Annese v. US Xpress Inc et al
Filing
121
MEMORANDUM OPINION AND ORDER granting 91 Motion for Reconsideration. Signed by Honorable Robin J. Cauthron on 1/14/19. (wh).
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANDREA T. ANNESE,
Plaintiff,
vs.
U.S. XPRESS, INC. and
GLENN ANDERS,
Defendants.
)
)
)
)
)
)
)
)
)
)
No. CIV-17-655-C
MEMORANDUM OPINION AND ORDER
Plaintiff seeks reconsideration of the Court’s denial of her Motion to Compel (Dkt.
No. 30) through a Motion to Reconsider Order on Motion to Compel (Dkt. No. 91). This
Court detailed the relevant facts of the tractor-trailer accident when ruling on Plaintiff’s
prior motion in its Memorandum and Opinion Order (Dkt. No. 108). The motion at issue
concerns whether portions of the Claims Comments regarding that tractor-trailer accident
were prepared in anticipation of litigation or in the normal course of business.
A “motion to reconsider” is not specifically detailed in the Federal Rules of Civil
Procedure; however, it is a litigation tool used widely throughout federal courts.
Weingarten v. Auto-Owners Ins. Co., No. 17-cv-01401-MEH, slip op. at 3 (D. Colo. April
17, 2018).
“The Federal Rules of Civil Procedure do not recognize a ‘motion to
reconsider.’” Id. (quoting Van Skiver v. United States, 925 F.2d 1241, 1243 (10th Cir.
1991)). The Court has wide latitude in granting relief under a motion to reconsider but
“[a]bsent extraordinary circumstances . . . the basis for the second motion must not have
been available at the time the first motion was filed.” Servants of Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000). Additionally, “a motion for reconsideration . . . [is an]
inappropriate vehicle[] to reargue an issue previously addressed by the court when the
motion merely advances new arguments, or supporting facts which were available at the
time of the original motion.” Id. The Court will use the following factors in its analysis
of a motion to reconsider: “(1) an intervening change in the controlling law, (2) new
evidence previously unavailable, and (3) the need to correct clear error or prevent manifest
injustice.” Id. Finally, “[b]ecause the motion to reconsider seeks reconsideration of an
interlocutory discovery order, it does not arise under either Rule 59(e) or 60(b).” Bays
Exploration, Inc. v. Pensa, Inc., No. CIV-07-0754-D, 2009 WL 10674519, at *1 (W.D.
Okla. March 13, 2009).
This Court held, in its Memorandum Opinion and Order (Dkt. No. 59), that Claim
Comments, including the information available in the Claims Jacket system, prepared in
advance of litigation are generally not discoverable and the work-product doctrine applied
in this instance. Fed. R. Civ. P. 26 guides discovery and its proper scope encompasses
“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). Additionally, this Court relied on the
work product doctrine in deciding the Claims Comments issue. “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).” Fed. R. Civ. P. 26(b)(3)(A).
Plaintiff argues Defendant has waived its work product and privilege rights by
sharing these Claim Comments with individuals outside their legal representation and they
2
were not prepared in anticipation of litigation. Plaintiff has learned of this information
through the deposition of Defendant’s corporate representatives. Plaintiff argues that
Defendant U.S. Xpress’ Director of Safety has access to the information regarding the
tractor-trailer accident in the ordinary course of business and as a result, that information
is discoverable.
Defendant argues that the Claims Comments sought by the Plaintiff were prepared
in anticipation of litigation and that the evidence offered by Plaintiff that the privilege has
been waived is an inaccurate representation of the issue. Defendant also argues that
“[b]ased upon the operative facts of this case, the haste in which Plaintiff’s Counsel was
involved, and their threats of imminent litigation, the Claims Comments sought by Plaintiff
herein were prepared in anticipation of certain litigation and are not discoverable.” (Def’s.
Resp., Dkt. No. 101, p. 5.) Finally, Defendant argues that “Plaintiff has not come forward
with any authority to demonstrate that U.S. Xpress has somehow waived its claims of
privilege because certain individuals within the Safety Department may have access to a
driver’s statement.” (Def’s. Resp., Dkt. No. 101, p. 5.)
There is no automatic attachment or qualification for work-product doctrine.
If the investigation of the accident would normally be undertaken, an
investigative report developed in the ordinary course of business will not be
protected as work product. Following any serious accident, it can be
expected that designated personnel will conduct investigations, not only out
of a concern for future litigation, but also to prevent reoccurrences, to
improve safety and efficiency, and to respond to regulatory obligations.
Determining whether anticipated litigation is the driving force behind the
preparation of each requested document is the central inquiry in resolving
work product questions.
3
Wikel v. Wal-Mart Stores, Inc., 197 F.R.D. 493, 495-96 (N.D. Okla. 2000). Here, as the
Court has previously found, there was not a remote prospect of litigation because the day
after the accident Plaintiff’s counsel contacted Defendant and informed them of the
possibility of litigation. However, the Director of Safety, David Tomshack, has access to
this information for non-litigation purposes. Co-department head of the risk management
department, Pamela Bracher, also made a statement that, in the normal course of business,
the Director of Safety would have access to a portion of the claims file for non-litigation
purposes:
A. He [Tomshack] just reviews this accident description. He has access to
see that accident description that’s in that top part and that’s how he makes
his preventability ruling.
Q. What do you mean he only has access to the accident description?
A. He gets a list of accidents that happens and generates – next to it, generates
just this accident description. It’s a different document. It’s not this jacket
in this format.
Q. So there’s a separate document that’s sent to him.
A. That he generates, yes.
Q. And is it from that same system?
A. Yeah.
Q. So he has access to the system?
A. A certain universe of people in the safety department does and he is one
of them, yes.
Q. And Mr. Tomshack isn’t part of the claims handling process?
A. No.
(Pl.’s Mot., Dkt. No. 91, Ex. 2, p. 19). In light of this testimony, this Court finds that the
portion of the claims file available David Tomshack, Director of Safety, is discoverable to
Plaintiff because it is generated in the ordinary course of business and not directly in
anticipation of litigation and, as a result, that information is not protected by the workproduct doctrine. Plaintiff’s Motion to Reconsider Order on Motion to Compel is granted.
4
CONCLUSION
For the reasons stated above, Plaintiff’s Motion to Reconsider Order on Motion
to Compel (Dkt. No. 91) is GRANTED.
IT IS SO ORDERED this 14th day of January, 2019.
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?