Klosin v. E.I. du Pont de Nemours and Company

561 F.Supp.3d 343

Kristina R. KLOSIN, as Administrator of the Estate of Christopher J. Klosin, deceased, Plaintiff,

v.E.I. DU PONT DE NEMOURS AND COMPANY, Wanfeng Compound Stone Technology Co. Ltd., Defendants.

1:19-CV-00109 EAW

United States District Court, W.D. New York.

Signed September 20, 2021

James T. Scime, Melissa Dorothy Wischerath, Lipsitz Green Scime Cambria LLP, Buffalo, NY, for Plaintiff.

Donna L. Burden, Burden, Gulisano & Hansen, LLC, Phyliss A. Hafner, Burden Hafner & Hansen, LLC, Buffalo, NY, for Defendant E. I. du Pont de Nemours and Company.

DECISION AND ORDER

ELIZABETH A. WOLFORD, Chief Judge

INTRODUCTION

Kristina R. Klosin¹ ("Plaintiff") brings this action against defendants E.I. du Pont de Nemours and Company ("DuPont") and Wanfeng Compound Stone Technology Co. Ltd.² ("Wanfeng"), for damages stemming from the death of her husband on June 25, 2018, from an incident that occurred at the Lockport, New York facility of non-party XPO Logistics Supply Chain, Inc. ("XPO"). (Dkt. 1-2 at 4-7; Dkt. 42). The action was removed to federal court on January 18, 2019. (Dkt. 1).

Presently before the Court are XPO's objections (Dkt. 55; Dkt. 93) to two discovery orders entered by the Hon. Michael J. Roemer, United States Magistrate Judge—the first dated June 3, 2020 (Dkt. 51) and the second dated December 29, 2020 (Dkt. 90). For the following reasons, XPO's objections are sustained in part and the discovery orders are vacated in part. Specifically, the Court reverses the decisions to the extent that the Magistrate Judge found that the documents at issue were not attorney work product, but affirms the decisions to the extent that he found that Plaintiff has a substantial need for at least a portion of the documents.

BACKGROUND AND PROCEDURAL HISTORY

The Court assumes the parties’ familiarity with the background facts relevant to XPO's objections, which are included in the Magistrate Judge's Decisions and Orders dated June 3, 2020 and December 29, 2020. (See Dkt. 51 at 1-3; Dkt. 90 at 1-3).

The dispute in question arises from an August 5, 2019 subpoena served by Plaintiff on XPO for documents regarding its investigation into the accident. (Dkt. 41-1). XPO produced several documents, as well as a privilege log listing other documents responsive to the subpoena. (See Dkt. 51 at 2; Dkt. 55 at 12). Judge Roemer directed XPO to provide him with the documents listed on the privilege log for in camera review, received submissions from the parties, and found that certain documents should be produced to Plaintiff. (See Dkt. 34; Dkt. 37; Dkt. 51; Dkt. 90).

XPO objects to the June 3, 2020 Decision and Order directing that it disclose to Plaintiff a complete copy of the Incident Investigation/Root Cause Analysis Report (hereinafter, the "incident report") dated January 30, 2019, and to the December 29, 2020 Decision and Order directing that XPO disclose certain additional documents to Plaintiff, including drafts of the incident report, photographs taken of the accident scene and relevant to the shipping container,³ findings regarding improved unloading processes, employee training documents, job hazard worksheets, training records, product handling publications and information, communications between XPO and DuPont involving information requests and responses, and internal email communications between XPO employees, which the Magistrate Judge determined to be non-privileged. XPO contends that these documents are subject to either the attorney-client privilege or the attorney work product privilege. (Dkt. 55; Dkt. 93).

The Court set briefing schedules on XPO's objections (Dkt. 57; Dkt. 94)⁴ , and on April 14, 2021, the Court held oral argument on the objections (Dkt. 98; Dkt. 104). At oral argument, XPO clarified that it objected to the Magistrate Judge's decisions to the extent they ordered production of the following documents: (1) the incident report; (2) drafts of the incident report; and (3) documents reflecting content that was ultimately incorporated into the drafts and final report, including interviews of employees in response to the OSHA investigation, and strategic information addressing concerns raised by OSHA to persuade OSHA not to take civil or criminal action against the company. Following oral argument, Plaintiff and XPO made further submissions to the Court. (Dkt. 105; Dkt. 106; Dkt. 110; Dkt. 111).

DISCUSSION

I. Legal Principles

A. Standard— Fed. R. Civ. P. 72(a)

The standard of review with respect to XPO's objections is highly deferential—the Magistrate Judge's determination is nondispositive, and therefore it may be set aside only if clearly erroneous or contrary to law. See , e.g. , Eisai Ltd. v. Dr. Reddy's Labs., Inc. , 406 F. Supp. 2d 341, 342 (S.D.N.Y. 2005) ("Under Fed. R. Civ. P. 72(a), a District Court may set aside a Magistrate Judge's determination on a ‘[n]ondispositive [m]atter[ ]’ only if that determination is ‘clearly erroneous or contrary to law.’ Discovery rulings ... are nondispositive matters subject to that standard of review." (alterations in original)). "[A] district court may reverse the order only if on the entire evidence, the district court is left with the definite and firm conviction that a mistake has been committed." Rodriguez v. Pie of Port Jefferson Corp. , 48 F. Supp. 3d 424, 425 (E.D.N.Y. 2014) (quotations and citations omitted); see also Khaldei v. Kaspiev , 961 F. Supp. 2d 572, 575 (S.D.N.Y. 2013) (explaining that an order "is contrary to law if it fails to apply or misapplies relevant statutes, case law or rules of procedure" (quotation omitted)); Flaherty v. Filardi , No. 03 Civ. 2167(LTS)(HBP), 2009 WL 749570, at *19 (S.D.N.Y. Mar. 20, 2009) ("The clearly erroneous standard is highly deferential, and magistrate judges are afforded broad discretion in resolving non-dispositive disputes...." (quotations, citation, and alterations omitted)), aff'd , 460 F. App'x 66 (2d Cir. 2012).

B. Privileges

XPO claims that two privileges are applicable to the documents ordered produced by the Magistrate Judge: the work product privilege and the attorney-client privilege.

1. Work Product Privilege

The work product doctrine protects documents and tangible things "prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." Fed. R. Civ. P. 26(b)(3)(A) ; see also Hickman v. Taylor , 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (recognizing work product doctrine). The common law work product doctrine articled in Hickman is partly codified by Rule 26(b)(3). Tankleff v. Cnty. of Suffolk , No. 09-CV-1207, 2011 WL 5884218, at *2 (E.D.N.Y. Nov. 22, 2011).

The doctrine "protects not only materials which are prepared by attorneys themselves, but also by their agents," which include "those who are enlisted by legal counsel to perform investigative or analytical tasks to aid counsel in preparing for litigation." Costabile v. Westchester, New York , 254 F.R.D. 160, 164 (S.D.N.Y. 2008). Its purpose is "to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy with an eye toward litigation, free from unnecessary intrusion by his adversaries." United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) (quotation omitted). "There are two types of work product, ordinary or fact ... and opinion. As we have stated previously, fact work product may encompass factual material, including the result of a factual investigation. In contrast, opinion work product reveals the ‘mental impressions, conclusions, opinions, or legal theories of an attorney or other representative,’ and is entitled to greater protection than fact work product." In re Grand Jury Subpoena Dated July 6, 2005 , 510 F.3d 180, 183 (2d Cir. 2007) (citations omitted). "When evaluating whether to order disclosure of work product, courts have consistently distinguished between primarily factual work product and ‘core’ [opinion] work product," and "[a]lthough factual work product is subject to disclosure once the required showings are made, core work product is entitled to more stringent protection, protection described by some courts as ‘absolute’ or ‘near absolute.’ " Crosby v. City of New York , 269 F.R.D. 267, 277-78 (S.D.N.Y. 2010) (citations omitted).

"Analysis of one's case in anticipation of litigation is a classic example of work product[.]" Id. at 1196-97 (quotation and citation omitted). However, "[d]ocuments prepared in anticipation of litigation are work product, even when they are also intended to assist in business dealings." Schaeffler v. United States , 806 F.3d 34, 43 (2d Cir. 2015) ; see also Adlman , 134 F.3d at 1198 ("[n]owhere does Rule 26(b)(3) state that a document must have been prepared to aid in the conduct of litigation in order to constitute work product, much less primarily or exclusively to aid in litigation"). As further explained by the Second Circuit:

[ Adlman ] established a test to determine whether documents should be deemed prepared "in anticipation of litigation" and therefore subject to work-product protection. A document will be protected if, "in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." Adlman, 134 F.3d at 1202 (citations omitted). Conversely, protection will be withheld from "documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the litigation." Id.

806 F.3d at 43.

Rule 26(b)(3) further provides that materials qualifying as attorney work product may be discovered if "they are otherwise discoverable under Rule 26(b)(1)," and if "the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means."...