PINKHAM v. COCA-COLA REFRESHMENTS USA, INC. et al

Filing 23

ORDER ON DISCOVERY DISPUTE: At issue is whether Plaintiff Matthew Pinkham waived the work product privilege regarding videos of witness interviews when he showed portions of the videos at a sett lement mediation. Without a doubt, Pinkham waived any privilege regarding the specific clips shown and must produce them. The more interesting issue is whether the waiver extends to the full videos of the witness inte rviews. The Court held a telephonic status conference regarding this and other disputes on June 28, 2018. The Court resolved the other disputes, but took this issue under advisement and permitted the parties to submit letter briefs. Having heard the arguments and read the parties' submissions, the Court finds that the waiver does no t extend to the full videos of the witness interviews. Pinkham must produce the video clips he showed at the state court mediation within 14 days. However, fairness does not demand Pinkham produce the full videos of the four witness statements. See Order for additional information. Signed by Magistrate Judge Tim A. Baker on 8/13/2018.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MATTHEW S. PINKHAM,
Plaintiff,
v.
COCA-COLA REFRESHMENTS USA, INC.,
CCBCC, INC.,
CCBCC OPERATIONS, LLC,
Defendants.

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No. 1:18-cv-01096-SEB-TAB

ORDER ON DISCOVERY DISPUTE
I.

Introduction
At issue is whether Plaintiff Matthew Pinkham waived the work product privilege

regarding videos of witness interviews when he showed portions of the videos at a settlement
mediation. Without a doubt, Pinkham waived any privilege regarding the specific clips shown
and must produce them. The more interesting issue is whether the waiver extends to the full
videos of the witness interviews. The Court held a telephonic status conference regarding this
and other disputes on June 28, 2018. The Court resolved the other disputes, but took this issue
under advisement and permitted the parties to submit letter briefs. Having heard the arguments
and read the parties’ submissions, the Court finds that the waiver does not extend to the full
videos of the witness interviews.
II.

Discussion
Pinkham brought personal injury claims in state court against Defendants Coca-Cola

Refreshments USA, Inc., CCBCC, Inc., and CCBCC Operations, LLC, (collectively “CocaCola”) and against James Imhausen, a Coca-Cola employee and Indiana citizen. Pinkham’s

claims arise from a vehicle collision between Pinkham and Imhausen that occurred roughly three
years ago. Pinkham settled his claim against Imhausen, and Coca-Cola later removed the action
to this Court based on diversity jurisdiction. However, prior to removal, the parties held a
settlement mediation, during which the parties presented opening statements in a joint session.
During his opening statement, Pinkham’s counsel showed clips of videos of four witness
statements. Coca-Cola now wants Pinkham to produce the full videos of the witnesses’
statements.
The parties agree that the witness statement videos are work product, but dispute whether
work product protection has been waived. Plaintiff argues that he did not waive the protection
when he showed portions of the videos because the mediation was governed by the Indiana
Alternative Dispute Resolution Rules, which the parties agreed to and are part of Indiana’s civil
procedure rules. Coca-Cola responds that the ADR rules do not prohibit discovery of the witness
statements. Coca-Cola seeks to extend the alleged waiver to the full videos under Federal Rule
of Evidence 502(a). Pinkham responds that Coca-Cola benefited from his limited disclosure
because Coca-Cola had not investigated for itself and that Indiana’s explicit policy encouraging
settlement weighs against disclosure.
Indiana’s ADR Rule 2.11 provides protections for mediations, but its text does not create
a discovery privilege for facts discussed at the mediation. Rule 2.11 states:
(A) Confidentiality.
(1) Mediation sessions shall be confidential and closed to all persons other than
the parties of record, their legal representatives, and persons invited or permitted
by the mediator.
(2) The confidentiality of mediation may not be waived.
(3) A mediator shall not be subject to process requiring the disclosure of any
matter occurring during the mediation except in a separate matter as required by
law.

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(4) This Rule shall not prohibit the disclosure of information authorized or
required by law.
(B) Admissibility.
(1) Mediation shall be regarded as settlement negotiations governed by Indiana
Evidence Rule 408.
(2) Evidence discoverable outside of mediation shall not be excluded merely
because it was discussed or presented in the course of mediation.
IN ST ADR Rule 2.11. “The rationale for that general rule is that the law favors out of court
compromises and that a party who yields certain points in an effort to effectuate such a
compromise should not be prejudiced if those efforts fail.” Bridges v. Metromedia Steakhouse
Co., L.P., 807 N.E.2d 162, 166 (Ind. App. 2004).
Rule 2.11(A) arguably creates a discovery privilege with regard to the mediator, and
Indiana courts interpret this ban broadly. See In re March, 1994 Spec. Grand Jury, 897 F. Supp.
1170, 1172 (S.D. Ind. 1995) (applying a previous version of the rule and calling it a “mediators’
privilege”); K.L. v. E.H., 6 N.E.3d 1021, 1031 (Ind. App. 2014) (refusing to allow mediator
testimony regarding behavior at mediation in a child custody dispute). However, Pinkham cites
no authority for a privilege that would exclude from discovery information discussed at a
settlement mediation. Rather, “the rule does not require the exclusion of any evidence otherwise
discoverable merely because it is presented in the course of compromise negotiations.” R.R.
Donnelley & Sons Co. v. N. Tex. Steel Co., Inc., 752 N.E.2d 112, 130 (Ind. App. 2001). A broad
discovery privilege that prohibits parties from seeking discovery based on anything they learn in
a mediation would be impossible to police and contrary to established practice.
Pinkham’s arguments that the confidentiality of the mediation cannot be waived and that
Rule 2.11(B) invokes Rule 408 of the Indiana Rules of Evidence are unpersuasive.
Confidentiality prohibits disclosure to third parties; it is not a privilege against discovery. And

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Rule 408 concerns the admissibility of evidence at trial and has nothing to do with whether
something is discoverable. Ind. R. Evid. 408.
Nonetheless, turning over the full videos of the witness statements would not be fair
under Federal Rule of Evidence 502(a), which governs whether to extend a waiver to
undisclosed work product material. The work product doctrine excludes from discovery
“documents and tangible things that are prepared in anticipation of litigation or for trial.” Fed.
R. Civ. P. 26(b)(3)(A). “[T]he work-product doctrine is designed to serve dual purposes: (1) to
protect an attorney’s thought processes and mental impressions against disclosure; and (2) to
limit the circumstances in which attorneys may piggyback on the fact-finding investigation of
their more diligent counterparts.” Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 621–
22 (7th Cir. 2010); Menasha Corp. v. U.S. Dept. of Justice, 707 F.3d 846, 847 (7th Cir. 2013)
(“The opposing party ‘shouldn’t be allowed to take a free ride on the other party’s research, or
get the inside dope on that party’s strategy . . . .’”) (quoting Mattenson v. Baxter Healthcare
Corp., 438 F.3d 763, 768 (7th Cir. 2006)). Still, parties can show they are entitled to opposing
counsel’s work product by demonstrating “substantial need” and an inability to obtain the
information without “undue hardship.” Sandra T.E., 600 F.3d at 622 (quoting Fed. R. Civ. P.
26(b)(3)(A)(ii)).
When a party waives work product protections by disclosing protected material, parties
may also be entitled to an opponent’s undisclosed work product if extension of the waiver is
warranted under Federal Rule of Evidence 502(a). However, a waiver extends to undisclosed
material “only if: (1) the waiver was intentional; (2) the disclosed and undisclosed
communications or information concern the same subject matter; and (3) they ought in fairness
to be considered together.” Fed. R. Evid. 502(a). “Determining whether the undisclosed

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material ought to be considered with the disclosed material requires a case-specific analysis of
the subject matter and adversaries.” Appleton Papers, Inc. v. E.P.A., 702 F.3d 1018, 1026 (7th
Cir. 2012).
The first two prongs are met; Pinkham’s counsel intentionally disclosed the video clips
and the clips concern the same witness interviews as the full videos. Coca-Cola argues the third
prong is also satisfied. Coca-Cola contends that Pinkham should not be permitted to use the
work product doctrine as both a sword and a shield—i.e., to selectively disclose information that
supports his claims while withholding information that provides context. In support, Coca-Cola
cites a string of cases in which federal courts ordered full disclosure of work product when a
party relied on or disclosed portions of protected materials, while withholding the full document:
Hale v. State Farm Mut. Auto. Ins. Co., 12-CV-660-DRH-SCW, 2015 WL 13713551, at *2 (S.D.
Ill. Sept. 28, 2015); City of Lakeland Emps. Pension Plan v. Baxter Intern. Inc., 10-C-6016, 2013
WL 2151509, at *2 (N.D. Ill. May 16, 2013); Lerman v. Turner, 10-C-2169, 2011 WL 494623,
at *2 (N.D. Ill. Feb. 4, 2011); In re Aftermarket Filters Antitrust Litig., 08-C-4883, 2010 WL
4791502, at *5 (N.D. Ill. Nov. 18, 2010); and Granite Partners v. Bear, Stearns & Co., Inc., 184
F.R.D. 49, 55–56 (S.D.N.Y. 1999). The cases Coca-Cola cites stand for the proposition that,
when a party relies on portions of a witness statement, it is fair to require production of the full
statement, even though the statement is work product. See id.
While these cases weigh in favor of disclosure, the Court must also consider case-specific
facts surrounding the work product at issue. See Appleton Papers, 702 F.3d at 1026. The facts
surrounding the witness statements overwhelmingly weigh against production. The four
witnesses whose video-recorded statements are at issue are known to both Pinkham and CocaCola. Coca-Cola has not interviewed them or requested their depositions. In short, Coca-Cola is

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attempting the kind of piggybacking and free riding that the work product doctrine is designed to
prevent. See, e.g., Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 621-22 (7th Cir.
2010); Menasha Corp. v. U.S. Dept. of Justice, 707 F.3d 846, 847 (7th Cir. 2013). Rather than
Pinkham using elusive, privileged information as a sword and shield, the facts show Pinkham
used information generally available to both Pinkham and Coca-Cola, and Coca-Cola now wants
to save itself the trouble of interviewing the witnesses itself. Pinkham should not be penalized
for sharing information that Coca-Cola has the independent ability to accurately contextualize.
This comports with public policy favoring settlement, and not prejudicing parties who make
efforts to reach a compromise. Bridges v. Metromedia Steakhouse Co., L.P., 807 N.E.2d 162,
166 (Ind. App. 2004).
Coca-Cola argues in a footnote that, regardless of waiver, it is entitled to the videos
because it has a substantial need and cannot obtain equivalent witness interviews without undue
hardship. While such a showing could result in compelled disclosure of work product, see
Sandra T.E., 600 F.3d at 622, Coca-Cola’s argument is unpersuasive. Coca-Cola contends that
the witnesses may have forgotten details in the three years since the collision; they might forget
or omit evidence that favors its positions; and that Pinkham may have an advantage because he
interviewed the witnesses at least nine months ago, so the witnesses may have had a better
memory then. However, Coca-Cola has not shown there are any barriers to interviewing or
deposing the witnesses, and any memory loss is purely speculative because Coca-Cola has not
attempted to interview the witnesses to see what they remember.

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III.

Conclusion
For the reasons above, Pinkham must produce the video clips he showed at the state court

mediation within 14 days. However, fairness does not demand Pinkham produce the full videos
of the four witness statements.
Date: 8/13/2018

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

Distribution: All ECF-registered counsel of record by email.

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