Gaytan Soto et al v. Swift Transportation Services, LLC et al
ORDER granting in part and denying in part 66 Motion to Compel(Written Opinion). The Court grants the motion with respect to the plaintiffs' request for early adjuster scene investigation information and denies the motion with respect to the plaintiffs' request for fees. Signed by Magistrate Judge Katherine M. Menendez on 4/13/2018. (AHR)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Ricardo Gaytan Soto and
Marisol Gaytan Soto,
Case No. 0:17-cv-124-JRT-KMM
Swift Transportation Services, LLC, and
Brian E. Wojtalewicz, Wojtalewicz Law Firm, Ltd., PO Box 123, Appleton, MN,
56208, counsel for plaintiffs
Brian A. Wood, Matthew D. Sloneker, Michael Thomas Burke, Lind Jensen Sullivan
& Peterson, PA, 901 Marquette Ave. S., Suite 1300, Minneapolis, MN, 55402, counsel
This matter is before the Court on the plaintiffs’ Motion to Compel
Surreptitious Surveillance and Early Adjuster Scene Investigation Information. ECF
No. 66. Plaintiffs Ricardo and Marisol Gaytan Soto (“the Gaytan Sotos”) submitted a
memorandum and two declarations in support of their motion. Mem. in Supp., ECF
No. 68; Second Wojtalewicz Decl., ECF No. 69; R. Gaytan Soto Decl., ECF No. 70.
Defendants Swift Transportation Services, LLC and Anthony Shealey (collectively,
“Swift”) filed a memorandum and an affidavit in opposition to the motion. Mem. in
Opp., ECF No. 78; Burke Aff., ECF No. 80.
The Court ruled on the motion with respect to the surveillance information,
but deferred ruling as to the scene investigation information. Ord., ECF No. 81. The
Court ordered Swift to supplement the record to establish whether the scene
investigation information was prepared in the regular course of business or for
purposes of litigation. Id. at 4. The parties submitted letters in response to the
Court’s order, and the Court now considers the remainder of the motion.
The Gaytan Sotos seek “[a]ll information and materials” from an early scene
investigation performed by Hendrickson Claim Service or any other Swift
representative. Mot. to Compel. The Gaytan Sotos assert that they requested this
information through discovery and Swift refused on the basis of the work product
doctrine. Second Wojtalewicz Decl. The Gaytan Sotos also seek payment of the
attorney fees they incurred in preparing this motion. Id.
For the reasons below, the Court finds that Swift has failed to support its claim
of work product protection and the documents must therefore be provided to the
Gaytan Sotos. However, because the Gaytan Sotos’ motion was granted in part and
denied in part, the Court declines to award fees.
Swift asserts the work product doctrine in support of its refusal of the
Gaytan Sotos’ request for early adjuster scene investigation information. Mem. in
Opp. at 1. Rule 26 outlines the work product doctrine:
(A) Documents and Tangible Things. Ordinarily, a party may
not discover documents and tangible things that are
prepared in anticipation of litigation or for trial by or for
another party or its representative (including the other
party’s attorney, consultant, surety, indemnitor, insurer, or
agent). But, subject to Rule 26(b)(4), those materials may
be discovered if:
(i) they are otherwise discoverable under Rule
(ii) the party shows that it has substantial need for
the materials to prepare its case and cannot, without
undue hardship, obtain their substantial equivalent
by other means.
(B) Protection Against Disclosure. If the court orders discovery
of those materials, it must protect against disclosure of the
mental impressions, conclusions, opinions, or legal theories
of a party’s attorney or other representative concerning the
Fed. R. Civ. P. 26(b)(3).
The party asserting a privilege has the burden to prove its applicability. In re
Grand Jury Proceedings, 655 F.2d 882, 887 (8th Cir. 1981). Whether the party resisting
disclosure has established the applicability of the work product doctrine is a question
The test should be whether, in light of the nature of the
document and the factual situation in the particular case,
the document can be fairly said to have been prepared or
obtained because of the prospect of litigation. But the
converse of this is that even though litigation is already in
prospect, there is no work product immunity for
documents prepared in the regular course of business
rather than for purposes of litigation.
Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987) (quoting 8 C. Wright &
A. Miller, Federal Practice and Procedure § 2024 (1970)). Once the presence of work
product material is established, the burden shifts to the requesting party to overcome
the protection by showing substantial need and an inability to obtain equivalent
evidence without undue hardship. See Fed. R. Civ. P. 26(b)(3)(A)(ii); Hickman v. Taylor,
329 U.S. 495, 512, 67 S. Ct. 385, 394 (1947) (“[A] burden rests on the one who would
invade that privacy to establish adequate reasons to justify production through a
subpoena or court order.”).
Although Swift asserts that the requested early scene investigation report
“contains factual information gathered in anticipation of litigation, and makes
reference to [Swift’s attorney’s] mental impressions, strategies, and legal theories while
conducting the investigation,” it does not sustain its burden on this point. Mem. in
Opp. at 7. Indeed, the Court’s March Order provided Swift an opportunity to
supplement the record to address this concern after finding the initial record
insufficient to support a conclusion as to whether the materials were prepared in
anticipation of litigation. Ord. at 4. Swift filed a letter brief to supplement the record,
but submitted no new evidence. Swift Letter to Mag. J., ECF No. 83.
In its letter, Swift does no more than “reassert the crux of the arguments set
forth in the memorandum in opposition” and “aver that the early scene investigation
materials, which were put together at the direction of Swift Transportation’s former
counsel, are protected by the work product doctrine.” Id. at 1. Swift alleges that
counsel who “conducted the entire [early] investigation” was “not hired by Swift
Transportation simply in the regular course of business of investigating an accident.”
Id. at 2. Finally, Swift relies on these argumentative assertions to conclude that the
investigation materials are imbued with former counsel’s “mental impressions and
strategies” and “should not be discoverable simply to satisfy [the Gaytan Sotos’]
“If a party requesting discovery challenges the sufficiency of the assertion
of . . . work-product doctrine, the asserting party may no longer rest on its privilege
log. Instead, it bears the burden of establishing an evidentiary basis for each element
of each privilege/protection claimed.” 8 C. Wright & A. Miller, Federal Practice and
Procedure § 2016.1 (3d ed. 1998); see also Hollins v. Powell, 773 F.2d 191, 196 (8th Cir.
1985) (“[T]he party who claims the benefits of the . . . privilege has the burden of
establishing the right to invoke its protection”). And statements of counsel alone do
not constitute evidence sufficient to support a claim of work-product protection. See
Travelers Prop. Cas. Co. of Amer. v. Nat’l Union Ins. Co. of Pittsburgh, PA, No. 250 F.R.D.
421, 425 (W.D. Mo. 2008) (finding that non-evidentiary statements of counsel were
“insufficient to establish that the documents were created in anticipation of
litigation”). But Swift fails to provide any evidentiary support for its argument.
The record does not contain a privilege log from Swift in support of its
assertion of work product protection. Swift did not provide affidavits from corporate
representatives to support the assertion that investigations like the one at issue are not
completed in the normal course of business, nor did it offer an affidavit to that effect
from counsel who allegedly led the investigation. The only record support for Swift’s
assertion of work product protection is in the form of conclusory arguments posited
in Swift’s memorandum in opposition to the motion to compel and letter brief
following this Court’s request for evidentiary support. Indeed, in the absence of
evidence demonstrating that such investigations are only done in anticipation of
litigation, the Court can readily imagine that investigations would be conducted after
serious accidents for non-litigation reasons, including making decisions about whether
to discipline an employee, whether to recommend that an insurer pay damages, and
whether there is a safety concern with a vehicle that needs to be repaired. These are
all aspects of the regular course of business for a trucking company, and Swift has not
established that preparation for anticipated litigation rather than any of these
possibilities motivated the investigation.
Swift has failed to support its assertion of work product protection as to the
requested early adjuster scene investigation information. And the documents are
inarguably relevant to the Gaytan Sotos’ claims. As a result, Swift must provide the
requested early adjuster scene investigation information to the Gaytan Sotos.
Rule 37 provides for payment of expenses related to a motion to compel
discovery. Fed. R. Civ. P. 37(a)(5). The Rule contemplates apportionment of
reasonable fees where a motion is granted in part and denied in part. Fed. R. Civ. P.
37(a)(5)(C). The related subsections generally provide for fees paid by the “party or
deponent whose conduct who necessitated the motion” where the movant prevails,
and by the movant where the motion is denied. Fed. R. Civ. P. 37(a)(5)(A),(B). Here,
the movant prevailed on half of the motion and did not on the other half. Given the
considerations of the earlier subsections of the rule, apportionment results in a zerosum fee award. The Court therefore declines to provide fees.
IT IS HEREBY ORDERED THAT the plaintiffs’ Motion to Compel
Surreptitious Surveillance and Early Adjuster Scene Investigation Information (ECF
No. 66) is GRANTED IN PART as follows:
1) The Court grants the motion with respect to the plaintiffs’ request for early
adjuster scene investigation information.
2) The Court denies the motion with respect to the plaintiffs’ request for fees.
Date: April 13, 2018
United States Magistrate Judge
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