Ludwig v. USF Holland, Inc. et al

Filing 84

MEMORANDUM OPINION & ORDER: 1) Plaintiff's Motion to Quash 67 is DENIED; 2) Schultz's Third-Party Movant Motion for Protective Order 69 is DENIED. Signed by Magistrate Judge J. Gregory Wehrman on 8/18/2017.(TJZ)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 2:2016-CV-44 (JGW)
JOSEPH J. LUDWIG, ADMINISTRATOR OF THE
ESTATE OF AMANDA LUDWIG
V.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

USF HOLLAND, INC.
RONNIE D. YORK

DEFENDANTS

This matter comes before the Court on Plaintiff’s Motion to Quash the Subpoena issued to
Louis J. Schultz (Doc. 67) and Schultz’s Third-Party Movant Motion for Protective Order. (Doc.
69).
Factual and Procedural History
Schultz was a witness to the March 2015 automobile accident on Interstate 275, in which
a semi-truck driven by Ronnie D. York struck a broken-down automobile containing Amanda
Ludwig, causing the vehicle to be engulfed in flames. As part of discovery, the parties took
Schultz’s deposition on June 14, 2017. (Doc. 67 at 2). During the deposition, Schultz mentioned
that he had previously given Plaintiff’s counsel two recorded oral statements. (Id.). Schultz also
testified that Plaintiff’s counsel provided Schultz with transcripts of those previous recorded
statements. (Id.). On June 16, 2017, Defendant subpoenaed Schultz for the production of that
transcript. (Id. at 7).
Plaintiff then moved to quash that subpoena, arguing that the transcript was work product.
(Doc. 67). Although a non-party, Schultz subsequently moved for a protective order from
producing the recording, stating that he did not plan to produce the recording without a Court
order. (Doc. 69).
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Analysis
Under FED. R. CIV. P. 26, the work product doctrine applies to prevent discovery of
“documents and tangible things that are prepared in anticipation of litigation or for trial.” FED. R.
CIV. P. 26(b)(3)(A). The doctrine is designed to protect the “mental impressions, conclusions,
opinions, or legal theories” of attorneys and representatives involved in the litigation. FED. R. CIV.
P. 26(b)(3)(B).
Because the work product doctrine only prevents discovery of mental impressions, it
generally does not extend to facts. See Moore’s Federal Practice 3d. § 26.70[2][a] (citing Audiotext
Commun. Network, Inc. v. US Telecom, Inc., 164 F.R.D. 250, 254 (D. Kan. 1996) and aggregating
other cases that hold the work product doctrine generally does not prevent discovery of facts).
That is especially true when the facts at issue are not discoverable by any other means without
undue hardship, and the opposing party shows substantial need for the information. FED. R. CIV.
P. 26(b)(3)(A)(ii); see also Hickman v. Taylor, 329 U.S. 495, 512 (1947); Moore’s Federal Practice
3d. § 26.70[5][c].
Applying that doctrine to this case, Rule 26(b)(3)(A)(ii)’s exception for facts that are
essential and not discoverable by other means proves determinative. Schultz is an essential witness
to determining whether Amanda Ludwig died immediately when the semi-truck struck her vehicle,
or whether she survived and suffered anguish in the ensuing moments. Schultz’s visual and
auditory perceptions in the moments after the crash provide the insight of a neutral third party on

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the scene at the critical moment in question. Therefore, there is a substantial need for all parties
to have the best statement of Schultz’s perceptions possible.1
Defendants certainly have one version of Schultz’s perceptions, since Schultz gave
deposition testimony. But Schultz’s account of the events in his deposition may have differed
from his initial recitation of the facts when he spoke with Plaintiff’s counsel over the phone and at
counsel’s office, and when he was closer in time to the events in question. Any even slight
dissonance would provide Defendants with an opportunity to impeach Schultz. And, other than
obtaining a copy of the transcripts in question, there is no alternative way for Defendants to
discover what Schultz said at the time he spoke with Plaintiff’s counsel. Depriving Defendants of
that transcript would work a substantial hardship on Defendants by removing a potentially essential
tool in determining how long the decedent lived after the accident.
Accordingly, IT IS ORDERED:
1.) Plaintiff’s Motion to Quash the Subpoena issued to Louis J. Schultz (Doc. 67) is
DENIED; and
2.) Schultz’s Third-Party Movant Motion for Protective Order (Doc. 69) is DENIED.
18th
This _____ day of August, 2017.

1

Plaintiff’s reliance upon United States v. Roxworthy, 457 F. 3d 590 (6th Cir. 2006) is misplaced.
The documents at issue in Roxworthy were two memoranda bearing the same date with a stamped
designation of “Attorney-Client Privilege.” These were detailed tax documents which the Court
described as being dense with legal content. The Schultz transcript here is nothing more than a
statement of an eye-witness which plaintiff has provided to that third-party witness.
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