Bendure et al v. Star Targets et al

Filing 83

ORDER denying 75 Motion to Compel. TLD's request for fees and costs incurred in responding to Bendure's motion is DENIED. Signed by Magistrate Judge Carolyn S Ostby on 12/9/2015. (JDR, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
CASEY BENDURE

CV 14-89-BLG-SPW-CSO

Plaintiff,
vs.
STAR TARGETS, JUSTIN HARDY,
TLD INDUSTRIES LLC, CABELA’S
WHOLESALE, INC., ROLLING
THUNDER PYROTECHNIC, CORP.
and MACRAFT USA, LLC,

ORDER DENYING
PLAINTIFF’S MOTION TO
COMPEL DISCOVERY
RESPONSES

Defendants.
_______________________________
TLD INDUSTRIES LLC,
Third-Party Plaintiff,
vs.
ROLLING THUNDER
PYROTECHNIC, CORP. and
MACRAFT USA,
Third-Party Defendants.
Plaintiff Casey Bendure (“Bendure”) filed this action claiming
that a target he was handling unexpectedly exploded causing him

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injury. See Second Am. Cmplt. (ECF 20) at 4-5.1 Against all remaining
Defendants,2 he asserts claims of negligence (Count One), violation of
the Federal Hazardous Substances Act (Count Two), and strict liability
(Count Three). Id. at 5-12.
Now pending is Bendure’s Rule 373 motion to compel directed
against Defendant TLD Industries LLC (“TLD”). Mtn. to Compel (ECF
75). Having considered the parties’ arguments and submissions, the
Court will deny the motion.
I.

PERTINENT BACKGROUND4
On June 20, 2014, Bendure served discovery requests on TLD.

On September 22, 2014, TLD responded, asserting work product

1

“ECF” refers to the document as numbered in the Court’s Electronic
Case Files. See The Bluebook, A Uniform System of Citation, § 10.8.3.

References to page numbers are to those assigned by ECF.
2

On Bendure’s motion, the Court recently dismissed his claims
against Defendants Rolling Thunder and Macraft, without prejudice.
Opinion and Order (ECF 74) at 3.
3

References to rules are to the Federal Rules of Civil Procedure
unless otherwise noted.
4

The parties are familiar with this case’s procedural and factual
background. The Court repeats it here only as necessary for disposition
of the pending motion.
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objections and providing a privilege log. Bendure’s Opening Br. (ECF
76) at 2; TLD’s Resp. Br. (ECF 79) at 2. TLD supplemented its
responses on October 6, 2014, June 30, 2015, and September 29, 2015,
when it provided a second privilege log. ECF 79 at 2.
At issue now are Discovery Request Nos. 3, 4, 5, 6, 7, 11, and 12.
ECF 76 at 8-12.5 Bendure’s discovery requests seek: information
concerning any investigations made respecting his claims; production of
any reports, statements made or obtained, including audiotapes or
transcription copies; and photographs generated as a result of events
involved in this action. Id.
Specifically, respecting Discovery Request Nos. 3, 4, 5, 6, and 7,
TLD responded that it has no responsive information, statements, or
photographs. TLD added to each response, however, that it objects “to
the identification or production of statements taken that constitute
non-discoverable work product.” Id. at 10-12.

5

Discovery Request Nos. 3, 5, and 11 are interrogatories.
Discovery Request Nos. 4, 6, 7, and 12 are requests for production.
ECF 76 at 8-12.
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Respecting Discovery Request Nos. 11 and 12, TLD responded
that the only investigation known to it is work done by its attorney,
which information TLD asserted is “non-discoverable attorney work
product.” Id. at 8-9.
II.

SUMMARY OF PARTIES’ ARGUMENTS
Bendure seeks the Court’s order compelling complete responses to

his discovery requests arguing: (1) many of TLD’s responses have been
“incomplete and evasive[,]” Bendure’s Opening Brief (ECF 76) at 3; (2)
TLD’s “non-discoverable work product” response to his discovery
request seeking information regarding investigations TLD has done in
relation to his claims in this case is inadequate because Bendure needs
the information “to understand the defense that is to be proffered and
to allow [him] to properly assess the merits of said defense[,]” id.; (3)
work product is not automatically undiscoverable if the requesting
party “has a substantial need for the materials in preparation of their
case and is unable to obtain the materials by other means[,]” which is
the case here, id.; (4) Bendure seeks only “ordinary work product[,]”
which requests factual information, and does not seek opinions or
strategic information, id. at 4; and (5) TLD’s responses to Discovery
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Request Nos. 3, 4, 5, 6, and 7 also are non-responsive because TLD both
states that the information sought does not exist but also objects on the
basis that the requests seek “non-discoverable work product[,]” arguing
that TLD will not supplement its responses if it determines that future
information also is non-discoverable work product, id. at 4-5.
In response, TLD argues that Bendure is improperly attempting
to discover TLD’s attorneys’ investigation materials and reports
prepared by their consulting experts. TLD’s Resp. Br. (ECF 79) at 3.
TLD argues that it “has provided Bendure with every document in its
possession, custody, and control that is both (a) responsive and (b) not
protected.” Id. Specifically, TLD argues that Bendure: (1) seeks nondiscoverable work product, id. at 3-4; (2) has provided no reason why
TLD’s objections lack merit, id. at 4; (3) has “not attempt[ed] to
establish either that he has a substantial need for TLD’s work product
or that he cannot obtain the information he seeks by other means
without undue hardship[,]” id.; (4) cannot establish either substantial
need or undue hardship in obtaining the information he seeks because:
(a) TLD has provided Bendure with “material data safety sheets
concerning the substances used in the targets, access to the targets,
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and accompanying materials including instruction sheets[,]”; (b) he still
possesses the targets and the substances used in them; (c) he was
present at the accident scene, and is the one who used the product; (d)
he is capable of conducting his own investigation of the facts and
circumstances of the incident; and (e) he already has conducted his own
investigation and has provided an expert report detailing his
allegations about the product; id. at 5-6; (5) has not demonstrated that
the information he seeks is information that he cannot get on his own,
but rather he is improperly attempting to “free-rid[e]” on TLD’s
information, id. at 6-7; (6) improperly seeks consulting experts’ reports,
which are not discoverable under Rule 26(b)(4)(D), id. at 8-9; and (7)
improperly seeks attorney work product, even though TLD has
responded to Bendure that it is not aware of any documents responsive
to his requests, but wishes “to preserve the work product objection in
the event that it discovers – or creates – responsive information in the
future . . . and not . . . waive the objection in the event that it becomes
significant in the future[,]” id. at 9.
In reply, Bendure argues that: (1) TLD’s privilege log contains
documents that are discoverable and must be produced, including
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documents concerning TLD’s investigations into other claims done
outside of TLD’s relationship with its current counsel, Bendure’s Reply
Br. (ECF 82) at 2; (2) TLD must have done an investigation because a
warning addressing the specific issues involved here appeared in the
packaging of the explosives after the incident giving rise to this action,
id. at 2-3; (3) investigations conducted by TLD or its employees based
on complaints received either before or after Bendure’s accident are not
covered by the attorney work product doctrine, id. at 3; (4) TLD’s own
discovery responses indicate that investigations have occurred because
the privilege log it produced refers to correspondence concerning
investigations, id.; (5) Bendure is entitled to production of information
involving investigations in other cases in which TLD was involved with
a similar product, id. at 4; (6) TLD cannot use as an excuse the
argument that Bendure’s requests are not specific enough, id.; (7)
Bendure has no other way to obtain information concerning
investigations done in other cases, id. at 4-5; (8) Bendure is prejudiced
by TLD’s failure to properly participate in the discovery process
because he will be unable to properly address any defense TLD may
have, id. at 5; (9) Bendure has no way of knowing whether the current
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product and the product available at the time of the incident giving rise
to this action are the same, id.; and (10) the information he seeks is
factual only and he is not seeking opinion or strategic information, id.
at 5-6.
III. LEGAL STANDARDS
The Court has broad discretion to manage discovery. Hunt v.
County of Orange, 672 F.3d 606, 616 (9th Cir. 2012); Jeff D. v. Otter, 643
F.3d 278, 289 (9th Cir. 2011) (citing Little v. City of Seattle, 863 F.2d
681, 685 (9th Cir. 1988)). The scope of permissible discovery is broad,
but it is not unlimited. Rule 26(b)(1) defines the scope as follows:
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be
discoverable.6

6

This version of Rule 26(b)(1) became effective on December 1,
2015. Bendure’s motion to compel was fully briefed, and thus ripe for
ruling, on November 24, 2015, nearly a week before that date. Under
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A party may move to compel discovery responses, as Bendure has
done here, when the party disagrees with the objections interposed by
the other party or wants to compel more complete answers. Fed. R.
Civ. P. 37(a). The Federal Rules of Civil Procedure and this Court’s
Local Rules require that objections be stated with specificity, including
the reasons, and whether any responsive materials are being withheld
based on the objection. See Fed. R. Civ. P. 33(b)(4); 34(b)(2)(B) and (C);
Local Rule 26.3(a)(2)-(3). Stating a bare objection is not sufficient to
preserve the objection. See Covad Communications Co. v. Revonet, Inc.,
258 F.R.D. 17, 19 (D. D.C. 2009) (answers to discovery must be “true,
explicit, responsive, complete, and candid”).
Here, as noted, TLD responded to Discovery Request Nos. 3-7 by
stating “None” to each, indicating that no responsive information
exists. And, respecting both those discovery requests and Discovery
Request Nos. 11 and 12, TLD’s sole objection is that the information

Rule 86(a)(2)(B), the Court concludes that it is neither infeasible nor
unjust to apply the recently-amended version of Rule 26(b)(1) to this
case. In any event, the Court concludes that application of either
version of Rule 26(b)(1) to Bendure’s motion would yield the same
result.
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sought is non-discoverable attorney work product. ECF 76 at 8-12.
Work product protection is determined by federal law, even when
the federal court sits in diversity. Moe v.. System Transport, Inc., 270
F.R.D. 613, 622 (D. Mont. 2010) (citing Mitchell Engineering v. City and
County of San Francisco, 2010 WL 1853493, *2 (N.D. Cal. 2010)). The
work product doctrine protects from discovery 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). Id. (citing
Fed. R. Civ. P. 26(b)(3)(A) and Dion v. Nationwide Mut. Ins. Co., 185
F.R.D. 288, 292 (D. Mont. 1998)); see also In re Grand Jury Subpoena
(Torf), 357 F.3d 900, 906-07 (9th Cir. 2004). “But, subject to Rule
26(b)(4), those materials may be discovered if: (i) they are otherwise
discoverable under Rule 26(b)(1); and (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.” Fed. R. Civ. P. 26(b)(3)(A).
“At its core, the work-product doctrine shelters the mental
processes of the attorney, providing a privileged area within which he
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can analyze and prepare his client’s case.” U.S. v. Christensen, 801
F.3d 970, 1010 (9th Cir. 2015) (quoting U.S. v. Nobles, 422 U.S. 225, 238
(1975)). “[T]he purpose of the work product privilege is to protect the
integrity of the adversary process.” Id. (quoting Parrott v. Wilson, 707
F.2d 1262, 1271 (11th Cir. 1983) and Admiral Ins. Co. v. U.S.D.C.
(Ariz.), 881 F.2d 1486, 1494 (9th Cir. 1989) (“The conditional protections
afforded by the work-product rule prevent exploitation of a party’s
efforts in preparing for litigation.”)).
Work product falls into two categories. “Ordinary work product
includes raw factual information, and can be discovered if a party
shows that it has substantial need for the material to prepare its case
and cannot, without undue hardship, obtain their substantial
equivalent by other means.” City of Glendale v. National Union Fire
Ins. Co., 2013 WL 1797308, *15 (D. Ariz., April 29, 2013) (citations and
internal quotation marks omitted). The other category is “opinion”
work product, which includes “mental impressions, conclusions,
opinions, or legal theories of a party’s attorney or other representative
concerning the litigation.” Id. (citations omitted). “A party seeking
opinion work product must make a showing beyond the substantial
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need/undue hardship test required under Rule 26(b)(3) for non-opinion
work product.” Id. (quoting Holmgren v. State Farm Mut. Auto. Ins.
Co., 976 F.2d 573, 577 (9th Cir. 1992)); see also Baker v. Gen. Motors
Corp., 209 F.3d 1051, 1054 (8th Cir. 2000) (“opinion work product
enjoys almost absolute immunity and can be discovered only in very
rare and extraordinary circumstances, such as when the material
demonstrates that an attorney engaged in illegal conduct or fraud.”)
(citation omitted).
IV.

DISCUSSION
A.

Discovery Request Nos. 3, 4, 5, 6, and 7

Respecting Discovery Request Nos. 3-7, as noted, TLD responded
“None” when asked whether it had any information about
investigations, or reports, statements, or photographs generated as a
result of events giving rise to this action. ECF 76 at 10-12. Ordinarily,
that would end the matter. After all, TLD cannot produce what it does
not have. See, e.g., Zavala v. Rios, 2015 WL 1236172, *4 (E.D. Cal.,
Mar. 17, 2015) (denying motion to compel production, even though
plaintiff argued he needed certain material, where defendant
responded that he did not have the requested material).
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But here, TLD qualified its “None” response by also objecting “to
the identification or production of [materials] that constitute nondiscoverable work product.” ECF 76 at 10-12. This qualification, in
part, prompted Bendure’s motion, and he now argues that if
information becomes available in the future, TLD is required to
supplement its responses.
In TLD’s reply brief, however, it explicitly represents that it is not
aware of any documents responsive to the requests. ECF 79 at 9. TLD
further notes that its objection to the discovery requests was meant “to
preserve the work product objection in the event that it discovers – or
creates – responsive information in the future[.]” Id. And, TLD
explains that it objected to Bendure’s requests “out of an abundance of
caution so as not to waive the objection in the event that it becomes
significant in the future.” Id.
In light of TLD’s unequivocal representation that it has no
materials responsive to Bendure’s Discovery Request Nos. 3-7, the
Court will deny Bendure’s motion for an order compelling further
responses. As noted, TLD cannot produce what it does not have.
Zavala, 2015 WL 1236172, *4. And, the Court cannot attempt, as
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Bendure urges, to rule now respecting the discoverability of material
that may or may not exist in the future. Bendure’s request and the
bases for it are far too speculative to allow for a ruling at this time.
The parties, of course, remain under a continuing duty to supplement
or correct their disclosures and discovery responses under Rule 26(e).
At this juncture in the proceedings, however, no issue respecting that
duty, or a party’s failure to comply with it, is before the Court.
B.

Discovery Request Nos. 11 and 12

Respecting Discovery Request Nos. 11 and 12, as noted, TLD
responded that the only investigation known to it is work done by its
attorney, which is “non-discoverable attorney work product.” ECF 76
at 8-9. It further objects to revealing any information about the timing
and substance of its attorney’s reports because that information also is
non-discoverable work product. Id. And, as noted, Bendure seeks the
Court’s order compelling production of the work product materials
arguing both that he has a substantial need for the materials and that
he is unable to obtain the materials by other means. ECF 76 at 3. The
Court is not persuaded.
According to TLD, the only responsive information it has is that
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generated by its attorney. Bendure does not vigorously challenge the
notion that such material is attorney work product. Rather, he argues
that he seeks only factual information, that he needs it, and that he has
no other way to obtain it. Bendure’s arguments, without more, are not
sufficient to establish a substantial need for the materials sought.
A “substantial need” for the material exists “where the
information sought is ‘essential’ to the party’s defense, is ‘crucial’ to the
determination of whether the defendant could be held liable for the acts
alleged, or carries great probative value on contested issues.” National
Congress for Puerto Rican Rights v. City of New York, 194 F.R.D. 105,
110 (S.D. N.Y. 2000) (citations omitted). Here, Bendure has failed to
show that he has substantial need for the work product materials. He
has neither argued nor shown that the material is essential to proving
his claims, crucial to demonstrate TLD’s liability, or of great probative
value respecting either liability or damages. Compare Hooke v. Foss
Maritime Co., 2014 WL 1457582, * 6-7 (N.D. Cal. 2014). Rather,
Bendure offers only his counsel’s general argument that Bendure needs
TLD’s work product to prepare Bendure’s case and to understand TLD’s
defense. The Court concludes that Bendure has failed to meet his
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burden of showing substantial need for the information.
Finally, the Court is not persuaded by Bendure’s argument,
raised for the first time in his reply brief, that TLD is in possession of
investigative materials regarding this case and similar cases that
predate initiation of this action, and that such materials are not work
product. ECF 82 at 2-3. First, as the foregoing definition of work
product indicates, the doctrine protects from discovery “documents and
tangible things that are prepared in anticipation of litigation or for trial
. . . .” Moe, 270 F.R.D. at 622 (citations omitted) (emphasis added).
Work product is not merely that material prepared after initiation of
litigation, but also material prepared in anticipation of there being
litigation. Also, the only investigation report that is on the privilege
log filed with Bendure’s reply brief is an investigation report prepared
by a consulting expert with respect to another claim. But Bendure does
not specifically address this item in his reply brief or explain why it is
not entitled to protection.
Second, Bendure’s general argument that TLD has conducted
other investigations not protected under the work product doctrine
appears to be speculative and insufficient to warrant an order
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compelling production. TLD’s counsel, like Bendure’s, is an officer of
the Court. Representations of TLD’s counsel that TLD has no other
responsive materials must be accepted, absent evidence to the contrary.
C.

Request for Rule 37(a)(5)(B) Fees

TLD has requested an award of fees incurred in responding to
Bendure’s motion. Rule 37(a)(5)(B) mandates that the Court “must,
after giving an opportunity to be heard, require the movant, the
attorney filing the motion, or both to pay the party … who opposed the
motion its reasonable expenses incurred in opposing the motion,
including attorney’s fees.” It further provides that the Court “must not
order this payment if the motion was substantially justified or other
circumstances make an award of expenses unjust.” Here, the Court
concludes that, under the circumstances of the present motion and
briefing, an award of expenses would be unjust.
V.

CONCLUSION
Based on the foregoing, IT IS ORDERED that:
(1) Bendure’s motion to compel (ECF 75) is DENIED.
(2) TLD’s request for fees and costs incurred in responding to
Bendure’s motion is DENIED.
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DATED this 9th day of December, 2015.

/s/ Carolyn S. Ostby
United States Magistrate Judge

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