Venator v. Interstate Resources, Inc. et al

Filing 53

ORDER granting 33 Motion to Compel. Defendants have seven days from the date of this Order is served to produce the documents (reviewed by the Court in camera) to plaintiff. Signed by Magistrate Judge G. R. Smith on 10/29/2015. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
DENISE VENATOR, as surviving
spouse of RICKY LEE VENATOR,
and as the Administratrix of the
Estate of RICKY LEE VENATOR,
Plaintiff,
Case No. CV415-086
V.

INTERSTATE RESOURCES, INC.,
INTERSTATE PAPER, LLC,
and MICHAEL JOSEPH WINGATE,
Defendants.

Mm
In this wrongful death action, plaintiff Denise Venator moves to
compel from defendant Interstate Paper, LLC, the production of (1) a
"supervisor's report" created by Interstate Paper, and (2) emails between
Interstate Paper employees and an Occupational Safety and Health
Administration (OSHA) investigator. Doc. 33. Should the Court grant
her motion, Plaintiff also seeks leave to re-depose three Interstate Paper
employees who testified about the report and emails. Doe. 33-1 at 24.
Interstate Paper opposes, contending that the "self-critical analysis"

("SCA") privilege, and the inadmissibility of subsequent remedial
measures, bar discovery of the report and emails. See doc. 38 at 17-23.
I. BACKGROUND
On November 27, 2013, Ricky Venator, a truck driver employed by
a non-party, arrived at Interstate Paper's warehouse in Riceboro,
Georgia.

See doe. 33-1 at 1; doe. 9-1 at 7. He subsequently asked

defendant and Interstate Paper employee Michael Wingate for assistance
in removing a defective mud flap from his truck. Doe. 33-2 at 2. Wingate
obliged, using a fork lift to aid removal. Doe. 33-1 at 1. The parties hotly
dispute what precisely happened next, but one thing is clear -- Venator
died after being pinned between the fork lift and his truck's trailer.
Plaintiff Denise Venator (Ricky's wife on her own behalf and as
representative of his estate) sued originally in state court, asserting state
law causes of action; defendants later removed. Doe. 1. In discovery,
plaintiff requested that defendants produce, among other things: (1) "All
incident reports or accident reports that were made as a result of the
incident in which Ricky Lee Venator was fatally injured on defendants'
premises;" (2) "Copies of any notification, report of injury or
correspondence that was sent to OSHA by INTERSTATE PAPER, LLC,

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relating to the incident when Ricky Lee Venator was fatally injured on
November 27, 2013;" (3) "Copies of any and all correspondence, citations,
violations, and other documents received by INTERSTATE PAPER,
LLC, from OSHA relating to the incident when Ricky Lee Venator was
fatally injured. . . .;" and (4) "A copy of any written report prepared by
any adjuster, appraiser, employee, agent or representative of Defendant
or its insurer as a result of Plaintiffs alleged occurrence." Doc. 33-2 at
16-22 (document request nos. 21, 28, 29, and 34). Defendants objected to
each of those requests on grounds they sought "subsequent remedial
measures, [and] self-critical analysis." Doc. 33-2 at 16-22.
Defendants nevertheless produced many documents,' but they
withheld a "Supervisor's Report of Injury/Illness" and five pages of
emails between Interstate Paper employees and OSHA. Doe. 33-1 at 7.
For both the report and emails, defendants' privilege log characterizes
the documents as subsequent remedial measures and claims the SCA
1

More precisely, Interstate Paper produced documents. Interstate Resources claims
to have no responsive documents -- indeed, it says there's no basis for its inclusion in
this case -- because it "never employed Wingate, it did not train or supervise Wingate,
it does not own the premises where the accident occurred, and it did not have custody
or control of the subject forklift at any time." Doc. 38 at 3. That may well be the
case, but for purposes of this Order, it's irrelevant whether Interstate Resources is a
proper party. That is a matter for another motion and the Court will not address it
here. For present purposes, it's enough to say that whichever defendant controls the
documents at issue must comply with this Order.
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privilege justifies their withholding. The parties attempted to resolve
their dispute over the report and emails, but ultimately those efforts
failed. Plaintiff then filed the present motion to compel production of
the documents. Doc. 33.
II. ANALYSIS
A. SCA Privilege
Defendants first contend that compelled production of the
supervisor's report "will force Interstate Paper to make the Hobson's
choice of aggressively investigating accidents, correcting any dangerous
conditions, and possibly creating a self-incriminating record as opposed
to deliberately avoiding making a record on the subject, which may
lessen the risk of civil liability." Doc. 38 at 17 (quotes omitted). To
prevent that dilemma and to incentivize accident investigations,
defendants urge the Court to apply the SCA and block production of the
report. Id. Regardless of the policy rationales underlying the SCA, says
plaintiff, the Court must apply Georgia's privilege law which, plaintiff
contends, lacks an SCA privilege. Doc. 33-1 at 14-19.
The parties' arguments amount to a duel between two cases and
two different analytical approaches to deciding whether the SCA

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privilege exists. Plaintiff champions Lara v. Tri-State Drilling, Inc., 504
F. Supp. 2d 1323 (N.D. Ga. 2007), which looked first to Fed. R. Evid. 5012
to ascertain "whether to recognize and apply the [SCA]."

Lara, 504 F.

Supp. 2d at 1327. That court saw only Georgia tort claims before it, so it
examined Georgia law for an SCA privilege. Id. It never found one in
case or statutory law. Id. "[A]bsent a recognition of the [SCA] privilege
by Georgia state courts or the state legislature," Lara refused "to make.
a leap of state law interpretation" and apply the SCA. Id. at 1328.
Arguing that "Lara is a Northern District case [that] has no
precedential value for this Court,"' doc. 38 at 18, defendants ground
their argument in the analytical avenue trod by Joiner v. Hercules, Inc.,

169 F.R.D. 695 (S.D. Ga. 1996).

Likewise faced only with state law

claims, Joiner made the leap Lara refused; it recognized the SCA

2

Rule 501 mandates that state law determine privilege applicability when state law
"supplies the rule of decision" for "an element of a claim or defense."

"Precedential value" arguments are quasi-red herrings when, as here, the only
authorities in play are district court decisions. No district court order truly has
binding precedential value, whether in-district or out. They may only persuade. See
McGinley v. Houston, 361 F.3d 1328, 1331 (11th Cir. 2004) (district judge's are not
bound by their own decisions, though "a judge ought to give great weight to his own
prior decisions[, and a] circuit court's decision binds the district courts sitting within
its jurisdiction while a decision by the Supreme Court binds all circuits and district
courts.").

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privilege despite the Georgia legislature's and courts' silence on the
matter.

Id. at 698-99. In doing so, it reasoned that "[t]he policy

supporting the SCA privilege' mirrors [Georgia's] statutory medical 'peer
review' privilege."' Id. at 699. "Given that at least two other federal
courts in Georgia ha[d] recognized" the privilege, and that it "promote[d]
sufficiently important interests to outweigh the need for probative
evidence," Joiner applied it and barred production of protected
documents. Id. 6

' Joiner characterized the policy rationale as encouraging private companies to selfaudit, "in order to fully comply with" laws and regulations, "without fear that those
audits will be discoverable." 169 F.R.D. at 699.
Under O.C.G.A. § 31-7-143:
[t]he proceedings and records of medical review committees shall not be
subject to discovery or introduction into evidence in any civil action against a
provider of professional health services arising out of the matters which are
the subject of evaluation and review by such committee; and no person who
was in attendance at a meeting of such committee shall be permitted or
required to testify in any such civil action as to any evidence or other matters
produced or presented during the proceedings of such committee or as to any
findings, recommendations, evaluations, opinions, or other actions of such
committee or any members thereof.

See also O.C.G.A. § 31-7-133 (protecting "the proceedings and records of" medical
peer review organizations from "discovery or introduction into evidence in any civil
action").
6

Shipes v. BIG Corp., 154 F.R.D. 301 (M.D. Ga. 1994) followed the same path. It too
acknowledged the silence of Georgia law, but nevertheless found that, given O.C.G.A.
§ 31-7-143 and the similar policy rationales underlying it and the SCA, "Georgia
courts would endorse the [SCA]." Shipes, 154 F.R.D. at 306-07.

Lara, not Joiner, persuades because it rests on the bedrock of Fed.
R. Evid. 501, which indubitably applies in cases like this, where state law
provides the rules of decision. Consequently, state privilege law decides
whether the SCA privilege exists here.

See Fed. R. Evid. 501. Put

differently, the wisdom of particular policy rationales or what federal
courts (whether from this district or others) have said about the matter,
see Joiner, 169 F.R.D. at 699, must cede the stage to Georgia law. Id.;
Lara, 504 F. Supp. 2d at 1327; cf. Adeduntan v. Hosp. Auth. Of Clarke
Cnty., 2005 WL 2074248 at * 10-11 (M.D. Ga. Aug. 25, 2005) (proceeding
under the permissive portion of Rule 501 that allows federal courts to
recognize new privileges, court discussed Georgia's statutory medical
peer-review privilege, but refused to apply it because it "would
essentially prevent [the] plaintiff from rebutting a federal immunity
defense [and] would defeat a federal [civil rights] claim which bears little
relation to the type of claim the privilege was designed to address"). And
Georgia state courts and the state legislature have never recognized the
SCA privilege,7 or any peer-review-esque privilege, outside the medical
review context.

As Lara astutely noted, Georgia's legislature amended O.C.G.A. § 31-7-133 in 1984
7

Joiner, then, despite being a Southern District decision, lacks
persuasive value. Instead,
[t]he narrow approach taken by the Georgia legislature, and the
complete absence of the Georgia courts having recognized a selfcritical analysis privilege, leads this court to conclude that Georgia
law does not allow for such a privilege. In a case such as this, where
state law provides the rule of decision, a privilege exists only when
created by state law. The fact that the legislature might create the
privilege in the future, or that the state courts might recognize
such a privilege, does not give this court the authority to apply the
privilege in this case.
Lara, 504 F. Supp. 2d at 1328. Because Georgia does not presently
recognize an SCA privilege, it cannot offer Interstate Paper's
supervisor's report and OSHA emails disclosure protection.
B. Subsequent Remedial Measures
Defendants also contend that Fed. R. Evid. 4078 bars discovery of
the report and emails because they are subsequent remedial measures.
See doc. 38 at 22-23. Not so, says plaintiff. The report and emails merely
by "narrowing the definition of 'review organization' to include only those working in
the healthcare industry." 504 F. Supp. 2d at 1328 (citing Emory Clinic v. Houston,
258 Ga. 434, 435 (1988). Since then, and despite cases like Joiner and Shipes, H 317-133 and -134 have remained limited to the healthcare context, and no Georgia court
has recognized the SCA privilege.
8 "When measures are taken that would have made an earlier injury or harm less
likely to occur, evidence of the subsequent measures is not admissible to prove:
negligence; [or] culpable conduct. . . But the court may admit this evidence for
another purpose, such as impeachment or--if disputed--proving ownership, control, or
the feasibility of precautionary measures." Fed. R. Evid. 407.
8

document "how an incident happened or what caused it to happen,
discuss[] an incident, or contain[] an admission that a defendant was at
fault." Doc. 33-1 at 21. Because they "are not actions that prevent a
future injury," plaintiff argues they "do not constitute a remedial
measure" barred by Rule 407.
Whether or not the disputed documents reflect remedial measures,
the Court must first address the important, yet oft-elided, distinction
between admissibility and discoverability. "[T]he purpose of discovery is
to provide a mechanism for making relevant information available to the
litigants." Lozano v. Md. Cas. Co., 850 F.2d 1470, 1473 (11th Cir. 1988)
(emphasis added). To that end, its scope is broad. See Fed. R. Civ. P.
26(b)(1) ("Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense. . . ."). Indeed, so
long as it "has any tendency to make the existence of any fact or
consequence more or less probable," United States v. Capers, 708 F.3d
1286, 1308 (11th Cir. 2013), "information need not be admissible at the
trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1) (emphasis
added); see also Daniel Defense, Inc. v. Remington Arms Co., 2015 WL

6142883 at * 2 (S.D. Ga. Oct. 19, 2015) ("Rule 26.. . sets forth a very low
threshold for relevancy, and thus, the court is inclined to err in favor of
discovery rather than against it.").
Rule 407, because it "governs the admissibility of evidence," not
"pretrial discovery," Laws v. Stevens Transp., Inc., 2013 WL 941435 at *
3 (S.D. Ohio Mar. 8, 2013), affects discoverability only insofar as it helps
discern whether a document is "reasonably calculated to lead to the
discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1); see also

Cohalan v. Genie Indus., Inc., 276 F.R.D. 161, 166 (S.D.N.Y. 2011)
(although Rule 407 helps delineate "what is admissible[, it] does not
define what is discoverable"); Bernat v. Cal. City, 2010 WL 4008361 at *
5 (E.D. Cal. Oct 12, 2010) ("[T]hough the evidence discovered may not,
ultimately, be admitted at trial, this is no basis for refusing to disclose it
during discovery."); Lesemann v. Gen. Nutrition Companies, Inc., 2003
WL 22872035 at * 1 (E.D. Pa. Oct. 9, 2003) (if information "is reasonably
calculated to lead to the discovery of admissible evidence," then Rule 407
cannot bar its discovery even if it could bar its admissibility at trial).
At this stage, the Court cannot predict how plaintiff will use at trial
documents she obtained in discovery. See Laws, 2013 WL 941435 at * 3

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("It is certainly possible that plaintiffs will wish to use [the discovery
materials to impeach] -- but they will not know that until they take
discovery on the issue."). Whether or not they are ultimately admitted,
though, so long as the supervisor's report and emails appear reasonably
calculated to lead to admissible evidence, they are relevant and must be
produced.
Upon in camera inspection, the report contains factual details of
the incident that caused Venator's death, a brief discussion of necessary
preventative actions, and steps Interstate Paper took post-incident to
mitigate the risk of it recurring. Whether characterized as remedial
measures or not (that's a matter for a motion in limine or an evidentiary
ruling at trial), the report is unquestionably relevant if for no other
reason than it provides a detailed factual summary of what happened,
right down to the safety gear Wingate wore. Even those portions that
smell strongly of remediation, like the post-incident risk-mitigation
measures, could potentially be admissible if used to impeach (defendants
do not contest ownership or control of the Riceboro, Georgia warehouse
or the forklift that crushed Venator). Hence, they are relevant and
discoverable.

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The emails are, too. They comprise an OSHA employee's inquiries
about Wingate's pre-incident training on the forklift that killed Venator
and Interstate Paper's responses detailing why it believed its actions
complied with various work safety regulations. That an OSHA
investigator wanted Interstate Paper's training records in order to
determine whether it properly trained Wingate relates directly to
plaintiffs negligent training claim, among others, as well as defendants'
contributory negligence defense (doc. 6 at 2) and potential liability. And
as with the report, any portion of the emails that constitute remedial
measures still might be used for purposes other than proving culpability,
so they remain discoverable despite Rule 407.
Prescott v. CSX Transport, Inc., 2013 WL 1192820 (S.D. Ga. Mar.
22, 2013), relied on by the defendants to show that reports like the
supervisor's report are subject to Rule 407, is not to the contrary. There,
in the context of a motion in limine, this Court found a report "not
admissible for impermissible purposes under Rule 407" because it had
been "prepared for the purpose of improving procedures to prevent
future harms" and was thus "plainly evidence regarding subsequent
remedial measures." Id. at * 2. Prescott never dealt with questions of

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discoverability, and any persuasive weight it carries therefore is limited
to what kinds of reports constitute subsequent remedial measures and
their admissibility at trial. Whether the supervisor's report is a
subsequent remedial measure or not (and thus whether Rule 407 bars its
admission to prove culpability), it might be used to impeach and so
remains discoverable.
III. CONCLUSION
Neither the SCA privilege nor Rule 407 protect Interstate Paper's
supervisor's report or the OSHA emails from disclosure. Plaintiffs
motion to compel (doc. 33) therefore is GRANTED. Defendants have
seven days from the date this Order is served to produce the documents
(reviewed by the Court in camera) to plaintiff. Thereafter, plaintiff may
re-depose the three Interstate Paper employees -- Mike McGowan,
Ronnie Moore, and Michael Hardy -- whom defense counsel instructed
not to respond when questioned about the contents of the report and
emails .

Defense counsel, in correspondence with plaintiffs attorney, has already consented
to these re-depositions should the Court rule in plaintiffs favor on this motion. See
doc. 33-3 at 6 (defense counsel consenting to re-deposing "any deponent regarding
the privileged documents in the event . . . the Court rules against us on [plaintiffs]
Motion to Compel").
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1

SO ORDERED, this day of October, 2015.
UNITED ATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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