State Farm Fire and Casualty Company v. Johnson Controls, Inc. et al

Filing 52

ORDER granting in part and denying in part 32 Motion to Compel. Signed by Magistrate Judge Charmiane G. Claxton on 7/15/2016. (Claxton, Charmiane)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
STATE FARM FIRE AND CASUALTY COMPANY
AS SUBROGEE AND ASSIGNEE OF MARTHA L. DEAN,
Plaintiff,
v.

No. 2:15-cv-02559-STA-cgc

JOHNSON CONTROLS, INC. AND
JOHNSON CONTROLS BATTERY GROUP, INC.,
Defendants
______________________________________________________________________________
ORDER ON MOTION TO COMPEL
______________________________________________________________________________
Before the Court, by way of Order of Reference (D.E. # 33), is Plaintiff’s Motion to
Compel (D.E. # 32) filed on December 30, 2015. Defendants filed their response on January 29,
2016. A telephonic motion hearing was held on March 23, 2016 1 with Michael Durr appearing
on behalf of Plaintiff and Michael McLaren on behalf of Defendants. (D.E. # 48) Based on the
motion, response, arguments of counsel and the record, the Court finds as follows:
As to Plaintiff’s interrogatories 13 and 14, and request for production number 8:
Defendants will identify lawsuits and claims involving battery fires or battery overheating in
flooded lead acid batteries arising in the ten-year period from the purchase date of the battery
(August 11, 2012) at issue in this lawsuit, as well as the non-privileged documents produced and
received in connection with those prior claims and lawsuits. That production is due thirty days
from the date of this Order.

1

After an initial setting for February 17, 2016, the hearing was reset twice – once at the request of Defendant and
then at the request of Plaintiff. (D.E. # 41, 42, 43, 44, 45, 47)

As to the eleven emails listed on the first three pages of Defendants’ privilege log
(PageID 300–02): Defendants produced the emails to the Court in camera on Friday, April 1,
2016. This case concerns a fire that occurred on September 14, 2014. Plaintiff, as subrogee of
Martha Dean, asserts that the fire was started by the automobile battery sold to Ms. Dean by
Sears and arguably manufactured by Defendants. The fire caused significant property loss to
Ms. Dean, an insured of Plaintiff. Plaintiff sent notice to Sears of the loss on October 10, 2014.
Sears issued an indemnity demand to Defendants on October 10, 2014. Ian Botnick, counsel for
Defendants, wrote Michael Durr, counsel for Plaintiff, on October 15, 2014 to confirm that
Defendants received notice of the incident and the offer to participate in a “final joint inspection
of the vehicle” on October 17, 2014. (D.E. # 32-2, p 4) Botnick states in this letter that
“destruction of the vehicle, battery or any other evidence without the written consent of Sears,
Johnson Controls Battery Group, Inc. and all interested parties” will be considered by the
Defendants to constitute spoliation of evidence. Id. On December 11, 2014, Plaintiff sent notice
to Jack W. Jourdan of Broadspire, Mike Klimek of Sedgwick Claims 2 and Botnick to inform
them of the January 12, 2015 examination of the retained evidence (presumably the battery at
issue since that was the only item remaining after the October 17, 2014 inspection of the
vehicle). (D.E. # 30-3, p 7) No one appeared on behalf of Sears or Defendants. On March 11,
2015, Plaintiff wrote Jourdan, Botnick and Klimek to make a demand and supported the demand
with photographs taken at the October 2014 and January 2015 inspections. In a March 13, 2015
email response, Botnick states: “As an initial matter, I don’t recall consenting to this level of
destruction (see attached letter). Your destruction of the battery has severely prejudiced our
ability to defend ourselves from a product defect allegation.” (D.E. # 30-3, p 21) Plaintiff filed

2

Sedgwick is the claims administrator for Sears. (D.E. # 32-3, p 1)

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its complaint on August 24, 2015. Defendants answers (D.E. # 12 and 13) each list as the 7th
affirmative defense that “Plaintiffs’ (sic) claims should be barred due to spoliation of evidence.”
Plaintiff asserts that their Request for Production of Documents no 3 “All documents…
that refer to the Battery, the Fire, the Fire’s cause or suspected cause, or your investigation into
the cause of the Fire have been reviewed or generated by any witness you have identified in this
lawsuit.” should have produced communications with which Botnick forwarded photos and
reports to Defendants’ engineers for evaluation. Plaintiff further asserts that because Defendants
have raised spoliation as a defense and have listed Botnick and Joseph Liedhegner, an engineer
for Defendants, as witnesses, materials regarding internal investigations and related
correspondence must be disclosed.
“Because jurisdiction in this case is based on diversity of citizenship, state law supplies
the rule of decision and the existence and limits of any privilege must be “determined in
accordance with state law.” Fed.R.Evid. 501. However, the applicability of the work product
doctrine is governed by federal procedure, even in diversity cases.” Royal Surplus Lines Ins. v.
Sofamor Danek Grp., 190 F.R.D. 463, 467 (W.D. Tenn. 1999) citing United Coal Companies v.
Powell Construction, 839 F.2d 958, 966 (3rd Cir.1988).
The internal investigations and related correspondence requested by Plaintiff clearly fall
within the ambit of the work product privilege. Fed. R. Civ. P. (26)(b)(3) only allows the
disclosure of “documents and tangible things that are prepared in anticipation of litigation or for
trial” only if 1) such material is otherwise discoverable under the rule or 2) a party shows a
substantial need for the material and cannot, without undie hardship, obtain equivalent material
by other means. Plaintiff has not made a showing on either point to justify breaching the
privilege.

3

The documents submitted to chambers for review are identified by Defendants as being
responsive to Request for Production no 2: “All documents, … that refer to the Dean home, the
Battery, the Fire, the Fire’s cause or suspected cause, or the damages alleged to have been caused
by the Fire.” (D.E. # 40, p 4) Defendants invoke the attorney client privilege to shield these
documents. “No attorney, solicitor or counselor shall be permitted, in giving testimony against a
client, or person who consulted the attorney, solicitor or counselor professionally, to disclose any
communication made to the attorney, solicitor or counselor as such by such person, during the
pendency of the suit, before or afterwards, to the person's injury.” Tenn. Code Ann. §23-3-105
“However, the privilege is not absolute. The requirements for the privilege to apply are:
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to
whom the communication was made (a) is a member of the bar of a court, or his
subordinate and (b) in connection with this communication is acting as a lawyer; (3) the
communication relates to a fact of which the attorney was informed (a) by his client (b)
without the presence of strangers (c) for the purpose of securing primarily either (i) an
opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not
(d) for the purpose of committing a crime or tort; and (4) the privilege has been (a)
claimed and (b) not waived by the client”
Royal Surplus Lines Ins., 190 F.R.D. at 468-69 citing Humphreys, Hutcheson & Moseley v.
Donovan, 568 F.Supp. 161, 175 (M.D.Tenn.1983) (construing the Tennessee statute).
After reviewing the eleven electronic mail messages listed in the privilege log, the court
finds that the following messages are not privileged because the communication was not for the
purpose of securing either an opinion on law, legal services or assistance in some legal
proceeding:

4

Date and time of message
November 5, 2014 5:48pm

From:
Ian Botnick

January 30, 2015 8:17am

Mike Klimek

January 30, 2015 4:11pm

Ian Botnick

March 12, 2015 7:38am

Mike Kilmek

March 13, 2015 1:05pm

Ian Botnick

June 9, 2015 2:17pm
June 9, 2015 3:23pm

Mike Kilmek
Ian Botnick

To:
Mike Klimek
Ian Botnick
Jack Jourdan
Mike Kilmek
Jack Jourdan
Ian Botnick
Jack Jourdan
Mike Kilmek
Jack Jourdan
Ian Botnick
Mike Klimek

These seven messages must be provided to Plaintiff within seven days of the entry of this Order.
The remaining four messages contain discussions of case strategy which would fall
within the category of securing legal services or assistance in some legal proceeding. While
Plaintiff goes on to assert that the presence of a representative of Sears would invalidate the
claim of privilege, the “common interest doctrine” would provide an exception. Under the
“common interest doctrine”,” attorneys or parties facing a common litigation opponent may
exchange privileged communications without waiving the privilege”. Travelers Cas. & Sur. Co.
v. Excess Ins. Co., 197 F.R.D. 601, 606-07 (S.D. Ohio 2000) The purpose behind this rule is “to
protect the free flow of information from [the] client to [the] attorney” when a number of clients
share a common interest in litigation. Id. citing United States v. Schwimmer, 892 F.2d 237, 243–
44 (2d Cir.1989). “It is not necessary that a common legal interest be derived from legal action;
it is possible for two or more parties to share a common interest without becoming parties to the
same litigation.” Cooey v. Strickland, 269 F.R.D. 643, 652 (S.D. Ohio 2010) In this case, Mr.
Botnick’s October 15, 2014 letter to Mr. Durr made it clear that the response was on behalf of
both Sears and Johnson Controls Battery Group and that Sears and Johnson Controls share some
interest in that Johnson Controls manufactures certain DieHard batteries. See D.E. # 32-2, p 4 –

5

5. Therefore, the common interest doctrine would apply to these four messages and they are
shielded from disclosure.

IT IS SO ORDERED this 15th day of July, 2016.
s/ Charmiane G. Claxton
CHARMIANE G. CLAXTON
UNITED STATES MAGISTRATE JUDGE

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