Angel v. Bilfinger Westcon, Inc.

Filing 42

ORDER granting in part and denying in part 39 Motion to Compel. Bilfinger Weston shall produce the 12/15/2017 email within 48 hours. Signed by Magistrate Judge Terence P. Kemp on 3/21/2017. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
David Angel,

:

Plaintiff,

:

v.

:

Bilfinger Westcon, Inc.,
Defendant.

:

Case No. 2:15-CV-2412
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

ORDER
This ADA case is before the Court for a ruling on Plaintiff
David Angel’s motion to compel production of documents (Doc. 39).
The motion challenges Defendant Bilfinger Westcon’s decision to
withhold certain documents from production based on the work
product doctrine.

Bilfinger Westcon has responded and also

produced the documents for an in camera review.

The Court has

been informed that Mr. Angel will not file a reply.

The parties

have requested expedited consideration of the motion.

For the

following reasons, the Court will grant the motion in part and
deny it in part.
The privilege log prepared by Bilfinger Westcon lists both
emails and their attachments, and the documents submitted to the
Court include both.

The Court begins with the assumption that

most, if not all, of the attachments to the withheld emails have
separately been produced.

Those documents do not appear to be

subject to any privilege or other basis for withholding them.
Consequently, the Court will focus just on the emails.
There is no need to write a treatise here on the law of work
product.

The parties’ positions are centered on the issue of

whether, when these emails were written, Bilfinger Westcon could
reasonably have anticipated facing litigation about the subjects

discussed in the emails.

In order for the work product doctrine

to apply, a party must not only be anticipating litigation, but
must do so reasonably.

See Jones v. St. Jude Medical S.C., Inc.,

2011 WL 829086, *6 (S.D. Ohio March 3, 2011)(“the party claiming
work product protection has the burden of showing both the
existence of a subjective fear of litigation and the objective
reasonableness of that fear, and the burden of coming forward
with some admissible evidence that, in fact, the anticipation of
litigation was the motivating factor behind the preparation of
the documents”).
Mr. Angel’s argument about why these emails, which are
primarily communications between Bilfinger Westcon and either its
workers’ compensation administrator or the doctor it consulted in
connection with Mr. Angel’s workers comp claim, is that Bilfinger
Westcon could not have reasonably anticipated litigation in
connection with the claim of ulnar nerve injury (which Mr. Angel
sought to add to his claim in late 2014) until it was allowed.
The allowance did not occur until May, 2015.

Consequently, it

asserts that all communications about the claim prior to that
date are not protected by the work product doctrine.
Mr. Angel cites to two decisions in support of his argument.
The first, Michigan First Credit Union v. Cumis Ins. Soc., Inc.,
2006 WL 1851018 (E.D. Mich. July 5, 2006), involved documents
created during the time that a workers’ compensation claim was
under investigation by the company.

The company did not finally

deny the claim until November, 2005; prior to that, because it
was simply investigating a claim that might have been resolved in
the employee’s favor, the court concluded that litigation was not
a real possibility until the investigation concluded.

The

second, Massi v. Walgreen Co., Case No. 3:05-cv-425(E.D. Tenn.
Oct. 25, 2006), involved communications between Walgreen’s and
its claims management company concerning a customer’s request for
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payment for medical services he incurred due to an allegedly
improperly-filled prescription.

Massi, citing Cumis, concluded

that the communications would have occurred regardless of whether
litigation was reasonably anticipated, and that they were made
for the ordinary business purpose of investigating and attempting
to resolve the customer’s complaint, and not because of
aniticipated litigation.

That anticipation did not “ripen” until

Walgreen’s decided not to resolve the claim with the customer,
which decision post-dated the communications in question.
Neither of these cases involved the situation presented
here, however.

As the Court understands it, the “final

allowance” of the ulnar nerve claim to which Mr. Angel refers is
the allowance made by the Bureau of Workers’ Compensation, and
not the “final decision” on that claim made by Bilfinger Westcon.
Without revealing anything about the content of the emails at
issue beyond what Bilfinger Westcon has disclosed on its
privilege log or in its brief, the emails show that from the time
Mr. Angel attempted to get this claim added, Bilfinger Westcon
either intended to oppose it or, at least, not to acquiesce in
having it added, and it was considering whether to litigate the
issue.

Most of the emails also refer to the fact that Mr. Angel

had hired an attorney and to Bilfinger Westcon’s strategy in
dealing with either his workers’ comp claim or his EEOC
complaint.

With the possible exception of the email from Rikk

Wampler to Dr. Lam dated December 15, 2014, all of the emails
appear to have been prepared as part of a reasonable anticipation
of litigation, either in the workers’ comp setting or elsewhere.
However, because the Court cannot determine either from that one
email, or any other materials submitted by Bilfinger Westcon,
that it was prepared outside of the ordinary course of business,
the Court will order that one to be produced.

Otherwise, the

Court upholds the work product claim as to the balance.
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For these reasons, the motion to compel (Doc. 39) is
granted in part and denied in part.

Bilfinger Weston shall

produce the December 15, 2014 email within 48 hours of the date
of this order.
Motion 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. 14-01,
pt. IV(C)(3)(a).

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 even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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