Bishop Rink Holdings, LLC v. Cimco Refrigeration, Inc.

Filing 56

MEMORANDUM AND ORDER granting 36 Motion to Quash; granting in part and denying in part 38 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 8/9/2013. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BISHOP RINK HOLDINGS, LLC,
d/b/a ICE MIDWEST,

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Plaintiff,
vs.
CIMCO REFRIGERATION, INC.,
Defendant.

Case No. 12-2715-JAR-KGG

MEMORANDUM & ORDER ON
DEFENDANT’S MOTION TO COMPEL AND
PLAINTIFF’S MOTION TO QUASH SUBPOENA
This case is before the Court on Defendant’s motion requesting an Order
compelling Plaintiff to produce certain documents (Doc. 38) and Plaintiff’s motion
requesting an Order to quash or modify a subpoena for documents from a thirdparty, Charlesworth & Associates, LC (Doc. 36). After reviewing the submissions
of the parties, the Court GRANTS in part and DENIES in part Defendant’s
Motion to Compel and GRANTS Plaintiff’s Motion to Quash the subpoena issued
to Charlesworth & Associates.
BACKGROUND
Plaintiff Bishop Rink Holdings, LLC, owned and operated Ice Midwest, an
ice rink sports facility in Kansas City, Kansas. Defendant CIMCO manufactured,

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installed, serviced, and repaired equipment and materials for ice rinks. On or about
March 24, 2010, Plaintiff and Defendant entered into a contract whereby
Defendant agreed to provide services to Plaintiff for $530,500. During the course
of service, Plaintiff alleges that Defendant misrepresented the amount of corrosive
inhibitor necessary to maintain the ice rinks which resulted in accelerated and
undetected corrosion. Plaintiff also alleges that Defendant negligently performed
services on the rink’s cooling system which resulted in damage to pipes in the
system. The ultimate result of the damage caused by the allegedly negligent
service was the break-down of the rink’s chiller on January 10, 2011, after which
Plaintiff was unable to resume operation of the ice rink.
Defendant brings the present Motion to Compel to challenge privileges
asserted by Plaintiff in their amended privilege log and objections asserted in
response to Request for Production No. 5.1 Plaintiff’s brings the present Motion to
Quash in regards to a subpoena served to Plaintiff’s contracted risk manager,
Charlesworth & Associates, LC.
DISCUSSION
A.

Work Product Doctrine.

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Defendant provided an “Amended Privilege Log” from Plaintiff dated May 29,
2013 with the memorandum in support of its Motion to Compel (Doc. 39-1). With its
response to the Motion to Compel, Plaintiff provided a Amended Privilege Log dated
June 19, 2013 (Doc. 46-1 ). Plaintiff provided additional information relevant to the
claims in the privilege by letter to Defendant on May 29, 2013 (Doc. 46-2). The parties
have not raised the timeliness or revision of these documents as an issue.
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The general limitation on the discovery of work product is described in
Fed.R.Civ.P. 26(b)(3), which provides that, with limited exceptions, “documents
and tangible things” prepared by a party or its agents “in anticipation of litigation
or for trial” are not discoverable. U.S. Fire Ins. Co. V. Bunge North America,
Inc., No. 05-2192-JWL-DJW, 2008 WL 2548129, at *5 (D. Kan. June 23, 2008).
“The test for work-product protection turns on the primary purpose for which the
documents were created.” Marten v. Yellow Freight Sys., Inc., CIV.A.96-2013GTV, 1998 WL 13244 (D. Kan. Jan. 6, 1998). In order for work product to apply,
the document must have been created based upon a request for legal advice in
response to a real and imminent threat of litigation. Raytheon Aircraft Co. V. U.S.
Army Corps of Engineers, 183 F. Supp. 2d 1280, 1288 (D. Kan. 2001). “Even the
likely chance of litigation, does not give rise to the privilege.” Id.
Plaintiff has asserted work product doctrine for emails dated 7/23/2010
through 9/11/2011. Defendant challenges the assertion with the argument that
because these emails were created ten months to nearly two years before this
lawsuit was filed, the threat of litigation was not “real or imminent.” (Doc. 38, at
2). Plaintiff asserts, however, that it hired its “previous counsel, who began
providing legal advice regarding its claims on or before September 10, 2010” –
less than two months after the first allegedly negligent act occurred on July 12,
2010. (Doc. 46, at 3.) Communications prior to hiring counsel pertained to legal

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claims against Defendant and how to move forward in pursuing legal action. This
indicates that there was more than a possibility of litigation and that the threat of
litigation was real and imminent. Defendant also argues that the communication
on March 11, 2011, indicating that Plaintiff considered Defendant to be the leading
candidate for future work on the rink is evidence that there was no imminent threat
of litigation. This correspondence is not convincing evidence that the threat of
litigation was not imminent because impending litigation does not necessarily
preclude two companies from continuing business relations. The Court therefore
DENIES Defendant’s motion requesting documents for which work product
doctrine has been asserted.
B.

Attorney-Client Privilege

Defendant has requested documents dated 9/01/2010, 1/31/2011, 2/09/2011,
2/17/2011, 4/25/2011, 5/17/2011 and the Risk Manager File (2010-2011), for
which Plaintiff has asserted attorney-client privilege. Defendant’s challenge to this
privilege claim is that the privilege in communications to Plaintiff’s attorney was
waived because the communications were shared with “Tanner Shaw” and “Risk
Manager.” In a second amended privilege log, attached to Plaintiff’s response to
this motion, Plaintiff identifies participants in communications with counsel as
James Charlesworth, “Previous Counsel,” Lyn Shaw, Hal Edwards, and Chock
Chapple.

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In a letter to Defense counsel concerning this issue (Exhibit B, Response),
Plaintiff’s counsel identified these persons as the owner of the corporate owner of
the skating rink (Lyn Shaw), the manager of the rink (Hal Edwards), and the
managing agent of Plaintiff’s insurer (Chock Chappel). Charlesworth is the
outside risk management contractor. Tanner Shaw, Lyn Shaw’s son, is an engineer
who consulted on the technical issues.2 While recognizing that a risk manager may
be generally within the privilege, White v. Graceland Coll. Ctr. For Prof. Dev. &
Livelong Learning, Inc., 586 F.Supp.2d 1250 (D. Kan. 2008), Defendant urges a
ruling that communications with an outside risk manager, as opposed to an
employee, are outside the privilege. Defendant offers no authority or rationale for
this distinction, and the Court sees no reason to make one. The persons listed are
the Plaintiff’s agents or share a “commonality of interest” such that the privilege is
not waived. High Point SARL v. Spring Nextel Corp., 2012 WL 234024 at *1
(D. Kan. 2012).3

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The better practice, and that required by Rule 26(b)(5), would have been to
explain the role of these persons in the privilege log itself to enable the Defendant to
“assess the claim” of privilege. In this case because the information was conveyed to the
Defendant by other means, a finding of waiver is not appropriate.
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The Court finds it unnecessary to decide whether in this or other circumstances,
communications with a risk manager concerning legal issues might be entitled to
attorney-client privilege protection without the involvement of counsel because counsel
was involved in the communications at issue here. Other communications have been
found protected as work product, which does not require attorney involvement.
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The motion to compel production of documents logged as attorney-client
communications is DENIED.
C.

Insurer-Insured Privilege.

According to Plaintiff’s response there are no remaining disputes in regard
to the issue of insurer-insured privilege. The parties have resolved the issue and no
objections remain asserting “insurer-insured” privilege. (Doc. 46 at 7).
D.

Factual Information in Withheld Documents.

Defendant objects to the privilege log because it fails to identify whether the
privileged communications include unprivileged factual information. Citing
Heavin v. Owens-Corning Fiberglass, 2004 WL 316072 at *3-4 (D. Kan. 2004),
Defendant argues that any portions of privileged communications which contain
factual information are not privileged and must be produced. Defendant
misapplies this principal in its argument.
In Upjohn Company v. United States, 499 U.S. 383 (1981) the Supreme
Court explained the relevant principal in the context of extending the work product
and attorney-client privileges to corporate employees beyond those who played a
substantial role in directing the corporation’s legal response. Answering the
concern that expanding the protection would place too much information out of
reach, the Court stated that the privilege “puts the adversary in no worse position
than if the [privileged] communications had never taken place. The privilege

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protects only communications; it does not protect disclosure of the underlying facts
by those who communicated with the attorney.” 499 U.S. at 395. For further
explanation, the Court cited the following from the Eastern District of
Pennsylvania:
[T]he protection of the privilege extends only to
communications and not to facts. A fact is one thing and
a communication concerning that fact is an entirely
different thing. The client cannot be compelled to answer
the question, ‘What did you say or write to the attorney?’
but may not refuse to disclose any relevant fact within his
knowledge merely because he incorporated a statement
of such fact into his communication to his attorney.
City of Philadelphia, Pa. v. Westinghouse Elec. Corp., 205 F. Supp. 830, 831
(D.C. Pa. 1962) (cited at 499 U.S. at 395-96). For example, if a party involved in a
car accident was adjusting his radio at the time of the accident, he may be required
to disclose that fact in his deposition. The fact does not become privileged because
before the deposition he communicated the fact to his attorney. However, his
communication of that fact to his attorney is privileged.
This Court does not read the opinions in Heavin, or the case it relied upon,
Burton v. R.J. Reynolds Tobacco Co., 177 F.R.D. 491 (D. Kan. 1997), as contrary
to this principal. In those cases the Court essentially found the documents not to
be privileged as attorney client communications or work product, but did redact
some privileged communications from the non-privileged documents. The
difference here is that the privilege log is adequate to establish that the documents
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are work product or privileged, and the communication of discoverable facts within
those documents remains privileged.4 Discovery of the facts of this case may be
had without examining the disclosure of these facts in a privileged communication.
The Motion to Compel production of the attorney-client communications is
DENIED.
E.

Request for Production No. 5

Defendant requests Plaintiff produce “any copy of contracts, memorandum,
communications, emails, or other types of documentation between [Plaintiff] and a
third party concerning or in any way relating to any maintenance or repair work
(whether said work was actually performed or not) on the chiller system, the
piping, cooling system, or the compressor room.” Plaintiff objects that this request
is without limitation, temporal or otherwise, is overly broad, and unduly
burdensome.
An objection of unduly burdensomeness must be supported by a showing of
facts in terms of time and expense involved in responding to a request. Payless
Shoesource Worldwide, Inc. v. Target Corp., CIV.A.05-4023-JAR, 2006 WL
6225139 (D. Kan. Nov. 17, 2006). Regarding overly broad objections: “relevance
is broadly construed at the discovery stage of the litigation and a request for

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To the extent the protection is based on work product under Fed.R.Civ.P.
26(b)(3)(A), the defendant might overcome the protection by making a showing of
substantial need under Rule 26(b)(3)(A). However, no such showing is attempted.
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discovery should be considered relevant if there is any possibility the information
sought may be relevant to the subject matter of the action.” Smith v. MCI
Telecommunications Corp., 137 F.R.D. 25, 27 (D. Kan. 1991).
The scope of this request is not overly broad. The time frame is not
unlimited because Plaintiff owned the ice rink from 2000 until 2012. This
adequately limits the temporal scope of this request. The request also adequately
limits the scope of the request by specifying the type of documents to be produced
and narrowing the subject matter of the documents to maintenance and repair work
done “on the chiller system, the piping, cooling system, or the compressor room.”
It is apparent that the requested information is relevant to this case. The Court,
therefore, does not find this request to be overly broad.
Likewise, the Court does not find the request to be unduly burdensome.
Plaintiff did not make a showing of facts in terms of time and costs that would be
incurred by complying with this request. Plaintiff’s objections are therefore
overruled and Defendant’s motion is GRANTED for Request for Production No.
5.
Plaintiff stated in its response that, despite its objections to Request for
Production No. 5, it has produced documents it deems to be relevant. (Doc. 46 at
8). In complying with this order, the Court instructs Plaintiff to produce all

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documents responsive to this request regardless of whether Plaintiff finds them to
be relevant.
F.

Plaintiff’s Amended Motion to Quash Subpoena (Doc. 36).

Defendant served a subpoena to Plaintiff’s risk manager, James
Charlesworth, requesting documents, some for which Plaintiff has asserted work
product doctrine and attorney-client privilege in their privilege log. To prevent
production of these documents by a third party, Plaintiff has filed this motion to
quash the subpoena. Plaintiff seeks to protect the same documents described in
Plaintiff’s privilege log, but in the possession of the third-party risk manager.
Rule 45(c)(3)(A)(iii) of the Federal Rules of Civil Procedure states that “the
issuing court must quash a subpoena that requires disclosure of privileged or other
protected matter, if no exception or waiver applies.” As previously stated, the
communications between Plaintiff and James Charlesworth that were identified in
Plaintiff’s privilege log are privileged under the work product doctrine. The Court,
therefore, GRANTS Plaintiff motion to quash subpoena to the extent that it
requests documents Plaintiff has identified in their privilege log.

IT IS THEREFORE ORDERED that Defendant’s Motion to Compel is
GRANTED in part and DENIED in part and Plaintiff’s Motion to Quash is
GRANTED as more fully set forth above.

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IT IS SO ORDERED.
Dated at Wichita, Kansas on this 9th day of August, 2013.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE

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