Jones v. OfficeMax North America, Inc. et al
MEMORANDUM AND ORDER denying without prejudice 37 Motion to Quash, Motion for Protective Order, Motion for Extension of Time to File; granting 39 Motion to Compel; denying 39 Motion for Protective Order. Signed by Magistrate Judge Kenneth G. Gale on 2/13/18. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
) Case No. 17-1219-JTM-KGG
OFFICEMAX NORTH AMERICA, INC., )
MEMORANDUM & ORDER ON
MOTION TO QUASH AND MOTION TO COMPEL
Now before the Court are Defendants’ “Motion to Quash Subpoenas, for a
Protective Order, and Extension of Time” (Doc. 37) and Plaintiff’s “Motion to
Compel, Motion for Protective Order” (Doc. 39). Having reviewed the
submissions of the parties, and having heard the parties argue their positions at
hearing, Plaintiff’s motion (Doc. 39) is GRANTED in part and DENIED in part,
without prejudice. Defendants’ motion (Doc. 37) is DENIED without prejudice.
This is a premises liability action in which Plaintiff alleges she was injured
while attempting to exit through the automatic doors of an OfficeMax store. The
case was originally filed in the District Court of Reno County, Kansas, but was
removed to the District of Kansas by Defendants. (Doc. 1.)
Plaintiff indicates that her Motion to Compel is a result of
Defendants’ refusal to provide documents responsive to
Plaintiff’s Request for Production, refusal to allow
Plaintiff to depose former OfficeMax employees despite
defense counsel’s agreement to produce the same for
depositions, and refusal to allow Plaintiff to depose
employees of the company which performed
maintenance and repair work on the subject automatic
(Doc. 40, at 1-2.) Defendants characterize their motion as a request to
quash any and all subpoenas issued to OfficeMax
employee-witnesses for deposition, for a protective order
protecting OfficeMax from producing its employeewitnesses for deposition prior to Plaintiff’s deposition,
and for extensions of time to respond to Plaintiff’s
settlement demand, attend mediation, and complete any
physical or mental examination pursuant to Fed. R. Civ.
(Doc. 37, at 1.)
The Court held a hearing on January 23, 2018, during which these issues
were addressed and argued. As a result of the hearing, the parties were able to
resolve all outstanding issues except the issue of whether witness statements and
incident reports compiled by Defendants are protected by the attorney work
Plaintiff’s counsel has refused to make Plaintiff and her husband available
for depositions until Defendants first produce a one-page incident report and onepage witness statement regarding the slip and fall incident at issue in this lawsuit.
(See Doc. 37, at 8.) According to Defendants, “[t]here is no need for Plaintiff to
have the disputed documents before being produced for deposition.” (Id.)
Defendants continue that
[o]pposing counsel’s contention that [Plaintiff] cannot be
produced for deposition without having reviewed these
documents indicates that she wants to ‘prepare’ for her
deposition by reading and considering what someone else
wrote before she can give testimony. Defendants believe
that Plaintiff can give truthful testimony without first
reading what other people have to say.
(Id., at 8-9.)
Plaintiff argues that Defendants “have not asserted any valid recognized
legal privilege related to the incident report, witness statements, and inspection and
maintenance records.” (Doc. 40, at 11.) Plaintiff continues that
Defendants propose to produce these relevant records
only after Defendants have deposed Mrs. Jones and her
husband. This condition on discovery is not set forth
such, all other portions of the parties’ motions, including the entirety of Defendants’
motion, are DENIED without prejudice.
anywhere in the Federal Rules of Civil Procedure.
Rather, the Federal Rules of Civil Procedure are designed
to promote the ‘just, speedy, and inexpensive
determination of every action and proceeding.’
Fed.R.Civ.P. 1. Defendants holding the Plaintiff hostage
by refusing to respond to discovery until after Defendants
have conducted discovery is directly contrary to the
fundamental purpose of the Federal Rules.
Notwithstanding the since-resolved scheduling issues, the substantive issue
before the Court is whether the incident report and/or witness statement qualify for
protection from discovery under the attorney work product doctrine.
‘To establish the applicability of the work product
privilege, [the withholding party] must show the
following elements: ‘(1) the materials sought to be
protected are documents or tangible things; (2) they were
prepared in anticipation of litigation or for trial; and (3)
they were prepared by or for a party or a representative of
that party.’’ 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) (quoting Johnson v. Gmeinder,
191 F.R.D. 638, 643 (D.Kan.2000) (citations omitted)).
Olson v. Shawnee County Bd. of Comm’rs, No. 12-2084-JTM-KGG, 2013 WL
1151481, at *3 (D. Kan. March 20, 2013).
Defendants argue that “[a]lthough Plaintiff has repeatedly demanded
production” of the incident report and witness statement, “she provided no
argument or authority in support of her contention that the . . . documents are not
subject to the work product immunity during any of the parties’ multiple
exchanges . . . prior to the filing of her Motion to Compel.” (Doc. 48, at 3.) The
Court finds this argument to be misplaced. “The party asserting immunity from
discovery carries the burden of showing that all elements of the work product
doctrine exist.” Frederick v. Swift Transport. Co., Inc., No 06-1332-MLB-KMH,
2007 WL 2265504, at *1 (D. Kan. Aug. 6, 2007) (citing McCoo v. Denny's, Inc.,
192 F.R.D. 675, 683, (D.Kan .2000)).
In their response to Plaintiff’s motion, Defendants for the first time provide a
substantive discussion of the application of the work product doctrine to the
documents at issue. The first element – that the materials are documents or
tangible things – is not disputed. The Court thus must analyze the remaining two
elements: that the documents were prepared in anticipation of litigation or for trial
and that they were prepared by or for a party or a representative of that party. U.S.
Fire Ins. Co., 2008 WL 2548129, at *5.
In the context of whether the documents were prepared in anticipation of
litigation, Defendants contend that within one to three days of the incident at issue
(“between August 27 and August 29, 2015”), “a member of Plaintiff’s family
contacted the OfficeMax store in Hutchinson, Kansas . . . to report that Plaintiff
had fractured her hip, and inquire about the name of OfficeMax’s insurance carrier
and a claim number.” (Doc. 48, at 7.) According to Defendants, “[t]his request
provided notice to Defendants of potential or threatened litigation.” (Id.)
According to Defendants, however, neither the witness statement nor incident
report are dated. (Id.) For purposes of this motion, Defendants cannot establish
that a call from Plaintiff’s family gave them a “reasonable anticipation of
litigation” prior to the creation of these documents.
Defendants also argue that they “reasonably could have anticipated litigation
as early as the day the incident occurred because of “Plaintiff’s age and the
apparent nature of her injury immediately after she fell . . . .” (Id.) Not every
document generated, created, or forwarded to a claims or legal department
resulting from an injury accident automatically qualifies for work product
protection. See Frederick, 2007 WL 2265504, at *1 (holding that an in camera
review of the documents at issue therein revealed “the relatively normal business
practice of gathering and preparing basic information concerning the driver and the
truck which would occur with any vehicle accident and/or insurance claim”).
Stated another way, the mere expectation of an insurance claim does not establish
that a document was created in anticipation of litigation.
Finally, Defendants have agreed to “produce these documents immediately
following Plaintiff’s deposition, despite their position that these documents are
subject to the work product immunity and despite Plaintiff’s refusal to provide
authority in support of her position that these documents are discoverable.” (Doc.
48, at 4.) Although the burden to establish the protection is on Defendants – not
Plaintiff – Plaintiff has provided “authority” in support of her position in her
briefing to the Court on this issue. (See Doc. 8-10.) Because Defendants have
agreed to produce the documents, this truly boils down to an issue of scheduling.
Although Plaintiff is not entitled to receive the documents before her deposition,
neither are Defendants entitled to withhold the documents until Plaintiff can be
deposed. The Court orders these documents produced by the Defendants prior to
Defendants have failed to establish that these documents were prepared in
anticipation of litigation as opposed to in the ordinary course of business.
Defendants’ objection is overruled. This portion of Plaintiff’s motion (Doc. 39) is
IT IS THEREFORE ORDERED that Plaintiff’s “Motion to Compel,
Motion for Protectie Order” (Doc. 39) is GRANTED in part as more fully set
IT IS FURTHER ORDERED that Defendants’ “Motion to Quash
Subpoenas, for a Protective Order, and Extension of Time” (Doc. 37) is DENIED
IT IS SO ORDERED.
Dated this 13th day of February, 2018, at Wichita, Kansas.
S/KENNETH G. GALE
HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE
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