Khoshmukhamedov v. Potomac Elec. Power Co., Civil Action No. AW-11-449

KHOSHMUKHAMEDOV, et al., PLAINTIFFS,

v.POTOMAC ELECTRIC POWER COMPANY DEFENDANT.

Civil Action No. AW-11-449

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Date: April 17, 2012

MEMORANDUM OPINION

Before this Court are Defendant Potomac Electric Power Company's Motion To Compel Compliance With Subpoena Duces Tecum Served Upon Michael Immerman (ECF No. 23) ("Motion to Compel I") and Defendant Potomac Electric Power Company's Motion To Compel Plaintiffs' Responses To Defendant's Request For Production Of Documents And Motion For Attorney's Fees And Costs (ECF No. 26) ("Motion to Compel II"), collectively the "Motions." The Court has reviewed the Motions and applicable law, as well as Plaintiffs' in camera submissions pursuant to the Court's February 21, 2012, Order (ECF No. 42) ("February Order"). No hearing is deemed necessary. See Local Rule 105.6 (D. Md.). For the reasons presented below, the Court DENIES IN PART and GRANTS IN PART the Motions.

FACTUAL AND PROCEDURAL BACKGROUND

In their Amended Complaint, Plaintiffs allege that Defendant "supplied and distributed electricity" to their home in Potomac, Maryland. Am. Compl. ¶ 7 (ECF No. 12). On or about November 10, 2008, Plaintiffs allege that their "agent," Michael Immerman, asked Defendant to disconnect the electricity to their home. Am. Compl. ¶ 11. Defendant allegedly did not do so. Am. Compl. ¶ 16. Plaintiffs allege that "[a]t some point prior to February 7, 2009," whilePlaintiffs were not in the country, the water pipes in their home froze and broke, flooding the home (the "Incident"). Am. Compl. ¶¶ 15, 18. Plaintiff's home allegedly incurred damage as a result, Am. Compl. ¶¶ 20-21, and believing that the cause was Defendant's alleged failure to turn off their electricity, Plaintiffs sued Defendant for negligence, breach of contract, and detrimental reliance, see Am. Compl. ¶¶ 20-45.

Defendant propounded document requests and interrogatories upon Plaintiffs and served a subpoena duces tecum on Mr. Immerman. See Mot. to Compel I 5-6, 9, Exs. 1-3; Mot. to Compel II 6. In response, Plaintiffs and Mr. Immerman claimed that specific documents were privileged and, after communications between counsel, provided a few privilege logs. See Mot. to Compel I 6-8; Mot. to Compel II 6-9. Defendant has moved to compel Plaintiffs and Mr. Immerman to produce documents responsive to specific requests and to answer an interrogatory without objection. See Mot. to Compel I 20; Mot. to Compel II 20.

After initially reviewing the Motions, the Court ordered

Plaintiffs to 1) submit to the Court paper copies of the documents set forth on their privilege logs for an in camera review; and 2) submit to the Court supporting affidavits, which shall provide information and documentation regarding the hiring and/or retention of any consultants or experts not expected to testify at trial.

February Order 1. The Court further ordered, "Should the affidavits fail to clearly establish Plaintiffs' claims of immunity from discovery under the work product doctrine, disclosure will be required." Id. Plaintiffs submitted documents and affidavits in camera on March 6, 2012.¹

DISCUSSION

Rule 26(b) of the Federal Rules of Civil Procedure provides that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Rule 26(b)(4)(D) notes, however, "Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial."

The Court will first deal with Plaintiffs and Mr. Immerman's privilege and work product claims and then address each discovery request.

I. Rulings on Plaintiffs' Privilege and Work Product Claims

Plaintiffs seek to prevent disclosure of four categories of documents:

1) Documents created before the Incident regarding subdividing Plaintiffs' property;

2) Communications involving Messrs. Immerman, Anton Rae, and Michael Rae;

3) Communications involving Christopher Davis, Esq.; and

4) Documents created after the Incident involving consultants and their claimed work product.

The Court will deal with each category in turn below.

A. Documents Created before the Incident Regarding Subdividing Plaintiffs' Property

Plaintiffs argue that documents relating to their plans and efforts to subdivide their property before the Incident occurred are protected because "the documents prepared with the assistance of counsel, and the consultants retained in this attempt are subject to protection under the attorney work product doctrine and Fed. R. Civ. Pro. 26 (b)(3)(A)." Pls.' Opp'n 9 (ECF No. 24). "Because the work product doctrine is not a privilege, but rather a qualified immunity from discovery,[] Fed. R. Evid. 501 is inapplicable, and Maryland law does not govern this waiverissue. Rather, federal law does, even though jurisdiction in this case is bottomed on diversity of citizenship." Continental Cas. Co. v. Under Armour, Inc., 537 F. Supp. 2d 761, 769 (D. Md. 2008) (citations and footnote omitted). The scope of the protection is "given the narrowest construction consistent with its purpose." Pete Rinaldi's Fast Foods, Inc. v. Great Am. Ins. Cos., 123 F.R.D. 198, 201 (M.D.N.C. 1988) (citations omitted). To qualify as work product, "[t]he material must be: (1) documents or tangible things; (2) prepared in anticipation of litigation or for trial; and (3) by or for the party or the party's representative." Id. (citing 8 C. Wright & A. Miller, Federal Practice and Procedure § 2024 at 196-97 (1970 and 1988 Supp.)). Wright and Miller suggest that "the nature of the document and the factual situation in the particular case" should be examined in determining whether a "document can fairly be said to have been prepared or obtained because of the prospect of litigation.[]" 8 Wright & Miller, Federal Practice & Procedure § 2024 (2011) [hereinafter "FPP"] (footnote omitted). The person claiming the protection bears the "burden to show, as to each document, that the work product in question was: (1) prepared by, or under the direction of, an attorney and, (2) was prepared in anticipation of litigation." The Equal Rights Center v. Lion Gables Residential Trust, 07-2358, 2010 WL 2483613, *7 (D. Md. June 15, 2010) (quoting Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 272 (E.D. Va. 2004)) (internal quotation marks omitted).

Documents prepared in the ordinary course of business are not work product. See LaSalle Bank Nat'l Ass'n v. Lehman Bros. Holdings, Inc., 209 F.R.D. 112, 115 (D. Md. 2002) ("The test is whether in light of the nature of the documents and the particular facts of a given case, the documents can be fairly said to have been prepared or obtained because of the prospect of litigation or whether they must be deemed to have been prepared in the ordinary course of the company's business." (citing APL Corp. v. Aetna Casualty & Surety Co., 91 F.R.D. 10, 18 (D.Md. 1980))); see also FPP § 2024 ("even though litigation is already in prospect, there is no work-product immunity for documents prepared in the regular course of business rather than for purposes of the litigation"). Wright and Miller explain,

[S]tatements or reports obtained about an event are often regarded as part of the general business activity,[] . . . . Involvement of counsel is not a guarantee that work-product protection will apply, although it may show that the pertinent documents were prompted by the prospect of litigation.[] The focus is on whether specific materials were prepared in the ordinary course of business,[] or were principally prompted by the prospect of litigation.[] In this regard, "dual purpose" documents may be protected even though a nonlitigation purpose can also be ascertained.[]

FPP § 2024 (footnotes omitted).

Case law indicates that work performed in an administrative proceeding may be privileged. For example, in Envtl. Prot. Servs., Inc. v. EPA, 364 F. Supp. 2d 575, 586 (N.D. W.Va. 2005), the District Court for the Northern District of West Virginia found that documents were work product because they "were prepared during the course of an actual administrative proceeding against EPS by the EPA." The documents were created after the administrative proceeding began, and were "prepared by an attorney in contemplation of that proceeding and in anticipation of foreseeable litigation." Id. Additionally, the ruling in Baltimore Scrap Corp. v. The David J. Joseph Co., No. L-96-827, 1996 WL 720785, *1, 27 (D. Md. Nov. 20, 1996), appears to the support the notion that work by counsel and consulting agents in applying for zoning approval may be work product. See also FPP § 2024 ("litigation should be understood generally to include proceedings before administrative tribunals if they are of an adversarial nature.[]" (footnote omitted)).

However, the Court need not rule on whether work performed by an attorney, his client, or their agents to obtain zoning permits are work product given the information provided by Plaintiffs in their Opposition and in camera. Plaintiffs did not provide an affidavit from theattorney(s) that Plaintiffs purportedly retained in pursuit of subdividing their property. In their Opposition, Plaintiffs merely state that they retained counsel to "assist[] them through the process of subdividing the lot . . . . [and] attempted to seek approval . . . through the zoning process to subdivide the Property." Pls.' Opp'n 8. None of the documents noted on the privilege log (Exhibit E, Section II) include communications with counsel. Rather, the documents include communications between Plaintiff Khoshmukhamedov, Mr. Immerman, and Consultant No. 6 and an undated "Proposal and plans for subdivision and construction." See Pls.' Opp'n Ex. E at 11. Plaintiffs did not aver in their ex parte submission that they retained Consultant 6 per the advice of co...