Turner Construction Company v. American Safety Casualty Insurance Company
Filing
235
MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING MAGISTRATE JUDGES DISCOVERY ORDER 193 , OVERRULING 207 INTERVENOR-PLAINTIFFS OBJECTIONS AND DENYING WITHOUT PREJUDICE 227 ADDITIONAL RELIEF REQUESTED BY INTERVENOR-PLAINTIFF. Signed by Senior Judge Frederick P. Stamp, Jr on 10/31/2016. (Copy counsel of record)(jmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TURNER CONSTRUCTION CO.,
Plaintiff,
v.
Civil Action No. 1:15CV83
(STAMP)
TIG INSURANCE COMPANY,
successor by merger to
AMERICAN SAFETY CASUALTY
INSURANCE COMPANY,
Defendant,
and
UNITED STATES f/u/b/o
DESIGNER’S SPECIALTY CABINET CO.,
d/b/a DESIGNER’S SPECIALTY MILLWORK,
Intervenor-Plaintiff,
v.
TURNER CONSTRUCTION CO.,
TRAVELERS SURETY & CASUALTY
CO. OF AMERICA,
FEDERAL INSURANCE CO.,
THE CONTINENTAL INSURANCE CO.,
FIDELITY & DEPOSIT CO. OF MD,
ZURICH NORTH AMERICAN INSURANCE CO.,
LIBERTY MUTUAL INSURANCE CO. and
ZURICH AMERICAN INSURANCE CO.,
Intervenor-Defendants.
MEMORANDUM OPINION AND ORDER
ADOPTING AND AFFIRMING MAGISTRATE
JUDGE’S DISCOVERY ORDER,
OVERRULING INTERVENOR-PLAINTIFF’S
OBJECTIONS AND
DENYING WITHOUT PREJUDICE ADDITIONAL
RELIEF REQUESTED BY INTERVENOR-PLAINTIFF
I.
Procedural History
This is a Miller Act, 40 U.S.C. §§ 3131-3133, case in which
the plaintiff, Turner Construction Co. (“Turner”), seeks payment
from
the
intervenor-plaintiff’s
surety,
and
the
intervenor-
plaintiff, Designer’s Specialty Cabinet Co. doing business as
Designer’s Specialty Millwork (“DSM”), seeks payment from Turner’s
sureties.
The
throughout
these
parties
have
had
proceedings.
several
This
Court
discovery
referred
disputes
all
non-
dispositive matters, except motions in limine, to United States
Magistrate Judge Michael John Aloi.
DSM has filed several motions to compel discovery responses
from Turner.
Of relevance here, DSM sought to compel responses to
its Document Request No. 8 seeking
[d]ocuments and communications . . . related to and
evidencing Turner’s requests to DSM to submit, resubmit,
alter, amend/revise, change or clarify DSM’s claims under
the 256.1 and 301. This request includes, but is not
limited to, all communications . . . to/from or including
DSM or its surety during the period April-July 2015.
This request includes internal memoranda that led to
requests to DSM, documents related to any analysis that
resulted in Turner’s requests and directions to DSM in
May through July 2015 and documents referring to or
evidencing telephonic communications with DSM in the
period May through July 2015.
ECF No. 207 at 4. Turner objected to this document request arguing
that it seeks material protected by attorney-client privilege and
that it would be “unnecessary and unduly burdensome for Turner to
have to search for any such documents and/or to prepare and produce
a privilege log to list any such documents.”
2
ECF No. 207 at 4.
Magistrate Judge Aloi previously entered several orders dealing
with DSM’s motion to compel.
As to DSM’s Document Request No. 8,
Magistrate Judge Aloi specifically directed Turner to “review its
records and produce additional records, including internal emails
relating to this request by August 29, 2016.”
ECF No. 172 at 2.
On September 14, 2016, Magistrate Judge Aloi entered an order
granting DSM’s motion to compel based on representations that “the
disputed issues were resolved by negotiation or court orders.” ECF
No. 193.
DSM then filed timely objections to the magistrate judge’s
order.
Turner filed a response in opposition to those objections.
DSM then filed a reply in which it notes that Turner has now filed
a privilege log regarding its response to a separate document
request that seems to also contain material responsive to Document
Request No. 8.
DSM suggests that its objections may be moot, but
requests that this Court order Turner to either provide a more
detailed privilege log or to disclose the material listed in its
privilege log.
II.
Applicable Law
Under Federal Rule of Civil Procedure 72(a), a district court
may refer to a magistrate judge “a pretrial matter not dispositive
of a party’s claim or defense.”
Fed. R. Civ. P. 72(a).
The
parties may file objections to the magistrate judge’s order, and
the “district judge in the case must consider timely objections and
3
modify or set aside any part of the order that is clearly erroneous
or is contrary to law.”
Id.
Rule 26(b)(5) provides that
[w]hen
a
party
withholds
information
otherwise
discoverable by claiming that the information is
privileged or subject to protection as trial-preparation
material, the party must:
(i)
expressly make the claim; and
(ii) describe the nature of the documents,
communications, or tangible things not produced or
disclosed—and do so in a manner that, without revealing
information itself privileged or protected, will enable
other parties to assess the claim.
Fed.
R.
Civ.
P.
26(b)(5).
Local
Rule
of
Civil
Procedure
26.04(a)(2) requires any party objecting to a discovery request on
the grounds that the material sought is privileged must produce a
privilege log containing certain information regarding the material
claimed to be privileged.
Federal Rule of Civil Procedure 29
provides that “[u]nless the court orders otherwise, the parties may
stipulate that . . . procedures governing or limiting discovery be
modified.”
Fed. R. Civ. P. 29(b).
III.
Discussion
First, DSM argues that the magistrate judge committed clear
error in not ordering Turner to produce a privilege log regarding
Document Request No. 8, and DSM asks this Court to modify the
magistrate judge’s order to require Turner to produce a privilege
log.
However, the parties’ Rule 26(f) planning meeting report
provides that “[t]he parties . . . agree that all discovery
4
requests are to be interpreted so that attorney-client privileged
materials are not requested and that the parties are not required
to provide a privilege log for communications between client and
counsel in response to any discovery requested.”
ECF No. 38 at 3.
Turner and DSM participated in the Rule 26(f) meeting and their
counsel signed the meeting report.
Id. at 1, 9-10.
Under Rule
29(b), this stipulation is effective unless otherwise ordered by
the court.
Thus, Magistrate Judge Aloi was not required to order
Turner to produce a privilege log regarding Document Request No. 8.
This Court finds no clear error in the magistrate judge’s order.
Second, DSM argues that the privilege log Turner produced on
October
21,
2016
regarding
Document
Request
documents responsive to Document Request No. 8.
No.
13
contains
It further argues
that Turner’s privilege log does not include sufficient information
under Federal Rule of Civil Procedure 26 or Local Rule of Civil
Procedure 26.04. DSM requests that this Court find that Turner has
waived its privilege claims regarding Document Request No. 8, and
that his Court order Turner to produce documents under Document
Request No. 8.
Alternatively, DSM asks that this Court order
Turner to produce a privilege log that complies with Federal Rule
of Civil Procedure 26 and Local Rule of Civil Procedure 26.04. DSM
argues that for the sake of judicial economy this Court, rather
than Magistrate Judge Aloi, should decide this issue.
5
This Court sees no reason to decide this issue at this time.
DSM requests this relief for the first time in its reply.
Turner
has not had an opportunity to respond to DSM’s arguments regarding
its privilege log, whether documents listed in the privilege log
are responsive to Document Request No. 8, whether Turner has waived
its claims of privilege to Document Request No. 8, or whether the
privilege log is adequate under Federal Rule of Civil Procedure 26
and Local Rule of Civil Procedure 26.04.
DSM’s request for
additional relief is, therefore, denied without prejudice.
IV.
Conclusion
For the foregoing reasons, the magistrate judge’s discovery
order (ECF No. 193) is ADOPTED AND AFFIRMED. DSM’s objections (ECF
No. 207) are OVERRULED, and DSM’s request for additional relief
(ECF No. 227) is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
October 31, 2016
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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