Lofgren v. Polaris Industries Inc.

Filing 150

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Eli J. Richardson on 4/2/2019. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jm)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CHRISTOPHER LARS LOFGREN,
Plaintiff,
v.
POLARIS INDUSTRIES, INC.,
Defendant.

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NO. 3:16-cv-02811
JUDGE RICHARDSON

MEMORANDUM OPINION
Pending before the Court is Defendant’s Motion for Review of Nondispositive Order of
Magistrate Judge (Doc. No. 127). The Magistrate Judge’s Order denied Defendant’s Motion
Challenging United States Army’s Invocation of the Safety Privilege (Doc. No. 122).
BACKGROUND
This lawsuit arises from personal injuries sustained by Plaintiff, a West Point Cadet, while
driving a Polaris MRZR vehicle during a U.S. Army summer training exercise at Fort Campbell.
Following the incident, the Army ordered two separate investigations: (1) an informal “Legal
Investigation,” whose purpose, according to Department of Defense Instruction (“DoDI”) 6055.07,
is to inquire into all the facts and circumstances surrounding mishaps, as well as to obtain and
preserve all available evidence for use in litigation, claims, disciplinary action, adverse
administrative action, and for public disclosure; and (2) a “Safety Investigation,” whose purpose
is to “[P]revent mishaps.” DoDI 6055.07 (Doc. No. 109-4 at 15). The report of the Legal
Investigation is known as the AR 15-6 Report (Doc. No. 109-1), and the report of the Safety
Investigation is known as the AR 385-10 Report (Doc. No. 109-2).

The complete AR 15-6 Report was produced to the parties by the Army in connection with
this litigation, not subject to any privilege. The Army, which is not a party to this action, produced
a redacted copy of the AR 385-10 Report and denied the parties’ request for an unredacted copy,
citing the military safety privilege. Polaris then moved to compel production of the unredacted
version of the AR 385-10 report from the Army, and the Magistrate Judge denied that Motion to
Compel. Doc. No. 122. The Magistrate Judge reviewed the unredacted report in camera and based
her decision upon the military safety privilege and balancing the needs of the parties involved,
including the non-party U.S. Army. Id.
“Safety privilege is based on a national defense need for rapid and accurate assessment of
the causes of mishaps to prevent a recurrence and maintain mission readiness. This privilege
creates restrictions on handling and releasing information in safety investigation reports.” Doc.
No. 109-4 at 21 (DoDI 6055.07). The Department of Defense (“DOD”) has described two
categories of safety information it considers to be privileged. The first is information given to a
safety investigator pursuant to a promise of confidentiality and any information derived from that
information or direct or indirect references to that information. Id. The second is products of
deliberative processes of safety investigators. Id. DOD states that privileged safety information
“shall be used for safety purposes only, specifically, preventing mishaps and reducing injury and
property damage resulting from mishaps.” Id. at 22.
STANDARD OF REVIEW
Local Rule 72.01 allows a party to object to decisions of Magistrate Judges on nondispositive matters by filing a Motion for Review. The Court must consider timely objections and
“modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R.

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Civ. P. 72(a); Equal Employment Opportunity Comm’n v. Burlington Northern & Santa Fe Ry.
Co., 621 F. Supp. 2d 603, 605 (W.D. Tenn. 2009) (“Burlington"). The “clearly erroneous” standard
applies only to factual findings, while legal conclusions are reviewed under the “contrary to law”
standard. Id.
Here, the parties do not dispute the underlying facts, so the Court focuses on the Magistrate
Judge’s legal conclusions. When examining legal conclusions under the contrary to law standard,
a court may overturn any conclusions of law which contradict or ignore applicable precepts of law,
as found in the Constitution, statutes, or case precedent. Vanderbilt Univ. v. Scholastic, Inc., 321
F. Supp. 3d 830, 832-33 (M.D. Tenn. 2018).
ANALYSIS
The “military safety privilege” was recognized in Machin v. Zuckert, 316 F.2d 336 (D.C.
Cir. 1963), where the court held that confidential statements of private parties1 made to
investigators of an Air Force accident were privileged when disclosure would hamper the efficient
operation of an important government program. Id. at 338. The Machin court also held that the
military safety privilege extended to any conclusions that might be based upon such privileged
information. Id. Finally, the court held that the military safety privilege attached to any portions
of the investigative report reflecting military deliberations or recommendations as to policies that
should be pursued. Id.; see also Miles v. United States, Case No. 3:14cv360, 2015 WL 11109793,
at * 5 (N.D. Fla. Oct. 19, 2015) (recognizing the military safety privilege). In Machin, the court
found that certain portions of the investigative report—specifically, the factual findings of Air

In Cooper v. Dep’t of the Navy, 558 F.2d 274, 277-78 (5th Cir. 1977), the court declined to make
any distinction between statements of private parties to investigators and statements of military
personnel to investigators for purposes of this privilege. Cooper arose in the context of a FOIA
request and refers to the Machin privilege as an “executive privilege.” Id.
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Force mechanics—were not privileged, but the military safety privilege extended to the rest of the
report. Machin, 316 F.2d at 339-40.
In Miles, the plaintiff sought redacted information from an investigative report prepared by
the Air Force concerning a civil aircraft accident. The Air Force argued the redacted information
was subject to the military safety privilege. Miles, 2015 WL 11109793, at * 4. The court noted that
the Air Force’s position found support in the case law. Id. at * 6 (citing cases). The court stated
that the purpose of the privilege is to allow safety investigators to speculate, opine, analyze, and
make recommendations in a hasty fashion, knowing that they may not be fully supported by the
facts, so that all possible causes of an accident can be identified and all corrective action can be
taken in as timely a fashion as possible. Id. at * 7.
The Supreme Court also recognized the military safety privilege in United States v. Weber
Aircraft Corp., 465 U.S. 792, 799 (1984), in the context of a FOIA request, holding that the FOIA
exemption protected confidential statements made to air crash safety investigators. Similarly, the
court in Karantsalis v. Dept’ of the Navy, No. 12-23469-CIV, 2013 WL 1768659, at * 3 (S.D. Fla.
April 24, 2013), held that the Machin privilege protected from disclosure witness statements and
opinions in a Navy investigative report. And in Cooper v. Dep’t of the Navy, 558 F.2d 274 (5th
Cir. 1977), as previously noted, the court also recognized and even expanded the military safety
privilege in a case involving a FOIA request for a Navy safety investigation report. Cooper, 558
F.2d at 277, cited in Miles, 2015 WL 11109793, at * 5.
The Machin “military safety privilege” includes two parts: confidential statements of
witnesses and the deliberations of investigators. Although it includes protections for the
deliberations of investigators, the Court considers the military safety privilege to be separate from

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the “deliberative process privilege.”2 For example, in Karantsalis, the court found the information
at issue was covered by the military safety privilege and, therefore, did not consider the defendant’s
“alternative argument” for exemption under the deliberative process privilege. Karantsalis, 2013
WL 1768659, at * 3. The military safety privilege plainly appears to apply here, and Defendant
does not contend otherwise; Defendant instead argues that privilege is overcome. Doc. No. 128 at
7.
To determine whether the military safety privilege is overcome in this case, the Court looks
at Defendant’s asserted need for disclosure as balanced against the Army’s need for protection. In
Burlington, the court balanced the competing interests of the government and the party seeking
the information by considering five factors (also considered by the Magistrate Judge here): (1)
relevance of the information sought; (2) availability of other evidence; (3) seriousness of the
litigation and issues involved; (4) role of government in the litigation; and (5) possibility of future
timidity by government employees who will be forced to recognize that their secrets are violable.
Burlington, 621 F. Supp. 2d at 607. By analogy, the Court will consider these factors in analyzing
whether Defendant has overcome the military safety privilege here. 3

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The deliberative process privilege protects from discovery documents reflecting advisory
opinions, recommendations, and deliberations comprising part of a process by which governmental
decisions and policies are formulated. Burlington, 621 F. Supp. 2d at 606. Similarly, the second
part of the military safety privilege protects conclusions, deliberations or recommendations as to
policies that should be pursued. Karantsalis, 2013 WL 1768659, at * 3; Machin, 316 F.2d at 339.
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The Army asks the Court to eschew the five factors set forth in Burlington and instead apply a
two-part test—i.e., to determine whether the redacted information qualifies for protection under
the military safety privilege and, if so, whether the party requesting the information has sufficient
need to overcome the Army’s need for non-disclosure. But the Court can and will do both: apply
the two-step test and the five-factors. Specifically, having answered the first question above, the
Court now will consider the five factors in balancing the interests of the parties to answer the
second question identified by the Army—whether the military safety privilege is overcome in this
case.
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The Army does not dispute that the allegedly privileged information is relevant to this
action. That relevance alone does not overcome the privilege, however. Polaris argues that the
release of one investigative report without the other is unfair, contending that the very unfairness
of the situation makes the redacted information even more relevant. But such an “incomplete
picture” of which Polaris complains would arise in all cases where privilege is asserted, at least in
part, as to one but not both reports.4 Portions of the Safety Investigation Report will often, if not
always, be considered privileged under DoDI 6055.07 because of the nature of that safety
information. Doc. No. 109-4 at 21. What Polaris calls an “irreconcilable conflict” between the
release of one report and the redaction of the other is not unique to this case. Given the DOD
instructions and policies, which have been upheld by the courts, this alleged “conflict” does not
persuade the Court to find that Polaris’s need and interests overcome the privilege.
The issue in this case is complicated by the fact that apparently Polaris knows what
information is redacted from the AR 385-10 Report. Polaris has admitted that it received an
unredacted draft of the AR 385-10 Report and produced that unredacted report to Plaintiff with
Polaris’ initial disclosures.5 There is no evidence that this disclosure to Polaris was authorized or
proper. There is no evidence that the disclosure of this information by Polaris to Plaintiff was
authorized or proper. Indeed, the Court previously precluded Polaris from using the unauthorized

Here, the Court holds only that the alleged unfairness from this purported “incomplete picture”
is not sufficient to overcome the privilege. As discussed below, the Court is not saying that such
unfairness concerns are unwarranted or not worthy of some other remedy. Moreover, the
unfairness concerns still conceivably could relate to whether the privilege was waived by the
Army, a possibility addressed below.
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Plaintiff asserts that he informed the Army of this unauthorized disclosure. Doc. No. 132 at 3.
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document in discovery. Doc. No. 75.6 So, Polaris is not trying to discover this information; rather
Polaris wants to be able to use this information (which it has already received) to support its
position. Its fairness argument is based upon the fact that it knows what the unredacted AR 38510 Report says and believes that information to be helpful to its case. Absent this improper and
unauthorized disclosure, Polaris would not be able to assert that release of one report and not the
other actually (as opposed to merely possibly) presents an unfairly “incomplete picture” to a
greater extent in this case than in other cases. The Court is loath to allow the Army’s privilege to
be overcome based on knowledge gained by Polaris through a leak that was violative of the very
privilege the Army seeks to preserve. Polaris has cited no cases that have applied this kind of
fairness argument to overcome the military safety privilege,7 and the Court does not consider this
unusual “fairness” argument to be persuasive.
As for the second factor, the Army has produced and provided access to a substantial
amount of evidence related to this incident, including access to the actual subject vehicle, the site
of the accident, numerous Army witnesses, other evidence regarding the subject vehicle, and the
complete AR 15-6 Report. Polaris may certainly use the underlying factual evidence to develop its
own expert testimony and arguments. Polaris places particular importance upon the fact that these
are “the Army’s conclusions and recommendations,” but conclusions and recommendations in AR
385-10 Reports are always the Army’s conclusions and recommendations. This fact is no basis for
overcoming the privilege in this particular case, because the fact exists in every case. The Army,

The Court also allowed Polaris to directly challenge the Army’s assertion of privilege, which
eventually led to this Motion for Review. Doc. No. 75.
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In fact, Polaris has not cited a single case in which a court found that a party had demonstrated
sufficient need to overcome the military safety privilege.
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whatever its gravitas, has not been designated as an expert in this case, and its AR 15-6 Report is
open to challenges and rebuttal by both sides.
As for the third factor, no one disputes the seriousness of this litigation and the issues
involved. With regard to the fourth factor, the role of government in the litigation, the Army is not
a party herein. Polaris points out that the Army owned the vehicle at issue and was involved in its
design, development, testing and use. The role of the Army in such matters may turn out to be
relevant to the issues between the parties, and the Army is already cooperating in discovery, but
the limited role of the Army in this case does not outweigh the need for the military safety privilege
as to this specific information. There is no allegation or evidence before the Court that the Army,
in making decisions as to what to release or not release, is playing a strategic game or trying to
“have it both ways” for strategic purposes. The Army is involved simply because the parties sought
information from it.
As for the fifth factor, the Court agrees with the Magistrate Judge that the potential impact
a release of information here would have on future safety investigations is a significant factor in
favor of non-disclosure. In Miles, the court found that the military safety privilege applied to a
request for an unredacted version of an Air Force safety investigation report. Miles, 2015 WL
11109793, at * 7. As noted above, important to that court’s decision was the purpose of the
privilege, which is “to allow safety investigators to speculate, opine, analyze, and make
recommendations in a hasty fashion, knowing they may not be fully supported by facts, so that all
possible causes of an accident can be identified and all corrective action can be taken in as timely
a fashion as possible.” Id. Citing to declarations from Air Force safety officials, the court also
noted that the legitimate purpose of the military safety privilege would be undermined if the

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privilege were to be applied on a case-by-case basis, in the manner Polaris suggests here. Id. at 47.
Here, the Army has filed the Declaration of Brigadier General Timothy J. Daugherty,
Commander of the U.S. Army Combat Readiness Center in Fort Rucker, Alabama, whose mission
is to prevent accidents. Doc. No. 134-1. According to Daugherty, “[Army] safety investigations
are used solely to investigate and understand the cause of accidents in order to prevent future
accidents.” Id. at 2. Daugherty stated that “the Army does not permit use of the privileged portions
of the Safety Accident Investigation Report for any purpose other than safety and accident
prevention.” Id. Explaining further, Daugherty said, “The release of the findings,
recommendations, conclusions and speculations made by the accident investigation board would
seriously undermine the Army’s Safety Program, the primary purpose of which is to prevent
accidents.” Id. “The privileged, limited use nature of Army safety accident investigations is an
absolute necessity to a successful Army safety program.” Id. at 3.
If courts were to consider whether the military safety privilege is overcome (on a case-bycase basis) based upon whether the second report contradicts the first, or whether the first report
favors one side in litigation and the second report favors another, the underlying purpose of the
privilege would be destroyed. In this case, the information at issue falls within the military safety
privilege, and that privilege is not overcome by any demonstrated need of Polaris. Information
does not lose its privileged status merely because it conflicts with previously disclosed
information.
That is not to say that a party’s prior disclosure of certain information cannot possibly
waive the party’s privilege as to other (privileged) information on the same subject. Thus, the
Court has considered whether the Army in this case waived the military safety privilege as to the

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redacted portions of the AR 385-10 Report by releasing the AR 15-6 Report.8 The Army has not
asserted the military safety privilege as to the AR 15-6 Report. Therefore, it has not released some
information that is covered by the military safety privilege while withholding other information
covered by the military safety privilege on the same subject. Even if the Army has asserted that
the deliberative process privilege applies to the AR 15-6 report—and the briefing is not entirely
clear on whether this is the case—the Court believes that release of that information (allegedly
covered by the deliberative process privilege) does not necessarily waive the military safety
privilege as to the AR 385-10 Report. In other words, the Court does not find that waiver of the
deliberative process privilege in one document waives the military safety privilege in another
document. 9

In fact, the Court specifically ordered briefing on this topic because it considers Polaris’s fairness
concerns to be valid and related more to the rationale for the waiver doctrine than to the “balancing
of interests” test discussed above. Polaris’s briefing on waiver misses the mark because: (1) it does
not establish that release of the AR 15-6 Report resulted in disclosure of information protected by
the military safety privilege; and (2) it invokes waiver principles primarily in the attorney-client
and work-product contexts, and not in the current context of a claim of military safety privilege,
which (for policy reasons) tends to be more compelling as advancing the public interest.
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In addition, Polaris cites to Rothschild v. United States, Civil No. 15-CV-030-J, 2016 WL 8856652
(D. Wyo. March 16, 2016) in arguing that the Army could have claimed privilege for all or parts
of the AR 15-6 Report. Rothschild found that the defendant had properly asserted the deliberative
process privilege as to both the report of an informal legal investigation and the report of a safety
investigation (except as to certain factual information contained in the reports). Id. at ** 3-4. The
Army here has asserted a different privilege, the military safety privilege, as to its safety
investigation report.
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See, e.g., 26A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 5722
(1st ed. 2018) (“Hence, what constitutes ‘waiver’ of one privilege may not waive a different
privilege.”); cf. K.W. Muth Co. v. Bing-Lear Mfg. Group, LLC, 219 F.R.D. 554, 568 (E.D. Mich.
2003) (party’s waiver of attorney-client privilege does not necessarily waive work-product
protection); In re Columbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F. 3d 289,
304 (6th Cir. 2002) (same); Edwards v. Whitaker, 868 F. Supp. 226, 230 (M.D. Tenn. 1994)
(same).
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For all these reasons, balancing the interests and in its discretion, the Court finds that
release of the information in the AR 15-6 Report did not waive the Army’s military safety privilege
in the redacted portions of the AR 385-10 Report.10
That is not to say that all of the Army’s redactions in the AR 385-10 report are appropriate.
The issue remains as to whether each individual redaction protects information covered by the
military safety privilege without waiver. After its in camera review of the unredacted AR 385-10
Report, the Court finds that the military safety privilege has been properly asserted, and also not
waived, as to all redacted portions of the Report except for all or part of three sentences.
In each of these three instances, the Army attempts to very finely parse privileged
information from unprivileged information but fails in so doing because: (a) the redacted language
is not privileged; and, alternatively with respect to two of the three instances (b) the Army has
waived any privilege that could conceivably be deemed to exist. First, at page 14 of Doc. No. 1092 (the redacted AR 385-10 Report), first and second lines, the Court finds that the language
redacted after the words “crested the berm” simply complete that factual sentence, and that
therefore this redacted language is of the same type as the unredacted language of the same
sentence. This means that the redacted language is not privileged because, as the Army insists, all
disclosed (i.e.., unredacted) content from the AR 385-10 Report was privileged. (D.E. 138, at 5)

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With the privileged portions of the AR 385-10 Report properly being kept out of this litigation
based on this Memorandum Opinion and the corresponding Order, Defendant’s concerns about
fairness and completeness remain valid and arguably even more compelling than before. The
parties are advised that such concerns could—not to say will—incline the Court to exclude (under
the Federal Rules of Evidence) some or all of the actual text of the AR 15-6 Report if offered into
evidence. It is one thing to say that the Army possesses and has retained its privilege as to redacted
portions of the AR 385-10 Report. It is another to say that Plaintiff may use the AR 15-6 Report
entirely as he wishes in the absence of the availability of the complete AR 385-10 Report to
Defendant.
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(“the Army has never voluntarily released any privilege portion of the Safety Board Report to the
public”). And to the extent the redacted portion of that sentence conceivably could be deemed
privileged, such privilege was waived by not redacting the first part of the sentence.
Second, at page 17 of Doc. No. 109-2 (the redacted AR 385-10 Report), section (3), last
sentence, after “The Board observed,” the Court finds that the information redacted is a mere
physical factual observation by the investigator, which is properly deemed unprivileged because
it may be disclosed without in any way jeopardizing the policy reasons for the privilege, as stated
in Machin, 316 F.3d at 399. Third, at page 42 of Doc. No. 109-2 (the redacted AR 385-10 Report),
in the “Specific Description of Activity/Task” section, sixth line, the Court finds that the language
redacted after the words “The SM crested the 300m berm,” to the end of that sentence, simply
completes that factual sentence. For the reasons discussed above in connection with the first of the
three instances, this means that the redacted language is not privileged and that, alternatively, any
conceivable privilege has been waived with respect to it.11
CONCLUSION
For these reasons, the Court finds that the Order of the Magistrate Judge (Doc. No. 122) is
not contrary to law. Accordingly, that Order will be AFFIRMED except as to three specific
exceptions listed above. An appropriate Order will be entered.

_______________________________
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE
Especially since the Court’s finding of waiver is merely an alternative basis for ordering
disclosure (in two of the three instances), and that the Court does not in fact believe that redacted
information actually was privileged, the Court does not address any possible notion that the
Army’s waiver of the privilege as to these two partial sentences might constitute a broader subjectmatter waiver of the military safety privilege.
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