Wielgus v. Ryobi Technologies, Inc. et al

Filing 141

MEMORANDUM Opinion and Order. Signed by the Honorable Young B. Kim on 12/10/2010. (aac, )

Wielgus v. Ryobi Technologies, Inc. et al

Doc. 141

UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF ILLINOIS E A S T E R N DIVISION J A R O S L A W WIELGUS, ) ) P la in tif f , ) v. ) ) R Y O B I TECHNOLOGIES, INC., ONE ) W O R L D TECHNOLOGIES, INC., and ) H O M E DEPOT USA, Inc., ) ) D e f e n d a n ts. ) ----------------------------------------------------- ) ) R Y O B I TECHNOLOGIES, INC., ONE ) W O R L D TECHNOLOGIES, INC., and ) H O M E DEPOT USA, Inc., ) ) T h ird -P a rty Plaintiffs, ) v. ) ) J T D CONSTRUCTION, INC., ) ) T h ird -P a rty Defendant. )

C a s e No. 08 CV 1597 M a g is tr a te Judge Young B. Kim

D e c e m b e r 10, 2010

M E M O R A N D U M OPINION and ORDER B e f o re the court are the motions of plaintiff Jaroslaw Wielgus1 ("Wielgus") and thirdp a rty defendant JTD Construction, Inc. ("JTD") for reconsideration of the court's August 4, 2 0 1 0 ruling. On August 4, 2010, the court granted third-party defendants' ("defendants")

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Travelers Insurance Company ("Travelers") brings the subject motion as the subrogee of W ie lg u s . For purposes of this ruling, the court will treat this motion as Travelers' motion as T ra v e le rs is the real party in interest as to the subject documents. Also, Travelers filed a m e m o r a n d u m of law in support of Plaintiff's motion for reconsideration but did not file a s e p a ra te "motion for reconsideration." (R. 129.) The court will overlook this error and treat th e memorandum as a motion.

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motion to compel and required the production of certain documents withheld by JTD based o n the attorney-client and attorney work-product privileges. For the following reasons, the m o tio n s are denied: B ackground J T D employee Wielgus sustained injuries in March 2006 while using a power saw m a n u f a c tu re d and distributed by the defendants. Wielgus submitted a claim for and

T ra v e le rs paid him workers' compensation benefits. Wielgus also filed this instant product lia b ility case in March 2008 against the defendants on the basis that the subject power saw w a s unsafe as it lacked a flesh-detection safety feature and that the lack of this feature caused h im serious injuries. Because Travelers compensated Wielgus in his workers' compensation c la im against his employer JTD, both Wielgus and Travelers have a stake in this lawsuit. In d e f e n s e of this action, the defendants filed a third-party complaint against JTD. The defense o f JTD in this action is also financed by its insurer, Travelers. O n December 5, 2008, the defendants served a subpoena on Travelers for "[a]ny and a ll records relating to worker's compensation cause no. FZW2491, Jaroslaw Wielgus v. JTD C o n s tru c tio n , Inc." The subpoena ordered Travelers to produce the records by December 22, 2 0 0 8 . (R. 98, Ex. A.) Travelers did not respond to the subpoena and did not seek a p ro te c tiv e order. (R. 98.) On November 3, 2009, the defendants served Travelers with a m o re detailed subpoena requesting documents pertaining to Wielgus' workers' compensation c la im against JTD. (R. 98, Ex. B.) This second subpoena required a response from Travelers

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by November 17, 2009. Travelers again did not respond to the subpoena or petition the court f o r a protective order. H o w e v e r, on December 4, 2009, JTD advised the defendants that Travelers sent the d o c u m e n ts responsive to the subpoena to JTD. (R. 98, Ex. C.) JTD further advised that it w a s withholding these documents based on "attorney-client and/or attorney work product p ri v il e g e s ." (Id.) Ten days later, on December 14, 2009, the defendants asked JTD to p ro v id e them with a detailed privilege log. (R. 96, Ex. D.) JTD did not release any logs e x p la in in g the nature of the privilege it asserted. O n March 10, 2010, the defendants again requested JTD to provide a privilege log w ith in 14 days. (R. 96, Ex. D.) JTD ignored this request as well. Then on April 6, 2010, the c o u rt ordered JTD to either produce the documents responsive to the Travelers subpoena or to submit a privilege log to the defendants by April 20, 2010. (R. 88.) JTD ignored this o rd e r and offered the defendants nothing. On May 26, 2010, the parties appeared for a status h e a rin g . When asked by the court why JTD failed to produce the ordered privilege log, JTD d id not have a response. JTD merely asked for another chance to produce its privilege log. The court granted the oral request and permitted JTD one more chance to produce a privilege lo g by June 11, 2010. (R. 92.) On June 9, 2010, JTD finally sent the defendants its privilege lo g in response to the documents they asked for in its subpoena to Travelers. (R. 93.) On July 6, 2010, the defendants filed a motion to compel JTD or Travelers to produce th e documents requested in their third-party subpoena. (R. 98.) On July 8, 2010, the court

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gave JTD until July 15, 2010, to file its response to the defendants' motion to compel. (R. 1 0 0 .) JTD then filed a motion for an in camera inspection of the subpoenaed documents on J u ly 8, 2010. (R. 101.) Neither JTD nor Travelers filed a response to the motion to compel. O n July 20, 2010, the court denied JTD's motion noting that if an in camera inspection of c e rta in documents was needed to rule on the pending motion to compel, the court would n o tif y the parties. (R. 104.) On August 4, 2010, the court granted in part and denied in part th e defendants' motion to compel. (R. 107, 125.) The court ordered JTD (as corrected) to tu rn over a copy of the documents identified in the Memorandum Opinion and Order as 1-6, 1 0 , 11, 14, 15, 17, 22-27, and 29-36 to the defendants by August 20, 2010. (Id.) O n September 20, 2010, the court held a status hearing and gave JTD until October 8 , 2010, to either file a motion for reconsideration of the August 4, 2010 order, or to comply w ith the order. (R. 112.) On October 8, 2010, JTD filed a motion for reconsideration. (R. 1 1 6 .) JTD also moved to require the defendants to return certain privileged documents that it had erroneously disclosed to them. (Id.) Travelers also filed a motion for reconsideration o f the August 4, 2010 order. (R. 119.) This was the first time since the defendants issued th e ir third-party subpoena to Travelers in December 2008 that Travelers voiced an objection to turning over its records pertaining to Wielgus. O n October 22, 2010, the court held a status hearing and denied the two motions for re c o n s id e ra tio n without prejudice. (R. 123.) However, the court granted JTD's motion s e e k in g the return of certain privileged documents it erroneously disclosed to the defendants.

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(Id.) The court ordered the defendants to destroy the privileged documents as well as any c o p ie s made of those documents. (Id.) The court further ordered the defendants to confirm th e destruction of those documents by October 29, 2010, by providing either a fax or e-mail c o n f irm a tio n to JTD. (Id.) A t this status hearing, Travelers and JTD also orally moved for clarification of the c o u rt's August 4, 2010 order about which documents JTD was required to turn over to the d e f e n d a n ts . (R. 123.) They explained that the court had denied the defendants' motion to c o m p e l as to documents 12 and 13, but also ordered their production. (R. 124.) They also p o in te d out that the privilege log prepared by JTD should have listed 36 documents, not 37 d o c u m e n ts because JTD erroneously listed one group of documents twice on the log. (Id.) The court granted their oral motion and advised the parties that a clarification order would b e issued by October 29, 2010. (R. 123.) The court also gave JTD until November 5, 2010, to file an amended motion for reconsideration. (Id.) O n October 29, 2010, the court entered an Amended Memorandum Opinion and Order n u n c pro tunc to August 4, 2010, remedying the document conflicts identified by Travelers a n d JTD. (R. 124, 125.) A few days later, on November 3, 2010, and on November 5, 2010, J T D and Travelers filed their motions for reconsideration. (R. 128, 129.) The defendants f ile d their response in opposition to the motions on November 12, 2010. (R. 132.) On N o v e m b e r 19, 2010, Travelers filed a reply brief, but JTD did not. (R. 133.)

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Analysis A. L e g a l Standard T h e Seventh Circuit has cautioned that motions for reconsideration "serve a limited f u n c tio n : to correct manifest errors of law or fact or to present newly discovered evidence." P u b lis h e r s Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir. 1 9 8 5 ) (citations omitted). A motion for reconsideration will be granted when: (1) the court h a s patently misunderstood a party; (2) the court has made a decision outside the adversarial is su e s presented to the court by the parties; (3) the court has made an error not of reasoning b u t of apprehension; (4) there has been a controlling or significant change in the law since th e submission of the issue to the court; or (5) there has been a controlling or significant c h a n g e in the facts since the submission of the issue to the court. Bank of Waunakee v. R o c h e ste r Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 2009) (citation omitted). " R e c o n s id e ra tio n is not an appropriate forum for rehashing previously rejected arguments o r arguing matters that could have been heard during the pendency of the previous motion." C a is s e Nationale de Credit Agricole v. CBI Indus., 90 F.3d 1264, 1270 (7th Cir. 1996) (c ita tio n s omitted). In other words, "[a] motion for reconsideration is not an opportunity to ta k e a second bite at the apple and reargue issues already adjudicated." Championsworld, L L C v. United States Soccer Fed'n, Inc., No. 06 C 5724, 2007 WL 2198366, at *1 (N.D. Ill. J u ly 31, 2007) (citation omitted). Therefore, a court will grant a motion to reconsider when th e re is a "compelling reason," including a change in the law that shows that an earlier ruling

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was erroneous, but not to address arguments that a party should have previously raised. Solis v . Current Dev. Corp., 557 F.3d 772, 780 (7th Cir. 2009). B. J T D 's Motion J T D has not identified any legitimate basis for seeking reconsideration of the court's A u g u s t 4, 2010 order. In its motion, JTD merely asks this court to consider the arguments it should have raised in response to the defendants' motion to compel back in July 2010. JTD f irs t requests that the court reconsider its August 4, 2010 order on the basis that it erroneously d is c lo s e d certain privileged documents that the court did not order JTD to produce because th e re were differences between the document numbering system the court used in its August 4 , 2010 order and the sequencing of the documents listed in JTD's privilege log.2 (R. 128 a t 1-2.) Next, JTD seeks reconsideration of the court's order requiring the disclosure of d o c u m e n ts 2, 10, 11, and 32 because these documents are either privileged or not relevant3 to any issue in the case. (Id. at 2-8.) As to document 2, JTD claims that this eight-page in v o ic e from Boies, Schiller & Flexner, LLP, to a Travelers' claims handler for legal work re g a rd in g saw litigation dated September 25, 2008, is neither relevant nor likely to lead to
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This claim is moot. As JTD correctly points out in its brief, the court resolved this issue o n October 22, 2010, by ordering the defendants to destroy the privileged documents JTD tu rn e d over in error as well as any copies made of those documents. (R. 123.) The court f u rth e r ordered the defendants to confirm the destruction of such documents by October 29, 2 0 1 0 , by providing either a fax or e-mail confirmation to JTD. (Id.) This argument is a nonstarter. Pursuant to Federal Rule of Civil Procedure 26(b)(5), d o c u m e n ts identified on a privilege log are documents that are "otherwise discoverable" and th e pertinent issue is whether the documents identified on the log are properly withheld based o n privileges and Rule 26(b)(3)(B) protections. 7

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any admissible evidence in this case. (Id. at 6-7.) Furthermore, JTD states that document 2 is protected by the attorney-client privilege because it details attorney-client communication. (Id. at 7.) J T D asserts that document 10, a two-page Travelers Interoffice Memorandum from s u b r o g a t i o n attorney Jennifer Campbell, Travelers Claim Legal Group, to subrogation a d ju s te r Jennifer Wartlift concerning investigation and claims analysis dated August 16, 2 0 0 7 , is protected by the attorney-client and attorney work-product privileges because it e n ta ils strategy and claims analysis related to this litigation. (R. 128 at 7.) Thus, JTD claims th a t requiring it to produce documents such as internal claims memoranda and notes to the d e f e n d a n ts would be no different than allowing JTD or Travelers to have access to similar typ e s of documents that have been generated, prepared or exchanged by the defendants or m a y be prepared at some point in this litigation. (Id. at 8.) J T D contends that document 11, a one-page Travelers Interoffice Memorandum from s u b ro g a tio n adjuster Timothy Costello to Kelly Gilfert ("Gilfert"), Claims Handler S u b ro g a tio n Department, authorizing payment of claim expenses dated September 3, 2009, is also protected by the attorney work-product privilege. (R. 128 at 8-9.) JTD asserts this p riv ile g e because document 11 was prepared during the pendency of this litigation and r e v e a l s payments of expenses pertaining to the litigation. (Id.) JTD also claims that d o c u m e n t 11 is not relevant to any fact or issue in this case. (Id.) As to document 32, JTD a rg u e s that this two-page letter to Subrogation Claims Handler Gilfert from Sullivan &

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Sullivan, LLP dated August 14, 2009, detailing billing and expenses is also protected by the a tto rn e y work-product privilege because it was prepared during the pendency of the litigation a n d shows the payment of expenses related to the litigation. (Id. at 9.) J T D further requests that the court reconsider and order the return of documents 1, 3, 2 3 , and 31.4 (R. 128 at 9-12.) Document 1 contains 150 pages of Travelers' Internal Claim H a n d le rs ' File Activity Notes from various workers' compensation claims handlers assigned to Wielgus' claim throughout the years detailing file activity, investigation, and evaluations f ro m March 2006 to November 2009. JTD argues that certain documents or pages

in te rs p e r s e d throughout the 150 pages of internal claims notes should be returned to JTD b e c a u s e they contain information pertaining to the subrogation portion of this case, which a re not discoverable. (Id. at 10.) JTD asserts that the defendants should return the privileged n o te s in exchange for redacted non-privileged portions of the claims notes. (Id. at 11.) A s to document 31, JTD asserts that this six-page letter to Subrogation Claims H a n d le r Gilfert from Sullivan & Sullivan, LLP dated August 7, 2009, a billing and expense s ta te m e n t, should be returned because it constitutes a billing communication protected by the a tto rn e y-c lie n t privilege and because the document is not relevant to proving any fact or legal is su e in this litigation. (R. 128 at 11-12.) Accordingly, JTD requests that the court amend its August 4, 2010 order to preclude the disclosure of these documents and order their return. (Id.)

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Documents 3 and 23 are subsets of document 1. 9

JTD's amended motion to reconsider is denied. The arguments raised by JTD in its a m e n d e d motion are merely belated contentions that it now asks the court to consider. A re v ie w of the record in this case establishes that JTD repeatedly ignored numerous court o rd e rs and had ample opportunity to provide the defendants and the court with an adequate p riv ile g e log, but failed to do so. Moreover, even after the defendants filed their motion to c o m p e l and pointed out the inadequacies of the privilege log, JTD still failed to respond to th e motion to compel or amend its privilege log with detailed information to support their p riv ile g e claims. T h e court provided JTD with an opportunity to explain its privilege positions but d e c lin e d to advance any arguments against the disclosure of the subject documents. And J T D has acknowledged that its reason for seeking reconsideration of the August 4, 2010 o rd e r is because of its own failure to provide an adequate privilege log in the first place. Because JTD has failed to cite to any new law, facts, or evidence that was unavailable to JTD p rio r to the court's original ruling on the defendants' motion to compel and because JTD f a ile d to offer any good cause for its failure to timely submit its present arguments, JTD has f a ile d to establish a valid basis upon which the court would be permitted to reconsider its A u g u s t 4, 2010 order. C. T r a v e le r s ' Motion T ra v e le rs ' motion does not fare any better than JTD's motion. Travelers moves the c o u rt to reconsider its August 4, 2010 order because JTD's failure to produce an adequate

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privilege log resulted in the disclosure of privileged and confidential communications p e rta in in g to the subrogation claims notes in this case, which contain internal legal strategies, e v a lu a tio n s of the merits of the case, and communications with consulting experts. (R. 133 a t 1-2.) Travelers contends that the defendants do not dispute the fact that the claims notes pertain in g to subrogation are privileged and that they have no substantive right to these notes. (Id. at 2-3.) Travelers points out that the only reason the defendants have possession of these n o te s is because of the repeated procedural failure of JTD to produce an adequate privilege lo g . (Id.) Travelers therefore contends that the defendants now have in their possession p riv ile g e d communications and materials pertaining to the case at bar as well as numerous c a s e s filed throughout the country. (Id. at 3.) T ra v e le rs contends that it is entitled to a reconsideration of the August 4, 2010 order because it was never put on notice of the fact that JTD would release privileged documents to the defendants. (R. 133 at 5.) Travelers takes the position that the privilege log described m a te ria ls pertaining to Travelers' workers' compensation claims and not subrogation claims n o te s or other privileged materials. (Id.) As such, when JTD finally produced a privilege lo g , the description of the documents afforded no indication to Travelers that internal p riv ile g e d legal strategies or communications pertaining to the subrogation portion of this c a s e were listed on the log. (Id.) Therefore, Travelers asserts that it was only after JTD tu rn e d over the documents to the defendants that it became clear that JTD disclosed p riv ile g e d documents to the defendants. (Id.)

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Travelers also argue that the defendants' use of the privileged documents in other c a s e s around the country provides the court with a legitimate basis to revisit its August 4, 2 0 1 0 order because the court could not have appreciated the unintended consequence of its ru lin g . (Id. at 6.) Travelers also claims that the defendants are characterizing the court's A u g u s t 4, 2010 order as a substantive ruling that subrogation claims notes are generally d is c o v e ra b le materials as a matter of law. (Id. at 6-7.) Therefore, Travelers asserts that the d e f e n d a n ts are casting the court's August 4, 2010 opinion as disavowing established legal p rin c ip le s in other cases throughout the country. (Id. at 7.) T ra v e le rs ' motion for reconsideration is also denied. Travelers knew or should have k n o w n that the documents detailed in JTD's privilege log contained internal notes and a n a lys is about the issue of subrogation related to this litigation. In fact, a group of

d o c u m e n ts identified in the privilege log pertained to "internal documents containing c o m m u n ic a tio n among Travelers' claims adjusters regarding the workers' compensation c la im and subrogation rights." (R. 125 at 13.) However, Travelers never filed responsive m o tio n s or papers with this court explaining why certain documents contained in JTD's p riv ile g e log consisted of confidential communications that should not be disclosed. T h e record establishes that Travelers had a reasonable basis for knowing the nature a n d the content of the documents described in JTD's privilege log because these documents a re Travelers' very own documents which Travelers itself generated, gathered and passed on to JTD. Travelers made a conscious choice to relinquish its control over the subject

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documents to JTD and chose not to object to the third-party subpoena. Moreover, even after re le a s in g the privileged documents to JTD, there is nothing in the record to demonstrate that T ra v e le rs did not have a say in the matter of preparing the privilege log. Travelers cannot n o w seek the court's intervention merely because it is dissatisfied with the way JTD handled th e documents. T ra v e le rs ' argument that the court must reconsider its prior ruling because the August 4 , 2010 ruling is having an unintended consequences and because the defendants are m isa p p lyin g the court's ruling in other cases is not an adequate basis for reconsideration in th is case. First, the purpose of this court's August 4, 2010 ruling is contained within the four c o rn e rs of the memorandum opinion and order. Second, the release of certain documents to th e defendants are caused by Travelers and JTD, not this court. C o n c lu s io n F o r the foregoing reasons, JTD's and Travelers' motions for reconsideration of the c o u rt's August 4, 2010 order are denied.

ENTER:

_________________________________ Y o u n g B. Kim U n ite d States Magistrate Judge

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