UHLIG LLC v. Shirley et al

Filing 723

ORDER granting 699 Motion to Compel as set out. Signed by Honorable J Michelle Childs on 6/1/11.(awil)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
UHLIG LLC, et. al.

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Plaintiffs,
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v.
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JOHN ADAM SHIRLEY, et. al.,
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Defendants.
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____________________________________)

C.A. No. 6:08-cv-01208-JMC
OPINION AND ORDER

This matter is before the court on Defendants John Adam Shirley, Eventelope LLC, and
Prism Content Solutions, LLC’s (collectively “Defendants”) Motion to Compel Production of the
Recorded Statement of Amanda Dorsey Marcengill [Doc. 699] under Rule 37 of the Federal Rules
of Civil Procedure. After reviewing the motions, the record and the applicable law, Defendants’
motion is granted.
FACTUAL AND PROCEDURAL BACKGROUND
Amanda Dorsey (“Dorsey”) is a former employee of Defendant Prism Content Solutions,
LLC and a former defendant in this lawsuit. Plaintiff Uhlig LLC (“Uhlig”) took her deposition on
July 14, 2009. [Doc. 661-1, at 2]. Uhlig settled with Dorsey (and other co-defendants) on August 4,
2009. [Doc. 699-1]. As part of the settlement, Dorsey agreed to a consent injunction prohibiting
Dorsey from working in certain businesses for a three (3) year period without written consent from
Uhlig, and Dorsey agreed to cooperate with Uhlig and its counsel during the pendency of the
litigation. [Doc. 699-1 at ¶3(c), ¶3(g); 699-2]. The settlement agreement also prohibits Dorsey from
meeting with Defendants’ counsel without notice to Uhlig and an opportunity for Uhlig to be present
at any such meeting. [699-1].
On July 19, 2010, about a year after the settlement, Uhlig’s counsel met with Dorsey and
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Dorsey provided a recorded statement. [699-3; Doc. 652-2 ¶6]. Neither Defendants’ counsel nor
Dorsey’s counsel were present. [707-1, at 3, ¶ 5].
On January 31, 2011, Uhlig filed an affidavit from Dorsey that she signed on January 18,
2011, over a year and a half after her deposition. [Doc. 652-2]. According to this affidavit, Dorsey
“broke down in tears” at the July 19, 2010 meeting and stated that she provided inaccurate testimony
in her deposition. [Doc. 652-2, at ¶¶5-6]. Uhlig has asserted that this affidavit “reveals that testimony
provided in this case . . . was not truthful.” [Doc. 652-1 p. 2]. In the affidavit, Dorsey asserts that her
inaccurate testimony was a result of pressure that she felt from Defendants. [Doc. 652-2 at ¶5].
On January 31, 2011, the same day Uhlig filed Dorsey’s affidavit, Uhlig provided
supplemental responses to Defendant Shirley’s First Interrogatories and First Request for Production
identifying Dorsey as a witness with knowledge of, among other things, “misrepresentation made
during discovery in this matter” and stating “that Uhlig’s counsel is in possession of a recorded
statement of Dorsey taken by Uhlig’s counsel, and a transcript of the same, both of which are
protected from disclosure by the work product doctrine and/or trial preparation privilege.” [Doc. 6994; Doc. 699-5]. Uhlig has refused to produce the recorded statement (and transcript) on that basis.
[Doc. 699-4; Doc. 699-5].
Defendants’ counsel has consulted with Uhlig’s counsel in an attempt to resolve the issues
raised in this motion. Counsel for the parties have exchanged letters, but the parties were unable to
resolve the issues raised in this motion. [Doc. 699-6; Doc. 699-3].

LEGAL STANDARD
The Federal Rules of Civil Procedure provide that a party may “obtain discovery regarding
any non-privileged matter that is relevant to any party’s claim or defense- including the existence,
description, nature, custody, condition and location of any books, documents or other tangible things
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and the identity and location of persons who know of any discoverable matters.” Fed. R. Civ. P.
26(b)(1). “Relevant information need not be admissible at trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.” Id. To be relevant, the discovery sought
simply must be “any matter that bears on, or that reasonably could lead to other matter that could
bear on, any issue that is or may be in the case.” Hickman v. Taylor, 329 U.S. 495, 501 (1947). If
a party fails to answer an interrogatory submitted pursuant to Rule 33 of the Federal Rules of Civil
Procedure or fails to produce a requested document, “a party seeking discovery may move for an
order compelling an answer, designation, production, or inspection.” Fed. R. Civ. P. 37(a)(3).
DISCUSSION
Under Federal Rule of Civil Procedure 26(b)(3),
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 they are
otherwise discoverable under Rule 26(b)(1); and 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.

Fed. R. Civ. P. 26(b)(3). Defendants first assert that the work product rule does not protect Dorsey’s
recorded statement because they are not seeking Uhlig’s counsel’s mental impressions, opinions, or
notes concerning what Dorsey said when her statement was recorded. [Doc. 699, at 3]. Defendants
state that they are merely “seeking Dorsey’s own words, straight from her mouth.” [Doc. 699, at 3].
The work product rule protects materials that meet three elements: the materials must be “documents
and tangible things; prepared in anticipation of litigation or for trial; and by or for another party or
by or for that other party’s representative.” 8 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane
& Richard L. Marcus, FEDERAL PRACTICE

AND

PROCEDURE § 2024 (3d ed.); See also Suggs v.

Whitaker, 152 F.R.D. 501, 504 (M.D.N.C. 1993). Here, the recorded statement is a document or

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tangible thing prepared by Uhlig’s counsel during the course of litigation and in preparation for trial;
therefore, the recorded statement falls within Rule 26(b)(3)’s scope. Furthermore, the question
whether the work product doctrine affords a document protection does not necessarily turn on
whether the document contains an attorney’s opinion or mere fact. See National Union Fire Ins. Co.
of Pittsburgh, Pa. v. Murray Sheet Metal Co. Inc., 967 F.2d, 980, 985 (4th Cir. 1992). Documents
containing “opinions and theories about the litigation” are afforded the strongest protection and
“discovery is refused without further inquiry.” Id. “If opinions and theories about the litigation are
only part of a document otherwise discoverable the court may require production of a redacted
copy.” Id. For “other documents falling within the scope of Rule 26(b)(3), the court must determine
whether the requesting party has a substantial need for them, taking into account their relevance and
importance and the availability of the facts from other sources.” Id. (emphasis supplied). Because
the court finds that Rule 26(b)(3) applies to Dorsey’s statement, and that the statement falls within
the latter category of the three listed above, in order to compel production of Dorsey’s statement,
Defendants must now establish both substantial need and undue hardship.
The substantial need element requires a showing that the requested documents are important,
relevant, and that there are not adequate alternative means of discovering the underlying facts. See
23 Am. Jur. 2d Depositions and Discovery § 48; National Union, 967 F.2d at 985; Suggs, 152 F.R.D.
at 507. Dorsey provided the recorded statement upon which her affidavit was based and in doing
so stated that the testimony given during her July 14, 2009, deposition “was not forthcoming,” was
“based on arguments I was not comfortable with because I was scared of losing my job,” and was
“inaccurate.” [Doc. 707-1, at 3, ¶ 5]. She further testifies in her affidavit that her “conscience would
not allow me to continue hiding the fact that Uhlig had been misled under oath.” [Doc. 707-1, at 3,
¶ 6]. Dorsey’s statements are not only inconsistent with her deposition testimony but they also
include allegations that she was under Defendants’ improper influence. Courts have compelled the
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production of documents in circumstances in which the underlying statements are inconsistent. See
Estevez v. Matos, 125 F.R.D. 28, 31-32 (S.D.N.Y. 1989) (compelling production of witness
statement where witness has given conflicting statements). Furthermore, Defendants have a
substantial need for the statement given its nature and the gravity of Dorsey’s allegations of improper
influence. Defendants should therefore be able to inspect any information that could shed light on
the accusation that Defendants improperly influenced Dorsey’s testimony. Similarly, in Estevez, one
of the issues was whether the plaintiffs attempted to influence a key witness, and one of the
defendants’ statements concerned an attempt by the plaintiff to induce the witness to testify in a
manner favorable to the plaintiffs. Id. at 30 (stating that the statement at issue “concerned a
solicitation attempt by [the plaintiff]” and that it “relat[ed] to possible subornation of perjury”). The
court granted the plaintiffs’ motion to compel the statement and found that “[t]he issue [of] whether
[a key witness] was improperly influenced by anyone is too serious to be tried by guesswork.” Id.
at 32. Here, too, the issue of whether Dorsey was improperly influenced “is too serious to be tried
by guesswork.” Id.
Uhlig attempts to distinguish Estevez by asserting that the court in Estevez found “that far
more is at issue here than ‘mere hope’ of inconsistent statements,” and Uhlig argues that in the
present case, Defendants are seeking the recorded statement “based on the ‘mere hope’ that the
recorded conversation might show that Dorsey’s Affidavit is inconsistent with the recorded
conversation.” [Doc. 707 p. 9]; Estevez, 125 F.R.D. at 32. The court is not persuaded by this
distinction. The Estevez court’s full explanation of why there was far more than a mere hope of
inconsistent statements is instructive:

Contrary to defendant’s contentions, the record before me shows that far more is at
issue here than ‘mere hope’ of inconsistent statements. A trial under the Federal
Rules of Civil Procedure is not a game of surprises, but an effort to establish the truth
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on the basis of all the evidence. The issue whether Ms. Martinez was improperly
influenced by anyone is too serious to be tried by guesswork.

Estevez, 125 F.R.D. at 32. Similar allegations of improper influence exist here, and Defendants are
primarily seeking Dorsey’s statement in an effort to fully understand the inconsistencies between
Dorsey’s present testimony and her previous deposition testimony. Here, there is far more than the
“mere hope” of these inconsistencies, and Defendants are entitled to full discovery of these
inconsistencies. A review of the recorded statement will enable Defendants to determine whether
all of the inconsistencies have been revealed.
Plaintiff also argues, in opposition to Defendants’ motion, that Defendants do not have a
substantial need for the recorded statements essentially because there exists an adequate alternative
to the requested statement. In support, Plaintiff relies on two cases that stand for the proposition that
there is no substantial need for a document when the requesting party can depose those whose
statements were taken. [Doc. 707, at 11]; See, e.g., Trammell v. Anderson College, C.A. No. 8:05-cv3213-HMH, 2006 WL 1997452, *2 (D.S.C. July 17, 2006) (where investigator’s report was work
product, and employee of investigator could be deposed, request for disclosure of report was denied);
Hohenwater v. Roberts Pharmaceutical Corp., 152 F.R.D. 513, 516-517 (D.S.C. 1994) (where
requesting party could depose those who participated in preparation of a work product memorandum,
the requesting party could not establish “substantial need” and “undue hardship” necessary to compel
production of the memorandum). These cases are, however, distinguishable because they turn upon
the requesting party’s ability to depose the witnesses who provided statements connected with
attorney work product. By contrast, in the instant case, discovery had closed by the time Uhlig took
Dorsey’s statement, and according to Defendants, Dorsey has refused requests to speak with
Defendants. [Doc. 714, at 5]. Accordingly, the court finds that Defendants have established a
substantial need for the production of Dorsey’s recorded statement.
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Defendants must next establish that they cannot obtain the substantial equivalent of Dorsey’s
recorded statement without undue hardship. Fed. R. Civ. P. 26(b)(3). Undue hardship will generally
not be found where the requesting party has an opportunity to depose the witness in order to obtain
the statement. See 8 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane & Richard L. Marcus,
FEDERAL PRACTICE AND PROCEDURE § 2025 (3d ed.). On the other hand, production of a witness
statement may be compelled where the witness “may be reluctant or hostile” or where the witness
“may probably be deviating from his prior statement.” See Fed. R. Civ. P. 26, advisory committee’s
notes, 1970 amend., subdivision (b)(3); see also McNulty v. Bally's Park Place, Inc., 120 F.R.D. 27,
30 (E.D. Pa. 1988) (compelling production of statement where “[t]he plaintiff’s independent efforts
to reach [the witness] have proven unavailing”); Mitchell v. Bass, 252 F.2d 513, 518 (8th Cir. 1958)
(“The refusal of a witness to give information has been held to constitute good cause for the
production of the statement given by the witness to an adverse party.”); Burns v. New York C. R. Co.,
33 F.R.D. 309, 310 (N.D. Ohio 1963) (“Good cause is present where there is substantial inequality
of investigative opportunity or where the adversary has taken statements of a witness and that
witness is hostile or no longer available to the party seeking discovery . . . . The refusal to respond
to the request by plaintiff's attorney for a statement is a sufficient showing of hostility on the part of
this witness, who is also a company employee, to warrant a finding of good cause”). Here, Dorsey
falls into the categories outlined above. As previously discussed, according to Defendants, Dorsey
has not replied to multiple requests to meet with Defendants since providing her affidavit in which
she attested to the fact that her deposition testimony and other assertions during the litigation were
false. Consequently, Dorsey may not only be considered reluctant or even hostile, but the record also
indicates that she has deviated from her prior deposition testimony.

See Fed. R. Civ. P. 26,

Advisory Committee’s Notes, 1970 amend., subdivision (b)(3). Accordingly, Defendants have
established that they cannot, without undue hardship, obtain the substantial equivalent to Dorsey’s
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recorded statement.
Because Defendants have establish both substantial need and undue hardship, the court need
not address the issue of waiver. Accordingly, Defendants’ motion is granted. [Doc. 699].
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Compel Production of the Recorded
Statement of Amanda Dorsey Marcengill [Doc. 699] is GRANTED. Plaintiff will have ten (10)
days from the date of this order to produce Dorsey’s recorded statement and transcript.
IT IS SO ORDERED.

s/ J. Michelle Childs
United States District Judge

June 1, 2011
Greenville, South Carolina

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