Rogers v. Quality Carriers Inc et al

Filing 123

OPINION AND ORDER ADOPTING 91 REPORT AND RECOMMENDATIONS. Signed by Judge Rudy Lozano on 6/19/17. (kjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
BENJAMIN ROGERS, individually
)
and as personal representative )
of THE ESTATE OF ASHLEY ROGERS, )
)
Plaintiff,
)
)
vs.
) CAUSE NO. 4:15-cv-22
)
QUALITY CARRIERS, INC., and
)
KIMBERLY THIETJE,
)
)
Defendants.
)
OPINION AND ORDER
This

matter

is

before

the

Court

on

the

Report

and

Recommendation of United States Magistrate Judge Pursuant to 28
U.S.C. § 636(b)(3) and Local Rule 72-1, dated November 15, 2016 (DE
#91), and Plaintiff’s Written Objections to 28 U.S.C. 636 (b)(3)
and Local Rule 72-1 Recommendation, filed by Plaintiff on November
28, 2016 (DE #95). For the reasons set forth below, the objections
are OVERRULED and the report and recommendation (DE #91) ADOPTED.

BACKGROUND
Plaintiff filed this wrongful death suit against Defendant,
Quality Carriers, and its employee, Kimberly Thietje, in state
court in 2014.

Defendants removed the case to this Court on March

10, 2015. The case stems from a car crash in December 2013, which

killed Ashley Rogers.
On January 11, 2016, Plaintiff filed a renewed motion to
compel.

(DE

documents,

#40.)

In

Defendants

had

response

to

produced

Plaintiff’s
Thietje’s

request

employee

for

file,

including a three-page completely redacted document identified as
the Quality Incident Investigation, Root Cause, and Corrective
Action

Report

(“QIRCR”).

Defendants

refused

to

produce

an

unredacted version of the QIRCR, so Plaintiff filed the motion to
compel,

asking

the

Court

to

order

Defendants

to

produce

an

unredacted version.
In response to the motion to compel, Defendants argued the
redacted portions included work product and mental impressions of
defense counsel.

(DE #44 at 1-2.)

Specifically, they set forth

that within 2.5 hours of the accident, Quality Carriers retained
counsel and dispatched him to the scene of the accident, and that
the privileged information from the QIRCR came into existence
because of a claim likely to lead to litigation.

(DE #44 at 8.)

Additionally, Quality Carriers argued the document was privileged
work product, not prepared in the ordinary course of business, but
in anticipation of litigation.

(DE #44 at 10.)

In ruling on the motion to compel, Magistrate Judge John E.
Martin considered a number of potentially applicable privileges,
including attorney work product, attorney-client privilege, the
self-critical analysis privilege, and whether the Department of

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Transportation Act, 49 U.S.C. § 504(f), barred the QIRCR from
discovery. Ultimately, in a lengthy order, Judge Martin found that
the report was not attorney work product because the form itself
was not completed by counsel and did not include any legal theories
or legal opinions, plus it was not covered by the attorney-client
privilege because Quality Carriers did not satisfy the burden of
showing

the

document

was

an

attorney-client

requesting or relaying legal advice.

communication

(DE #66 at 7-9.)

Judge

Martin determined none of the potential privileges were available,
and ordered production of the full QIRCR.
In

accordance

with

Federal

Rule

of

Civil

Procedure

37(a)(5)(A), which provides “the court must, after giving an
opportunity to be heard, require the party . . . or attorney
advising that conduct, or both to pay the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees,”
the Court ordered Plaintiff to file an itemization of costs and
fees incurred in making the motion to compel.

(DE #66 at 16.)

Plaintiff filed an itemization on June 24, 2016 (DE #67),
requesting $5,240 in fees and costs.
in opposition on July 7, 2016.

Defendants filed a response

(DE #72).

Defendants did not

challenge the amount of the expenses, but argued the award of costs
would be inappropriate because under Rule 37, their nondisclosure
“was substantially justified.”
also DE # 72 at 2.)

(Fed. R. Civ. P. 37(a)(5)(A); see

Defendants claim they acted in good faith in

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asserting the privileges, and because their counsel directed an
alcohol and controlled substance test (the results of which were
reflected in the QIRCR), they believed the testing was protected by
the several privileges.

(Id. at 4-5.)

In

his

report

and

recommendation, Judge Martin correctly cited to the legal standard
under Rule 37 and found:
The Court agrees with Defendants and finds that
Defendants’ refusal to produce the unredacted
incident report was substantially justified.
Although the Court rejected Defendants’ position on
the merits, Defendants cited case law in support of
their position, and the Court spent 7 pages
resolving the dispute.
See DE 66 at 6-12.
And
nothing suggests that Defendants acted in bad
faith, as they produced a redacted version of the
incident report and listed it in their privilege
log in October 2014.
(DE #91 at 3-4.)
In the instant objection, Plaintiff urges the Court to reexamine the motion to compel and arguments made therein, and argues
the QIRCR “is a routine form filled out every time a QC driver gets
into a collision. Substantial justification cannot be found in the
defendant’s argument that the document was prepared in anticipation
of litigation.”

(DE #95 at 2.)

This Court has reviewed and

considered all the relevant memoranda.

DISCUSSION
When

a

party

makes

objections

to

a

magistrate

judge’s

recommendations, “[t]he district court is required to conduct a de

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novo determination of those portions of the magistrate judge’s
report and recommendations to which objections have been filed.”
Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995).

“[T]he court

may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”
636(b)(1); see also Fed. R. Civ. P. 72(b).

28 U.S.C. §

“[I]f following a

review of the record the district court is satisfied with the
magistrate judge’s findings and recommendations it may in its
discretion treat those findings and recommendations as its own.”
Goffman, 59 F.3d at 671.

It must be noted that district courts

possess “wide latitude” in fashioning sanctions and evaluating the
reasonableness of requests for attorney fees.

Johnson v. Kakvand,

192 F.3d 656, 661 (7th Cir. 1999).
Rule 37 provides the “court must . . . require the party . .
. whose conduct necessitated the motion . . . to pay the movant’s
reasonable

expenses

attorney’s fees.”

incurred

in

making

the

motion,

Fed. R. Civ. P. 37(a)(5)(A).

including

However, the

movant is not entitled to such fees and expenses where: (1) the
movant did not make a good faith attempt to resolve the matter
before involving the court; (2) the nondisclosure was substantially
justified; or (3) other circumstances make an award of expenses
unjust.
unless

Id.
he

justified.”

This standard has been described as “the loser pays”
establishes

“that

his

position

was

substantially

Rickels v. City of South Bend, Ind., 33 F.3d at 785,

5

786-87 (7th Cir. 1994).

Judge Martin properly recited and applied

this correct legal standard.
Here, Judge Martin concluded Defendants were substantially
justified because they did provide legal support for their belief
that

certain

privileges

applied,

they

produced

the

document

(although redacted), listed it in their privilege log, and there
was no evidence of bad faith.

This Court also finds there is no

evidence of bad faith, and it is important that Defendants did
produce the redacted document and record it in the privilege log.
Moreover, this Court concurs that because Defendants put forth a
cogent argument, supported by caselaw, that the QIRCR was protected
by the attorney-client privilege and work product doctrine, an
award of costs and fees is inappropriate. See Thermal Design, Inc.
v. Guardian Bldg. Prods., Inc., 270 F.R.D. 437, 439 (E.D. Wis.
2010); Saunders v. Wesleyan Health Care Ctr., Inc., No. 1:1–cv00384, 2011 WL 839664, at *3 (N.D. Ind. Mar. 7, 2011) (declining to
award fees where, inter alia, a colorable written objection was
given); Frazier v. Se. Pennsylvania Transp. Auth., 161 F.R.D. 309,
314 (E.D. Pa. 1995) (declining to impose sanctions where position
was not completely without basis in the law); Hartland Lakeside v.
WEA Ins. Corp., No. 12-C-154, 2013 WL 12180510, at *4 (E.D. Wis.
June 25, 2014)(declining to impose fees where court was satisfied
the position was substantially justified).

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CONCLUSION
For

the

reasons

set

forth

above,

the

Court

OVERRULES

Plaintiff’s written objections to the report and recommendation of
Magistrate

Judge

Martin

(DE

#95)

and

ADOPTS

the

report

and

recommendation (DE #91).

DATED: June 19, 2017

/s/ RUDY LOZANO, Judge
United States District Court

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