MANSKE v. UPS CARTAGE SERVICES INC et al
Filing
34
ORDER overruling 30 Appeal from Magistrate Judge Decision to District Court; denying 31 Motion for Oral Argument/Hearing. By JUDGE JOHN A. WOODCOCK, JR. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DENNIS MANSKE,
Plaintiff,
v.
UPS CARTAGE SERVICES, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
2:10-cv-00320-JAW
ORDER ON OBJECTION TO MEMORANDUM DECISION ON MOTION
FOR RECONSIDERATION
UPS Cartage Services, Inc. (UPS)1 objects to Magistrate Judge Rich‟s denial
of its motion to reconsider his order granting the Plaintiff, Dennis Manske, a
limited protective order.
Because UPS has failed to demonstrate that the
Magistrate Judge‟s decision is clearly erroneous or contrary to law, the Court
overrules its objection.
I.
BACKGROUND
In this employment action against UPS, Mr. Manske moved on November 30,
2010 for a limited protective order, seeking to delay production of recorded
conversations with potential witnesses (the recordings) that he taped in anticipation
of litigation. Pl.’s Mot. for a Limited Protective Order (Docket # 12) (Pl.’s Mot.). He
argued that the recordings are protected from discovery under the work product
doctrine and should be withheld until after the recorded witnesses have been
At the time the motion was filed, an additional party was joined as a defendant. That party was
dismissed by stipulation while the motion was pending. Stipulation of Partial Dismissal (Docket #
33). UPS Cartage Services, Inc. is the only remaining defendant.
1
deposed to allow him to “obtain an honest and unrefreshed recollection from the
relevant witnesses.” Id. at 4. On December 16, 2010, UPS responded, arguing that
the recordings do not qualify as work product, that they are in any event excepted
from the work product doctrine as previous statements of a party pursuant to Rule
26(b)(3)(C), and that Mr. Manske had failed to show good cause for delaying
production. Defs.’ Opp’n to Pl.’s Mot. for a Limited Protective Order (Docket # 13)
(Def.’s Opp’n) (citing FED. R. CIV. P. 26(b)(3)(C)). Mr. Manske replied on December
30, 2010, arguing that, even where the rules demand production of the previous
statements of a party, the Court maintains discretion to delay the production. Pl.’s
Reply to Defs.’ Opp’n to Pl.’s Mot. for a Limited Protective Order at 3-4 (Docket # 15)
(Pl.’s Reply).
He further contended that the case law supported delaying
production. Id. at 4-7.
On January 30, 2011, Judge Rich granted Mr. Manske‟s motion.
Mem.
Decision on Mot. for Limited Protective Order (Docket # 18) (Order). He ordered
that
1.
The plaintiff shall immediately provide the defendants with a
list of the individuals whose conversations or statements were taperecorded and the dates of each such recording.
2.
The recording of each individual shall be produced to the
defendants and the recorded individual immediately after the
completion of that individual‟s deposition. If no deposition of a
particular individual who was tape-recorded is scheduled within 60
days following the date of this order, the recording of that individual
shall be produced to the defendants on the 61st day.
Id. at 6. In coming to this decision, Judge Rich analyzed the case law cited by the
parties. Id. at 2-6. Judge Rich observed that, in determining whether to delay
2
production of parties‟ prior statements in recorded evidence, courts tend to analyze
whether evidence is likely to be more valuable as substantive or impeachment
evidence.
Id.
He concluded that courts tend to demand an item‟s immediate
production when its substantive evidentiary value outweighs its impeachment value
but tend to allow delayed production when the impeachment value outweighs the
substantive value. Id.
Judge Rich found it difficult to apply that reasoning to the pending dispute
because there was insufficient information to assess whether the recordings “will be
used solely for impeachment or as substantive evidence as well.”
Id. at 3.
Similarly, he said he could not determine whether the recordings included previous
statements of a party because there was insufficient information to analyze whether
“some or even all of [the recorded] employees may be able to bind one of the
corporate defendants by his or her statements.” Id. With the information before
him, Judge Rich adopted Magistrate Judge Kravchuk‟s solution in a similar case.
Citing Gerber v. Down East Community Hospital, 266 F.R.D. 29 (D. Me. 2010),
Judge Rich found that “production of the tape recordings, even if they could be
considered to include statements against interest by one of the defendants, should
not be required before the deposition of each of the recorded individuals is taken.”
Id. at 5-6. He added that “[o]nce the plaintiff has produced the names of these
individuals, the defendants are presumably capable of interviewing them before
their depositions take place.” Id. at 6.
3
On February 7, 2011, UPS moved for reconsideration of the limited protective
order. Defs.’ Mot for Reconsideration (Docket # 19) (Defs.’ Mot.). It asserted that
Judge Rich failed to address its argument that the work product doctrine does not
apply, that he overlooked indications that Mr. Manske intends to use the recordings
as substantive evidence, and that he erred in rejecting UPS‟s argument that the
recordings are statements of a party.
Id. at 6-10.
On February 10, 2011, Mr.
Manske responded. Pl.’s Opp’n to Defs.’ Mot. for Reconsideration (Docket # 20) (Pl.’s
Opp’n).
doctrine.
He reasserted that the recordings are protected by the work product
Id. at 2-4.
He further contended that Judge Rich‟s decision found
delaying production appropriate regardless of whether the recordings include
previous statements of a party. Id. at 4-5. Finally, he asserted that he had no
intention to use the recordings as substantive evidence but their impeachment
value must be maintained. Id. at 5-6.
On February 24, 2011, Judge Rich denied UPS‟s motion for reconsideration.
Mem. Decision on Mot. for Reconsideration (Docket # 28) (Reconsideration Order).
He noted that the only “material change of relevance” that occurred since he issued
the initial order was Mr. Manske‟s disclosure “that there are tape recordings of only
two individuals; both are described by the defendants as management employees
and presumably could bind the defendants by their statements.” Id. at 1. However,
he reiterated his decision that production “should not be required before the
deposition of each of the recorded individuals is taken.” Id. Moreover, he clarified
that his decision did not turn on whether the recordings are work product but was
4
based on Mr. Manske‟s representations that the recordings “will be most relevant
and valuable as impeachment evidence.” Id. at 2 (quoting Pl.’s Opp’n at 5).
On March 9, 2011, UPS appealed Judge Rich‟s decision to this Court and
requested oral argument. Defs.’ Objection to Feb. 24, 2011 Order (Docket # 30)
(Defs.’ Objection) Defs’ Request for Oral Argument (Docket # 31). It argued that
Judge Rich erred by issuing a protective order without finding that Mr. Manske had
shown good cause for delayed production or whether the recordings are work
product. Id. at 3-7. UPS further contended that Judge Rich erred by allowing Mr.
Manske to withhold previous statements of a party. Id. at 7-9. Finally, it asserted
that Judge Rich improperly credited Mr. Manske‟s assertion that the recordings are
impeachment evidence without independently analyzing the substantive value of
the evidence. Id. at 9-10. On March 28, 2011, Mr. Manske rebutted each of UPS‟s
objections. Pl.’s Opp’n to Defs.’ Objection to the Court’s Feb. 24, 2011 Decision on
Mot. for Protective Order (Docket # 32) (Pl.’s Opp’n to Objection). Specifically, he
asserted that the work product and 26(b)(3)(C) issues are not dispositive and that
he had demonstrated good cause for delayed production by explaining the
impeachment value of the recordings. Id. at 5-10.
II.
DISCUSSION
A.
Standard of Review
When a party objects to a nondispositive order of a magistrate judge, “[t]he
district judge in the case must consider timely objections and modify or set aside
any part of the order that is clearly erroneous or is contrary to law.” FED. R. CIV. P.
5
72(a). Factual findings are reviewed under the “clearly erroneous” branch. Phinney
v. Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir. 1999). That means the Court
“must accept both the [magistrate]‟s findings of fact and the conclusions drawn
therefrom unless, after scrutinizing the entire record, [the Court] „form[s] a strong,
unyielding belief that a mistake has been made.‟” Id. When “review of a nondispositive motion by a district judge turns on a pure question of law, that review is
plenary under the „contrary to law‟ branch of Rule 72(a).” Powershare v. Syntel, Inc.
597 F.3d 10, 15 (1st Cir. 2010).
B.
Analysis
The Court has little difficulty concluding that Judge Rich‟s decision is neither
clearly erroneous nor contrary to law. Rule 26(c) authorizes the court to “for good
cause, issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including . . . (B) specifying terms,
including time and place, for the disclosure or discovery.” FED. R. CIV. P. 26(c)(1).
In addition, trial court‟s have general discretion over the sequence of discovery.
Rule 26(d) authorizes trial courts, upon motion, to sequence discovery for
convenience and in the interests of justice. FED. R. CIV. P. 26(d).
Significantly, Judge Rich merely ordered production of the recordings
delayed; he did not order the recordings withheld. Accordingly, UPS‟s assertion
that the recordings must be produced because they are previous statements of a
party is a strawman.
See Order at 6 and Reconsideration Decision at 2.
Rule
26(b)(3)(C) does not entitle parties to immediate discovery of their previous
6
statements. Indeed, courts have held in similar cases “that a party should be given
a copy of his or her own statement but that the production of the statement may be
delayed until after the party‟s deposition has been taken by the opponent.” 8 C.
Wright, A. Miller, M. Kane, L. Marcus, FED. PRAC. & PROC. § 2027 (3d ed.)
[hereinafter Wright & Miller] (citing Casella v. Hugh O’Kane Elec. Co., No. 00 Civ.
2481 LAK, 2000 WL 1649513 (S.D.N.Y. Nov. 2, 2000); Torres–Paulett v. Tradition
Mariner, Inc., 157 F.R.D. 487 (S.D. Cal. 1994); Nelson v. Puerto Rico Marine Mgmt.,
Inc., 72 F.R.D. 637 (D. Md. 1976); and Smith v. China Merchants Steam Nav. Co.
Ltd., 59 F.R.D. 178 (E.D. Pa. 1972)).
“Rule 26(b)(3) does not preclude such a
procedure. The court has ample power under Rule 26(c)(2) to issue a protective
order postponing the production.”
Id.
Accordingly, Judge Rich did not err in
determining that this dispute does not hinge on whether the recordings include
previous statements of a party. Order at 6; Reconsideration Order at 1-2.
Untethered to a mandate requiring immediate production of the recordings,
Judge Rich balanced the interests of the parties and crafted a solution that takes
both parties‟ interests into account.
While allowing delay of the recordings to
preserve their impeachment value, he required that Mr. Manske immediately
provide UPS “with a list of the individuals whose conversations or statements were
tape-recorded and the dates of each such recording.”
Order at 6.
From that
information, UPS may interview the recorded witnesses and obtain the substantive
evidence they seek from the tape recordings.
If the eventual release of the
recordings reveals evidence not obtained from witness interviews, UPS will have an
7
opportunity to depose the witnesses and attempt to reconcile the inconsistencies
and rehabilitate the witnesses‟ credibility.
There is no risk that UPS will be
surprised by the recordings at trial. Boldt v. Sanders, 111 N.W.2d 225, 227 (Minn.
1961) (discussing the danger of disclosing impeachment evidence for the first time
in the courtroom); see also 8 Wright & Miller § 2015 (3d ed.) (citing Boldt v. Sanders
as providing “the most comprehensive statement for the case for discovery of
information of this kind”).
In contrast to the lack of prejudice to UPS, Judge Rich recognized the value of
impeachment evidence to Mr. Manske. There is no error in this determination. In
employment cases, where shifting explanations for adverse employment action may
evince retaliatory motive, preventing management witnesses from tailoring their
testimony to prior comments is of particular importance to a plaintiff‟s case. See
E.C. Waste, Inc. v. N.L.R.B., 359 F.3d 36, 45 (1st Cir. 2004) (finding that “an
employer‟s shifting explanations for discharging an employee may themselves serve
either to ground or to reinforce a finding of pretext”). Preserving the impeachment
value of prior statements is good cause for a limited protective order. As Judge Rich
explained in his denial of UPS‟s motion for reconsideration, he was able to find good
cause
without
determining
whether
the
recordings
are
work
product.
Reconsideration Order at 2. Such a determination could only alter the decision by
providing independently sufficient grounds for delaying, or even withholding,
production of the recordings.
8
Courts have widely determined that delaying production until after
depositions is the preferred solution when evidence could potentially have both
substantive and impeachment value.
Wright & Miller characterizes this as “a
better solution” than immediate discovery or allowing a party to withhold the
evidence.
8 Wright & Miller § 2015.
Wright & Miller quotes a “leading
commentator” who reasons as follows:
The values of surprise could be largely preserved by providing
discovery or pretrial revelation of impeachment material which falls
within the present category only at a time shortly before trial, and only
after the party asked about the existence and nature of such material
had been given an opportunity—ordinarily by deposition—to commit
the inquiring party to a final version of the events and claims related
to the impeachment material. This procedure should forestall most
conforming testimony, and would afford a reasonably effective means
of embarrassing those who might still attempt to meet the impeaching
material in untruthful ways. At the same time, it would be possible to
prepare to meet impeaching material which is susceptible of honest
explanation or refutation. Having preserved the values of surprise,
there would be no remaining reasons to deny discovery . . . .
Id. “Courts have repeatedly adopted this solution.” Id. (citing Donovan v. AXA
Equitable Life Ins. Co, 252 F.R.D. 82 (D. Mass. 2008); Hildebrand v. Wal-Mart
Stores, Inc., 194 F.R.D. 432 (D. Conn. 2000); Walls v. Intern. Paper Co., 192 F.R.D.
294 (D. Kan. 2000); Blount v. Wake Elec. Membership Corp., 162 F.R.D. 102
(E.D.N.C. 1993); and Ward v. CSX Transp. Inc., 161 F.R.D. 38 (E.D.N.C. 1995)).
Although UPS cites cases in which courts rejected this solution, Defs.’ Objection at
9-10, a degree of inconsistency merely confirms the discretionary nature of a trial
court‟s rulings in such matters and the imperative to resolve discovery disputes
9
based on the specific circumstances of the case. UPS points to no binding authority
that could warrant a finding that Judge Rich‟s decision was contrary to law.
More convincing than UPS‟s citations to other district court decisions is
Judge Rich‟s citation to Gerber. Order at 5-6. By following Judge Kravchuk in
Gerber, Judge Rich facilitated consistency within the District. The Court accepts
Judge Rich‟s analysis of Gerber in his original order, see Order at 4-6, and does not
need to expound further. UPS‟s attempts to distinguish Gerber rely exclusively on
the work product and 26(b)(3)(C) issues. Defs.’ Mot at 5-6; Defs.’ Objection at 7-9.
Since the protective order deals with the timing of discovery rather than the
ultimate decision to produce discovery material, those issues are not dispositive.
Finally, because the Court readily concludes that Judge Rich acted within his
discretion in granting the limited protective order, because the parties have had
ample opportunity to brief this issue, and because it is not in the interest of the
parties or the Court to further delay this litigation over a discovery dispute, the
Court denies UPS‟s motion for oral argument.
III.
CONCLUSION
Because the Court concludes that Judge Rich‟s decision was not clearly
erroneous or contrary to law, it OVERRULES the Defendants‟ Objection to the
February 24, 2011 Order (Docket # 30).
Request for Oral Argument (Docket # 31).
10
The Court DENIES the Defendants‟
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 8th day of June, 2011
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?