GAZZARA, ANA
PAULA GAZZARA, HARRY JAMES
WHITMAN and MARCIA FAYE
WHITMAN,
Plaintiffs,
v.
Case No: 6:16-cv-657-Orl-31TBS
PULTE HOME CORPORATION,
Defendant.
ORDER
Pending before the Court is Plaintiffs’ Motion to Compel Production of Documents
Identified in Privilege Logs (Doc. 130), with separately filed exhibits (Docs. 132, 155).
Defendant, Pulte Home Corporation, has filed its opposition brief (Doc. 142). After due
consideration, the motion is granted in part and denied in part.
Background
Plaintiffs bring this action on behalf of themselves and a putative class of similarly
situated Florida homeowners who own homes constructed by Pulte between April 18,
2006 and April 18, 2016, with a drainage plane exterior stucco wall system over wood
frame and wood sheathing (“stucco siding”) with certain specified characteristics (Doc.
107). Plaintiffs allege that Pulte constructed the stucco siding in violation of the Florida
Building Code and now, it has failed (Id.)1
The case has had a complicated course of discovery. For present purposes, the
1
The District Judge has recently dismissed one of the counts, with prejudice (Doc. 160).
following is pertinent. Plaintiffs have served numerous requests to produce on Pulte, as
well as a list of documents requested at the June 20, 2016 status hearing. Pulte’s
responses included numerous objections and assertions of privilege.
Plaintiffs have also served subpoenas for the production of documents on nonparty experts retained by Pulte in connection with various Florida stucco siding claims:
Calvert Construction & Development, Inc. (“Calvert”); Hoy and Miller Consulting, LLC
(“H&M”); William Building Diagnostics, LLC; and Madsen, Kneppers and Associates
(“Madsen”). Pulte moved to quash the subpoenas, contending, among other reasons, that
they sought documents maintained by these non-parties in their capacities as Pulte’s
consulting (non-testifying) experts (Docs. 75 and 76). The Court granted Pulte’s motion
and quashed the subpoenas, except to the extent Pulte waived attorney work product
protection by voluntarily producing any of the documents (Doc. 93).
Pulte maintains that from August 18, 2016 to November 4, 2016, it served
approximately ten privilege logs in response to discovery requests served by Plaintiffs.
For numerous entries, Pulte claims to have withheld documents based on the attorney
work product privilege. Plaintiffs object that the logs were not timely produced and are
otherwise insufficient. The Court has already found that the privilege logs were timely
(Doc. 139). At issue then, is the applicability of the attorney work product privilege to the
items withheld, and whether Pulte sufficiently asserted it.
Discussion
A party may file a motion to compel against another party who fails to permit
inspection of documents within its possession, control, or custody. See FED. R. CIV. P.
34(a)(1), 37(a)(3)(B)(iv); Bloodworth v. United States, 623 F. App'x 976, 979 (11th Cir.
2015).
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With respect to claimed attorney work product, Rule 26(b)(3)(A) and (B) provide:
(A) Documents and Tangible Things. Ordinarily, a party may
not discover documents and tangible things that are prepared
in anticipation of litigation or for trial by or for another party or
its representative (including the other party's attorney,
consultant, surety, indemnitor, insurer or agent). But, subject
to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the
materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.
(B) Protection Against Disclosure. If the court orders discovery
of those materials, it must protect against disclosure of the
mental impressions, conclusions, opinions, or legal theories of
a party's attorney or other representative concerning the
litigation.
“When a party withholds information otherwise discoverable by claiming that the
information is privileged or subject to protection as trial preparation material, the party
must: (i) expressly make the claim; (ii) describe the nature of the documents,
communications, or tangible things not produced or disclosed—and do so in a manner
that, without revealing information itself privileged or protected, will enable other parties to
assess the claim.” FED. R. CIV. P. 26(b)(5)(A).
As noted in a prior Order in this case, 2 application of the attorney work product
privilege is governed by federal law, even in cases like this one, which rely on the Court's
diversity jurisdiction. Stern v. O'Quinn, No. 07-60534-CIVDIMITROULEAS/ROSENBAUM, 253 F.R.D. 663, 675 (S.D. Fla. 2008). The party
asserting the attorney work product privilege carries the burden of showing its
applicability to the circumstances before the court. Id., at 674-75. The proponent's burden
Gazzara v. Pulte Home Corp., No. 6:16-CV-657ORL31TBS, 2016 WL 4620709, at *2 (M.D. Fla.
Sept. 6, 2016).
2
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is to show “‘that the documents were prepared for the purpose of assisting an attorney in
preparing for litigation, not some other reason.’” In re Veiga, Nos. 10-370(CKK) (DAR),
and 10-371(CKK) (DAR), 77 F.Supp.2d 27, (D.D.C. 2010) (quoting Alexander v. Fed.
Bureau of Investigation, 192 F.R.D. 42, 46 (D.D.C. 2000)). In making the required
showing, “[b]lanket assertions of privilege before a district court are usually
unacceptable.” Johnson v. Gross, 611 F. App'x 544, 547 (11th Cir. 2015).
With respect to experts, “[o]rdinarily, a party may not, by interrogatories, or
deposition, discover facts known or opinions held by an expert who has been retained or
specially employed by another party in anticipation of litigation or to prepare for trial and
who is not expected to be called as a witness at trial.” FED. R. CIV. P. 26(b)(4)(D).
Exceptions are made as provided in FED. R. CIV. P. 35(b) for physical and mental
examinations, and “on showing exceptional circumstances under which it is impracticable
for the party seeking discovery to obtain facts or opinions on the same subject by other
means.” FED. R. CIV. P. 26(b)(4)(D)(i) and (ii).
Plaintiffs’ presentation of their contentions leaves much to be desired. Instead of
complying with Local Rule 3.04(a), which requires “quotation in full” of the requests at
issue and objections of the opposing party, Plaintiffs assert that “[w]ithout seeing each
withheld document, or receiving an indication from Pulte as to which particular request
the withheld document would otherwise respond to, [they] cannot state with any
confidence the discovery request at issue.” (Doc. 130, n. 4). In their motion, Plaintiffs
simply refer to the numerous privilege logs by date, and submit the logs by separate
subsequent filings (Docs. 132, 155). Plaintiffs rarely quote the particular log entries they
object to, or otherwise adequately set forth the documents they claim are wrongfully
withheld; leaving the Court to guess as to which log entries are in dispute and requiring
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review of the logs without any context of the discovery requests they relate to. Plaintiffs’
argument with respect to Pulte’s September 6, 2016 Privilege Logs illustrates the point.
The argument reads, in its entirety:
Pulte submitted several privilege logs on September 6, 2016.
Many of the entries on these logs are either cryptic or omitted
entirely. Moreover, many of the entries are similar to
unacceptable entries on the September 26, 2016 logs
discussed below. This Court should order Pulte to produce
any documents from these logs that it deems to omit
information needed to substantive [sic] the claimed work
product privilege.
(Doc. 130 at 12).
While the burden of showing the applicability of a privilege is on Pulte, it is
Plaintiffs’ motion, and they have the obligation to sufficiently identify what they seek to
compel. As the documents at issue are being withheld by Pulte, specific identification of
the withheld documents is, of course, not possible. But, Plaintiffs must do more than
merely tender dozens of pages of logs to the Court and say “here, you figure it out.” To
the extent the motion seeks to compel something regarding the September 6th logs
(Docs. 132-2 through 132-4), it is DENIED, as the Court cannot identify which of the
“many” entries is at issue.
Although the Court would be justified in denying the motion in its entirety on these
procedural grounds, it will nonetheless address each remaining log in turn, as best it can
under the circumstances.
Pulte’s Privilege Log Filed as Doc. 76-2
Plaintiffs’ argument as to this log reads:
On August 18, 2016, Pulte filed an otherwise undated
Privilege Log as Exhibit B to a discovery motion. The entries
therein range from the perfunctory to the bizarre. On Page 4,
several entries show that Pulte withheld photographs taken on
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January 27, September 21, January 15, and August 31.
Although Pulte claims that these Photographs constitute “work
product related to consulting agreement” Plaintiffs are not
informed whether these photographs reflect counsel’s mental
impressions, let alone what they depict or who created them.
Court and counsel must therefore assume that they reflect that
state of stucco in class homes, presumably in Lake Sawyer.
As such, they are relevant to this matter.
On Page 3 of the log, Pulte lists a “Certificate” that was
apparently showed to Mr. Randazzo, Plaintiffs’ expert,
pursuant to Pulte’s inspection of the Whitman Plaintiffs’
residence. This document is not privileged work product
because it was shown to Plaintiffs’ expert and Pulte should
produce this document.
(Doc. 130).
What Plaintiffs do not say is that the document entitled “Defendant Pulte Home
Corporation’s Privilege Log Related To Non-Party Subpoena Directed To Madsen,
Kneppers And Associates, Inc.” (Doc. 76-2), was attached to Pulte’s motion to quash this
subpoena (Docs. 76). To the extent Plaintiffs seek production of documents in the
possession of Madsen, Pulte’s consulting, non-testifying expert, the Court has already
ruled, and the subpoena was quashed (Doc. 93). To the extent Plaintiffs contend that any
of this information is in Pulte’s possession, in quashing the subpoena, the Court found
that Pulte made a prima facie showing that the attorney work product privilege applies to
these documents (Doc. 93 at 3-5). Nothing in the instant motion changes that result. The
motion is denied as to this log.
Pulte’s September 26, 2016 Privilege Log (Doc. 132-5)
Plaintiffs contend that the withheld documents “appear to concern various reports
concerning earlier claims and repairs in class homes in other Florida communities.” (Doc.
130 at 12). They point to the following entries beginning on Page 6 of the log, of
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“Reports,” Certificates,” “Spreadsheet,” “Plans,” and “Vendor Documents,” which are
claimed “work product related to consulting engagement,” but are not otherwise identified:
Date
Author
Recipient
Association
Type of
Document
Sandpiper at
Sweetwater:
Reports
Sandpiper at
Sweetwater:
Certificates
Pulte
Sandpiper at
Sweetwater:
Spreadsheet
Sandpiper at
Sweetwater:
Plans
Sandpiper at
Sweetwater:
Vendor
documents
Privilege
Fed. R. Civ. P.
26(b)(4)(D)
Work product
related to
consulting
engagement
Fed. R. Civ. P.
26(b)(4)(D)
Work product
related to
consulting
engagement
Fed. R. Civ. P.
26(b)(4)(D)
Work product
related to
consulting
engagement
Fed. R. Civ. P.
26(b)(4)(D)
Work product
related to
consulting
engagement
Fed. R. Civ. P.
26(b)(4)(D)
Work product
related to
consulting
engagement
Plaintiffs also object to other notations, claiming that Pulte has not provided sufficient
detail to evaluate the privilege.
Pulte contends that the Court has already ruled on attorney work product protected
documents in the possession of Pulte’s consulting, non-testifying experts with regard to
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the Lake Sawyer (Berkshire) community. Moreover, Pulte served a Second Amended
Privilege Log Related to Non-Party Subpoena Directed to Hoy and Miller Consulting, Inc.,
which it contends significantly expands the privilege log entries relating to the H&M
documents on the two projects for which H&M was a testifying expert (Wolf Creek and
Promenades at Bella Trae). Pulte thus claims that Plaintiffs’ objections are moot. The
Court does not agree. The suspect entries at page 6 in the original log remain unchanged
in the amended log (Doc. 132-9). While they may (or may not) relate to the Berkshire
community, they are insufficient on their face to support a claim of privilege.
In its response brief, Pulte cites Carnes v. Crete Carrier Corp., 244 F.R.D. 694,
698 (N.D. Ga. 2007) for the proposition that a “party meets burden of establishing
attorney work product privilege where privilege log is accompanied by explanatory
affidavit” (Doc. 142). Nothing in the affidavits submitted by Pulte provides the
“explanatory” detail missing from these entries (Doc. 142-1 through 142-5). As the court
in Carnes noted:
The party asserting the attorney-client privilege or the work
product doctrine bears the burden to provide a factual basis
for its assertions. This burden is met when the party produces
a detailed privilege log stating the basis of the claimed
privilege for each document in question, together with an
accompanying explanatory affidavit from counsel. Triple Five
of Minn., Inc. v. Simon, 212 F.R.D. 523, 528 (D.Minn.2002)
(finding work product applicable where the asserting party
“provided detailed privilege logs” “which for each document
withheld listed the type of document, the date of creation, the
author, the recipient, the subject matter, and the applicable
privilege”).
Carnes, 244 F.R.D.at 698 (emphasis added). Generic terms such as “reports,”
certificates,” spreadsheets” and the like are not adequate descriptions of the subject
matter of the document, sufficient to support a claim of privilege. To the extent this log
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contains documents which are subsumed in the more detailed log in this exhibit (Doc.
132-9, pp. 11-118), Pulte has not pointed out the particular entries that provide the
additional information. Accordingly, Plaintiffs’ motion is granted as to these items. The
documents shall be produced within ten days from the rendition of this Order. 3 If
appropriate, any production is subject to the terms of the parties’ Confidentiality
Agreement.
Plaintiffs claim that other items (mediation documents or documents prepared by
consultants H&M) are insufficiently identified. The motion is denied as to these items.
Pulte’s October 13, 2016 Privilege Logs (Docs. 132-6, 132-8 and Doc. 155)
The first log appears to cover documents related to the consultant’s remediation of
class homes at Lake Sawyer in Windermere, Florida, where the named Plaintiffs live
(Doc. 119). The second log consists largely of voluminous spreadsheets that include
claim level-legal expenses and settlement payments paid on class homes. Although other
documents appear on this privilege log, Plaintiffs are seeking only the documents
reflected in items 1-80, and only for class homes in Florida. The motion is denied as to
both logs.
To the extent Plaintiffs are seeking the Lake Sawyer documents, they do not
question whether the documents are protected, but argue that exceptional circumstances
warrant production of the documents. Specifically, Plaintiffs argue that making them
repeat the testing would mean “unnecessary expense and require additional delay.” The
The Court declines Pulte’s invitation to review these documents in camera. Pulte’s failure to
describe the documents with any particularity other than the broadest generic terms (and without any
notation as to how many pages are included in each) means that an in camera review would serve to shift
the burden for claiming privilege in the first instance to the Court. This is not the purpose of such a review.
Just as Plaintiffs must articulate their objections, a party claiming privilege cannot hide whole categories of
information behind a blanket assertion of privilege, and foist all documents on the Court for a page by page
review.
3
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Court has rejected similar arguments (Doc. 93 at 5), and sees no reason to revisit that
conclusion.
As for the settlement payments and legal expense items on the spreadsheet, Pulte
maintains that they are summaries of litigation expenses outside Florida, which happen to
contain a back-up worksheet that includes claim-level litigation information nationwide.
Legal and settlement expenses are normally work product under Rule 26(b)(3)(A)
(protecting documents prepared in anticipation of litigation or for trial). While the Court
agrees that in appropriate circumstances, courts have ordered production of relevant
claims information, Plaintiffs have not shown that production of these items at this stage
of the proceedings is warranted. For present purposes, the motion is denied as to this
information, without prejudice to renewal, if appropriate, after the class certification issue
is decided.
Pulte’s October 24, 2016 Privilege Logs (Doc. 132-9)
Plaintiffs’ objections to this log are too general to evaluate. Plaintiffs note that this
log is voluminous, exceeding 100 pages, and “[a]lthough some of these documents may
be properly withheld, others are obviously discoverable” (Doc. 130 at 16). But, Plaintiffs
fail to point to the “obvious” item or items, leaving the Court the task of combing through
over 100 pages in an effort to find them. That is not the obligation of the Court. “The
Seventh Circuit memorably said that appellate judges ‘are not like pigs, hunting for truffles
buried in briefs.’ United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991). Likewise,
district court judges are not required to ferret out delectable facts buried in a massive
record ...” Chavez v. Sec'y Florida Dep't of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011).
The motion is denied as to this log.
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Pulte’s November 2, 2016 Privilege Log (Doc. 132-10)
The log contains only two items:
Date
Author
Recipient
Undated
Mark Williams
Pulte
20152016
Pulte
Type of
Document
Excerpts of
Stucco Cladding
Inspection
Protocol
Reports and
Checklists
Privilege
Attorney Work
Product; Trade
Secret
Trade Secret;
Proprietary
Business
Information
As to the first item, Plaintiffs contend that Pulte failed to show how testifying expert
Mark Williams’ inspection protocol is “attorney work product” and, as it was shared with
Pulte, fails to show that Williams’ work is a “trade secret.” Pulte counters that the
document was prepared by Mr. Williams in connection with his engagement “as a nontestifying (consulting) expert on an unrelated matter.” (Doc. 142 at 16, emphasis added).
Pulte has amended this log to reflect that detail (Doc. 142-5). If, as claimed, the
documents withheld were prepared in anticipation of litigation by a non-testifying expert
consultant they are properly attorney work product and Plaintiffs have not shown
exceptional circumstances sufficient to overcome the privilege. The motion is denied as
to this item.
With respect to the second item, the Court agrees with Plaintiffs that the blanket
description provided by Pulte is insufficient to establish privilege over these unspecified
“reports and checklists.” Pulte contends that these documents are trade secrets and
highly sensitive proprietary business information and Pulte would suffer irreparable harm
in the event of public dissemination. In view of the Confidentiality Agreement (Doc. 134-
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2), Pulte’s concerns are unfounded. The motion is granted as to these items and Pulte
shall produce them within ten days. The production should be in accordance with the
provisions of the Confidentiality Agreement.
Any contention not specifically addressed herein is denied.
DONE and ORDERED in Orlando, Florida on December 16, 2016.
Copies furnished to Counsel of Record
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