United States District Court, E.D. Louisiana
KEITH A. DEROKEY
HAZA FOODS OF LOUISIANA, LLC, ET AL.
M. AFRICK JUDGE.
ORDER AND REASONS
Van Meerveld United States Magistrate Judge.
September 12, 2018, the Court held oral argument on Plaintiff
Keith A. Derokey's Motion to Compel (Rec. Doc. 20). The
Court ruled on most of the issues raised at that time, but
ordered the Defendants to produce a privilege log and took
under submission the issue of whether the documents to be
listed thereon had been properly withheld. As to the
documents on the privilege log, the Motion to Compel is
granted in part and denied in part. The following documents are
not protected by the work product doctrine and shall be
produced by October 17, 2018: the documents listed in the
Haza Foods Claim Notes category and dated 4/19/17, 4/21/17,
5/18/17, and 7/31/17, and the documents listed in the
“miscellaneous” category and dated 5/18/17
(between Paulin and Lagrue), 4/21/17, 4/19/17, 4/14/17, and
4/13/17. All remaining documents listed on the privilege log
are protected by the work product doctrine and shall not be
subject to discovery.
lawsuit, Keith A. Derokey alleges that he slipped and fell on
water that was on the floor in the men's restroom at a
Wendy's restaurant in Gretna, Louisiana. The Wendy's
was owned and operated by defendant Haza Foods of Louisiana,
LLC (“Haza”). Mr. Derokey alleges that Haza knew
or should have known that allowing water on the floor of the
restroom would present an unreasonable risk of harm to Mr.
Derokey and that Haza failed to exercise reasonable care to
remedy the dangerous condition. As a result of the fall, Mr.
Derokey alleges he suffered injuries to his right hand,
wrist, and shoulder. He has joined Haza and its insurer,
Travelers Property and Casualty Company
(“Travelers”), as defendants.
last issue before the Court in the pending Motion to Compel
is whether Defendants have properly withheld certain
documents as privileged. Initially, the Defendants relied on
a blanket assertion that Travelers' claim file notes and
Haza's internal claim investigation notes were protected
by the work product doctrine. These documents were implicated
by Derokey's discovery requests for accident reports,
incident reports, emails, correspondence, or other documents
created by the Defendants. As noted above, the Court ordered
the Defendants to prepare a privilege log so that the
privileged nature of the documents could be
determined. The privilege log groups the documents
into three categories.
first group lists a series of notes from the Travelers'
claims file, as early as six days following the incident.
According to one of the earliest notes in the claims file,
there were “red flags on this one.” The privilege
log includes a detailed description of each record. From the
log, it is discernible, for example, that on August 28, 2017,
Derokey notified Travelers that he had retained counsel. Some
of the entries indicate cursory notes, for example
“[a]ttempted conversation with plaintiff” on
April 21, 2017 and “[v]oicemail left for Kirk
Derokey” on August 3, 2017. Others reflect
investigation of the claim, approval of reserves, and
assessment of damages.
second group of documents in the privilege log are Haza
Foods' Claim Notes, which has eight entries. The earliest
of these is dated April 19, 2017 (two days after the claim
was reported to Travelers), and states “[r]ecap of
information still needed.” The next entry reports an
attempted phone call with Derokey on April 21, 2017.
According to the log, the next document, dated May 18, 2017
contains information provided to Patty Paulin
“regarding actions taken after plaintiff's fall and
information provided by an unnamed manager and
plaintiff.” The next document is dated July 31, 2017
and contains “[i]nformation regarding the incident and
[Paulin's] impression of this information.” Two
entries dated October and November 2017 refer to reprinting
the Travelers' claim file. A third appears to reference a
conversation with a Travelers' claims agent who sought
additional information in February 2018. The document dated
December 11, 2017, contains a general description of the
injuries and Haza's estimated settlement value.
third group of documents in the privilege log is described as
“miscellaneous” and includes seven emails within
Travelers or between Travelers and Haza in April, May, and
December, of 2017 and March of 2018. It also includes four
emails between Haza employees in April and May 2017, which
appear to contain requests for information about the claim
and “[g]eneral facts of the claim as understood by
Charlene Lagrue, ” who was the district manager at the
time of the incident. This group of documents also includes a
claim acknowledgement form and a bodily injury worksheet.
Work Product Doctrine
considering whether the documents are protected by the work
product doctrine, the Court must determine whether the
documents were prepared in anticipation of litigation. Fed.
R. Civ. Proc. 26(b)(3); United States v. Nobles, 422
U.S. 225, 238 (1975). Even if a document is, though, it may
be ordered produced if the seeking 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.” Fed. R. Civ. Proc.
26(b)(3)(A). In ordering such production, the court
“must protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of a
party's attorney or other representative concerning the
litigation.” Fed. R. Civ. Proc. 26(b)(3)(B).
assembled in the ordinary course of business, ” are
excluded from work-product ...