CSX Transportation Inc v. Columbus Downtown Development Corporation et al
OPINION AND ORDER granting 239 , 240 and 242 Motions to Compel. Signed by Magistrate Judge Kimberly A. Jolson on 4/22/2019. (ew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
CSX TRANSPORTATION, INC, et al.,
Civil Action 2:16-cv-557
Judge James L. Graham
Magistrate Judge Jolson
DEVELOPMENT CORPORATION, et al.,
OPINION AND ORDER
This matter is before the Court on Plaintiff CSX Transportation Inc.’s (“CSX”), Plaintiff
Norfolk Southern Railway Co.’s (“NS”), Third-Party Defendant STV Incorporated’s (“STV”), and
Third-Party Defendant Santec Consulting Services, Inc.’s (“Santec”) (collectively “Movants”)
Motions to Compel Production of Documents of Defendant George J. Igel & Co., Inc. (“Igel”).
(Docs. 239, 240, and 242). Plaintiffs CSX and NS move to compel production of the following:
(1) audio recordings of witness statements that Igel is withholding on the basis of work-product,
and (2) documents responsive to discovery requests Igel has admitted it has in its possession, but
has failed to produce. (Doc. 239-1 at 1). STV and Santec move to compel production of the audio
recordings of witness statement that Igel is withholding and each incorporate, by reference, the
section of CSX and NS’s Memorandum in Support arguing that the audio recordings must be
produced. (Doc. 240 at 1, 3; Doc. 242 at 1, 3). Accordingly, the Court will address Movants’
Motions to Compel the audio recordings from Igel as one. For the following reasons, Movants’
Motions (Docs. 239, 240, and 242) are GRANTED.
This lawsuit arises out of construction work completed by several contractors in connection
with the Scioto Greenways Project (the “Project”), the details of which the Court has discussed
elsewhere. (See generally Doc. 153). CSX and NS claim they sustained damage to a railroad
bridge used by both companies (the “Bridge”) resulting from the Project. (Doc. 252 at 3). In
connection with the Project, Igel was retained to perform certain excavation work and lay riprap
scour protection in the vicinity of the Bridge piers. (Id.). Movants represent that “[a] key issue in
this litigation is what work was performed around the bridge by Igel and how that work was
performed.” (Doc. 239-1 at 2). Movants state that Igel employees Bryce Shaw, Tony Tomaro,
and Steve Ashworth performed the excavation work around the Bridge, and Rick Delozier was in
charge of the Igel employees working around the Bridge. (Id. at 3).
Movants seeks production of audio recordings of interviews with Igel employees Mr.
Tomaro, Mr. Shaw, and Mr. Delozier. They learned of these audio recordings from the deposition
testimony of Mary So, Igel’s Director of Safety and Employee Development, and John Igel,
president of the company. (Id.). Both parties cite excerpts of Ms. So’s deposition (Docs. 239-3
and 250-1 (“So Dep.”)) and Mr. Igel’s deposition (Docs. 239-4 and 250-2 (“Igel Dep.”)) to support
their arguments that the audio recordings are or are not discoverable. In brief, Movants represent
that during Ms. So’s deposition, she “was questioned about the audio recordings and testified they
were obtained at the request of the president of the company, John Igel, and that it was part of
Igel’s routine practice to record interviews with relevant employee-witnesses.” (Doc. 239-1 at 3).
Igel characterizes the Bridge investigation differently and argues that it was not a routine
investigation or otherwise used for any internal business purpose.
(Doc. 250 at 3–6). These
differing views are at the core of this dispute.
According to her deposition testimony, Ms. So regularly performs investigations incident
to her position. (So Dep. at 19:17–21). Her investigations can be initiated in a number of ways
but, typically, they come from the safety department, primarily by employees calling a reporting
line. (Id. at 20:14–23). She conducts approximately one thousand investigations per year. (Id. at
21:5). These investigations concern personal injury, property damage, environmental incidents,
and equipment damage. (Id. at 21:6–11). Her investigation process depends on the incident;
usually, she reviews the information reported and may then ask questions to the foreman,
investigate the individual’s training, go to the scene to take pictures or measurements, and
determine the individual that would most appropriate to address the incident. (Id. at 22:21–23:6).
When investigating, Ms. So gathers information including who was involved, witnesses,
equipment numbers, and other information appropriate to the incident. (Id. 27:17–24). If followup is needed, Ms. So or someone in her department will speak with witnesses to gather additional
information and sometimes take notes on or record what is said. (Id. at 31:1–23). The vast
majority of her investigations are very simple and are handled quickly; others may go on for several
weeks. (Id. at 35:1–5). Ms. So’s “intent behind most of the investigation[s] is to establish what
the cause was and prevent reoccurrence.” (Id. at 35:8–10). Following an investigation, Ms. So
discusses her findings and makes available any documentation to operations, the superintendent,
and management. (Id. at 35:17–36:3). Ms. So reports completed investigations to Mr. Igel. (Id.
On various occasions, Ms. So was asked to obtain information regarding the Project and
the Bridge. (Id. at 36:11–18). Unlike her other investigations, however, this was not initiated by
an employee calling the reporting line. (Id.). Instead, Mr. Igel personally asked her to investigate
after he received a letter that Igel could be accused of some type of wrongdoing in its work on the
Project. 1 (Id. at 36:19–37:6). Igel represents that it “only began an investigation relating to the
[Bridge] after being put on notice by other parties that the Plaintiffs were likely to make a claim
relating to the settlement of the Bridge.” (Doc. 250 at 4). Ms. So testified as follows:
Q. Okay. All right. Now, do you recall doing an incident investigation when the
southern rail bridge settled during the Scioto Greenways Project?
A. On various opportunities, I was requested to obtain information. The Scioto
Greenways discussion was not turned in as an incident by any employee.
Q. Who requested you to obtain information?
A. John Igel.
Q. When did he make that request?
A. After receiving a letter, he just put me on notice. I had a conversation with him
to find out if we were being accused of something. At that point, he just wanted me
to be aware. And in subsequent weeks, when more information began to come out,
I was asked to go on-site and try and determine who were the employees related to
the work in the water.
(So Dep.at 36:11–37:6). Ms. So conducted the interviews in the presence of another Igel
employee, Chris Schleicher. (Id. at 40:20–24). Ms. So described her discussion with Mr. Deloizer
Q. What did you ask Mr. Delozier during that interview?
A. I told him that we were in receipt of a letter another party had received alleging
that there was a problem with the bridge. I asked him if he was aware. I asked him
if there was anything to indicate that there was a problem. I asked him about his
work on the -- you know, as superintendent, had he been out there? I asked him to
Igel’s briefing uses the term “letter,” but Igel submitted only an email as an exhibit. Accordingly, the Court
understands Igel to be referring to this email when it says “letter.”
confirm, were there any other operators that we should be talking to? And he said
the primary excavation in the river had taken place with Tony and Greg.
(Id. at 46:3–15).
Mr. Igel did not disagree that the purpose of the investigation and the recordings was to
prevent reoccurrence and capture details “while fresh.” (Igel Dep. at 73:10–14). Specifically, Mr.
Q: So as the president of the company, you have the investigation done to determine
what happened and to prevent it from recurring and you never listened to the audio
[recordings of Tomaro, Shaw or Delozier]?
A: That’s what I stated, yeah.
Q: [T]he idea of the investigation was to prevent reoccurrences from happening
again. What was the product of the investigation?
A: Well, it was also to gain the facts and while they were fresh in everybody’s mind
and to document those, and so she did that with those recordings and placed them
in a file.
(Igel Dep. at 74:10–14; 101:20–102:4). Igel asserts that the recordings were not used for any
internal business purpose but, instead, were sent directly to Igel’s insurance adjuster. (Doc. 250
at 6). When asked “[w]hat did you do with the recording of this conversation with Mr. Tomaro[,]”
Ms. So replied, “I saved it on our NDrive at work, and I transferred it to our insurance adjuster.”
(So Dep. at 41:4–7).
Igel also argues that the context surrounding the interviews underscores they were made in
contemplation of potential litigation. Ms. So explained that she “participated in internal strategy
sessions. [I]n my quarterly meetings, I have to review open claims, so it was discussed, and I
assisted to respond to interrogatories or questions to obtain things for our attorneys.” (Id. at 49:4–
9). These meetings were not at the request of counsel, but were Igel’s regular operations and
scheduling meetings. (Id. at 54:15–19). Ms. So recalls the following from the meeting after receipt
of the letter that Igel asserts put it on notice of the possibility of Plaintiff’s claims:
The conversation was related to the fact that we’d received notice, but we weren’t
aware of any details. Nothing had been furnished directly to Igel. Mostly, things
had been passed through the hands of different parties. So we were trying figure
out if the there was a claim, if we were on notice of – to stop or what was being
Q. Okay. And what was decided at that meeting in terms of what was being asked
and if there was a claim?
A. There was going to be a meeting on-site with CDDC and Messer and Igel, and
my understanding was they were hoping to get an individual from the railroad
present to find out what allegation was being made, to get more clarification to the
(Id. at 55:20–56:12). Igel argues that the following excerpt of Mr. Igel’s deposition testimony
reinforces Ms. So’s:
Q. So there was an investigation that was conducted with respect to the bridge piers
A. There was.
Q. And did - - was that - - did you initiate that or was Mary So initiating that?
A. We probably worked together on it, realizing we should start understanding what
happened while it was still fresh in everybody’s mind. I’m sure we had a discussion
Q. Part of the purpose of that is, of course, to find out what happened and, you
know, prevent reoccurrence, correct?
A. Yeah. And get the facts while they were fresh.
Q. Is it fair to say that there was no - - you were not instructed by an attorney to do
that; this was part of what you guys normally do in this kind of situation, correct?
A. I’m sure we had an incident and we know it was a - - in the large category. And
I’m sure we served notice to our insurance carrier, and I’m not sure of the cascade
of all the conversations specifically after that, but …
Q. I mean, the idea of the investigation was to prevent occurrences from happening
again. What was the product of the investigation? If any.
A. Well, it was also to gain the facts and - - while they were fresh in everybody’s
mind and to document those, and so she did that with those recordings and placed
them in the file. If Mary wrote something up, I’m sure it - - you know, I’m sure if
she did or didn’t, so . . .
Q. You just don’t know, right?
A. I don’t.
(Igel Dep. at 72:21–73:20; 101:20–102:8). John Igel testified that he had not personally listened
to the recordings. (Id. at 74:14).
Igel states that the first correspondence with CSX in its file, an email sent by Amanda
DeCesare of CSX to Guy Worley and Matt Lutz of Columbus Downtown Development
Corporation, alluded to the possibility of litigation. (Doc. 250 at 8). That email read as follows:
Mr. Worley, Mr. Lutz,
Please be advised that CSX’s bridge over the Scioto River has experienced issues
with one of the piers shifting. The track itself has been affected by this and has
impacted train traffic over the bridge. CSX is currently investigating the situation
to determine the cause of the pier shift. I am notifying you because the Scioto
Greenways project is in the immediate vicinity of this bridge. Should CSX’s
investigation determine that the pier shift was caused by the Scioto Greenways
project, I will contact you again.
Amanda J. DeCesare
(Doc. 250-3). This email was forwarded to Tim Gusler at Messer, who in turn forwarded it to Mr.
Igel on April 9, 2015. (Id.). Igel represents that Mr. Igel forwarded the email to Ms. So before he
instructed her to investigate the incident. (Doc. 250 at 9).
According to Rule 26(b), “[p]arties 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.”
Fed. R. Civ. P. 26(b)(1). “Determining the proper scope of discovery falls within the broad
discretion of the trial court.” Gruenbaum v. Werner Enter., Inc., 270 F.R.D. 298, 302 (S.D. Ohio
2010) (citing Lewis v. ACB Business Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998)).
“On notice to other parties and all affected persons, a party may move for an order
compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). The moving party bears the burden
of demonstrating relevance. Gruenbaum, 270 F.R.D. at 302 (citation omitted). “If the movant
makes this showing, then the burden shifts to the non-movant to show that to produce the
information would be unduly burdensome.” Ball v. Kasich, no. 2:16-CV-282, 2018 U.S. Dist.
LEXIS, at *17 (S.D. Ohio Nov. 29, 2018) (citation and internal quotations omitted).
A. Work Product
Igel argues that the work-product doctrine protects the audio recordings from discovery.
The work-product doctrine is codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure:
(A) Documents and Tangible Things. Ordinarily, a party may not discover
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). 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.
(B) Protection Against Disclosure. If the court orders discovery of those materials,
it must protect against disclosure of the mental impressions, conclusions, opinions,
or legal theories of a party’s attorney or other representative concerning the
Fed. R. Civ. P. 26(b)(3). “Under the Federal Rules, the work product protection under Rule
26(b)(3) is not limited to attorneys, but has been extended to documents and tangible things
prepared by or for the party and the party’s representative, as long as such documents were
prepared in anticipation of litigation.” Shah v. Metro. Life Ins. Co., No. 2:16-cv-1124, 2017 U.S.
Dist. LEXIS 194347, at *8 (S.D. Ohio Nov. 27, 2017) (citations omitted).
The Sixth Circuit has adopted the “because of” test to determine whether a document was
prepared in anticipation of litigation. Boltz, 2017 U.S. Dist. LEXIS 102913, at *10. The test asks:
“(1) whether a document was created because of a party’s subjective anticipation of litigation, as
contrasted with an ordinary business purpose, and (2) whether that subjective anticipation of
litigation was objectively reasonable.” Id. (quoting United States v. Roxworthy, 457 F.3d 590, 594
(6th Cir. 2006)). Accordingly, the party asserting work-product must “prove that anticipated
litigation was the driving force” behind the preparation of the disputed document. Id. (citations
omitted). The prospect of future litigation cannot be “remote.” Jones v. St. Jude’s Med. S.C., Inc.,
No. 2:08-cv-1047, 2011 U.S. Dist. LEXIS 21426, at *13 (S.D. Ohio Mar. 3, 2011). If the document
was created as part of the ordinary business of a party, and the ordinary business purpose was the
“driving force” or impetus for creation of the document, then it is not protected by the workproduct doctrine. Id. (citing Roxworthy, 457 F.3d at 595); see also Love v. Sears, Roebuck & Co.,
NO. 3:13-CV-402, 2014 U.S. Dist. LEXIS 33141, at *2 (W.D. Ky. Mar. 14, 2014) (“If a document
would have been prepared in substantially the same manner irrespective of the anticipated
litigation, the work product privilege does not apply.”) (citations and quotations omitted); Graff v.
Haverhill N. Coke Co., No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013, at *12 (S.D. Ohio Nov.
13, 2012) (“Thus, we have held that materials prepared in the ordinary course of business or
pursuant to regulatory requirements or for other non-litigation purposes are not documents
prepared in anticipation of litigation within the meaning of Rule 26(b)(3).”).
As noted, the parties dispute why Ms. So investigated, and the resolution of that dispute
determines whether work-product protection is triggered. Importantly, it is Igel’s burden to
establish “that anticipated litigation was the driving force” behind the preparation of the audio
recordings. Boltz, 2017 U.S. Dist. LEXIS 102913, at *10.
For their part, Movants assert that Ms. So’s “ordinary business conduct, in her role as
Safety Director, is exactly what took place here and led to creation of the audio recordings.”
(Doc. 239-1 at 7). Movants’ argument rests on the fact that Ms. So investigates up to one thousand
incidents per year, most of which are to prevent the relevant incident from occurring again—an
ordinary business purpose—and in those investigations she sometimes takes audio recordings like
those at issue here. Put simply, Movants view Ms. So’s investigation of the Project as routine.
Igel responds with a couple of key facts. First, Igel notes that Mr. Igel, not an employee,
initiated the investigation, and he did so because he received notice of potential wrongdoing related
to the settlement of the Bridge. (See Doc. 250-3). Thus, the genesis of this particular investigation
was out of the ordinary. Case law makes clear that even if an employee, like Ms. So, regularly
investigates incidents for business reasons, a report prepared by that employee may be workproduct if the party seeking protection presents evidence of “an overt act, statement, or other
concrete facts to support a reasonable, and subjective anticipation of litigation.” See Love, 2014
U.S. Dist. LEXIS 33141, at *6 (“[T]he Sears policy to anticipate litigation and prepare a report is
not substitute for the actual anticipation of litigation under the facts and circumstances of each
case.”) (citations and internal quotations omitted).
Second, after the audio recordings were created, Igel did not use them for any internal
purpose. Following an investigation, Ms. So ordinarily discusses her findings and makes available
any documentation to operations, the superintendent, and management. (So. Dep. at 35:17–36:3).
In the normal course, Ms. So also reports completed investigations to Mr. Igel. (Id. at 36:4–10).
That is not what happened here. Instead of following that process, Ms. So transferred the audio
recordings to the company’s insurance adjuster. (Id. at 41:4–7).
Although a close call, Igel has met its burden. Igel has shown that Ms. So’s investigation
was not initiated in the regular course; instead, anticipation of litigation was the driving factor
behind the creation of the audio recordings. Therefore, work-product protection is triggered, but
that is not the end of the analysis.
B. Exception to Work Product
Although the Court has found that the audio recordings are shielded by work product,
Movants argue, in the alternative, that an exception applies. Under Rule 26(b)(3)(A), materials
protected work-product are discoverable 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. Igel does not argue
that the audio recordings are not otherwise discoverable under Rule 26(b)(1), (see Doc. 250 at 10),
and the Court finds they are relevant to Movant’s claims and proportional to the needs of the case.
Fed. R. Civ. P. 26(b)(1). The exception, therefore, turns on whether Movants have shown
substantial need for the audio recordings and undue hardship to obtain their substantial equivalent
by other means.
Movants assert the disclosure of the audio recordings is essential to the preparation of their
case, and they are simply unable to obtain substantially equivalent “fresh” information. (Doc. 260
at 5). When questioned at their depositions regarding the substance of the recorded interviews,
Mary So, Tony Tomaro, Bryce Shaw and Rick Delozier all offered conflicting testimony regarding
who was present during the audio recordings or otherwise could not recall the substance of the
interviews. (Doc. 239-3, So Dep., 40:1–24; Doc. 239-5 Shaw Dep., 173:17–21; Doc. 239-6,
Tomaro Dep., 161:2–6, 161:24–162:8; Doc. 239-7, Delozier Dep., 164:1–17). Movants represent
that they “could not have deposed these witnesses prior to the commencement of discovery after
filing suit and were not able to take all of their depositions until about 45 months after the incident.”
(Doc. 260 at 8). Further, they state the audio recordings are of “not just peripheral witnesses, they
are [of] the key witnesses in the case on a central issue” as they “are the very individuals involved
in the excavation around the bridge piers.” (Doc. 260 at 6).
“Substantial need consists of the relative importance of the information in the documents
to the party’s case and the ability to obtain that information by other means.” Stampley v. State
Farm Fire & Cas. Co., 23 F. App’x. 467, 471 (6th Cir. 2001). The party seeking work-product
material must show “that it has no other way of obtaining the ‘information’ the reports contain,
not just that it has no other way of obtaining the reports themselves.” South Fifth Towers, LLC v.
Aspen Inc. UK, Ltd., No. 18-5440, 2019 U.S. App. LEXIS 3939, at *8–9 (6th Cir. Feb. 8, 2019).
Faulty memory may tend to show “substantial need” justifying an exception to the work product
privilege. Stampley, 23 F. App’x at 471.
Here, the information contained in the audio recordings directly relates to Igel’s work
around the Bridge, an issue central to the case. The witnesses gave different accounts of who was
in the room, how long the interviews lasted, and specific details of what was said. Igel admits that
the purpose of taking the audio recording was to get an account of the facts while “fresh.” Movants
did not have an opportunity to interview the witnesses soon after their work on the Bridge, because
the litigation did not commence until over one year after. See Stout v. Norfolk & W. Ry. Co., 90
F.R.D. 160, 162 (S.D. Ohio 1981) (concluding that statements’ “contemporaneity renders them so
unique and unduplicable that need and hardship are clearly established”).
testimony shows Movants cannot obtain this “fresh” information given the substantial time that
has passed and the declarants’ memory has faded. See Stampley, 23 F. App’x at 471. Accordingly,
Movants have shown substantial need for the audio recording and undue hardship in acquiring
equivalent information, so the exception to work-product applies.
C. Other Discovery
Igel states the following with respect to Plaintiff’s Motion to Compel responsive
documents to Plaintiffs’ Third Set of Requests for Production of Documents:
As to [Plaintiff’s Third Set of Requests for Production of Documents], Igel has
already agreed to provide all non-privileged responsive documents. Igel has been
working in good faith to produce the documents requested, but the sheer volume of
documents received from the client has made review for privilege concerns a timeconsuming task. Therefore, Igel agrees to provide responses and responsive
documents, and requests that this portion of the Motion be held in abeyance pending
Igel’s production of responses.
As stated above, Igel has no objection to providing all non-privileged documents
responsive to Plaintiffs’ Third Set of Requests for Production. Igel has been
endeavoring in good faith to provide these documents in a timely fashion. The
documents received by counsel from Igel were voluminous, meaning that the
privilege review is taking longer than it would normally take, but again, Igel is
working hard and in good faith to fulfill its discovery obligations. Igel therefore
requests that this portion of the Motion to Compel be held in abeyance pending
Igel’s production of responses.
(Doc. 250 at 3, 10–11). Igel, therefore, does not refute it has an obligation to produce the
outstanding discovery. Given the numerous extensions of the discovery deadline, the Court finds
Igel’s justifications lacking and expects its diligence in producing all remaining materials.
For the foregoing reasons, Movants’ Motions (Docs. 239, 240, and 242) are GRANTED.
Igel is ORDERED to produce the audio recordings of Mary So’s interviews of employees Tony
Tomaro, Bryce Shaw, and Rick Delozier within seven days of the entry of this order. Igel is further
ORDERED, within seven days of the entry of this order, to either: 1) produce the outstanding
discovery, or 2) provide the Court with a status report identifying the outstanding discover and
providing a timeline by which it plans to produce it.
IT IS SO ORDERED.
Date: April 22, 2019
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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