Burrow v. Forjas Taurus S.A. & Braztech Int'l, L.C.

• Decision Date: 10 August 2018
• Docket Number: Case No. 16-21606-Civ-TORRES
• Citation: 334 F.Supp.3d 1222
• Parties: William BURROW, Oma Luise Burrow, Suzzane M. Bedwell, individually and as mother and next friend of R.Z.B., a minor, and Ernest D. Bedwell, individually and as father and next friend of R.Z.B., a minor., Plaintiffs, v. FORJAS TAURUS S.A. and Braztech International, L.C., Defendants.
• Court: U.S. District Court — Southern District of Florida

334 F.Supp.3d 1222

William BURROW, Oma Luise Burrow, Suzzane M. Bedwell, individually and as mother and next friend of R.Z.B., a minor, and Ernest D. Bedwell, individually and as father and next friend of R.Z.B., a minor., Plaintiffs,

v.FORJAS TAURUS S.A. and Braztech International, L.C., Defendants.

Case No. 16-21606-Civ-TORRES

United States District Court, S.D. Florida.

Signed August 10, 2018

Brannon J. Buck, Badham & Buck, LLC, Gregory A. Brockwell, Pro Hac Vice, Letman, Siegal & Payne, P.C., Birmingham, AL, Brian William Warwick, Varnell & Warwick, P.A., Lady Lake, FL, Vincent Swiney, Pro Hac Vice, Swiney & Bellenger, LLC, Homewood, AL, David K. Lietz, Pro Hac Vice, Coale Cooley Lietz McInerny & Broadus, Washington, DC, Andrew Franklin Knopf, Paul Knopf Bigger, Winter Park, FL, Christian Bataille, Flanigan & Bataille, Anchorage, AK, Richard Blackburn Adams, Jr., Cole Scott & Kissane, Miami, FL, for Plaintiffs.

Colin Dang DeLaney, John F. Weeks, IV, Timothy A. Bumann, Pro Hac Vice, Smith, Gambrell & Russell, LLP, Atlanta, GA, John Patrick Marino, Kristen Wenger Bracken, Smith Gambrell & Russell, L.L.P., Jacksonville, FL, John B. Thorsness, Clapp Peterson Tiemessen Thorsness & Johnson, Anchorage, AK, for Defendants.

ORDER ON PLAINTIFFS' MOTION TO COMPEL

EDWIN G. TORRES, United States Magistrate JudgeThis matter is before the Court on William Burrow's ("Mr. Burrow"), Oma Louise Burrow's ("Mrs. Burrow"), Suzanne M. Bedwell's ("Mrs. Bedwell"), and Ernest D. Bedwell's ("Mr. Bedwell") (collectively, "Plaintiffs") motion to compel Forjas Taurus S.A. ("Forjas Taurus") and Braztech International, L.C. ("Braztech") (collectively, "Defendants") to produce documents previously withheld under a claim of privilege or, in the alternative, to produce to the Court the documents requested for an in camera inspection. [D.E. 73]. Defendants responded to Plaintiffs' motion on May 24, 2018 [D.E. 74] to which Plaintiffs replied on May 31, 2018. [D.E. 76]. Therefore, Plaintiffs' motion is now ripe for disposition. After careful consideration of the motion, response, reply, relevant authority, and for the reasons discussed below, Plaintiffs' motion to compel is GRANTED in part and DENIED in part .

I. BACKGROUND

This is a products-liability case premised on specific revolvers that Forjas Taurus manufactured in Brazil and that Braztech imported into the United States. On February 5, 2014, Mrs. Burrow claims that she dropped her revolver on the ground and—despite the firearm being holstered with its safety latch engaged—it discharged a bullet into her leg. The Bedwells also experienced a drop-fire incident that resulted in a gunshot wound to their minor child. Therefore, Plaintiffs have brought this consolidated action on behalf of all owners of the defective firearms.

II. ANALYSIS

Plaintiffs' motion relates to an internal investigation that Defendants conducted after Plaintiffs' firearm expert inspected a revolver. The documents, reports, and other correspondence related to Defendants' investigation form the basis of Plaintiffs' motion. Specifically, Defendants refuse to produce documents related to their internal investigation on the basis that they are protected under the attorney-client privilege, the self-critical analysis privilege, and/or the work product doctrine. While Plaintiffs generally agree that Defendants' privilege logs¹ meet the informational requirements for withholding documents, Plaintiffs conclude that Defendants' privilege objections are conclusory and that the items requested should be produced. We will discuss the parties' arguments in turn.

A. The Work Product Doctrine

The first issue is whether Defendants may withhold items on the basis of the work-product doctrine. "The work product doctrine is distinct from and broader than the attorney-client privilege, and it protects materials prepared by the attorney, whether or not disclosed to the client, as well as materials prepared by agents for the attorney." Fojtasek v. NCL (Bahamas) Ltd. , 262 F.R.D. 650, 653 (S.D. Fla. 2009) (citing In re Grand Jury Proceedings, 601 F.2d 162, 171 (5th Cir. 1979) ). "[B]ecause the work product privilege looks to the vitality of the adversary system rather than simply seeking to preserve confidentiality, it is not automatically waived by the disclosure to a third party." In re Grand Jury Subpoena, 220 F.3d 406, 409 (5th Cir. 2000). Yet, this still requires the party asserting protection under the work product doctrine to demonstrate that the drafting entity anticipated litigation at the time the documents were drafted. See CSX Transp., Inc. v. Admiral Ins. Co., 1995 WL 855421, at *2 (M.D. Fla. July 20, 1995). This means that materials drafted in the ordinary course of business may de discoverable unless the items are not infused with a litigation purpose. See Developers Sur. & Indem. Co. v. Harding Vill., Ltd. , 2007 WL 2021939, at *2 (S.D. Fla. July 11, 2007) ("[E]ven if a document has some purpose within the ordinary course of business, the document is protected as work product if it is substantially infused with litigation purpose.").

In determining whether materials are protected, a court must determine when and why a contested document was created. See, e.g. In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) ("The ‘testing question’ for the work-product privilege ... is ‘whether, 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.’ "). And similar to the attorney-client privilege, "the burden is on the party withholding discovery to show that the documents should be afforded work-product [protection]." Fojtasek, 262 F.R.D. at 654 (citing United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991) ) (applying rule for attorney-client issue); Essex Builders Group, Inc. v. Amerisure Insurance Company, 2006 WL 1733857 at *2 (M.D. Fla. June 20, 2006) ("[T]he party asserting work product privilege has the burden of showing the applicability of the doctrine") (citing Grand Jury Proceedings v. United States, 156 F.3d 1038, 1042 (10th Cir. 1998) ).

Plaintiffs argue that—based on correspondence with opposing counsel and an in-depth review of Defendants' privilege logs—the vast majority (if not all) of the documents and materials that Defendants claim as work product relate to internal investigations and testing that Defendants performed on the Rossi revolvers. These documents include engineering reports, photographs, videos, technical drawings, and email correspondence. Defendants withheld these items because they were prepared in anticipation of litigation.²

Plaintiffs contend that Defendants' arguments are misplaced because, even when litigation may be forthcoming, work product protection is unavailable for documents "that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the litigation." United States v. Adlman , 134 F.3d 1194, 1202 (2d Cir. 1998) ; see also Wright & Miller § 2024, at 346 ("[E]ven 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"). Plaintiffs believe that Defendant had a business purpose to investigate and test their revolvers' safety mechanisms in order to (1) improve the overall performance of the firearms, (2) protect future purchasers of firearms from potential harm, and (3) to avoid or minimize negative publicity in connection with drop-fires and other product failures. Because Defendants performed their investigations without the threat of litigation, Plaintiffs conclude that the records and reports generated therefrom were prepared in the ordinary course of business and may not be withheld under the work product doctrine. See Janicker by Janicker v. George Washington Univ. , 94 F.R.D. 648, 649 (D.D.C. 1982) ("If in connection with an accident or an event, a business entity in the ordinary course of business conducts an investigation for its own purposes, the resulting investigative report is producible in civil pretrial discovery.").

Defendants' response is that Plaintiffs have no knowledge or evidence that any of the items requested were created in the ordinary course of business. Contrary to Plaintiffs' speculations, Defendants claim that the documents withheld were created because of Plaintiffs' threats of litigation and that they cannot lose their protection simply because the items may or may not serve an ancillary business purpose. See Decl. of Dustin Sroufe at ¶ 10 ("The purpose or function of this report and any others drafted after Mr. Bumann notified us of the Burrow dispute, and along with any notes, high-speed videos, and photographs was to assist in, and because of, the defense of this lawsuit. Said another way, we would not have prepared the reports except for the existence of the Burrow dispute and lawsuit."); Decl. of Juliano Bisotto at ¶ 8 ("These reports and other materials generated in the engineering analysis such as high-speed videography, photographs, notes, computer-aided design drawings, and other technical drawings were all made to assist the companies' lawyers in the U.S. in defense of the Burrow and later Bedwell lawsuits.").

Defendants also take issue with Plaintiffs' claim that the Court should invalidate the work product doctrine because of Plaintiffs' substantial need and undue hardship. Defendants argue, for example, that the relevancy of the discovery sought is not the standard to overcome the work product doctrine and that Plaintiffs must do more to compel the documents requested. See Stern v. O'Quinn , 253 F.R.D. 663, 673 (S.D. Fla. 2008) ("The findings of relevance ... do not end the Court's inquiry or dictate compulsion of Plaintiff's discovery requests."). Defendants contend that Plaintiffs have no evidence that they attempted to...