Martz v. Polaris Sales, Inc.

1

LARRY MARTZ, Plaintiff, v. POLARIS SALES INC., Defendant.

No. 4:22-CV-01390

United States District Court, M.D. Pennsylvania

January 18, 2024

MEMORANDUM OPINION

MATTHEW W. BRANN, CHIEF UNITED STATES DISTRICT JUDGE

I. BACKGROUND

In September 2022, Larry Martz filed a complaint against Kolpin Outdoors, Inc.; Polaris Sales, Inc. (“Polaris”) was later substituted as the proper party.^[1] In the incident precipitating the complaint, Martz's wife lost control of her ATV, which had the “Kolpin Throttle Master” installed, and died in a fatal accident.^[2] Martz brought two claims against Polaris under a products liability theory, partially suing under the theory that the Kolpin Throttle Master's instructions and warnings were defective.^[3] Polaris filed its answer in February 2023, and the parties proceeded to discovery.^[4] In November 2023, Martz's counsel sent a letter to this Court regarding a discovery dispute over a document Polaris claimed was protected by the work product doctrine.^[5] Following a status conference, I ordered counsel to submit briefing on this issue on December 13, 2023.^[6]

The parties dispute the discoverability of a document labeled “Kolpin Throttle Master Instructions Review” (the “Instructions Review”).^[7] This document was prepared by outside consultant Applied Safety and Ergonomics (“ASE”) at the request of Melissa McAlpine, Polaris's in-house counsel.^[8]

On January 3, 2024, I issued a memorandum opinion.^[9] I found that I could not determine what role the anticipation of litigation played in the Instructions Review based upon the arguments presented by counsel.^[10] I therefore requested that Polaris send the disputed document to this Court for in camera review, together with any documents relating to Polaris's original request that ASE author the instructions review.^[11] Polaris complied and sent these documents on January 10, 2024.^[12]

As I noted in my recent memorandum opinion, if Polaris made no written request to ASE, it must provide some other record corroborating McAlpine's intention in commissioning the report.^[13] Polaris ultimately sent a declaration and an email containing the Instructions Review, explaining that there was no written retention agreement with ASE for the Instructions Review and that McAlpine verbally requested that ASE conduct it during a meeting.^[14] Having received these documents, I am now able to evaluate the primary purpose of the Instructions Review more fully.

II. FACTUAL BACKGROUND

The Kolpin Throttle Master's instructions have gone through several iterations, with Revision 3 and Revision 4 containing substantial differences.^[15]Polaris's October 2023 privilege log indicated that a report, titled “Kolpin Throttle Master Instructions Review,” was authored before Revision 4 of the instructions was adopted.^[16] To support its assertion that the Instructions Review is protected by work product privilege, Polaris sets out a timeline of the report; Martz largely offers the same chronology in his simultaneously filed brief.

More than 13 months after Martz's ATV accident, a similar incident occurred in November 2021.^[17] This incident mirrors Martz's incident: a child operating an ATV with a Kolpin Throttle Master installed became injured when the Throttle Master became stuck in the open throttle position, causing the ATV to accelerate uncontrollably and crash into a tree.^[18] Polaris became aware of the incident on December 20, 2021, when the child's father (the “ATV Owner”) provided notice to Polaris.^[19] The “incident description/customer statement” Martz obtained during discovery states:

The EU stated that his reason for contacting Kolpin was an alert for a probable product defect and not compensation. He has been compensated for the loss of the ATV by his insurance carrier (State Farm) and his son has left the hospital and is reportedly fine except for a scar. The insurer has taken custody of the ATV ....He purchased the “Throttle Master” from Amazon and installed it himself to make it easier for his wife to operate the ATV.^[20]

In response to this communication, Polaris opened a claims file and investigated the incident in January.^[21] A “peer review, during which Polaris engineers and lawyers review[ed] the results of the investigation,” occurred in January 2022.^[22]

On May 9, 2022, Polaris closed the ATV Owner's claims file because there was no further contact from the ATV Owner following its investigation and Peer Review.^[23] Melissa McAlpine, Polaris's in-house Legal Director, participated in an additional internal discussion about Polaris's investigation on June 9, 2022.^[24]

On June 17, 2022, McAlpine engaged outside consultants in “human factors engineering” at Applied Safety and Ergonomics (“ASE”), Jared Frantz and Charles Burhans, Sr., to evaluate the Kolpin Throttle Master Product Instructions.^[25] This ultimately led to the Instructions Review, which was completed on June 28, 2022.^[26]When Frantz completed the Instructions Review, he sent it to Burhans, McAlpine, and John Winkler, a Polaris engineer working on Kolpin products.^[27] According to Martz, the Instructions Review was never placed in the closed claims file belonging to the ATV Owner.^[28] After the report, the fourth version of the Kolpin Throttle Master Instructions was issued, which incorporated substantial revisions.^[29] They were incorporated into production on September 2, 2022.^[30]

III. DISCUSSION

A. Law

Under the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense . . . . Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”^[31] Material is privileged from discovery under the work product doctrine if a party requested it in anticipation of litigation and that anticipation was objectively reasonable.^[32] “[T]he test should be whether in light of the nature of the document and the factual situation of the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.”^[33] Work product protection extends beyond the litigation for which the materials were prepared.^[34] While relevant, the involvement of legal counsel in requesting or preparing documents does not establish that they are prepared in anticipation of litigation.^[35]

“[T]he doctrine protect[s] material prepared by agents for the attorney as well as those prepared by the attorney himself.”^[36] For the work product doctrine to apply, the threat of litigation must be specific rather than generalized; the desire to prevent future litigation from materializing from unknown persons is insufficient.^[37]“Materials assembled in the ordinary course of business . . . are not under the qualified immunity provided” by the work product doctrine.^[38] “The party invoking the work product doctrine bears the burden of establishing both parts of the Court's inquiry.”^[39]

“Dual purpose” documents are documents not prepared exclusively for litigation.^[40] In camera review is generally required to determine if such documents are entitled to work product protection.^[41] Although some courts have analyzed dual purpose documents by asking whether they were produced “primarily” because of litigation,”^[42] the majority standard adopted by the United States Court of Appeals for the Third Circuit asks whether “the document can be fairly said to have been prepared or obtained because of the prospect of litigation.”^[43] The “because of” standard asks not what the primary purpose of the document is,^[44] but whether under the totality of the circumstances, it can be fairly said that the document would not have been created in substantially similar form but for the prospect of litigation.^[45] However, litigation must at least be a motivating force in creating the document; otherwise, it does not receive work product protection.^[46] And while a document prepared in part for ordinary business purposes can still garner work product protection, the burden is on the party claiming protection to show that the anticipated litigation was the “driving force” behind the preparation of the documents.^[47]

B. Analysis

Polaris's allegations do show that the anticipation of litigation was objectively reasonable. The November 13, 2021 ATV incident also involved an injury caused by defective installation of the Throttle Master, a defective installation which might have been prevented by more clear instructions. And as I explained, the ATV Owner's assurances that he contacted the company as “an alert for a probable product defect and not compensation,” as well as the fact that he was compensated by his insurance company, count against Polaris but are not decisive.^[48] As the ATV Owner's insurance company could have sued Polaris for reimbursement on his behalf and the statute of limitations had not passed by the time McAlpine requested the Instructions Review, anticipating litigation based on this accident was objectively reasonable.

However, Polaris has not shown that McAlpine's intent in commissioning the Instructions Review was anticipation of litigation from the ATV Owner. As I explained in my prior memorandum opinion, I am not persuaded by any “blanket statements”^[49] regarding the primary intention in retaining ASE.^[50] More persuasive would be allegations regarding the nature of McAlpine's request, her discussion with ASE consultants and Winkler, or information regarding McAlpine's intended use of the Instructions Review in the ATV Owner litigation. As it is, nothing in the record shows anything other than a business purpose for the Instructions Review.

Winkler describes a...