Petco Animal Supplies Stores, Inc.

Filing 53

ORDER - Defendant's Motion to Allow Issuance of Subpoenas (filing 42 ) is granted. Ordered by Magistrate Judge F.A. Gossett. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PETCO ANIMAL SUPPLIES
STORES, INC.,
Plaintiff,
V.
THE FIVE FIFTY TWO
CORPORATION, a Nebraska
corporation,
Defendant.

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8:14CV280

ORDER

This matter is before the Court on Defendant’s Motion to Allow Issuance of
Subpoenas (filing 42). The motion will be granted.
BACKGROUND
On or about August 21, 1997, Plaintiff and Defendant entered into a commercial lease,
with Defendant as the landlord and Plaintiff as the tenant. The lease required Plaintiff to
maintain the leased premises. On or about January 29, 2014, Defendant sent Plaintiff a letter
identifying four maintenance issues which allegedly caused Plaintiff to default under the
lease. The letter stated that the lease would be terminated if the maintenance issues were not
cured within thirty days. According to Defendant, Plaintiff did not respond to the letter and,
as a result, Defendant sent Plaintiff a second letter on April 4, 2014, terminating the lease.
Plaintiff filed suit on September 17, 2014, seeking a declaratory judgment that it is not
in default of the lease for failure to properly maintain and repair the leased premises.
Plaintiff asserts that it is not in default because it commenced efforts to cure the maintenance
items within thirty days, and thereafter worked diligently to complete any necessary work.
W.D.S. Construction, Inc. (“WDS”) was the contractor that Plaintiff hired to perform the
repair work. Excel Engineering, Inc. (“Excel”) was hired by WDS to provide engineering
services to WDS concerning the leased premises.

On December 16, 2014, Plaintiff filed an objection (filing 37) to Defendant’s
Subpoenas Duces Tecum and Subpoenas to Testify at a Deposition (the “Subpoenas”) to
WDS and Excel. Consequently, Defendant filed the instant motion to allow issuance of the
subpoenas.
DISCUSSION
Plaintiff argues that the documents sought by Defendant were prepared during the
course of an attorney-led investigation and, therefore, are protected work product.1
According to Plaintiff, when it became apparent that Defendant intended to terminate the
lease, Defendant retained counsel on April 25, 2014, in anticipation of litigation. Thereafter,
counsel ordered the retention of WDS for purposes of analyzing and preparing Plaintiff’s
case. Plaintiff also claims that Defendant is precluded from deposing WDS and Excel
representatives because WDS and Excel were retained as consulting experts for this
litigation.
The work product doctrine shields from disclosure documents and other tangible
things that are prepared in anticipation of litigation by or for another party or its
representative, including the party’s attorneys, consultants, insurers and agents. Fed. R. Civ.
P. 26. A document is considered to have been prepared in anticipation of litigation if, “in
light of the nature of the document and the factual situation in the particular case, the
document can fairly be said to have been prepared or obtained because of the prospect of
litigation.” Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987) (quotation and
citation omitted). Materials prepared in the ordinary course of business are not protected
work product. Id. The burden to establish the applicability of the work product privilege is
on the party asserting the privilege. Thiele Dairy, LLC v. Earthsoils, Inc., No. 4:08CV3015,
2008 WL 1995306, *1 (D. Neb. May 6, 2008).
1

Plaintiff initially objected to Defendant’s subpoenas on the basis of the attorneyclient privilege, work product doctrine, and self-critical analysis privilege. Plaintiff has
apparently conceded that the attorney-client and self-critical analysis privileges do not
preclude the requested discovery. Plaintiff did not mention these privileges in its briefing
on this matter. Therefore, the applicability of these privileges will not be addressed herein.
2

Plaintiff has not met its burden to show that the work product doctrine is applicable
to the requested discovery. Other than self-serving affidavits from Plaintiff’s representative
and attorney, Plaintiff has not submitted any evidence demonstrating that WDS and Excel
were retained in anticipation of litigation. To the contrary, the evidence of record indicates
that WDS and Excel were not retained to advise Plaintiff’s attorney in preparation of this
lawsuit, but rather were hired to repair the leased premises. Moreover, there is no evidence
which suggests that WDS and Excel are consulting experts. Given that the primary issue in
this case is whether Plaintiff complied with the lease by properly maintaining the leased
premises, and the role WDS and Excel played in remedying the alleged defects, it appears
that WDS and Excel are actually fact witnesses in this case.
Accordingly,
IT IS ORDERED that Defendant’s Motion to Allow Issuance of Subpoenas (filing
42) is granted.
DATED February 25, 2015.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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