Maseng v. Tuesday Morning, Inc.

• Decision Date: 12 June 2020
• Docket Number: C/A No.: 3:19-3245-SAL-SVH
• Court: U.S. District Court — District of South Carolina
• Parties: Lisa Maseng, Plaintiff, v. Tuesday Morning, Inc., and Continuum Sales & Marketing Corp., Defendants.

Lisa Maseng, Plaintiff, v. Tuesday Morning, Inc.,and Continuum Sales & Marketing Corp., Defendants.

C/A No.: 3:19-3245-SAL-SVH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

June 12, 2020

ORDER

Lisa Maseng ("Plaintiff") brings this product-liability action against Tuesday Morning, Inc. ("Tuesday"), and Continuum Sales & Marketing Corp. ("Continuum"), arising out of an incident that occurred on or about October 6, 2018, when a Lenox Corp. ("Lenox") 2.5-quart stainless steel whistling tea kettle ("kettle") allegedly expelled hot water onto Plaintiff during use, causing burn injuries.¹ Continuum imported the kettle, which was sourced from Ai Bang Bao Metal Products, Ltd. in China ("Ai Bang Bao"), and Tuesday allegedly sold the kettle. [ECF No. 1-1 ¶ 6, ECF No. 43 at 1].

This matter comes before the court on Plaintiff's motion to compel discovery from Continuum, filed May 7, 2020. [ECF No. 42]. The motion wasreferred to the undersigned pursuant to 28 U.S.C. § 636(b). This matter having been fully briefed [ECF No. 42, 43], it is ripe for disposition. For the reasons that follow, the court grants in part and denies in part Plaintiff's motion.

I. Factual and Procedural Background

Plaintiff served interrogatories and requests for production on Continuum on December 9, 2019. [See ECF No. 42-1 at 4]. Continuum served responses on February 10, 2020, presenting its objections and producing a privilege log and thereafter supplementing its production and privilege log. See id. The parties have exchanged emails and held telephone conferences, including an informal telephone discovery conference with the court on April 30, 2020 [ECF No. 41], to discuss Continuum's objections to various discovery requests. Most issues have been resolved. See id.

Regarding the subject of the instant motion to compel, Plaintiff argues that Continuum has objected to providing complete information and full documents production response to her Interrogatory No. 11, and Requests for Production Nos. 3, 4, 18, 20, 22, and 23. [See ECF No. 42-1 at 4-6]. More specifically, Plaintiff argues Continuum "continues to withhold 31 pages of documents, primarily on the basis of the common interest doctrine, although it also asserts the self-critical analysis privilege, attorney-client privilege, and work product doctrine," and that this set of documents includes the common interest agreement that was executed between Lenox and Continuum onDecember 19, 2017. Id. at 6-7.² Continuum describes the withheld documents with reference to the updated privilege log as follows:

1) Continuum's Common Interest Agreement and Communications with Lenox.

On December 19, 2017, Continuum and Lenox entered into a Common Interest Agreement memorializing their intent to exchange "common interest materials" regarding regulatory compliance and anticipated litigation without waiving applicable privileges. This Agreement was entered into after tea kettle issues had been reported to Lenox, one of which involved burn injuries that resulted in litigation. (Privilege Log #1).

Between June 2017 and December 2018, Lenox notified Continuum of fourteen customer complaints involving tea kettles. Each of the incidents were first reported to Lenox, who then notified Continuum. On July 20, 2017, Continuum learned of the first two incidents, Elegonye and Zaridze. Continuum produced to Plaintiff the customer complaints prepared by Elegonye and Zaridze, including photograph attachments, along with the pleadings from the lawsuit filed in Elegonye. Out of privacy concerns, Continuum redacted the photographs showing Elegonye's injury and produced the redacted copies to Plaintiff so that she was aware of their existence.³ The logged materials that Continuum has withheld are the privileged communications exchanged between Continuum, Lenox, and /or the liability insurer following these incidents. (Privilege Log #5 and #6).

On October 4, 2018, Continuum received from Lenox a one-page report containing information regarding seven additional incidents. Of these seven incidents, Continuum received materials for Gorman, a lawsuit alleging personal injury. Not only has Continuum produced the injury and produced the one-page incident report to Plaintiff, but Continuum also produced theGorman pleadings and communications to Lenox. The logged materials that Continuum has withheld are the privileged communications exchanged between Continuum, Lenox, and/or the liability insurer following the Gorman incident. (Privilege Log #9).

In late 2018, Continuum received notice from Lenox regarding three additional claims, one of which involved the Plaintiff (Maseng, Son Ly, Cabrera-Machado). Continuum has produced all communications, pleadings, and/or other materials in its possession related to these incidents except for the privileged communications exchanged between Continuum, Lenox, and/or the liability insurer (Privilege Log #2, #7, #8).

Finally, on November 29, 2018, Lenox's counsel sent a two-page letter to Continuum after learning of two injury claims. The letter contains legal opinion and analysis prepared in anticipation of litigation and regulatory compliance. For these reasons, Continuum withheld the privileged communication from discovery. (Privilege Log #3).

2) Certain Communications with the Manufacturer, Ai Bang Bao.

Between January 11-19, 2019, Continuum exchanged emails with Ai Bang Bao regarding three ongoing lawsuits and/or personal injury claims, one of which involved the Plaintiff. These emails are privileged communications because they arose after the injuries were reported to Lenox and Continuum. (Privilege Log #4).

[ECF No. 43 at 2-3].

II. Discussion

A. Standard of Review and Choice of Law

"[A] district court has wide latitude in controlling discovery and . . . its rulings will not be overturned absent a clear abuse of discretion." Ardrey v. United Parcel Serv., 798 F.2d 679, 682 (4th Cir. 1986) (citations omitted). Further, "[t]he latitude given the district court extends as well to the mannerin which it orders the course and scope of discovery." Id. (citations omitted). Courts are to broadly construe rules enabling discovery. Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Murray Sheet Metal Co., 967 F.2d 980, 983 (4th Cir. 1992) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)). Limitations on discovery are to be construed narrowly. Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998).

"[I]n a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision." Fed. R. Evid. 501. However, "South Carolina has not yet established a choice of law doctrine applicable to privilege issues." Wellin v. Wellin, 211 F. Supp. 3d 793, 801 (D.S.C. 2016), order clarified, C/A No. 2:13-1831-DCN, 2017 WL 3620061 (D.S.C. Aug. 23, 2017). Notwithstanding, the parties agree that South Carolina law governs the privilege claims at issue. [ECF No. 42-1 at 12, ECF No. 43 at 4].

B. Analysis

1. Availability of the Common Interest Doctrine

As a preliminary issue, the parties dispute whether Continuum can invoke the common interest doctrine, with Plaintiff arguing the doctrine is unavailable "because South Carolina has not recognized this doctrine in the product liability context . . . ." [ECF No. 42-1 at 11-12].

The common interest doctrine, also commonly referred to as the joint defense doctrine, "protects the transmission of data to which the attorney-client privilege or work product protection has attached when it is shared between parties with a common interest in a legal matter." Tobaccoville USA, Inc. v. McMaster, 692 S.E.2d 526, 531 (S.C. 2010). "The doctrine is not a privilege in itself but is instead an exception to the waiver of an existing privilege," in that it is "an exception to the general rule that disclosure of privileged information waives the applicable privilege." Id. (citing In re Grand Jury Subpoenas, 89-3 & 89-4, John Doe 89-129, 902 F.2d 244, 248 (4th Cir. 1990)). "The purpose of the privilege is to allow persons with a common interest to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims." In re Grand Jury Subpoena: Under Seal, 415 F.3d 333, 341 (4th Cir. 2005) (citation omitted).

As recognized by this court, "Tobaccoville adopted the common interest doctrine only for a narrow factual scenario." State Farm Fire & Cas. Co. v. Admiral Ins. Co., 225 F. Supp. 3d 474, 480 (D.S.C. 2016). As stated by the South Carolina Supreme Court in Tobaccoville:

We now adopt the common interest doctrine for the narrow factual scenario where several states are parties to a settlement agreement, the state laws that regulate and enforce that settlement all have the same provisions, the attorneys general of those settling states are involved in coordinating regulation and enforcement, and the settling states have executed a common interest agreement.

692 S.E.2d at 531.

Although "[n]o subsequent South Carolina case [has] addresse[d] this issue," this court had held the South Carolina Supreme Court would apply the common interest doctrine in additional scenarios, including, for example, "a confidential relationship between and insurer, an insured, and counsel by the insurer for the insured." State Farm Fire & Cas. Co., 225 F. Supp. 3d at 480-82; see also Wellin, 211 F. Supp. 3d at 811 ("The doctrine is unquestionably available under federal and New York privilege law, which is at least suggestive of South Carolina courts' position on the issue, given South Carolina courts' tendency to cite to New York or federal privilege law."); First S. Bank v. Fifth Third Bank, N.A., C/A No. 7:10-2097-MGL, 2013 WL 1840089, at *8 (D.S.C. May 1, 2013) (citing Fort v. Leonard, C/A No. 7:04-1028-HFF-WMC, 2007 WL 518593 (D.S.C. 2007)) ("[T]he privilege has been applicable in virtually any litigation-related setting, provided the parties share a common interest, and that confidential information was exchanged to...