Cline et al v. Publix Super Markets, Inc. et al

Filing 39

ORDER on Discovery of Witness Statement. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(Brown, Joe)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
GARY CLINE, et al.,

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Plaintiffs
v.
PUBLIX SUPER MARKETS, INC.,
et al.,
Defendants

No. 3:15-0275
Judge Trauger/Brown
Jury Demand

O R D E R
A telephone conference was held with the parties on
January 26, 2016, concerning a discovery dispute that was referred
to me for resolution by Judge Trauger.
The complaint alleges fault on behalf of the Defendant in
selling a cookie to the young child who subsequently died because
of a severe reaction to a tree nut in a chocolate chew cookie. The
Plaintiff alleges that an employee of the store assured the child’s
mother

that

there

were

no

nut

products

in

the

cookie.

The

Defendants have denied liability and the testimony and credibility
of the employee will be a key factor in the case.
The Plaintiff has been provided a brief statement the
employee

gave

the

store

manager

shortly

after

the

incident.

Apparently, after it was learned the child died, the Defendant
employed outside counsel to conduct an investigation of the matter
and the outside attorney interviewed the employee and submitted
handwritten questions to her to which she provided handwritten
answers. The questions and answers were then submitted by the

outside attorney to the Defendant as part of their investigation of
the matter. The documents were clearly marked attorney/client
materials.
During discussion of the matter the Defendant cited the
case of Upjohn Co. v. United States, 101 S. Ct. 677 (1981) that
points out the extraordinarily strong showing of need before an
attorney’s notes must be produced. The statement in question in
this case is not an attorney’s summary, which would be entitled to
the strongest protection, but rather they are the written questions
and answers of the employee. Federal Rules of Civil Procedure
26(b)(3)(A)(ii) provides for disclosure where a party can show a
substantial need for the material to prepare its case and cannot
without undue hardship obtain a substantial equivalent by other
means.

The section goes on in Rule 26(b)(3)(B) to provide that if

the court orders discovery of these materials it must protect
against disclosure of the mental impressions, conclusions, opinions
or legal theories of a party’s attorney or other representatives
concerning the litigation. Rule 26(b)(3)(C) provides that any party
or other persons may on request, without a showing of need,

obtain

that person’s own previous statement about the action or its
subject matter. In this case the employee has apparently not
requested a copy of her statement, which under the Rules, she could
do.
Plaintiff’s counsel has not at this point interviewed the
witness and is therefore unable to make a showing that the witness

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will not be willing to request a copy of her statement under Rule
26, will be hostile, or will profess a lack of memory concerning
this event.
The Magistrate Judge is therefore unwilling to direct
that the

Defendant

provide

the

statement

at

this

point.

The

Defendant is DIRECTED to provide the document to the Magistrate
Judge,

under

seal,

for

potential

in

camera

inspection.

The

Magistrate Judge will inspect the document if, during the course of
the deposition, the Plaintiff can make the required strong showing
of the particular need for this statement.
The parties may contact the Magistrate Judge by telephone
during the course of the deposition should Plaintiff’s counsel
believe he has the ability to make such a showing.
The parties’ attention is also called to the cases of
Trustees, Plumbers, and Steamfitters Local Union No. 43 Health and
Welfare Fund v. Crawford, 573 F. Supp. 2d, 1023 (E.D. Tenn. 2008);
Howard v. Fowler Bros., Inc., 2011 WL 3438407 (W.D. Ky August 5,
2011); Coble v. Value City Furniture, 2008 WL 114937 (W.D. Ky Jan.
10, 2008) for such light as they may shed on this issue.
It is so ORDERED.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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