Laws, Jr. et al v. Stevens Transport, Inc. et al
Filing
54
OPINION AND ORDER denying 46 Motion to Strike & granting 47 Motion to Compel. Signed by Magistrate Judge Terence P Kemp on 3/8/2013. (kk2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Benjamin Laws, Jr., et al.,
:
Plaintiffs,
:
v.
:
:
Stevens Transport, Inc.,
et al.,
Case No. 2:12-cv-544
JUDGE GREGORY L. FROST
Magistrate Judge Kemp
Defendants.
:
OPINION AND ORDER
This is a personal injury case arising out of a motor
vehicle accident which occurred on June 4, 2010.
According to
the parties, the accident occurred in Lima, Ohio when plaintiff
Benjamin Laws’ rental car and a truck owned by defendant Stevens
Transport and driven by defendant Charles G. Dunn, III collided.
Pursuant to this Court’s direction following a telephonic
discovery conference held on February 7, 2013, defendants Stevens
Transport, Inc., Stevens Transport CD, Inc., Stevens Transport T
L, Inc., and Charles G. Dunn III (collectively “defendants”)
filed a “Motion Opposing Plaintiff Chandra Laws’ First Set of
Interrogatories to Defendant Stevens Transport, Inc. and Motion
to Strike Certain ‘Areas of Inquiry’ Set Forth in Plaintiffs’
30(b)(6) Deposition Notice.”
(Doc. #46).
Plaintiffs Benjamin
Laws, Jr. and Chandra Laws filed a “Motion to Compel Discovery
Regarding Preventable Accident Determination/Investigation and
Remedial Training/Discipline.”
(Doc. #47).
The motions are ripe
for consideration.
The first issue the parties address is whether Chandra Laws’
interrogatories should be stricken on the ground that they exceed
the maximum number allowable under Fed. R. Civ. P. 33(a).
The
second issue is whether Fed. R. Evid. 407 bars discovery
pertaining to Mr. Dunn’s post-accident remedial training and
discipline.
Finally, the Court will determine whether plaintiffs
should be denied discovery pertaining to post-accident
investigations and “preventability” determinations on the ground
that the information is protected by the attorney-client
privilege.
I. Plaintiff Chandra Laws’ First Set of Interrogatories
In January 2013, plaintiff Chandra Laws served the
following first set of interrogatories on defendant Stevens
Transport, Inc.:
INTERROGATORY
NO.
1:
Identify
each
person
who
participated in the determination or investigation of the
subject occurrence being a preventable accident as
described by Dunn in his deposition at pg. 53-56.
INTERROGATORY NO. 2: Identify each document created in
connection with the determination or investigation of the
subject occurrence being a preventable accident as
described by Dunn in his deposition at pg. 53-56.
INTERROGATORY NO. 3: Identify each person who was
involved in remedial training provided to Dunn as a
result of the subject occurrence as described by Dunn in
his deposition at pg. 41-49.
INTERROGATORY NO. 4: Identify each document created or
provided to Dunn in connection with the remedial training
provided to Dunn as a result of the subject occurrence as
described by Dunn in his deposition at pg. 41-49.
INTERROGATORY NO. 5: Identify each person within Stevens
Transport who met with Charles Dunn as a result of the
subject occurrence as described by Dunn in his deposition
at pg.40-49.
INTERROGATORY NO. 6: Identify each document created in
connection
with
meetings
between
Dunn
and
employees/representatives of Stevens Transport as
described by Dunn in his deposition at pg. 40-49.
(Doc. #46, Ex. 1).
Defendants argue that these interrogatories
should be stricken because they exceed the maximum allowable
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number of interrogatories under Fed. R. Civ. P. 33(a) when
combined with the interrogatories served by plaintiff Benjamin
Laws, Jr.
(Id. at 2-3).
In particular, defendants assert that
plaintiffs Chandra Laws and Benjamin Laws, Jr. “should be treated
as a single, unified entity” for discovery purposes, and
plaintiff Chandra Laws should not be entitled to serve a separate
set of interrogatories.
(Id. at 3).
Defendants claim that
plaintiffs should be treated this way because “Chandra Laws has
asserted merely a derivative loss of consortium claim.”
(Id. at
4).
Fed. R. Civ. P. 33(a)(1) provides, in pertinent part,
“[u]nless otherwise stipulated or ordered by the court, a party
may serve on any other party no more than 25 written
interrogatories, including discrete subparts.”
Although Fed. R.
Civ. P. 33(a)(1) allows 25 written interrogatories per party, as
opposed to per side, in some instances nominally separate parties
are considered one party for purposes of the 25-interrogatory
limitation.
See Vinton v. Adam Aircraft Indus., Inc., 232 F.R.D.
650, 664 (D. Colo. 2005) (quoting 8A Wright, Miller and Marcus,
Federal Practice and Procedure, Civil 2d §2168.1).
It is within this Court’s broad discretion to determine the
proper scope of discovery, including the number of
interrogatories any party may serve.
See Karl v. Bizar, No.
2:09-CV-34, 2009 WL 3418676, at *2 (S.D. Ohio Oct. 19, 2009).
Here, the Court finds that an application of the plain language
of Fed. R. Civ. P. 33(a)(1) is warranted.
The same result was
reached in Auther v. Oshkosh Corp., No. 09-CV-00527, 2010 WL
1404125, at *3-4 (W.D.N.Y. Mar. 30, 2010), a case in which a
plaintiff husband brought negligence and products liability
claims for injuries he sustained from an exploding tire on a
military vehicle, and his wife brought a claim for loss of
consortium based on the same incident.
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While acknowledging that
both the husband and wife brought claims arising from the same
incident, the court determined that they should be considered
separate parties for purposes of the 25-interrogatory limitation.
Id.
Hence, the parties were found to be more than nominally
separate parties for purposes of determining the appropriate
number of interrogatories.
Id.
Here, as in Auther, plaintiffs
Benjamin Laws, Jr. and Chandra Laws have asserted claims that are
sufficiently distinct so as to allow them to be considered
separate parties for purposes of the 25-interrogatory limitation.
Even were that not so, it does not appear that defendants will be
unduly burdened by having to answer these particular
interrogatories.
Consequently, the Court, in its discretion,
will deny defendants’ motion to strike the interrogatories of
Chandra Laws on the ground that they exceed the maximum allowable
number under Fed. R. Civ. P. 33(a).
II. Requests for Re-Training and Discipline Information
Defendants likewise seek to strike Chandra Laws’
interrogatory nos. 3-6 on the ground that they “improperly seek
discovery relating to Defendant Dunn’s post-accident remedial
training.”
(Doc. #46 at 5).
Defendants also contend that
“Plaintiffs’ 30(b)(6) deposition notice to Defendants’ corporate
representatives . . . improperly requests discovery regarding,
among other things, the post-accident training (including any retraining or remedial training) of Defendant Dunn.”
Id.
Defendants argue that post-accident personnel actions, such as
counseling and supplemental training, are subsequent remedial
measures under Fed. R. Evid. 407 and are inadmissible to prove
negligence or culpable conduct.
Id. at 5-6.
Consequently,
defendants argue that the information sought is not discoverable
on the grounds that it is irrelevant to the liability issues and
constitutes inadmissible evidence at trial.
In the motion to compel, plaintiffs argue that they are
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entitled to discovery relating to the remedial training and
discipline of Mr. Dunn after the accident.
(Doc. #47 at 1-2).
Plaintiffs state that defendants “employ the wrong standard” in
seeking to avoid the discovery by requesting “that the Court make
an evidentiary ruling without allowing [them] the opportunity to
develop what evidence would be through discovery.”
Id. at 4.
Further, the plaintiffs contend that the re-training and
discipline information sought is discoverable because it is
reasonably calculated to lead to the discovery of admissible
evidence under Fed. R. Civ. P. 26(b)(1).
Id.
The liberal discovery policies of the federal courts are
based upon a desire for full disclosure before trial.
See Vardon
Golf, Co., Inc. v. BBMG Golf Ltd., 156 F.R.D. 641, 650 (N.D. Ill.
1994).
Consequently, evidence which may be inadmissible at trial
may still be discoverable if the information appears to be
reasonably calculated to lead to the discovery of admissible
evidence.
See id.
Stated another way, “[t]he touchstone of the
relevancy of documents is not whether the discovery is evidence
that is, or even may be, admissible at trial, but rather whether
the discovery is ‘reasonably calculated to lead to the discovery
of admissible evidence.’” Sonnino v. University of Kansas Hosp.
Auth., 220 F.R.D. 633, 646 (D. Kan. 2004)(quoting Fed. R. Civ. P.
26(b)(1)).
Fed. R. Evid. 407 provides that when measures are taken that
would have made an earlier injury or harm less likely to occur,
evidence of those subsequent measures is not admissible to prove
negligence or culpable conduct.
Even if the re-training and
discipline of a driver involved in an accident are subsequent
remedial measures under Fed. R. Evid. 407, discovery of such
evidence may still be permitted because Fed. R. Evid. 407 does
not require the exclusion of evidence that is offered for another
purpose, “such as impeachment or – if disputed – proving
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ownership, control, or the feasibility of precautionary
measures.”
Fed. R. Evid. 407.
It is certainly possible that
plaintiffs will wish to use this evidence for one of these
purposes – but they will not know that until they take discovery
on the issue.
Because Fed. R. Evid. 407 governs the
admissibility of evidence and does not control pretrial
discovery, the objections to discovery based on this evidentiary
rule will be overruled.
See Bernat v. California City, No. 1:10-
cv-00305, 2010 WL 4008361, at *5 (E.D. Cal. Oct. 12, 2010)
(stating that “though the evidence discovered may not,
ultimately, be admitted at trial, this is no basis for refusing
to disclose it during discovery”).
III. Requests for Investigations and
“Preventability” Determinations
Next, defendants assert that plaintiffs should be denied
discovery pertaining to “post-accident actions, including
internal audits, safety review determinations and
‘preventability’ determinations” because that information is
protected by the attorney-client privilege.
(Doc. #46 at 10-15).
Defendants state that defense counsel:
was retained within hours of the June 4, 2010 accident to
undertake an investigation of this personal injury
accident in anticipation of possible litigation. Defense
counsel immediately undertook an investigation to assess
liability
and
damages.
Thereafter,
any
internal
investigation conducted by or on behalf of Stevens
Transport,
Inc.,
including
‘preventability’
determinations enabled defense counsel to give sound
legal advice.
It is precisely for this reason that
defense counsel was retained.
Id. at 11.
On this basis, defendants claim that the information
sought is protected by the attorney-client privilege.
Id.
In the motion to compel, plaintiffs argue that defendants’
claim of privilege is wholly without merit.
(Doc. #47 at 5).
Plaintiffs state that there is no claim that defense counsel was
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involved in “the determination/investigation of the subject
collision being a preventable accident. . . .”
Id.
Rather,
plaintiffs assert that the investigation and related
preventability determinations were undertaken in the normal
course of business in accordance with the Federal Motor Carrier
Safety Regulations.
Id. at 6.
Thus, according to plaintiffs,
“[t]hat [d]efendants had retained counsel with respect to the
subject collision is of no consequence, and provide [sic] no
protection.”
Id. at 6.
The burden of establishing the protection of the attorneyclient privilege rests with the person or entity asserting it.
See United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999).
Like all privileges, the attorney-client privilege is to be
construed narrowly because it operates in derogation of the
truth-seeking process.
710 (1974).
See United States v. Nixon, 418 U.S. 683,
In this case, the question is whether an internal
investigation of the accident, including a “preventability”
determination, which defense counsel claims “enabled” him “to
give sound legal advice” can be protected from disclosure based
upon the attorney-client privilege.
(Doc. #46 at 11).
A similar issue arose in Byrd v. Wal-Mart Transp., LLC, No.
CV609-014, 2009 WL 3055303, at *1 (S.D. Ga. Sept. 23, 2009),
which involved a fatal accident between a Wal-Mart tractortrailer and a minivan.
The court explained that “due to the
severity of the accident,” counsel became involved “immediately.”
Id.
A discovery dispute arose relating to plaintiffs’ request to
explore Wal-Mart’s post-accident investigation.
Id.
The court
described that Wal-Mart’s investigation of serious accidents
involved gathering documents and photographs, which were then
forwarded to Wal-Mart’s Serious Accident Review (“SAR”)
committee.
Id.
Upon review of the material, the committee then
issued an opinion finding that the accident was either
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“preventable” or “non-preventable.”
Id.
During Wal-Mart’s corporate deposition, plaintiffs’ counsel
asked whether Wal-Mart had ever attributed any fault to its
driver for the accident.
Id.
Wal-Mart’s counsel instructed the
deponent not to answer the question, which prompted plaintiffs to
file a motion to compel an answer to the fault-attribution
question. Id.
In denying plaintiffs’ motion to compel, the court
noted that plaintiffs’ counsel improperly sought protected work
product in the form of “a legal conclusion on one of the ultimate
issues of the case.”
Id. at *2.
Consequently, the court held
that “[a]ny subjective evaluation by Wal-Mart of its legal
responsibility for the accident (i.e., its failure to maintain
some legally mandated standard of conduct) necessarily steps into
the mental impressions of the merits of the case.”
Id. (emphasis
in original).
In reaching its decision, the court made clear that had
plaintiffs’ counsel instead sought unprotected facts uncovered
during the investigation or information about the precise
criteria used to determine whether the accident could have been
prevented, such information would have been discoverable.
*1-2.
Id. at
The court stated, “[w]hile Wal-Mart apparently concedes
that its SAR committee assessment was prepared in the ordinary
course of business and thus enjoys no special work product
protection, the Court is satisfied that plaintiffs’ line of
questioning as to fault impermissibly sought — through the
30(b)(6) deponent’s reasonably expected answers — protected
mental impressions prepared in anticipation of litigation.”
at *2.
Id.
Consistent with that finding, the court determined that
“[i]f the SAR committee applies a uniform methodology in making
preventability assessments, that information (the how and why of
its methodology) should be discoverable.”
Id. at *3.
Unlike the plaintiffs in Byrd, plaintiffs have not sought to
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obtain counsel’s mental impressions concerning defendants’ legal
responsibility for the accident.
Consistent with Byrd, however,
an investigation or preventability determination conducted by
defendants in the ordinary course of business is not subject to
such protection.
See id. at *2; see also Smith v. Marten
Transp., Ltd., No. 10-cv-293, 2010 WL 5313537, at *4 (D. Colo.
Dec. 17, 2010) (holding that original investigation report was
not privileged when produced in the ordinary course of business
to investigate multi-car accident involving one of defendant’s
trucks and drivers); Sajda v. Brewton, 265 F.R.D. 334, 340 (N.D.
Ind. 2009) (finding that company’s accident report and computer
template used to compile accident information were discoverable
when generated in the ordinary course of business and forwarding
the information to counsel did “not cloak it in attorney-client
privilege”); cf. Carlson v. Freightliner LLC, 226 F.R.D. 343, 366
(D. Neb. 2004)(stating that “risk management documents prepared
by investigators” are not protected from discovery as privileged,
unless they disclose “the individual case reserves for files and
any mental impressions, thoughts, and conclusions in evaluating a
legal claim”).
The record evidence in this case suggests that
the information at issue was gathered in the ordinary course of
business which, according Mr. Dunn, was then reviewed by “a
driver review board. . . .”
(Doc. #47, Ex. 2 at 5).
The fact
that defendants had retained counsel at the time that this
information was generated, or that they informed him of the
results of the process, does not alter this conclusion.
See,
e.g., Heavin v. Owens-Corning Fiberglass, No. 02-2572, 2004 WL
316072, at *3 (D. Kansas Feb. 3, 2004) (noting that the attorneyclient privilege applies to communications only and not to
facts).
Plaintiffs may not inquire as to what defendants
communicated to counsel, or what advice he gave in response, but
they are entitled to discover the facts which the investigation
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uncovered and any conclusion reached by defendants’ personnel.
The burden of establishing the protection of the attorneyclient privilege rests with defendants, and they have failed to
satisfy that burden.
Consequently, this Court will not deny
plaintiffs discovery pertaining to post-accident investigations
and “preventability” determinations.
IV. Order
For the reasons set forth above, the Court grants
plaintiffs’ “Motion to Compel Discovery Regarding Preventable
Accident Determination/Investigation and Remedial
Training/Discipline” (Doc. #47) and denies defendants’ “Motion
Opposing Plaintiff Chandra Laws’ First Set of Interrogatories to
Defendant Stevens Transport, Inc. and Motion to Strike Certain
‘Areas of Inquiry’ Set Forth in Plaintiffs’ 30(b)(6) Deposition
Notice” (Doc. #46).
V. Procedure for Reconsideration
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.
28 U.S.C. §636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.
The motion must specifically designate the order or
part in question and the basis for any objection.
Responses to
objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.
S.D. Ohio L.R. 72.4.
/s/ Terence P. Kemp
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United States Magistrate Judge
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