Futreal et al v. Enterprise Holdings, Inc. et al

Filing 101

ORDER granting in part and denying in part 78 Motion to Compel - Within 14 days after entry of this order, the parties will meet and confer in an attempt to agree upon the expenses and attorneys fees that Futreal should rec over for his counsels' work on this motion. If the parties cannot agree, Futreal will file an accounting of its attorneys' fees and costs incurred in pursuing the motion to compel no later than 21 days after entry of this order. Futreal ma y also submit a supporting memorandum of no more than 10 pages with its request. Enterprise may file a response of no more than 10 pages within 14 days after Futreal files his memorandum. Signed by Magistrate Judge Robert T. Numbers, II on 1/7/2019. (Tripp, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:18-CV-00029-FL
Rupert Futreal, individually and as
Administrator of the Estate of Elna
Futreal,
Plaintiff,
Order
v.
Dustin Ringle, et al.,
Defendants.
Plaintiff Rupert Futreal seeks an order compelling Enterprise Southeast, LLC
(“Enterprise”) 1 to provide responsive documents to several requests for production. Enterprise
either objects to production (on various grounds) or has suggested to the court that the responsive
documents do not exist. After reviewing the docket and the arguments of the parties, the court will
grant Futreal’s Motion to Compel Discovery in part and deny it in part.
I.

Background
Shortly before 9:00 p.m. on an evening in mid-July 2017, a rented truck driven by

Defendant Dustin Ringle hit the car in which Plaintiff Rupert Futreal and his late wife, Elna, were
riding. Am. Compl. ¶¶ 24, 33. Ringle fled the scene of the accident but law enforcement officers
later apprehended him and determined that he had been driving while intoxicated. Id. ¶¶ 34, 35,
36–41. The Futreals allegedly “suffered severe and painful injuries” along with emotional distress
because of the accident. Id. ¶ 65.

1

At first Futreal’s motion involved EAN Holdings, LLC, and Enterprise Holdings, Inc., but the district court dismissed
them from this action while this motion to compel was pending. D.E. 82. Thus this order will only apply to the
discovery disputes involving Enterprise Southeast, LLC.

The accident involving the Futreals was not the first time that Ringle had issues with
drinking and driving. Because of his many alcohol-related convictions, the State of Kansas
designated him as a habitual violator in 2011. Id.¶ 117–18. In June 2016, the Kansas Department
of Motor Vehicles put an ignition interlock restriction on Ringle’s authorization to drive, resulting
in a prominent notation that read, “IGNITION INTERLOCK” on his driver’s license. Id. ¶ 43–44.
Although unclear from the Amended Complaint, it appears that the ignition interlock restriction
required Ringle to install an ignition interlock device in any vehicle he owned or operated. Id. ¶
44; See Kan. Stat. Ann. §§ 8–1014 & 8–1015 (West). An ignition interlock device “uses a breath
analysis mechanism to prevent a person from operating a motor vehicle if such person has
consumed an alcoholic beverage.” Id. §8–1013(d). The restriction remained was in effect when
Ringle crashed into the Futreals’ car, but the truck he was driving lacked an ignition interlock
device. Id. ¶ 47, 61.
Among the important issues in this case is how Ringle came to drive the truck without an
ignition interlock device.
It appears that Ringle’s employer, True’s Custom Flooring Covering, Inc., rented the car
from Enterprise. Id. ¶ 28. And although Ringle did not rent the truck directly from Enterprise, he
was listed as an “additional authorized driver” on the rental agreement. Id. ¶ 29.
Futreal alleges that Enterprise had policies and procedures in place that prohibited drivers
with ignition interlock restrictions from renting or operating its vehicles. Id. ¶ 45. Futreal claims
that Enterprise negligently failed to follow its policy about drivers with ignition interlock
restrictions when it listed Ringle as an authorized driver and that this negligence was the proximate
cause of the accident. Id. ¶¶ 153–60.

2

After Futreal filed his lawsuit against Enterprise and others, the parties engaged in
discovery. Futreal served his First Set of Requests for Production on Enterprise in April 2018, 2
and he received timely responses in early June 2018. Enterprise objected to each of Futreal’s
requests and produced no documents or a privilege log.
Over the next two months, the parties engaged in discussions over the appropriateness of
Enterprise’s responses. During this time, Enterprise served batches of responsive documents on
Futreal, and by the end of July 2018 it stated that it had no additional responsive documents other
than a statement it claimed was immune from disclosure under the work-product doctrine. Tr. at
24:25–25:4, D.E. 53; Def’s Resp. to Mot. to Compel Ex. B at 5, D.E. 80–2. Futreal believed that
Enterprise should have produced additional documents and, after giving the company another
week to produce documents, asked the court to compel additional production of documents. 3
II.

Discussion
The Federal Rules allow parties to “obtain discovery regarding any nonprivileged matter

that is relevant to any party’s claim or defense and proportional to the needs of the case[.]” Fed.
R. Civ. P. 26(b)(1). Parties may use any number of tools provided for in the Federal Rules to obtain
discoverable information, including requests for production of documents. See Fed. R. Civ. P. 34.
If the party that served requests for production believes that the responses it receives are
inadequate, it “may move for an order compelling . . . production.” Id. at 37(a)(3)(B). The party
opposing the motion bears the burden of showing why it should not be granted. Mainstreet
Collection, Inc. v. Kirkland’s, Inc., 270 F.R.D. 238, 241 (E.D.N.C. 2010) (citing cases).

2

Futreal served his discovery requests in March 2018, but under Rule 26(d)(2) the requests were not considered served
until the parties held their Rule 26(f) conference in April 2018. Mot. to Compel. at 1, D.E. 78.
3
Since the filing of the Motion to Compel the parties have resolved several the disputed issues. This order addresses
the issues that the parties have suggested remain outstanding.

3

a. Good Faith Effort to Resolve Disputes
The court will begin by considering whether Futreal engaged in a good faith effort to
resolve the discovery disputes before moving to compel. Enterprise claims that he did not mainly
because Futreal’s counsel repeatedly refused to narrow disputed Requests. Def.’s Resp. to Mot. to
Compel at 4–6, D.E. 80. Futreal counters by arguing that he has repeatedly tried to discuss
outstanding issues with Enterprise’s counsel as the Rules require. Tr. at 12–9–21. After reviewing
the parties’ pre-filing activities, the court finds that Futreal engaged in a good-faith effort to resolve
the discovery disputes before filing his motion.
The Federal Rules require that before moving to compel production, a party must confer
(or attempt to confer) in good faith with the opposing party to resolve their dispute without court
intervention. Fed. R. Civ. P. 37(a)(1). The moving party must certify in its motion to compel that
it has satisfied this requirement. Id. & Local Civ. R. 7.1(c)(2).
Although Futreal’s motion contains the required certification, Pl.’s Mot. to Compel at 6–
7, D.E. 78, Enterprise claims that he did not make a good-faith effort to resolve the disputes
between the parties before filing his motion. Rule 37(a)(1) requires that parties confer before the
requesting party moves to compel. Some courts prefer that this conference take place either in
person or telephonically and that parties request a discovery conference with the court before filing
any motions to compel. Merz N. Am., Inc. v. Cytophil, Inc., Case Nos. No. 5:15-CV-262-H-KS &
5:16-CV-745-H-KS, 2017 WL 4274856, at *2 (E.D.N.C. Sept. 26, 2017). Parties should
“converse, confer, compare views, consult and deliberate, or in good faith attempt to do so.” Id.
(quoting Pro Fit Mgmt., Inc. v. Lady of Am. Franchise Corp., 2011 WL 5825423, at *1 (D. Kan.
Nov. 17, 2011)). If necessary, a requesting party should make “manifestly reasonable”
accommodations with opposing counsel when trying to arrange a time to meet with opposing

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counsel about discovery disputes. Velasquez-Monterrosa v. Mi Casita Rests., No. 5:14–CV–448–
BO, 2015 WL 1964400, at *4 (E.D.N.C. May 1, 2015). Essentially, the court will deny a movant’s
motion to compel if “the filing of the motion deprived the parties of a meaningful opportunity to
resolve their dispute without court intervention.” Id.
First, Futreal’s and Enterprise’s counsel met and conferred by telephone in June 2018. Mot.
to Compel at 3. Then the parties tried to resolve their discovery disputes through a telephonic
discovery conference with the court later that month. Id. at 5. After Enterprise produced more
requested documents over the months of June and July, Enterprise’s counsel and Futreal’s counsel
discussed perceived deficiencies in the production by email. Id. at 7. The repeated discussions and
attempts to facilitate discussions over a period of several months gave the parties a meaningful
opportunity to resolve their disputes before Futreal’s counsel moved to compel. Thus, Futreal’s
counsel has met the requirement to confer in good faith before moving to compel discovery.
b. Requests for Production 1 and 3
Request for Production 1 asks Enterprise to produce any statements from persons with
knowledge of the events described in the Complaint, and Request for Production 3 asks for
documents that relate to any investigation that has it conducted into those events. Mem. in Supp.
Ex. A. at 10. Futreal contends that Enterprise must produce an investigatory interview with Glen
Jacobson (the Enterprise employee who authorized Ringle to drive the car that hit the Futreals) in
response to these requests. Enterprise claims that it does not have to produce the interview because
it was prepared in anticipation of litigation and thus is immune from discovery under the workproduct doctrine. Def’s Resp., Ex. A, The company also claims it has preserved this objection by
raising it in its General Objections to Requests for Production, tr. at 20–10–21–1, or, alternatively,
by alerting Futreal’s counsel to the existence of the withheld interview and the privilege claimed

5

during various discussions about their discovery disputes, tr. at 26:4–10. But Futreal counters that
Enterprise has waived the protections of the work-product doctrine by not asserting it in response
to specific requests for production and by not producing a privilege log until after Futreal filed his
motion.
The Federal Rules of Civil Procedure place two requirements on a party that wishes to rely
on the work-product doctrine to withhold otherwise discoverable documents. First, they must
“expressly make the claim[.]” Fed. R. Civ. P. 26(b)(5)(A)(i). And then they must “describe the
nature of the documents . . . not produced or disclosed—and do so in a manner that, without
revealing information itself privileged or protected, will enable other parties to assess the claim.”
Id. 26(b)(5)(A)(ii). The court will address Enterprise’s compliance with each of these provisions
separately.
i. Use of General Objections to Invoke the Work-Product Doctrine
A review of Enterprise’s discovery responses shows that it did not explicitly raise the workproduct doctrine in response to Requests for Production 1 and 3. Instead, Enterprise contends that
the General Objections that it included at the beginning of its responses satisfy this requirement
and preserve its work-product objection. Def.’s Resp. at 9–10. One of the General Objections
explains that Enterprise objects to each request “to the extent that it calls for information protected
by … attorney-client privilege, the work product doctrine, community of interest privilege, joint
defense privilege and any other available and valid grounds for withholding information from
disclosure.” Mem. in Supp. Ex. A at 1. Enterprise claims that this General Objection is
incorporated into each of its responses without an explanation about how or why it applies to
Futreal’s various Requests for Production. Enterprise’s General Objections do not state whether it
withheld any documents because of these objections.

6

The use of general objections finds scant support in the Federal Rules, which envision
individualized, specific objections to requests for production of documents that inform the
requesting party whether any documents have been withheld because of the objection. To begin
with, no provision authorizes parties to use blanket general objections at the outset of their
responses. Instead, when setting out how a party is to respond to requests for production, the Rule
34 explains that a party must provide a response “[f]or each item or category[.]” Fed. R. Civ. P.
34(b)(2)(B). When a party chooses to object to a request, the response must state the “grounds for
objecting to the request[.]” Id. The Rules also require that a party must “must state whether any
responsive materials are being withheld on the basis of” an objection. Id. 34(b)(2)(C). This
procedure apprises the requesting party of the universe of responsive documents the producing
party has and any objections to production.
And the argument against general objections is even stronger in the context of privilege
objections. As noted above, a party must “expressly make the claim” that they are withholding
documents based on a privilege or the work-product doctrine. Black’s Law Dictionary explains
that to do something expressly, it must be “[c]learly and unmistakably communicated; stated with
directness and clarity.” Express, Black’s Law Dictionary (10th ed. 2014).
Given the language in the Federal Rules, it is unsurprising that federal courts often reject
general objections to requests for discovery. See FDIC v. Arrillaga-Torrens, 212 F. Supp. 3d 312,
368 (D.P.R. 2016) (holding that ‘[g]eneral objections do not suffice” to claim privilege under Rule
26(b)(5)); Jones v. Bank of Am., N.A., No. 3:14–cv–11531, 2015 WL 1808916, at *4 (S.D.W. Va.
Apr. 21, 2015) (finding that privilege objections asserted in general objections were inappropriate);
D.L. v. D.C., 251 F.R.D. 38, 45 (D.D.C. 2008) (citing U.S. ex rel. Pogue v. Diabetes Treatment

7

Ctrs of Am., Inc., 235 F.R.D. 521, 523 (D.D.C. 2006)) (finding that “blanket objections on the
basis of privilege shall be rejected” when raised in general objections)
Enterprise relies on Fischer v. Forrest, Nos. 14 Civ. 1304 & 14 Civ. 1307, 2017 WL
773694, at *3 (S.D.N.Y. Feb. 28, 2017), to support its general objections. It claims that Fischer
holds that “privilege objections are a proper basis for a general objection after the 2015 Federal
Rule amendments.” Def.’s Resp. at 7. But that is not what the court held in Fischer. The question
before the court in Fischer was whether the responding party’s use of 17 general objections
complied with Rule 34. Id. at *2. The court began by noting that the use of general objections
violates various provisions of the Federal Rules. Id. And then the court noted “[g]eneral objections
should rarely be used … unless each such objection applies to each document request (e.g.,
objecting to produce privileged material).” Id. It is this language that Enterprise relies on to support
its actions.
The relevant language in Fischer does not approve of the use of general objections in every
instance, or even in every instance when a party believes privileged materials are at issue. Instead,
the court in Fischer contended that general objections are appropriate if the objection applies to
every response to every document request. Even if this court were to accept that position,
Enterprise’s general privilege objection would still be improper here because Enterprise conceded
that its general privilege objection does not apply to each of Futreal’s requests. Tr. at 21–23–22–
6. Thus, Fischer does not support Enterprise’s use of general objections to raise a work-product
objection.
Enterprise also raises two other arguments in support of its approach to raising privilege
objections in its General Objections.

8

Enterprise first claims that its approach was appropriate because Futreal’s requests sought
documents that did not yet exist, such as expert reports, and that it was trying to protect any
privilege that might apply to documents that are created or discovered in the future. The initial
problem with this argument is that if it can identify specific requests that may have called for the
production of privileged documents in the future, as it did in its responsive brief, there was no need
to use a general objection instead of an objection within the request itself.
Moreover, Enterprise’s position on this point ignores the language of Rule 26(b)(5)(A),
which explains that the appropriate time to raise a privilege issue is “[w]hen a party withholds
information otherwise discoverable” based on a privilege or the work-product doctrine. The
Advisory Committee Notes also explain that “[a] party must notify other parties if it is withholding
materials” because of a privilege or work-product doctrine. Fed. R. Civ. P. 26 (1993 Advisory
Committee Notes). The language of Rule 26 and the Advisory Committee Notes require that
parties raise privilege or work-product objections when they withhold documents and do not
provide for the preemptive assertion of privilege objections.
Enterprise’s other argument is that the use of general objections was appropriate because
it believed that Futreal’s discovery requests went beyond the appropriate scope of discovery and
that it could not raise specific objections until the parties resolved the question about the proper
scope of discovery. But, again, Rule 34 and the Advisory Committee Notes do not support
Enterprise’s approach. The Federal Rules provide that if a request for production of documents is
only objectionable in part, the responding party “must specify the part and permit inspection of the
rest.” Fed. R. Civ. P. 34(b)(2)(C). The Advisory Committee Notes provide an example that could
have come directly from this dispute: “An objection may state that a request is overbroad, but if
the objection recognizes that some part of the request is appropriate the objection should state the

9

scope that is not overbroad.” Id. (2015 Advisory Committee Notes). The appropriate approach in
such a situation is to include “a statement that the responding party will limit the search to
documents or electronically stored information created within a given period of time prior to the
events in suit, or to specified sources.” Id. Thus Enterprise should have specified in the response
what it believed, in good faith, was the appropriate scope of discovery and responded accordingly.
Enterprise’s discovery responses show the confusion that can result from using general
objections to assert privilege instead of expressly claiming privilege in response to specific
discovery requests. As noted above, Enterprise’s general objections state that it is objecting to
producing information that is “protected by any privilege or protection, including without
limitation the attorney-client privilege, the work product doctrine, community of interest privilege,
joint defense privilege and any other available and valid grounds for withholding information from
disclosure.” Mot. to Compel Ex. A, at 1. Enterprise then incorporates this General Objection into
each of its discovery responses without specifying which privilege, if any, applies. Enterprise also
states in each of its responses that it “will produce the following non-privileged documents
responsive to this Request” without statnig whether any documents are being withheld based on a
privilege. Thus, an individual reviewing Enterprise’s discovery responses would not know from
the responses themselves whether Enterprise had withheld any otherwise responsive documents
and whether documents were withheld on one (or more) of the four privileges specifically
identified in the General Objection or some other unspecified privilege.
Enterprise’s failure to state explicitly when it is relying on a privilege to withhold otherwise
responsive documents could result in Futreal being misled into believing that no documents were
being withheld on privilege grounds. For example, in response to Requests 1 and 3, after its general
objections and the prefatory language to its response, Enterprise indicates that it is producing

10

“[s]tatements taken from any person with knowledge of the incident described in the Complaint
relating to the incident described in the Complaint.” Given Enterprise’s responses (and its apparent
failure to describe the document it was withholding), there would be no reason for a reasonable
person reviewing the responses to believe that Enterprise had withheld Jacobson’s statement based
on the work-product doctrine. Although Futreal’s counsel pressed Enterprise on the issue, a less
skeptical attorney may have simply moved on without finding out whether any documents had
been kept from them.
The Federal Rules are designed to remove this kind of guessing game from the discovery
process. Parties should not need to bring the court into the middle of the discovery process (or
even threaten to do so) to find out if otherwise responsive documents have been withheld because
of a privilege or work-product doctrine. Instead, attorneys should unambiguously state when they
have withheld documents responsive to discovery requests based on a privilege or the workproduct doctrine. Enterprise’s responses failed to meet this standard and did not comply with the
Federal Rules.
ii. Delayed Notification of the Nature of the Withheld Documents
Futreal next challenges Enterprise’s failure to produce a privilege log when it served its
discovery responses. Enterprise claims that this issue is moot because it eventually served a
privilege log (containing a single entry) after Futreal moved to compel. The Federal Rules require
that a party withholding documents describe the nature of the withheld documents when they are
withheld, so the belated production of a privilege log did not moot this issue. The court again finds
that Enterprise failed to show that it complied with the Federal Rules’ requirements for
withholding documents on privilege grounds or the work-product doctrine.

11

As noted above, to properly invoke the work-product doctrine, parties need to “expressly
make the claim” that documents are immune from discovery and need to “describe the nature of
the documents, communications, or tangible things” they are withholding. Fed. R. Civ. P.
26(b)(5)(A). Parties generally satisfy the second requirement by producing a privilege log. Am.
Soc’y For Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus, 233
F.R.D. 209, 212 (D.D.C. 2006) (“Compliance with [Rule 26(b)(5)] is commonly achieved by
providing the requesting party with a privilege log.”); Mezu v. Morgan State Univ., 269 F.R.D.
567, 577 (D. Md. 2010). But the Federal Rules do not require the production of a formal privilege
log. All they require is that the withholding party “provide sufficient information to enable the
other parties to evaluate the applicability other claimed privilege or protection.” Fed. R. Civ. P.
26(b)(5) (1993 Advisory Committee Note). The nature of the information that the responding party
must provide will depend on the nature of the privilege or protection that the responding party
believes justifies withholding otherwise responsive documents. Id. Similarly, acceptable methods
to convey the required information could vary depending on the circumstances of the case. Id.
The Federal Rules provide guidance about when a party must describe the documents it is
withholding. Rule 26 requires that the party give notice when they withhold responsive documents.
See Fed. R. Civ. P. 26(b)(5)(A); Fed. R. Civ. P. 26(b)(5)(A) (1993 Advisory Committee Notes)
(“To withhold materials without such notice is contrary to the rule[.]”).
Often this may require the responding party to give notice when a party serves its responses.
But because the rules envision circumstances where parties make a production on an ongoing basis,
it may be proper to produce a privilege log after the initial response or to supplement a privilege
log after it has been served. Fed. R. Civ. P. 34 (2015 Advisory Committee Notes) (“The production
must be completed either by the time for inspection specified in the request or by another

12

reasonable time specifically identified in the response. When it is necessary to make the production
in stages the response should specify the beginning and end dates of the production.”).
In any case, the key event triggering the need to produce a privilege log is the decision to
withhold otherwise responsive documents. If the initial deadline for production has passed and
there is not a court order or agreement between the parties, the responding party should produce
or supplement its privilege log promptly after the responding party has made the decision to
withhold documents based on a privilege or the work-product doctrine.
Enterprise cannot justify the delay in producing the privilege log by complaining that
Futreal’s requests were overbroad. The Advisory Committee Notes explain that “[t]he obligation
to provide pertinent information concerning withheld privileged materials applies only to items
‘otherwise discoverable.’” Fed. R. Civ. P. 26 (1993 Advisory Committee Notes). So if “the
responding party believes in good faith that” a request is overbroad, “it should make its objection
to the breadth of the request[.]” Id. The responding party should then, in accordance with its view
of the proper scope of discovery, “produce the unprivileged documents and describe those
withheld under the claim of privilege.” Id. The court can then resolve the dispute over the scope
of discovery and any additional responsive documents “should then be either produced (if not
privileged) or described (if claimed to be privileged).” Id.
Thus, if Enterprise believed in good faith that some of Futreal’s discovery requests were
overbroad or otherwise outside the scope of permissible discovery, it should have raised its
concerns specifically within the objection. Then it should have assessed whether, given its goodfaith belief about the appropriate scope of discovery, it needed to raise a privilege or work-product
objection to prevent disclosure of otherwise responsive documents.

13

The materials before the court establish that Enterprise did not provide the required
information promptly. The parties’ submissions show that Enterprise provided no information
about the document it withheld when it served its discovery responses in early June 2018.
Enterprise claims that during the parties’ meet and confer conference in mid-June 2018 it
“identified the statement” being withheld as work product but provides no more information to the
court about exactly what it told Futreal. Tr. at 24:25–25:3. Thus, the court lacks sufficient
information to assess whether this conversation satisfied its obligations under the Rules. Not until
early-August 2018, on the day after Futreal moved to Compel, did Enterprise serve a privilege log
containing sufficient information to satisfy the Federal Rules.
The Jacobson statement was responsive to Futreal’s discovery request and within the scope
of permissible discovery. Enterprise’s initial disclosures show that it was aware of the existence
of this document or reasonably should have been. Because of these circumstances, Enterprise
should have provided the information required by Rule 26(b)(5)(A)(ii) when it served its responses
to Futreal’s requests. The court thus finds that Enterprise did not provide the required information
about the Jacobson statement in a timely manner.
iii. Waiver of Work-Product Protection
Having found that Enterprise did not comply with the Federal Rules when it tried to
withhold Jacobson’s statement from Futreal, the court must decide what to do about it. Futreal
encourages the court to find that Enterprise has waived the work-product doctrine and require
production of the statement. Enterprise disagrees and claims that any violations cannot justify
waiving the work-product doctrine.
The Advisory Committee notes explain that if a party fails to properly provide notice that
it is withholding documents because of a privilege or the work-product doctrine, its actions “may

14

be viewed as a waiver of the privilege or protection.” Fed. R. Civ. P. 26(b)(5) (1993 Advisory
Committee Notes).
Courts apply several different standards to determine whether a party has waived a
privilege or the work-product doctrine. Sometimes the failure to object properly or produce a
privilege log justifies a waiver with no further consideration. Westchester Surplus Lines Ins. Co.
v. Clancy & Theys Const. Co., No. 5:12-CV-636-BO, 2013 WL 6058203, at *5 (E.D.N.C. Nov.
15, 2013); Progressive Se. Ins. Co. v. Arbormax Tree Serv., LLC, No. 5:16-CV-662-BR, 2018 WL
4431320, at *7 (E.D.N.C. Sept. 17, 2018). Other times, courts will consider whether there has been
“unjustified delay, inexcusable conduct[,] or bad faith in responding to discovery.” Herbalife Int’l,
Inc. v. St. Paul Fire & Marine Ins. Co., No. CIV.A. 5:05CV41, 2006 WL 2715164, at *4 (N.D.W.
Va. Sept. 22, 2006). And yet other courts will decide “on a case-by-case basis after consideration
of all the circumstances.” Smith v. James C. Hormel Sch. of Virginia Inst. of Autism, No.
3:08CV00030, 2010 WL 3702528, at *4–7 (W.D. Va. Sept. 14, 2010).
In assessing whether Enterprise’s actions justify waiving the work-product doctrine, the
court will consider the totality of the circumstances to determine whether Enterprise’s actions
frustrated the purposes of the rules related to asserting privilege: informing the requesting party
that documents have been withheld and providing the requesting party with sufficient information
to assess the validity of the reason documents are being withheld. Fed. R. Civ. P. 26(b)(5) (1993
Advisory Committee Notes).
Enterprise’s conduct frustrated both of the goals behind the Federal Rules governing the
assertion of privilege. By asserting a general objection instead of explicitly raising the workproduct objection in response to Futreal’s requests, it obscured whether it was withholding any
otherwise responsive documents. And by failing to provide sufficient information to Futreal to

15

evaluate its assertion of the work-product doctrine, Enterprise inhibited Futreal’s ability to assess
the validity of the objection. Because the single document at issue was undoubtedly responsive to
Futreal’s request, there was no justification for Enterprise’s actions. Waiver of the work-product
doctrine could be appropriate here.
Still, waiver of the work-product doctrine is a serious sanction that should be reserved for
particularly egregious conduct. Although Enterprise frustrated Futreal’s ability to assess whether
the work-product doctrine applied to Jacobson’s statement, it no doubt does. And the information
in the statement was readily available from Jacobson in his deposition. Given the circumstances,
the court believes that an award of attorney’s fees is a more appropriate sanction than the waiver
of the work-product doctrine. Thus, the court will order that Enterprise pay the reasonable fees and
expenses Futreal incurred as part of this motion.
c. Requests for Production 36, 37, 40, 45, and 55
The parties’ dispute surrounding Requests for Production 36, 37, 40, 45, and 55 arises from
the same issue: Enterprise has not explained whether it is withholding any documents that are
responsive to these requests based on their objections. Request for Production 36 asks Enterprise
to produce “all policies, protocols, requirements, and procedures applicable to the rental of any
vehicle by a member of the public from 2012 to present.” Mem. in Supp. Ex. A at 22–23. Request
for Production 37 asks for policies and procedures “applicable to any request to be authorized as
an additional driver.” Id. at 23. Request 40 asks for relevant employee training records, and Futreal
contends that Glen Jacobson’s training record would be responsive to this Request. Id. at 25.
Request 45 asks for records of any prior rentals to Ringle. Id. at 27. Request 55 asks for “studies,
evaluations, or discussions” about rentals to customers with a history of impaired driving. Id. at
30–31.

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Enterprise raised several objections to the scope of these requests, but did not reveal
whether it was withholding any documents because of its objections. But in response to Futreal’s
motion, Enterprise asserted that it had produced all responsive, non-privileged documents. Def.’s
Resp. at 10.
Rule 34 requires that when a party objects to a rule, it “must state whether any responsive
materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C).
Enterprise’s responses do not comply with this requirement, but its representations to the court
indicate that it is not withholding any more responsive documents to these Requests. See Def.’s
Resp. at 10; Def’s Resp. Ex. A at 3. Given that there are no additional documents to produce, the
court will order Enterprise to supplement its responses to comply with Rule 34(b)(2)(C).
d. Requests for Production 56 and 57
Request for Production 56 asks Enterprise to produce pleadings from any lawsuits
involving rentals to people with ignition interlock restrictions on their licenses, and Request 57
asks for pleadings from lawsuits involving renting vehicles to people who were later involved in
an accident while impaired. Mem. in Supp. Ex. A at 31–32. Futreal wants all such pleadings from
the last 18 years. Enterprise argues that these Requests are overbroad, irrelevant, unduly
burdensome, and that most of these documents would be equally accessible to Futreal as they are
to the defendants, as pleadings in federal lawsuits and many state lawsuits are public records. Mot.
to Compel Ex. A at 31–32; Def.’s Resp. at 10. Futreal responds that these lawsuits are relevant
because prior similar lawsuits against the same defendant would tend to show a pattern of behavior
that would be relevant to his negligence, negligent entrustment, and punitive damages claims.
Mem. in Supp. at 10.

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In personal injury cases in particular, discovery related to other lawsuits involving the same
party is relevant to issues such as “notice, knowledge, foreseeability, standard of care, and
damages.” Deitz v. Pilot Travel Ctrs., LLC, No. 3:14-CV-31091, 2015 WL 5031229, at *2 (S.D.W.
Va. Aug. 25, 2015) (citing cases). Courts have recognized that requests for defendants’ prior,
similar litigation will always have some measure of relevance; but the “critical factor is whether
the information, considering its relevancy and the nature of the case, outweighs the
burdensomeness of the request.” Marker v. Union Fid. Life Ins. Co., 125 F.R.D. 121, 124
(M.D.N.C. 1989); see also, Travelers Indem. Co. of Conn. v. Coll. 60 Minute Cleaners, Inc., 2016
WL 10520837, at *3–4 (S.D. Ind. Mar. 29, 2016) (distinguishing the facts in Marker and finding
that the facts merited compelling production of prior lawsuits). Courts may also limit the scope of
the prior litigation that the objecting party needs to produce if the request is too broad because it
seeks some lawsuits that are irrelevant or the time for the suits sought is too long. See Dietz, 2015
WL 5031229, at *2.
Enterprise claims that the requests are unduly burdensome because answering them would
require the company to search the dockets of courts in all 50 states and all 94 federal district courts.
See Mem. in Supp. Ex. A at 31–32. But this response ignores the fact that the federal rules require
parties only to produce documents within their “possession, custody, or control[.]” Fed. R. Civ. P.
34. And it also ignores a much more readily accessible source of responsive documents:
Enterprise’s own records. It is reasonable to presume that Enterprise tracks when, how, and why
it is sued and that it could search those records to determine whether it possesses responsive
documents.
At the hearing on this matter, Enterprise claimed that it would be difficult to search its
records for responsive documents because of how it keeps its records of prior lawsuits. But “the

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burden that results from disorganized record-keeping does not excuse a party from producing
relevant documents.” Brooks v. Macy’s Inc., 10-CV-5304 (BSJ/HBP), 2011 WL 1793345, at *4
(S.D.N.Y. 2011). In any event, Enterprise has not made the necessary showing to support its claim.
A party claiming that a discovery request is unduly burdensome must present an affidavit or other
evidence that specifically describes the process of obtaining the responsive documents or
information and the time and expense involved in responding to the request. Cratty v. City of
Wyandotte, 296 F. Supp. 3d 854, 859 (E.D. Mich. 2017); Shaw v. Experian Info. Sols., Inc., 306
F.R.D. 293, 301–02 (S.D. Cal. 2015); L–3 Commc’ns Corp. v. Sparton Corp., 313 F.R.D. 661,
670 (M.D. Fla. 2015); In re Heparin Prod. Liab. Litig., 273 F.R.D. 399, 410–11 (N.D. Ohio 2011);
Convertino v. U.S. Dep’t of Justice, 565 F. Supp. 2d 10, 14 (D.D.C. 2008). Enterprise has not
presented these types of materials in support of its claim of undue burden.
If, after reviewing the revised scope of the request for production established by the court,
Enterprise still believes that responding is unduly burdensome or not-proportional to the needs of
the case, it will submit an affidavit or other evidence to the court that satisfies its burden on this
point. Enterprise may also submit a supporting brief of no more than five pages in support of its
position. These materials must be filed no later than seven days after the entry of this order. Futreal
may file a responsive brief (of the same length) and supporting materials if he wishes to do so
within seven days from the date Enterprise files its materials. The court will then promptly decide
whether any additional production is required under Rule 26.
e. Requests for Production 59
Request 59 asks for documents “relating to the danger of impaired driving as it relates to
rental vehicles and rental vehicle drivers.” Id. at 32–33. Enterprise objects to this Request,
contending it is vague, overbroad, and that responding to the request is not proportional to the

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needs of the case. Mot. to Compel at 30–31, 32–33. Futreal responds that these Requests are
appropriate and relevant because such documents might support his allegation in the Complaint
that Enterprise failed to follow its own policies for authorizing drivers. Mem. in Sup. at 8–9.
The court finds that Enterprise has shown why the court should not compel it to respond to
Request for Production 59. Enterprise has stated its objections to this Request with specificity and
has explained why responding would not be proportional to the needs of this case. Mot. to Compel.
Ex. A at 32–33. Thus, Futreal’s motion to compel discovery for Request for Production 59 is
denied. 4
f. Requests for Production 61 and 62
Request for Production 61 asks for “copies of [Enterprise’s] profit and loss statements from
2012 to the present,” and Request 62 asks for “copies of [Enterprise’s] corporate tax returns from
2012 to the present.” Mem. in Supp. Ex. A at 33–34. Futreal admits that these documents are
relevant only if his punitive damages claim survives summary judgment. Thus, the court orders
that if Futreal’s punitive damages claim survives summary judgment, Enterprise must provide the
requested documents within 14 days after the court’s ruling.
III.

Conclusion
For all these reasons, the court grants in part and denies in part Futreal’s Motion to Compel.

D.E. 78. Unless otherwise specified above, Enterprise will supplement its discovery responses
within 14 days of entry of this order. Except as outlined above, Futreal’s motion to compel is
denied. The parties shall submit any supplemental filings related to the burden of producing
pleadings from suits filed against Enterprise on the timeline outlined above.

4

The court notes that Futreal can gather much of the information that Request for Production 59 seeks in a Rule
30(b)(6) deposition of Enterprise. Futreal’s counsel has suggested to the court that the parties are arranging this
deposition. Tr. 45:7–15.

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Within 14 days after entry of this order, the parties will meet and confer in an attempt to
agree upon the expenses and attorneys’ fees that Futreal should recover for his counsels’ work on
this motion. If the parties cannot agree, Futreal will file an accounting of its attorneys’ fees and
costs incurred in pursuing the motion to compel no later than 21 days after entry of this order.
Futreal may also submit a supporting memorandum of no more than 10 pages with its request.
Enterprise may file a response of no more than 10 pages within 14 days after Futreal files his
memorandum.
Dated: January 7, 2019
______________________________________
Robert T. Numbers, II
United States Magistrate Judge

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