Whitchurch v. Canton Marine Towing Co., Inc.

Filing 15

OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Plaintiff Kori Whitchurch's Motion to Compel Discovery Responses 13 is ALLOWED in part and DENIED in part. Defendant Canton Marine Towing Co., Inc. is ordered to produce all addit ional answers to interrogatories and all additional responsive documents, and the revised privilege log required by this Opinion by April 4, 2017. If the parties cannot thereafter resolve Defendant's claims of privilege, Plaintiff may renew its Motion. See written order. (LB, ilcd)

E-FILED

Thursday, 23 March, 2017 02:26:21 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION

KORI WHITCHURCH,
Plaintiff,
v.
CANTON MARINE
TOWING CO., INC., and the
M/V SIR J-ETTE in rem,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

No. 16-cv-3278

OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiff Kori Whitchurch’s
Motion to Compel Discovery Responses (d/e 13) (Motion). For the reasons
set forth below, the Motion is ALLOWED in part and DENIED in part.
BACKGROUND
Whitchurch brings this action under the Jones Act, 46 U.S.C.
§ 30104, and general United States maritime law for injuries he allegedly
suffered during an incident (Incident) on August 9, 2016, while Whitchurch
was a crew member on Defendant M/V SIR J-ETTE, a vessel (the Vessel)
operated on the Mississippi River near Quincy, Illinois. At the time of the
Incident, Defendant Canton Marine Towing Co., Inc. (Canton), owned and
Page 1 of 17

operated the Vessel and employed Whitchurch as a crew member on the
Vessel. See Verified Complaint in Admiralty (d/e 1) (Complaint).
Whitchurch served Defendant Canton with Interrogatories and a
Request to Produce Documents. Whitchurch received Canton’s responses
and privilege log on January 27, 2017. The parties met and conferred to
resolve disputes regarding Canton’s responses. Canton supplemented its
responses on February 21, 2017. The supplemental responses did not
resolve all the parties’ disputes regarding the discovery. The parties met
and conferred, but could not resolve the remaining disputes. Whitchurch
then filed this Motion asking the Court to compel additional responses and
a more complete privilege log.
Whitchurch asks the Court to compel additional responses to
Interrogatory Nos. 2, 3, and 7; additional documents in response to
Requests to Produce Nos. 1, 2, and 6; and a more complete privilege log.
Canton argues that it has responded appropriately, that the additional
information sought is privileged, and that the privilege log is proper and
complete. The Court addresses the disputed requests in order. The Court
addresses the privilege log issue in connection with Request to Produce
No. 2.

Page 2 of 17

Interrogatory No. 2
Whitchurch asked the following in Interrogatory No. 2:
Identify each and every person who saw or claims to have seen
Kori Whitchurch’s accident or heard him describe his accident
or injury in any way.
Canton Supplemental Res:
ANSWER: See CM000041-CM000045. See also, CM000200CM000202. Investigation continues.
Motion, Exhibit 3, Defendant Canton Marine’s Supplemental Answers to
Plaintiff’s Interrogatories (Supplemental Answers), at 1.1
Documents CM000041-CM000045 are accident reports completed by
all the crew members of the Vessel at the time of the Incident. Canton
provided the full name and address information for these crew members in
answer to Interrogatory 1. Canton states that Documents CM000200CM000202 are dispatcher’s logs. The latter documents do not identify the
individual dispatchers or others who have personal knowledge of the
statements in those documents. Canton is directed to disclose the names
and business addresses and telephone numbers of those individuals to
Whitchurch. The interrogatory also asks for the identity of anyone who
heard Whitchurch “describe his accident or injury in any way.” Canton is
1

The Court has omitted the emphasis in Canton’s answer to interrogatories and responses to requests to
produce. The emphasis used by Canton identified supplemental portions of responses and is not
material to the Motion.

Page 3 of 17

directed to provide the names and addresses of any other individuals who
heard Whitchurch make any such statements, or certify that Canton is not
aware of any such additional individuals.
Interrogatory No. 3
Whitchurch asked in Interrogatory No. 3:
Identify by quoting any safety rule(s), regardless of who
promulgated such rules, which apply to the task of pulling wire
from a stationary winch and for each such rule state whether
you contend the plaintiff violated the rule and if so, how, and
describe fully how each such violation contributed to cause his
injury and for each such rule state:
a) the act(s) which the plaintiff did which you say violated
the rule;
b) how, if at all, said act contributed to cause his injury;
c) specifically what the plaintiff should have done to follow
said rule and avoid injury;
d) describe fully this defendant’s means of obtaining data
concerning employee rule violations, its analysis of
employee rule violations and its enforcement mechanism
for rule violations during the time that Kori Whitchurch
was employed by this defendant up to and including
August 9, 2016;
Canton’s supplemental response to the Interrogatory stated:
ANSWER: Canton Marine objects to this interrogatory because
it is vague, overly broad, and unduly burdensome. Nearly every
safety rule – from wearing a life jacket to not horsing around –
applies to the task of pulling wire from a stationary winch.
Subject to, and without waiving these objections, see
CM000006-CM000026, CM000034-CM000040, and
Page 4 of 17

CM000046-CM000052. See also “Deckhand’s Manual” and
“OSHA Safety Training Handbook” (7th Edition, J.J. Keller &
Associates, Inc.), which were provided to Plaintiff by Canton
Marine. Finally, employee rule violations are dealt with on a
case-by-case basis.
Furthermore, Canton Marine is still waiting for Plaintiff to
explain how his alleged injury occurred. Canton Marine will
supplement this interrogatory after Plaintiff’s deposition when
more information becomes available. Subject to, and without
waiving the above-mentioned objections, based on the currently
available information, Plaintiff may have violated Rules 22, 23,
and 35 of Canton Marine’s “Be Safe Manual,” which is marked
as CM000046-CM000052. Investigation continues.

Supplemental Answers, at 2.
Whitchurch asks the Court to compel Canton to provide a more
detailed response at this time. The request is denied. This is a contention
interrogatory, asking what rules does Canton contend Whitchurch violated.
Canton listed three, but said more may come up during discovery,
particularly after Whitchurch’s deposition. Contention interrogatories are
often better answered after parties are near the end of discovery because
they are better able to give complete responses. See Logan v. Burge, 2010
WL 4074150, at *4 (N.D. Ill. October 12, 2010); Ziemack v. Centel Corp.,
1995 WL 729295, at *2 (N.D. Ill. December 7, 1995). The Court will not
compel a more complete answer now. Canton, however, is hereby ordered
to update this answer within 14 days after the date that it takes
Page 5 of 17

Whitchurch’s deposition to more completely set forth the rules that it
contends Whitchurch violated at the time of the Incident. Both parties, of
course, must also update all responses to discovery in accordance with the
Federal Rules.
Interrogatory No. 7
Whitchurch asked the following in Interrogatory No. 7:
Identify by name, residence address, residence telephone
number, social security number and employer, each person
who has or claims to have knowledge of plaintiff’s activities
and/or physical condition since the date of his injury and the
information you believe they possess.

Canton responded:
ANSWER: Canton Marine objects to this interrogatory because
it is overly broad, unduly burdensome, and seeks information
protected by the attorney-client privilege and/or attorney work
product doctrine. Subject to, and without waiving these
objections, see CM000041-CM000045 and CM000079CM000144. Also, Plaintiff’s girlfriend likely has knowledge of
Plaintiff’s activities and physical condition since the date of his
alleged injury. See persons identified in CM000041-CM000045
and medical providers in CM000079-CM000144. See also,
CM000200-CM000202. Investigation continues.
Supplemental Answers, at 4.
Canton objected to this interrogatory based on claims of attorneyclient privilege and/or attorney work product privilege. Canton has the
burden to establish these claims of privilege. Canton claims these
Page 6 of 17

privileges for information that Canton’s counsel learned during an
investigation of the Incident and Whitchurch’s injury claims in anticipation of
this litigation. Canton asserts that information that an attorney secures
during such an investigation is protected by these privileges.
To establish the attorney-client privilege, Canton must show that the
request seeks (1) a confidential communication; (2) in connection with the
provision of legal services; (3) to an attorney; and (4) in the context of an
attorney-client relationship. United States v. BDO Seidman, LLP, 492 F.3d
806, 815 (7th Cir. 2007). The privilege only extends to “those
communications which ‘reflect the lawyer's thinking [or] are made for the
purpose of eliciting the lawyer's professional advice or other legal
assistance’ fall within the privilege.” Id. (quoting United States v. Frederick,
182 F.3d 496, 500 (7th Cir. 1999)). The privilege further “only protects
disclosure of communications; it does not protect disclosure of the
underlying facts by those who communicated with the attorney.” Upjohn
Co. v. United States, 449 U.S. 383, 395 (1981). Interrogatory No. 7 does
not ask for confidential communications or attorney advice. The
Interrogatory only asks for identity of individuals with knowledge and the
factual information that the individuals possess. The claim of attorneyclient privilege is overruled.
Page 7 of 17

Canton also asserts the attorney work product privilege. The work
product privilege is set forth in Federal Rule of Civil Procedure 26(b)(3):
(3) Trial Preparation: Materials.
(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.
(C) Previous Statement. Any party or other person may, on
request and without the required showing, obtain the person's
own previous statement about the action or its subject matter. If
the request is refused, the person may move for a court order,
and Rule 37(a)(5) applies to the award of expenses. A previous
statement is either:
(i) a written statement that the person has signed or
otherwise adopted or approved; or
(ii) a contemporaneous stenographic, mechanical,
electrical, or other recording--or a transcription of it--that
recites substantially verbatim the person's oral statement.
Page 8 of 17

Fed. R. Civ. P. 26(b)(3). The work-product privilege “protects documents
prepared by attorneys in anticipation of litigation for the purpose of
analyzing and preparing a client’s case.” Sandra T.E. v. South Berwin
School District 100, 600 F.3d 612, 618 (7th Cir. 2010). The purpose of the
privilege is to “protect an attorney’s mental impressions and opinions
against disclosure and to limit the circumstances in which attorneys may
piggy-back on the research and thinking of their more diligent adversaries.”
United States v. Dean Foods Co., 2010 WL 3980185, at *2 (E.D. Wis.
October 8, 2010). The Supreme Court explained when it adopted this
privilege, that “under ordinary circumstances, forcing an attorney to repeat
or write out all that witnesses have told him and to deliver the account to
his adversary gives rise to dangers of inaccuracy and untrustworthiness.”
Hickman v. Taylor, 329 U.S. 495, 513 (1947). The Supreme Court,
however, also said that the underlying facts, themselves, are not protected,
“Mutual knowledge of all the relevant facts gathered by both parties is
essential to proper litigation. To that end, a party may compel the other to
disgorge whatever facts he has in his possession.” Hickman, 329 U.S. at
507.
The privilege, therefore, extends to any documents prepared by an
attorney in anticipation of litigation that contain statements by individuals
Page 9 of 17

that are responsive to this Interrogatory, or to recitations of statements
contained in those documents. The privilege, however, does not extend to
the identity of individuals with knowledge and the factual information that
such individual possess. See EEOC v. Jewel Food Stores, Inc., 231 F.R.D.
343, 346-49 (N.D. Ill. 2005); Dean Foods Co., 2010 WL 3980185, at *3-*5.
Canton cites 1100 West, LLC v. Red Spot Paint and Varnish Co.,
Inc., 2007 WL 2904073 (S.D. Ind. May 18, 2007), to support its claim that
the identity of individuals with knowledge and the factual information that
the individuals possess may be protected by the work product privilege.
The Red Spot case concerned a motion to quash a subpoena duces
tecum. The case, therefore, only put at issue whether documents prepared
by attorneys are privileged, not whether the information is privileged. Red
Spot does not apply to answers to interrogatories.
Interrogatory No. 7 only asks for the identity of individuals with
knowledge about the Incident and Whitchurch’s activities and/or physical
condition after the Incident. The Interrogatory does not ask for notes or
other documents prepared by Canton’s attorneys. The work-product
objection is overruled. Canton is directed to provide a complete response
to Interrogatory No. 7.

Page 10 of 17

Canton states in its opposition to the Motion that, “Canton Marine has
no other discoverable information at present.” Defendant Canton Marine’s
Brief in Response to Plaintiff’s Motion to Compel (d/e 14), at 2. The
wording is unclear; Canton may be stating that it has no discoverable
information because of its claims or privilege or it has no other responsive
information regardless of claims of privilege. If Canton has no other
responsive information regardless of claims of privilege, it may say so in its
response; otherwise, Canton is directed to produce the complete response
to Interrogatory No. 7, including the identity of the individuals with personal
knowledge and a summary of the information they possess.
Request to Produce No. 1
Whitchurch asked for the following documents in Request to Produce
No. 1:
Any statement or transcription of a statement by or attributable
to the plaintiff, whether oral or written, whether or not recorded,
including any notes of any conversations with the plaintiff
concerning any aspect of this litigation.
Canton responded:
RESPONSE: Canton Marine objects to producing any notes of
conversations with Plaintiff as protected by the work product
doctrine – Federal Rules of Civil Procedure, Rule 26(b)(3)(A).
Subject to this objection, and limited to recorded statements or
written statements by Plaintiff, see only documents produced,
including Plaintiff’s accident report produced as CM000042.
See also CM000200-CM000202.
Page 11 of 17

Motion, Exhibit 4, Defendant Canton Marine’s Supplemental Responses to
Plaintiff’s Requests for Production (Supplemental Responses), at 1.
Canton objects based on its claim of work product privilege. Canton
listed Whitchurch’s accident report and the dispatcher’s log as responsive.
Canton must also produce any document prepared by a person who was
not Canton’s attorney or agent of the attorney if any such documents exist.
Such documents are not covered by the work product privilege.
Canton must also produce a more complete privilege log. At this
point, the Court cannot determine what sworn statements exist and
whether the sworn statements are covered by the work-product privilege. If
the documents consist of attorney notes and summaries of statements by
Canton’s employees collected in anticipation of this litigation, then the
documents would be protected by the work-product privilege. See Sandra
T.E., 600 F.3d at 618-21. Courts have held, however, that affidavits by third
party witnesses are not covered by the work-product privilege because the
affidavits are sworn statements of fact based on personal knowledge, and
so, are not documents that contain attorney mental impressions or
opinions. See Murphy v. Kmart Corp., 259 F.R.D. 421, 428-31 (D. S.D.
2009); but cf. Red Spot, 2007 WL 2904073, at *1-*3 (draft of affidavits and
notes made to prepare affidavits are privileged). Without such complete
Page 12 of 17

information, the Court cannot determine whether Canton can meet its
burden to establish its claims of privilege.
Canton must produce a privilege log that describes the nature of the
documents, communications, or tangible things not produced “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)(ii). Canton’s
privilege log fails to provide such information.
Canton is ordered to prepare a revised privilege log that states with
respect to each document withheld:
1.

A brief description or summary of the content of the document or
communication;

2.

The date the document was prepared;

3.

The name or names of the person or persons who prepared the
document;

4.

In the case of a document that was referred to collectively with other
documents in the original privilege log as “Statements from Canton
Marine employees taken by attorney, Jim Mondl in September 2016,”
the identity of the person who made the statements in the document;

5.

The person to whom the document was directed, or for whom it was
prepared;
Page 13 of 17

6.

The purpose for preparing the document or communication;

7.

The privilege or privileges asserted for the document or
communication; and

8.

How the document or communication satisfies the asserted privilege
or privileges.

See Moore’s Federal Practice, §26.90 (Matthew Bender 3rd ed.). Canton is
directed to provide the revised privilege log to Whitchurch by April 4, 2017.
The parties are then directed to meet and confer to see if they can resolve
remaining disputes regarding the listed documents. If the parties cannot
resolve their differences, Whitchurch may renew its motion with respect to
the unresolved disputes.
Request to Produce No. 2
Whitchurch asked the following documents in Request to Produce
No. 2:
2. All statements of witnesses, whether recorded, written,
transcribed or of any nature, which are in the possession of the
defendant or its attorneys that contain any statement of any fact
bearing any relation to the captioned litigation.
Canton responded:
RESPONSE: Canton Marine objects to this request because it
seeks documents protected by the work product doctrine
because any statements were taken by Canton Marine’s
attorneys in anticipation of litigation. See Privilege Log.
Page 14 of 17

Motion, Exhibit 2, Defendant Canton Marine’s Responses to Plaintiff’s
Request for Production, at 1-2.
The privilege log is, again, inadequate to evaluate Canton’s claims of
privilege. Canton is directed to provide Whitchurch with a revised privilege
log and the parties are directed to attempt to resolve their disputes as
directed above. Whitchurch may renew its motion with respect to this
request if the parties cannot resolve their disputes.
Request to Produce No. 6
Whitchurch asked for the following documents in Request to Produce
No. 6:
6. All communications to any person by the plaintiff which are in
the defendant’s actual or constructive custody or control.
Canton responded:
RESPONSE: Canton Marine objects to producing any notes of
conversations with Plaintiff as protected by the work product
doctrine – Rule 26(b)(3)(A) – and further objects on grounds of
vagueness in that Plaintiff fails to identify what a
“communication” would include, and accordingly fails to identify
with reasonable particularity the documents sought. Subject to
these objections, and limited to recorded or written statements
by Plaintiff, or other documents sent by Plaintiff, see only
documents produced. See also CM000200-CM000202.
Supplemental Responses, at 2.
Canton objects on the basis of vagueness and work product. The
Court finds that the request is overly broad because it is not limited to
Page 15 of 17

communications related to the Incident or to Whitchurch’s claims of injuries
resulting from the Incident. With respect to the vagueness objection,
Whitchurch provided a sufficient definition of “communication” in footnote 2
of the Motion. Motion, at 3 n.2. The vagueness objection is overruled in
light of the definition provided by Whitchurch.
Canton failed to produce an adequate privilege log to enable the
Court to evaluate the privilege claims. Canton is directed to produce
unprivileged documents that contain communications to any person by the
plaintiff which are in the defendant’s actual or constructive custody or
control and which relate to the Incident or to Whitchurch’s claims of injuries
resulting from the Incident. For purposes of this Request, the term
“communication” is defined as set forth in footnote 2 of the Motion. If
Canton maintains its claims of privilege, it must provide the privilege log in
the manner described above. If the parties still cannot thereafter resolve
their disputes regarding this Request, Whitchurch may renew its motion.
THEREFORE Plaintiff Kori Whitchurch’s Motion to Compel Discovery
Responses (d/e 13) is ALLOWED in part and DENIED in part. Defendant
Canton Marine Towing Co., Inc. is ordered to produce all additional
answers to interrogatories and all additional responsive documents, and
the revised privilege log required by this Opinion by April 4, 2017. If the
Page 16 of 17

parties cannot thereafter resolve Defendant’s claims of privilege, Plaintiff
may renew its Motion.
ENTER: March 23, 2017

s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE

Page 17 of 17