HEINZL v. CRACKER BARREL OLD COUNTRY STORE, INC.
Filing
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MEMORANDUM OPINION & ORDER granting 76 Motion to Compel Discovery filed by SARAH HEINZL. Signed by Magistrate Judge Robert C. Mitchell on 10/29/2015. (spc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SARAH HEINZL, individually and on
behalf of all others similarly situated,
Plaintiff,
vs
CRACKER BARREL OLD COUNTRY
STORE, INC.,
Defendant.
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Civil Action No. 2:14-cv-1455
MEMORANDUM ORDER
On September 23, 2015, Plaintiff, Sarah Heinzl, filed a motion to compel (ECF No. 76),
requesting that Defendant, Cracker Barrel Old Country Store, Inc., be required to produce any
and all reports prepared by third parties that assessed Defendant’s compliance with the parking
accessibility requirements of the Americans With Disabilities Act, 42 U.S.C. § 12101 (ADA), as
well as other documents relating to ADA compliance that Defendant’s 30(b)(6) corporate
designee, Steven Dorsey, referred to during his deposition. On October 7, 2015, Defendant filed
a response in opposition to the motion (ECF No. 85) and on October 13, 2015, Plaintiff filed a
reply brief (ECF No. 87).
Plaintiff states that, on January 7, 2015, she served her First Set of Requests for
Production of Documents on Defendant. (ECF No. 76 Ex. A.) In pertinent part, Plaintiff
requested: “All documents of any nature which reflect Defendant’s efforts to cause the
Defendant’s parking lots and/or paths of travel from the parking lots to the Defendant’s facilities
to comply with the ADA;” and “All documents which reflect Defendant’s efforts to ensure the
Defendant’s facilities comply with the ADA.” Defendant served responses to Plaintiff’s
discovery requests on February 23, 2015.
On March 2, 2015, Plaintiff served Defendant with Plaintiff’s Amended Second Set of
Requests for Production. In particular, Plaintiff requested, “All documents describing all actions
taken by Defendant to ensure that the parking facilities at its store comply with 28 U.S.C.
§ 36.406.” (ECF No. 76 Ex. B.)1 After producing some documents and identifying others in its
privilege log, Defendant claimed that no other responsive documents were known to exist. (ECF
No. 76 Exs. C, D.)
Plaintiff counsel’s indicates that, during a review of the documents produced by
Defendant, he uncovered a single four-page document representing a third party assessment of
ADA compliance at one specific location. On August 26, 2015, Plaintiff’s counsel questioned
Mr. Dorsey about the four-page document, and Defendant did not object. (Dorsey Dep. at
110:17-116:4.)2 Plaintiff indicates that Mr. Dorsey further revealed that the following
documents— including third party ADA assessments for other locations—existed, but had not
been produced, despite them being responsive to Plaintiff’s requests:
!Architectural drawings with ADA requirements (Dorsey Dep. at 22:815.)
!Expert reports and/or evaluations that assess post-construction ADA
compliance (Dorsey Dep. at 23:16-24:6.)
! Architectural drawings and ADA assessments stored on Defendant’s “TDrive” or in paper files (Dorsey Dep. at 25:5-26:9; 45:16-23; 90:18-91:3.)
! Formal measurements or evaluations that document the slope of parking
lots and paths of travel pursuant to state or local law (Dorsey Dep. at 44:1646:14.)
1
Plaintiff probably intended to cite 28 C.F.R. § 36.406, Standards for new construction and
alterations. There is no United States Code section with this number.
2
ECF No. 76 Ex. E.
2
! Revised “Unit Assessment Forms” for 2016 (Dorsey Dep. at 48:1850:15.)
! Excel Spreadsheets of “Unit Assessment Forms” maintained by the
Facility Coordinator (Dorsey Dep. at 51:19-52:12.)
! Invoices from construction work completed following unit assessments
(Dorsey Dep. at 53:12-56:15.)
! Proposals, bids, photographs and/or purchase orders for contractors to
complete work following unit assessments (Dorsey Dep. at 55:6-56:15.)
! Inspection worksheets/reports prepared by third party consultants hired
by Defendant to survey stores for compliance issues (Dorsey Dep. at 60:1-61:14.)
! Parking lot/path evaluations by third party firms (Dorsey Dep. at 75:1178:3.)
! Contracts entered into between Defendant and third party firms to assess
ADA compliance (Dorsey Dep. at 77:14-22.)
! Information created and stored on ProTrac computer software of stores
built post-ADA that will be evaluated by third party firms (Dorsey Dep. at 82:483:7.)
! Surveys and related documents given to project managers (Dorsey Dep.
at 105:1-13.)
On August 28, 2015, Defendant contacted Plaintiff and claimed that the four-page
document was “an attorney privileged/work production communication” and had been
inadvertently disclosed. (ECF No. 76 Ex. F.) Defendant requested that Plaintiff return the fourpage document and that Mr. Dorsey’s deposition transcript be redacted to remove all references
to it.
Plaintiff filed a Motion for Extension of Time to Complete Discovery on August 28,
2015, in which she sought more time to move to compel third party reports and conduct further
discovery to determine any spoliation issues. (ECF No. 52.) Later that day, Defendant served
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Plaintiff with its Second Supplemented Privilege Log, which claimed that the four-page
document and other related reports were privileged. Consequently, on September 2, 2015,
Plaintiff submitted a Supplement to her Motion for Extension of Time to Complete Discovery,
explaining that she had received an updated privilege log from Defendant and had concerns about
its adequacy under Federal Rule of Procedure 26(b)(5). See ECF No. 59. This Court granted
Plaintiff’s Motion for Extension of Time to Complete Discovery on September 3, 2015 (ECF No.
61).
On September 10, 2015, this Court held a status conference with the parties (ECF No.
68). At that conference, Defendant agreed to provide another updated privilege log by
September 16, 2015. Plaintiff states that, when her counsel subsequently received this Third
Supplemented Privilege Log, he noticed several discrepancies between the entries on the
privilege log and the testimony of Mr. Dorsey at his deposition. Additionally, Plaintiff
challenged Defendant’s claims of privilege and/or work product. The parties scheduled to meet
and confer by telephone on September 18, 2015, later postponed until September 22, 2015 (ECF
No. 76 Ex. G). Plaintiff states that, in that meeting, defense counsel acknowledged the
discrepancies in its privilege log, and agreed to provide yet another updated privilege log.
Defendant served Plaintiff with its Amended Third Supplemented Privilege Log on September
22, 2015 (ECF No. 76 Ex. H). Nevertheless, Plaintiff maintains that nearly all of the
discrepancies remained.
Plaintiff seeks production of the aforementioned documents that Defendant’s corporate
designee referred to in his deposition, including all third party reports evaluating Defendant’s
compliance with the parking accessibility requirements of the ADA. Defendant contends that
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these reports are privileged, both because they fall under the attorney-client privilege and because
they were prepared in anticipation of litigation and thus constitute attorney work product.
Federal Rule of Civil Procedure 26(b)(1) states, “Parties may obtain discovery regarding
any non-privileged matter that is relevant to any party’s claim or defense [.]” Although this Rule
is couched in broad terms, specific exceptions are carved out for the attorney-client privilege and
work product doctrine.
The Attorney-Client Privilege
The attorney-client privilege “protects communication between attorneys and clients from
compelled disclosure. The privilege applies only to a communication… made between
privileged persons… in confidence… for the purpose of obtaining or providing legal assistance
for the client.” In re Teleglobe Communications Corp., 493 F.3d 345, 359 (3d Cir. 2007). Nonlegal business advice does not enjoy protection under the attorney-client privilege. See Wachtel
v. Health Net, Inc., 482 F.3d 225, 231 (3d Cir. 2007). Further, the attorney-client privilege does
not protect documents just because “they were transferred to or routed through an attorney, or
because an attorney was copied on a document.” Wiseman Oil Co., Inc. v. TIG Ins. Co., No. 0111011, 2012 WL 1866296, at *2 (W.D. Pa. May 22, 2012) (internal citation omitted).
Plaintiff contends that the party claiming the attorney-client privilege carries the burden
of demonstrating that it applies, and that the privilege is to be construed narrowly. See, e.g.,
Cottillion v. United Refining Co., 279 F.R.D. 290, 298 (W.D. Pa. 2011). Plaintiff argues that
Defendant has failed to meet its burden of demonstrating that the attorney-client privilege applies
to the documents at issue.
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First, Plaintiff maintains that the documents at issue are not communications made
between privileged persons. Instead, the documents at issue were passed between third party
consultants and Defendant’s facility or project managers. There is no persuasive evidence that
Defendant’s counsel took part in these communications, or directed them to occur.
For instance, Mr. Dorsey testified at the Rule 30(b)(6) deposition that Robert Buck, a
third-party consultant hired by Defendant, surveyed about a dozen Cracker Barrel stores for ADA
compliance issues. Mr. Dorsey explained that Mr. Buck provided the inspection reports to Mr.
Dorsey, Defendant’s Senior Director of Construction Facility Services, and Jeff Smith, Mr.
Dorsey’s predecessor. (Dorsey Dep. 26:22-27:1; 50:13; 60:17-61:14.) Plaintiff notes that Mr.
Dorsey did not testify that Defendant’s counsel received Mr. Buck’s reports.3
Plaintiff further notes that Defendant’s counsel was absent from other communications
regarding post-construction ADA compliance matters. Mr. Dorsey explained that, as Defendant
renovates parking lots as part of its ongoing, general maintenance process, it simultaneously
evaluates potential ADA compliance issues. (Dorsey Dep. at 23:16-25:1.) Mr. Dorsey stated that,
as Defendant prepares to tear up sidewalks, curbs, and parking lots, the original drawings and
elevations of the lot are revisited to ensure that the new lot will comply with the ADA. This
information is subsequently provided to general contractors to obtain work bids. Likewise, Mr.
3
Plaintiff notes that Defendant’s Third Supplemented Privilege Log (Amended) identifies
Defendant’s counsel as a recipient. However, it does not identify Defendant’s Senior Director of
Construction Facility Services as a recipient. See, e.g., Exhibit H, Doc ID # CBOC01146CBOC01160. Plaintiff contends that that Defendant addressed such documents to Defendant’s
counsel in order to attempt to invoke the attorney-client privilege. Cf. SmithKline Beecham
Corp. v. Apotex Corp., 232 F.R.D. 467, 478 (E.D. Pa. 2005)(“What would otherwise be routine,
non-privileged communications between corporate officers or employees transacting the general
business of the company do not attain privileged status solely because in-house or outside
counsel is ‘copied in’ on correspondence or memoranda.”)(internal citation omitted).
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Dorsey stated that third party firms transmit survey results to the project manager. (Dorsey Dep.
at 105:1-10.) Plaintiff argues that this testimony demonstrates that Defendant’s counsel was very
much—if not entirely—removed from communications between surveyors and Defendant’s
employees. Plaintiff concludes that this presents a fundamental flaw in Defendant’s claim of
privilege as the documents at issue are not communications between attorney and client.
Further, Plaintiff argues that, notwithstanding that Defendant’s counsel did not participate
in communications between employees and third parties, the surveys constitute non-legal
business guidance; no opinion on the law is given nor is there any indication that the document
was meant to assist Defendant in a legal proceeding. In fact, Mr. Dorsey’s testimony shows that
counsel had no involvement in selecting which stores would be surveyed. Rather, facility
managers recommended stores. (Dorsey Dep. 74:11-75:4.) The selection was based on
conspicuous, visible problems, such as “cracks” and “separations,” not legal advice. (Dorsey
Dep. 89:3-9.)
Plaintiff notes that Mr. Dorsey’s testimony also reveals that Defendant largely relied on
the surveys to provide financial guidance for undertaking remediation projects and to monitor
store conditions. (Dorsey Dep. 92:5-18; 131:16-132:1.) In other words, the surveys helped
facilitate business decisions, not legal decisions. Plaintiff argues that the surveys cannot be
considered communications for purposes of obtaining legal advice and that the attorney-client
privilege does not apply.
Defendant contends that “certain documents” are privileged because they contain
attorney-client privileged communications. However, as Plaintiff observes, on the Third
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Supplemented Privilege Log, Defendant has marked every single entry as privileged. Defendant
has failed to demonstrate which communications it is referring to and that they meet the standard
for attorney-client privileged communications, as opposed to business communications regarding
third-party surveys. Therefore, Defendant’s argument should be rejected.
The Work Product Doctrine
Federal Rule of Civil Procedure 26(b)(3)(A) provides, “Ordinarily, a party may not
discover documents and tangible things that are prepared in anticipation of litigation or for
trial[.]” The attorney work product protection “shelters the mental processes of the attorney,
providing a privileged area within which he can analyze and prepare his client’s case.” In re
Grand Jury (Impounded), 138 F.3d 978, 981 (3d Cir. 1998) (internal citation omitted). The
Supreme Court has also observed that “attorneys often must rely on the assistance of
investigators and other agents in the compilation of materials in preparation for trial. It is
therefore necessary that the doctrine protect material prepared by agents for the attorney as well
as those prepared by the attorney himself.” United States v. Nobles, 422 U.S. 225, 238-39 (1975)
(footnote omitted). “It is not necessary that litigation has been commenced or even threatened
before a document can be found to have been prepared in anticipation of litigation.” Walter v.
Travelers Personal Ins. Co., 2013 WL 2252729, at *4 (M.D. Pa. May 22, 2013).
Defendant argues that Rule 26(b)(3) provides that, even if the party seeking discovery of
information otherwise protected by the work product doctrine has made the requisite showing of
substantial need and undue hardship, courts must still protect against the disclosure of mental
impressions, conclusions, opinions, or legal theories of an attorney and his agents. Fed.R.Civ.P.
26(b)(3). Stated differently, Rule 26(b)(3) establishes two tiers of protection: first, work
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prepared in anticipation of litigation by an attorney or his agent is discoverable only upon a
showing of substantial need and hardship; second, “core” or “opinion” work product that
encompasses the “mental impressions, conclusions, opinion, or legal theories of an attorney or
other representative of a party concerning the litigation” is “generally afforded near absolute
protection from discovery.” In re Ford Motor Co., 110 F.3d 954, 962 n.7 (3d Cir.1997).
Accordingly, while opinion work product protection is not absolute, it requires a heightened
showing of extraordinary circumstances. See Sporck v. Peil, 759 F.2d 312, 316 (3d Cir. 1985);
see also Rhone–Poulenc Rorer Inc. v. Home Indemnity Co., 32 F.3d 851, 866 (3d Cir. 1994).
Defendant argues that Plaintiff had made no showing sufficient to establish a substantial need for
the work-product protected documents in this matter.
Plaintiff responds that the work product doctrine requires the party seeking its protection
to prove that it applies. Conoco, 687 F.2d at 730. Further, the work product doctrine does not
apply to materials prepared in “the ordinary course of business, or pursuant to public
requirements unrelated to litigation, or for other nonlitigation purposes.” Fed. R. Civ. P. 26(b)(3)
advisory committee notes. See also In re Grand Jury Investigation, 412 F. Supp. 943, 948 (E.D.
Pa. 1976) (“Advising a client about Case matters which may or even likely will ultimately come
to litigation does not satisfy the ‘in anticipation of’ standard.’”) (internal citation omitted).
Although the work-product doctrine protects documents, it does not protect factual
information within the documents. “One party may discover relevant facts known or available to
the other party, even though such facts are contained in a document which is not itself
discoverable.” Fed.R.Civ.P. 26(b)(3) Advisory Comm. Note, 48 F.R.D. 487, 501 (1970).”
Vallabharpurapu v. Burger King Corp., 276 F.R.D. 611, 615 (N.D. Cal. 2011).
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“It would be manifestly unfair to allow a party to use the privilege to shield information
which it had deliberately chosen to use offensively… “ CP Kelco U.S. Inc. v. Pharmacia Corp.,
213 F.R.D. 176, 179 (D. Del. 2003). “Hence the truism that a privilege cannot be used as both a
shield and a sword. See United States v. Rylander, 460 U.S. 752, 758, 103 S.Ct. 1548, 75
L.Ed.2d 521 (1983). The non-legal equivalent of that truism is equally to the point: “You can’t
have it both ways.” Id.
Defendant contends that the documents in question are all attorney work-product.
Elizabeth Wilson, Cracker Barrel’s Associate General Counsel responsible for supervising its
ADA compliance (Wilson Aff. ¶ 2), states that she caused the following documents to be
identified as attorney work product:
Documents listed on Defendant’s Third Supplemental Privilege Log (Amended), Bates
numbers CBOC270-CBCO273 and continuing through Bates numbers CBCOC676 through
CBCOC19045, which include those documents that assess ADA compliance at certain stores
(Dorsey Dep. at 23:16-24:6), including inspection worksheets concerning surveys of stores
completed by engineering experts concerning compliance issues (Dorsey Dep. at 60:1-61:14);
parking lot/path evaluations prepared by engineering experts (Dorsey Dep. at 75:11-78:3);
contracts entered into between Cracker Barrel and the three engineering firms to assess ADA
compliance at stores (Dorsey Dep. at 77:14-22); and information on stores that is created and
stored on Cracker Barrels’ ProTrac computer software that was evaluated by the engineering
experts (Dorsey Dep. at 82:4-83:7). (Wilson Aff. ¶ 2.)
Wilson explains that several of the documents are contracts for services between Cracker
Barrel and engineering firms (the Buck Group, QPM and D&E) and that the reports, evaluations
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and other documents listed on the Privilege Log were all prepared pursuant to those contracts in
order to assist her in her capacity as Cracker Barrel’s in-house legal counsel; that the experts
were engaged in anticipation of litigation such as the instant case when, in 2011, Wilson and
other Cracker Barrel representatives concluded that they needed expert evaluations to determine
if any stores were vulnerable to accessibility litigation following the effective date of the 2010
ADA Standards for Accessible Design and associated governmental regulations; that the
engineers were engaged to help formulate mental impressions, conclusions, opinions, and legal
theories concerning impending ADA litigation and appropriate remediation plans, if necessary;
that certain documents listed on the Privilege Log contain written communications between
Cracker Barrel employees for the purposes of facilitating the rendition of legal advice in the
course of Wilson’s professional relationship with Cracker Barrel; that she inadvertently caused
the disclosure of Exhibit 12 to Mr. Dorsey’s deposition, which was created by the engineering
expert as part of Cracker Barrel’s ADA compliance program; that certain of the documents listed
on the Privilege Log also contain documentation of attorney-client privileged communications
consisting of communications among various Cracker Barrel in-house counsel, the engineering
experts and various non-attorney client representatives concerning the expert evaluations and
recommendations; that she compiled the responses to Plaintiff’s document production requests
and that while Mr. Dorsey was involved in the effort, he had limited knowledge about the
process of compiling the responses and was not authorized by Cracker Barrel concerning the
subject and was obviously testifying from his own limited personal knowledge and belief and
the same is true of the selection of engineering firms. (Wilson Aff. ¶¶ 3-13.)
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Plaintiff maintains that third party reports of ADA compliance do not qualify for use of
the work-product protection because Defendant did not conduct the surveys in anticipation of
litigation. In distinguishing between routine internal investigations and work done for litigation
purposes, courts have followed the rule of thumb that “if the document would have been created
regardless of whether litigation was expected to ensue, the document is deemed to have been
created in the ordinary course of business and not in anticipation of litigation.” See Electronic
Data Systems Corp. v. Steingraber, No. 4:02 CV 225, 2003 WL 21653414, at *5 (E.D. Tex. July
9, 2003). Plaintiff contends that Mr. Dorsey’s testimony establishes that survey reports would
have been created regardless of potential litigation.
Indeed, Mr. Dorsey confirmed that monitoring the compliance of parking lots with the
ADA has been ongoing. (Dorsey Dep. 24:7-14.) Mr. Dorsey testified that Defendant hired Mr.
Buck, the third party consultant, “sometime in 2012,” which was years before Plaintiff filed her
Complaint against Defendant. See ECF No. 1 (showing complaint was filed on October 27,
2014); Dorsey Dep. 59:13-16. Further, Defendant’s privilege log states that Mr. Buck’s surveys
began in 2011. See ECF No. 76 Ex. H. Plaintiff argues that Defendant completed surveys in the
ordinary course of business and for purposes unrelated to this litigation.
Additionally, even if Defendant investigated issues that could involve litigation in the
future, courts have held that such investigations do not warrant protection under the work
product doctrine because they were done in the ordinary course of business. See, e.g.,
Steingraber, 2003 WL 21653414, at *5 (finding no protection under work product doctrine
because investigations are “routine, expected and necessary”); E.E.O.C. v. Safeway Stores, Inc.,
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2002 WL 31947153, at *5 (N.D. Cal. Sept. 16, 2002) (“Distinguishing between claims
investigating and work done in anticipation of litigation may turn on whether the investigations
include or involve legal opinions or trial strategies, and whether the investigation deviated from
the norm.”); Ledgin v. Blue Cross and Blue Shield of Kansas City, 166 F.R.D. 496, 498 (D. Kan.
1996) (determining no work product where memorandum, prepared by associate general counsel,
addressed possibilities of action that might be taken to avoid future problems and complaints);
Soeder v. General Dynamics Corp., 90 F.R.D. 253, 255 (D. Nev. 1980) (concluding report was
prepared in ordinary course of business as defendant could have prepared it to improve safety,
guard against adverse publicity, or promote economic interests).
Plaintiff argues that Defendant’s investigations involved no legal opinions. Defendant’s
corporate designee, Mr. Dorsey, explained that, after learning of a potential ADA violation at its
locations, the facility manager and/or a contractor would visit the site to determine if there was
an ADA violation and, if necessary, the scope of the work required for remediation. (Dorsey Dep.
12:22-13:16.) Plaintiff indicates that there is no indication that the surveys contained legal
opinions or litigation strategies. Rather, they were fact-specific investigations and the work
product doctrine does not apply.
Defendant has not demonstrated that the documents at issue constitute attorney workproduct, as opposed to ordinary business documents created during routine renovations at
facilities or when certain stores received complaints from customers. Ms. Wilson’s statement
that she “subjectively believed that litigation was a real possibility when the 2010 ADA
Guidelines went into effect” is at odds with Mr. Dorsey’s testimony that the documents were
created during the normal course of business, without any involvement of counsel and
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contemporaneous documents discussing the project which do not reflect the involvement of
counsel. Defendant’s argument should be rejected and Plaintiff’s motion to compel these
documents should be granted.
AND NOW, this 29th day of October, 2015,
IT IS HEREBY ORDERED that Plaintiff’s motion to compel (ECF No. 76) is granted
and Defendant shall produce documents sought by Plaintiffs by November 6, 2015.
s/Robert C. Mitchell_______________
ROBERT C. MITCHELL
United States Magistrate Judge
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