Gazzara et al v. Pulte Home Corporation
Filing
93
ORDER granting in part and denying in part 75 Motion to Quash; denying 75 Motion for Protective Order; granting in part and denying in part 76 Motion to Quash; denying 76 Motion for Protective Order. Signed by Magistrate Judge Thomas B. Smith on 9/6/2016. (Smith, Thomas)
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 are Defendant Pulte Home Corporation’s Omnibus
Motion to Quash and/or Modify Subpoenas and/or Motion for Entry of a Protective Order
Related to Subpoenas Directed to Non-Parties (Doc. 75), and Pulte Home Corporation’s
Motion to Quash Subpoena Directed to Non-Party Madsen, Kneppers and Associates,
Inc., and/or Motion for Entry of a Protective Order (Doc. 76). Plaintiffs have filed a
response in opposition to both motions (Doc. 92).
Plaintiffs bring this action on behalf of themselves and a putative class of similarly
situated Florida homeowners who own homes constructed by Defendant between May 1,
2006 and April 15, 2016 with a drainage plane exterior stucco wall system over wood
frame and wood sheathing (“stucco siding”) (Doc. 11). Plaintiffs allege that Defendant
constructed the stucco siding in violation of the Florida Building Code and now, it has
failed (Id.). Plaintiffs’ complaint includes counts for negligence, violation of the Florida
Building Code, and the intentional construction of defective stucco siding (Id.).
Defendant has received notices pursuant to Chapter 558 Florida Statutes from the
owners of some of the Florida homes it constructed using stucco siding (Doc. 75, ¶ 1). In
response to those notices, Defendant engaged law firms to represent its interests (Id., ¶
2). The law firms retained experts in anticipation of litigation (Id., ¶¶ 3-6). Specifically,
Calvert Construction & Development, Inc. (“Calvert”), Williams Building Diagnostics, LLC
(“Williams”), Hoy & Miller Consulting, LLC (“Hoy”), and Madsen, Kneppers and
Associates, Inc. (“Madsen”) were retained as consulting, non-testifying experts (Id.; Doc.
76, ¶ 2). Defendant has now decided to use Williams as a testifying expert in this case
(Id., ¶ 5). Plaintiffs served subpoenas (which the Court has not seen), on these experts
for the production of documents related to Defendant’s construction of homes in the state
of Florida (Id., ¶ 7). Defendant objects to the subpoenas and asks that they be quashed,
or that protective orders be entered, based upon the work product privilege 1 and under
FED. R. CIV. P. 26(b)(4) (Docs. 75, 76).
The information Plaintiffs seek is unquestionably relevant to this dispute, and
Defendant has standing to bring these motions. “A party has standing to move to quash a
subpoena that is not directed to the party, but instead directed to a non-party, if the party
alleges a ‘personal right or privilege’ with respect to the subpoenas.” Centennial Bank v.
Servisfirst Bank, Inc., No. 8:16-cv-88-T-36JSS, 2016 WL 4163560, at *3 (M.D. Fla. Aug.
5, 2016).
1 There are two types of work product, opinion and fact. “Material that reflects an attorney’s mental
impressions, conclusions, opinions, or legal theories, is referred to as ‘opinion work product.’” Cox v.
Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1422) (11th Cir. 1994) (quoting In re Murphy, 560 F.2d
326, 336 (8th Cir. 1977)). “Not even the most liberal of discovery theories can justify unwarranted inquiries
into the files and the mental impressions of an attorney.” Hickman v. Taylor, 329 U.S. 495, 510, 67 S.Ct.
385, 91 L.Ed. 451 (1947). “[O]pinion work product enjoys a nearly absolute immunity can be discovered
only in very rare and extraordinary circumstances.” Murphy, 560 F.2d at 336. Fact work product is
information gathered in anticipation of litigation. Bridgewater v. Carnival Corp., No. 10-CIV-22241, 286
F.R.D. 636, 639 (S.D. Fla. 2011). Here, the Court deals with fact work product.
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The Supreme Court recognized the work product privilege in Hickman v. Taylor,
329 U.S. 495, 510-11 (1947). Today, it is codified in FED. R. CIV. P. 26(b) which provides
“[o]rdinarily 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).” FED. R. CIV.
P. 26(b)(3)(A). “Ordinarily, 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).
Application of the 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. 0760534-CIV-DIMITROULEAS/ROSENBAUM, 253 F.R.D. 663, 675 (S.D. Fla. 2008). The
party asserting the work product privilege carries the burden of showing its applicability to
the circumstances before the court. Id., at 674-75. The proponent’s burden 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 10371(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)). Defendant has made a prima facie
showing that the work product privilege applies, and with the exception of their waiver
argument, Plaintiffs have not attempted to controvert that showing.
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Defendant’s experts performed destructive testing on the stucco siding of some of
the homes it built (Doc. 92, ¶ 3). The purpose of Plaintiffs’ subpoenas is “to obtain
documents relating only to the objective, factual results of such tests, including but not
limited to, items such as moisture readings, photographs, and objective tests performed
on the stucco or its components.” (Id.). According to Plaintiffs, their “subpoenas [do] not
seek documents relating to the opinions or impressions of the experts or any
communication regarding such opinions or impressions between the experts and
[Defendant’s] counsel.” (Id.). Plaintiffs argue that the information is discoverable because
it is purely factual, and because exceptional circumstances exist to justify the discovery
(Doc. 92 at 3-5). While Plaintiffs claim these are two separate grounds, they are really
only one, that is exceptional circumstances under Rule 26(b)(4)(D)(ii).
Plaintiffs cite U.S. ex rel. Westrick v. Second Chance Body Armor, Inc., No. 040280 (RWR/AK), 288 F.R.D. 222 (D.D.C. 2012). There, the court found that under the
exceptional circumstances exception, plaintiff could discover from defendant’s consulting
expert, information concerning the storage and care of bulletproof vests tested by
defendant’s testifying expert “because it is ‘impracticablle for the [Plaintiff] to obtain
[these] facts … on the same subject by other means.’” Westrick, 288 F.R.D. at 230
(quoting Rule 26(b)(4)(D)(ii).
The other case relied on by Plaintiffs is In re Veiga, Nos. 10-370(CKK) (DAR), and
10-371(CKK) (DAR), 77 F.Supp.2d 27, (D.D.C. 2010). In Veiga, a subpoena was served
on an attorney representing the plaintiffs in a matter pending in the Republic of Ecuador.
The same attorney also represented the Republic of Ecuador in multiple international
arbitrations. The attorney asserted privilege under Ecuadorian law, and the attorney-client
and work product privileges under United States federal law. In allowing the discovery of
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certain information, the court said it “fail[ed] to see how Applicants could obtain the
substantial equivalent of such evidence through other avenues, particularly given the
Interested Parties’ positions in this action.” Id., at 45-46.
Plaintiffs argue that the exception to the work product privilege based on
exceptional circumstances applies because the information they seek was obtained by
destructive testing thus leaving them only two choices. They can either get the information
from Defendant’s experts, or retain their own experts to conduct substantially similar tests
on the same homes. Plaintiffs argue:
For reasons of practicality, and in fairness to the home
owners, it would be a more equitable and reasonable decision
for this Court to recognize that this factual scenario fits under
either or both of the work product exceptions in Rule 26(b).
The facts clearly show that the material sought is factual.
Additionally, it is impractical and would create an undue
hardship for the Plaintiffs to obtain the same information by
other means.
(Doc. 92 at 4).
Plaintiffs’ argument falls well short of demonstrating the exceptional circumstances
required to discover Defendant’s work product. It may be quicker and cheaper for
Plaintiffs to get the information from Defendant’s experts but that is not the standard. The
information Plaintiffs seek is readily obtainable by having their own experts perform the
same tests on the same homes that were tested by Defendant’s experts. Accordingly, the
Court rejects Plaintiffs’ argument based upon exceptional circumstances.
Next, Plaintiffs argue that Defendant has waived the work product privilege by
producing to them, voluminous documents prepared by Calvert, Hoy and Williams (Id., ¶
1). Like other privileges, the work product privilege may be waived by voluntarily
disclosing information under circumstances that are inconsistent with the maintenance of
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the privilege. Veiga, 746 F.Supp.2d at 35. “Work-product protection is waived when
protected materials are disclosed in a way that ‘substantially increases the opportunity for
potential adversaries to obtain the information.’” Stern, 253 F.R.D. at 681 (quoting
Niagara Mohawk Power Corp. v. Stone & Webster Engineering Corp., 125 F.R.D. 578,
587 (N.D.N.Y. 1989)). To the extent Defendant voluntarily produced work product
privileged information to Plaintiffs the Court finds that a waiver has occurred. However,
because the parties have not informed the Court of what information was actually
produced by Defendant, it is unable to determine the scope of the waiver.
Defendant objects to the subpoena served on Williams to the extent it seeks
information that is beyond the scope of the expert disclosures required by FED. R. CIV. P.
26(a)(2)(B). The only specific item to which objection is made are draft reports (Doc. 75, ¶
9). Plaintiffs have not addressed this argument in their response to the motions. Rule
26(b)(4)(4) protects from disclosure, “drafts of any report or disclosure required under
Rule 26(a)(2), regardless of the form in which the draft is recorded.” Except to the extent
of any waiver of privilege, the Court will grant Defendant’s motion to quash the subpoena
directed to Williams on this ground.
Now, for the foregoing reasons:
(1) The motions are GRANTED in part, and the subpoenas directed to Calvert,
Hoy and Madsen are QUASHED to the extent they seek information that has not been
voluntarily produced to Plaintiffs by Defendant.
(2) The motion to quash the subpoena directed to Williams is GRANTED in part.
To the extent that the subpoena seeks the production of drafts of the information
described in Rule 26(b)(2)(B), and the draft information has not already been voluntarily
provided, the subpoena is QUASHED.
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(3) If the parties are unable to resolve the scope of the waiver as to Calvert, Hoy,
Williams or Madsen, they should file motions addressed to those issues.
(4) In all other respects, the motions are DENIED.
DONE and ORDERED in Orlando, Florida on September 6, 2016.
Copies furnished to Counsel of Record
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