Pate v. Winn-Dixie Stores, Inc.

Filing 112

ORDER sustaining Plaintiff's Objections to the Magistrate Judge's 57 Order dated 6/23, and Plaintiff's 34 MOTION to Compel is granted as it relates to the handwritten and computer-generated incident report forms and the witness statement forms. Plaintiff's Objections to the Magistrate Judge's 79 and 76 Orders dated 8/11/and 8/13 are overruled. Signed by Chief Judge Lisa G. Wood on 10/27/2014. (ca)

n the Uniteb tate itritt Court
for the boutbern Miotrttt of deorgia
runtuitk Atbtoion
LINDA PATE,
Plaintiff,
CV 213-166

VS.

WINN-DIXIE STORES, INC.,
Defendant.

ORDER

This action arises from a slip-and-fall injury at a WinnDixie in Brunswick, Georgia on December 23, 2011. Contentious
discovery proceedings have resulted in Plaintiff Linda Pate's
three Rule 72(a) objections to the Magistrate Judge's Orders
being brought before this Court. Plaintiff's Objection to the
Magistrate Judge's Order dated June 23, 2014 (Dkt. no. 57) is
SUSTAINED. Plaintiff's Objections to the Magistrate Judge's

Orders dated August 11, 2014 (Dkt. no. 76) and August 12, 2014
(Dkt. no. 79) are both OVERRULED, because the Magistrate Judge's
conclusions in those Orders are not clearly erroneous nor
contrary to law.

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I. Standard of Review

When a magistrate judge rules on a non-dispositive pretrial
discovery matter, parties may object to that ruling and seek
review from the district judge under Federal Rule of Civil
Procedure 72(a). See Fed. R. Civ. P. 72(a). In reviewing the
magistrate judge's order, the district judge must "modify or set
aside any part of the order that is clearly erroneous or is
contrary to law." Id. The clearly erroneous or contrary to law
standard "is exceedingly deferential." Jackson v. Deen, CV 412139, 2013 WL 3991793, at *2 (S.D. Ga. Aug. 2, 2013) (citing
Pigott v. Sanibel Dev., LLC, CV 07-0083-WS-C, 2008 WL 2937804,
at *5 (S.D. Ala. July 23, 2008)). "A ruling is clearly erroneous
where either the magistrate judge abused his discretion or the
district court, after reviewing the entirety of the record, is
left with a definite and firm conviction that a mistake has been
made." Id. (citations omitted). "A decision by the magistrate
judge is contrary to law where it either fails to follow or
missaplies the applicable law." Id. (citations omitted).
I. Objections to the Magistrate Judge's June 23 Order

The first of Plaintiff's three 72(a) Objections concerns
the Magistrate Judge's Order denying Plaintiff access to an
unredacted incident report and witness statement form.' The
1

The parties' motions and the Magistrate Judge's Order on this matter do not
clearly describe the relationship between the incident report form and the
witness statements Plaintiff seeks. Plaintiff suggests in her Objections that

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Magistrate Judge reasoned that this evidence was entitled to
work product privilege and should not be disclosed to Plaintiff.
Dkt. no. 57. The Magistrate Judge ordered Defendant to provide
Plaintiff with the contact information of the individuals who
prepared the reports and statements. Id. In her Objection,
Plaintiff contends that the Magistrate Judge applied the wrong
legal standard in determining whether Defendant had satisfied
the requirements of the work product doctrine. Dkt. no. 58,
pp. 3-4.
a. Legal Standard for Work Product Privilege

The work product doctrine is codified in Federal Rule of
Civil Procedure 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 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
the witness statement form is part and parcel of the incident report form.
Dkt. no. 57, p. 2. Defendant does not challenge this characterization in its
response. Dkt. no. 62. Because neither party applies the work product
doctrine to the witness statement form and incident report form separately,
and because Plaintiff's characterization of those forms as a single report
for purposes of this analysis went unchallenged, the Court will apply the
work product doctrine to both forms in the same manner.
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disclosure of the mental impressions, conclusions,
opinions, or legal theories of a party's attorney or
other representative concerning the litigation.
Fed. R. Civ. P. 26(b) (3) . The party claiming the privilege bears
the burden of establishing that the privilege applies. See
Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1189 (11th Cir.
2013) . If the court finds the privilege does apply, the burden
shifts to the party seeking to compel production to make a
sufficient showing of "substantial need" and "undue hardship" to
overcome the privilege. See Lott v. Seaboard Sys. R.R., Inc.,
109 F.R.D. 554, 557 (S.D. Ga. 1985); Fed. R. Civ. P. 26(b) (3) (A).
"District courts are entitled to broad discretion in managing
pretrial discovery matters . . . including when ruling on the
applicability of the work-product docrine." Hinchee, 741 F.3d at
1188 (citations omitted) (alterations in original)
To meet its burden, the party claiming the privilege must
show it prepared the documents in question in anticipation of
litigation. While it is difficult to reduce the relationship
between a document and impending litigation to a "neat general
formula," the Eleventh Circuit adheres to the standard that
litigation need not be imminent "as long as the primary
motivating purpose behind the creation of the document was to

aid in possible future litigation." See United States v. Davis

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636 F.2d 1028, 1040 (5th Cir. Feb. 12, 1981) (emphasis added)

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see also Bridqewater v. Carnival Corp., 286 F.R.D. 636, 641
(S.D. Fla. 2011) ("This 'primary motivating purpose' language
has been cited innumerable times by courts within this Circuit,
and appears to be the standard followed in this Circuit.")
"Generally, a document will be deemed to have been prepared in
anticipation of litigation when the document can fairly be said
to have been prepared or obtained because of the prospect of
litigation and not in the regular course of business." Abdallah
v. Coca-Cola Co., No. CIV A1:98CV3679RWS, 2000 WL 33249254, at
*4 (N.D. Ga. January 25, 2000) (citing Carver v. Allstate Ins.
Co., 94 F.R.D. 131, 134 (S.D. Ga. 1982)).
The legal standard the Magistrate Judge should have applied
required Defendant to show that the handwritten and computerwritten incident reports were prepared in anticipation of
litigation and not in the ordinary course of business. Instead,
the Magistrate Judge concluded that "Defendant's employee who
prepared the incident report arguably did so with an eye toward
litigation." Dkt. no. 57, p. 2. While Defendant's anticipation
of litigation is certainly arguable—and perhaps even probable—in
preparing an incident report after a slip-and-fall, it is
incumbent on the Defendant to show that its agent's primary

2

In Bonner v. City of Prichard, the Eleventh Circuit adopted as binding
precedent all decisions handed down by the former Fifth Circuit before
October 1, 1981. 661 F.2d 1206, 1209 (11th Cir. 1981).
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motivation in preparing the report was its possible use in
future litigation. The Court finds that the Magistrate Judge's
order is contrary to law, and proceeds by applying the correct
legal standard to the documents at issue.
b. Defendant Has Not Established that it is Entitled to
Work Product Privilege

In its response to Plaintiff's Objections, Defendant claims
it "asserted the privilege over the incident report and gave the
basis for its position in detail," and then directs the Court's
attention to its responses to Plaintiff's motions to compel
(Dkt. nos. 22, 37) . Dkt. no. 62, p. 3. Defendant also states in
its response to Plaintiff's Objections that "[a]fter reports are
created, they are promptly provided to Winn-Dixie's corporate
claims/risk management department, which in turn provides the
report to defense counsel when litigation is imminent." Id. at
pp. 1-2. To support this claim, Defendant cites the deposition
of Jonathan Gabler. Id.
None of Defendant's citations to the record actually show
that its employees created the incident report forms for the
primary purpose of using them in possible future litigation. The
first response to Plaintiff's motion to compel that Defendant
cites merely asserts the work product privilege without
providing any showing that the incident report forms were in
fact prepared in anticipation of litigation. Dkt. no. 22,
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pp. 6-8. In this first response, Defendant appears to rely on
two federal district court cases that applied the work product
doctrine to incident reports regarding slip-and-falls on a
cruise ship's decks (Alexander v. Carnival Corp., 238 F.R.D. 318
(S.D. Fla. 2006)), and to an incident report prepared by a tour
company after the accidental death of a zip-line participant
(Fojtasek v. NCL (Bahamas), Ltd., 262 F.R.D. 650 (S.D. Fla.
2009)) . These two cases apply the work product doctrine to the
specific incident report forms prepared in those particular
cases.
In Alexander, the court found that the defendant cruise
line had presented appropriate evidence through its claims
manager's affidavit that the cruise line initiated a policy of
preparing incident reports at the request of its attorneys to
aid in possible litigation. Alexander, 238 F.R.D. at 319-20. As
such, the court concluded that the incident reports were
protected by the work product doctrine. Id. Similarly, in
Forjtasek, the court relied on a defendant's claims manager's
affidavit, in which she testified that the defendant's legal
counsel had instituted a policy of completing incident report
forms, in concluding that an incident report prepared after a
zip-line accident was protected under the work product doctrine.
Forjtasek, 262 F.R.D. at 655-56.

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Neither Alexander nor Forjtasek support Defendant's
apparent proposition that incident report forms are generally
covered by the work product doctrine. In each case, the
reviewing court required the defense to provide evidence—
accomplished by affidavit in both cases—showing that the
defendants in fact produced the incident report forms in
anticipation of litigation.
With that requirement in mind, the Court now examines
Defendant's statement that "[a]fter [incident] reports are
created, they are promptly provided to Winn-Dixie's corporate
claims/risk management department, which in turn provides the
report to defense counsel when litigation is imminent." Dkt. no.
62, pp. 1-2. This statement, if true, would support a showing
that the incident report forms in this case were created for
their potential use in future litigation.
To support this statement, Defendant points to the
deposition of Jonathan Gabler, manager of the Winn Dixie
location where the slip-and-fall accident occurred. Id. (citing
Gabler Dep., Dkt. no. 83 at 61:8-63:5). The portion of the
deposition Defendant cites says nothing about why the incident
report forms are created. Mr. Gabler, in this portion of the
deposition, simply discusses the procedure of filling out the
forms, how many times he has filled one out before, and who
filled out the incident report form at issue in this case. Id.
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It does not support Defendant's claim in its response to
Plaintiff's Objections that these incident report forms are sent
to Defendant's claims/risk management department, who then
forwards them to defense counsel.
Thus, the Defendant has not produced any evidence, such as
depositions or affidavits, showing that the incident report
forms filled out by Winn-Dixie employees are created primarily
so they can be used in potential litigation. While Defendant has
stated that litigation was the motivating purpose for creating
the forms in its Response to Plaintiff's Objections (Dkt. no.
62), this ipse dixit assertion alone will not satisfy
Defendant's burden to show it is entitled to the protection of
the work product doctrine. Cf. Bridgewater, 286 F.R.D. at 639
("That burden [to establish a claim of privilege] is not, of
course, discharged by mere conclusory or ipse clixit assertions,
for any such rule would foreclose meaningful inquiry into the
existence of the relationship, and any spurious claims could
never be exposed.") (quoting In re Bonanno, 344 F.2d 830, 833
(2d. Cir. 1965))
As the Magistrate Judge noted, it is certainly plausible
that Defendant initiated a policy of requiring incident report
forms after certain accidents in its stores so that it may use
those forms in potential litigation. However, the work product
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in fact entitled to the privilege. Here, Defendant has nothing
more than its conclusory assertions to support its claim to the
privilege. The Magistrate Judge's Order (Dkt. no. 58) is
OVERRULED because it is contrary to law. As such, Plaintiff's

motion to compel (Dkt. no. 34) as it relates to the handwritten
and computer-written incident report forms and the witness
statement forms (Plaintiff's Request for Production C., Dkt. no.
34 at pp. 12-14) is GRANTED.
II. Objections to the Magistrate Judge's August 11 Order

Plaintiff's second 72(a) Objection is to the Magistrate
Judge's August 11 Order (Dkt. no. 76), in which the Magistrate
Judge found Plaintiff's motion for sanctions moot.
Plaintiff filed a motion for sanctions on July 22, 2014,
claiming that Defendant had failed to comply with a Court Order
(Dkt. no. 55) ordering Defendant to produce 1099 and Schedule C
tax information for its medical expert, H. Clark Deriso, M.D.,
for the tax years 2012 and 2013. Dkt. no. 67,

p. 1. Plaintiff

also argued that sanctions were warranted because Defendant
failed to comply with Rule 26(a) (2)'s requirement that parties
offering expert testimony provide a report containing "a list of
all other cases in which, during the previous 4 years, the
witness testified as an expert at trial or by deposition." Id.;
Fed. R. Civ. P. 26(a) (2) (B) (v). While Defendant had already
provided Plaintiff with a list of the plaintiffs' and attorneys'
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names for whom its expert had testified, Plaintiff complained
that this list did not satisfy the requirement that all "cases"
be disclosed. Dkt. no. 67, pp. 1-2. Plaintiff concluded in her
motion for sanctions that Rule 37(b) (2) allows the Court to
issue sanctions where a party fails to obey a court order for
discovery, and requested that the Magistrate Judge order
sanctions in the form of barring Defendant from introducing any
evidence or testimony from Dr. Deriso. Id. at 2.
On July 24, two days after Plaintiff filed her motion to
compel, Defendant provided Plaintiff the requested Schedule C
and 1099 forms, along with assurances that it would contact the
attorneys for whom Dr. Deriso had testified in the past, request
the case names and numbers from them, and provide that
information to Plaintiff as it was made available. Dkt. no. 73,
pp. 2, 29-30, 41-42. In its response to Plaintiff's motion for
sanctions, Defendant argued that this disclosure brought
Defendant into full compliance with the Court Order dated June
13, 2014 and Rule 26(a) (2) . Id. at p. 2. The Magistrate Judge
agreed, and dismissed Plaintiff's motion for sanctions as moot.
Dkt. no. 76.
Plaintiff claims that the Magistrate Judge's decision is
"clearly erroneous or contrary to law" because another
magistrate judge in a different case, under different
circumstances, and in consideration of a different sanctions
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provision, came to the conclusion that sanctions were
appropriate where a party complied with discovery only after the
opposing party filed a motion for sanctions. King v. Dillon
Transp., Inc., No. CV411-028, 2012 WL 592191 (S.D. Ga. Feb. 22,
2012) . In King, the movant sought sanctions in the form of
attorney's fees to cover the cost of filing the motion to
compel, and the court found that it was required to order such
sanctions under Rule 37(a) (5) (A). Id. at *1_2; see also Fed. R.
Civ. P. 37 (a) (5) (A) (noting that, where a motion to compel is
granted, the court "must" require the party or attorney whose
conduct necessitated the motion "to pay the movant's reasonable
expenses incurred in making the motion, including attorney's
fees.")
Here, Plaintiff initially requested the Magistrate Judge to
order sanctions under Rule 37(b)(2), not Rule 37(a) (5) (A). Dkt.
no. 67, p. 2. Despite being gathered under the same Federal Rule
of Civil Procedure, these two provisions contemplate different
types of sanctions and operate in different ways. Sanctions
under Rule 37 (b) (2) are discretionary to the court, who may
choose from an array of sanctions. See Fed. R. Civ. P. 37(b) (2).
In contrast, sanctions under Rule 37 (a) (5) (A) are mandatory in
particular situations, but may only come in the form of
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reasonably cover an attorney's effort in preparing a motion to
compel. See Fed. R. Civ. P. 37(a) (5) (A).
Plaintiff's Objection fails initially because an Objection
to the Magistrate Judge's exercise of discretion is not the
appropriate time to argue for sanctions under a different
provision of Rule 37. The Eleventh Circuit held in Williams v.
McNeil "that a district court has discretion to decline to
consider a party's argument when that argument was not first
presented to the magistrate judge." 557 F.3d 1287, 1292 (11th
Cir. 2009). This Court declines to consider Plaintiff's new
argument for sanctions.
Additionally, even if the Court were to consider
Plaintiff's new argument for sanctions, that argument fails
because Plaintiff did not ask the Magistrate Judge—and has not
asked this Court—for attorney's fees to cover the cost of filing
her motion to compel. Her specific request for sanctions before
the Magistrate Judge was for the Court to bar "Defendant from
introducing any evidence or testimony from Dr. Deriso or
granting other relief as the Court deems proper." Barring the
testimony of Dr. Deriso is not proper under Rule 37(a) (5) (A),
which only contemplates sanctions of attorney's fees.
The Magistrate Judge's dismissal of Plaintiff's motion to
compel was not clearly erroneous or contrary to law. As such,

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Plaintiff's Objections (Dkt. no. 77) to the Magistrate Judge's
Order dated August 11 (Dkt. no. 76) are OVERRULED.
III. Objections to the Magistrate Judge's August 12 Order

Plaintiff's final 72(a) Objection challenges the Magistrate
Judge's Order (Dkt. no. 79) denying Plaintiff's motion to depose
Defendant's Counsel.
After Plaintiff's Counsel brought a loss of consortium
claim against one of Winn-Dixie's individual employees on behalf
of Plaintiff's husband, Defense Counsel contacted several
current and former Winn-Dixie employees and offered to represent
them or assist in depositions. Dkt. no. 96,

p. 3. Plaintiff

argues that this conduct amounts to "interfering with
Plaintiff's ability to interview former employees," Dkt. no. 86,
p. 1, and she responded by filing a motion for protective order
and a request to depose Defense Counsel, Dkt. no. 66. The
Magistrate Judge granted Plaintiff's motion for protective
order, but denied her motion to depose Defense Counsel,
reasoning that the "actions of Plaintiff's attorney in filing a
consortium claim on behalf of Plaintiff's husband . . . against
Winn Dixie and its store manager . . . makes viable the prospect
that other employees of Winn Dixie may need representation by
counsel." Dkt. no. 79.
In her Objections, Plaintiff argues several reasons as to
why the Magistrate Judge's Order is "clearly erroneous or
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contrary to law." The core of her objection, though, is that
Defense Counsel attempted to interfere with Plaintiff's ability
to interview or depose witnesses. As evidence of this
interference, Plaintiff presents to the Court an affidavit from
the witness in question, Isaiah Brown. Dkt. no. 86, pp. 11-14.
Notably, this affidavit was not presented to the Magistrate
Judge before he issued his Order. Id. at p. 4. Williams's
holding that district courts need not consider newly presented
arguments upon review of a magistrate judge's decision also
applies to newly submitted evidence where the objecting party
"has advanced no reason why he could not have discovered or
presented his argument regarding" the issue in question. See
Worley v. City of Lilburn, 408 Fed. App'x. 248, 253 (11th Cir.
2011)
The Magistrate Judge issued his Order on August 12.
Plaintiff learned that Defense Counsel had spoken to Brown as
early as July 10, see Dkt. no. 66, p. 2, more than a month
before the Order was issued. Furthermore, Plaintiff had obtained
the affidavit presented to the Court by August 5, a full week
before the Magistrate Judge issued his Order. Plaintiff has not
provided any reason why she was unable to bring this information
or affidavit to the Magistrate Judge in a timely fashion. Nor
has Plaintiff explained why, if she believed this evidence to be
of such importance to the Magistrate Judge's consideration, she
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failed to file with the Clerk's office a notice of intent to
supplement her motion when she knew the issue was fully briefed
and the Magistrate Judge's decision was forthcoming. Thus, the
Court need not consider this newly submitted evidence. 3
The Magistrate Judge's Order dated August 12, 2014 is not
clearly erroneous or contrary to law, and Plaintiff's Objection
(Dkt. no. 86) to that order is OVERRULED.
IV. Conclusion

For reasons stated above, Plaintiff's Objections to the
Magistrate Judge's Order dated June 23 (Dkt. no. 57) is
SUSTAINED, and Plaintiff's Motion to Compel (Dkt. no. 34) is
GRANTED as it relates to the handwritten and computer-generated

incident report forms and the witness statement forms.
Plaintiff's Objections to the Magistrate Judge's Orders dated
August 11 and August 12 (Dkt. nos. 76, 79) are OVERRULED.
SO ORDERED, this 27TH day of October, 2014.

LISA GODBEY OOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

But even if the court were to consider Brown's affidavit, its mere existence
undermines Plaintiff's argument that Defense counsel obstructed her access to
Winn-Dixie's former employees. Furthermore, Brown never alleges in his
affidavit that the unnamed lawyer for Winn-Dixie ever advised him not to
speak with Plaintiff's counsel. If anything, the new evidence supports the
Magistrate Judge's denial of Plaintiff's request to depose Defense counsel.
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