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Derokey v. Haza Foods of Louisiana, LLC

United States District Court, E.D. Louisiana

October 12, 2018


         SECTION: “I” (1)



          Janis Van Meerveld United States Magistrate Judge.

         On 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.[1] 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.


         In this 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.

         The 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.[2] The privilege log groups the documents into three categories.

         The 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, [3] 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.

         The 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.

         The 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.

         Law and Analysis

         1. Work Product Doctrine

         In 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).

         “[M]aterials assembled in the ordinary course of business, ” are excluded from work-product ...

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