United States District Court, S.D. Florida
S. SELTZER, UNITED STATES DISTRICT JUDGE
CAUSE has come before the Court upon Plaintiffs'
ore tenus Motion to Compel Discovery.
consolidated actions involve the sale of allegedly defective
bulletproof vests. The discovery dispute spans three separate
class action complaints. The parties initially took discovery
in Ohio State Troopers Association, Inc., et al. v. Point
Blank Enterprises, Inc., No. 17-62051-CIV-UU (referred
to herein as “First Class Action”). That case,
however, was dismissed without prejudice in October 2018 when
the Court denied class action certification. The present
action, Ohio State Troopers Association, Inc., et al. v.
Point Blank Enterprises, Inc., No. 18-63130-CIV-RAR
(hereinafter “OSTA”), was filed in December 2018.
Discovery in the OSTA case is stayed (DE ). The third
litigation, Porras v. Point Blank Enterprises, Inc.,
No. 19-61881-CIV-RAR (referred to herein as
“Porras”), was transferred from the
district court in California and consolidated with the
present case (DE ). On November 8, 2019, District Judge
Rodolfo A. Ruiz entered an order lifting the discovery stay
“only as to the California-specific claims in the
Porras action.” (DE ). The stay was lifted
until December 16, 2019 (DE ). Judge Ruiz later extended
the deadline to January 20, 2020 (DE ).
the Court lifted the discovery stay for the
California-specific claims in the Porras action,
counsel for Porras contacted Defendant's counsel to
address claims of privilege Defendant had previously raised
in the OSTA litigation. The parties could not resolve the
privilege issues and Porras sought relief from the
Court. The Court held a discovery hearing on
December 4, 2019. Prior to the hearing, the parties filed
their respective Discovery Status Reports (DE  and ),
which outlined the matters in dispute. Following the hearing,
the Court entered an Order (DE ) directing Defendant to
submit the disputed documents for in camera
inspection. Both parties have briefed the privilege issues
(DE  and ) and the matter is now ripe for review.
asserts work-product privilege to documents PBE007643,
PBE007644-645, PBE007646-647, PBE007648-650, PBE007651-653,
and PBE007654-656 (collectively referred to as “Tab A-1
Documents”). These documents are a string of emails
dated April 25, 2018, between Defendant's employees that
refer to the testing and evaluation of SSBS vests. Defendant
asserts that the tests were performed at the direction of
litigation counsel in advance of and for the parties'
April 30, 2018 mediation in the First Class Action.
of work product protection are governed by Federal Rule of
Civil Procedure 26(b)(3), which provides in pertinent part:
“Ordinarily, a party may not discover documents and
tangible things that are prepared in anticipation of
litigation or for trial by another party or its
representative (including the other party's attorney,
consultant, surety, indemnitor, insurer, or agent).”
Fed.R.Civ.P. 26(b)(3)(A). The Declaration of Tom Steffen,
Defendant's Executive Vice President of Corporate Legal
Affairs (DE [101-1]), establishes that the testing and
evaluations referred to in the emails were conducted at the
request of counsel in anticipation of mediation:
A mediation in the First Class Action was held on April 30,
2018. In advance of that mediation, Point Blank had
discussions with counsel from Morgan Lewis and Berger
Singerman, and Point Blank was directed by counsel to
evaluate various items in connection with confidential
settlement-related discussions at the mediation. This
included performing certain internal evaluations and analyses
for that mediation, including to assess Plaintiffs'
settlement-related proposals. Emails relating to that work is
reflected in Tab A1in the binder submitted to the Court in
camera on December 6, 2019.
does not, as argued by Plaintiff, make a conclusory assertion
of privilege. Rather, Defendant establishes that the emails
in question pertained to preparations directed by
Defendant's attorneys for a mediation conference that was
to be held several days later. Plaintiff further argues that
the work-product privilege does not apply to the Tab A-1
documents because Defendant has not shown that any of the
documents were prepared by or submitted to defense counsel.
Plaintiff's definition of work product is too narrow. The
fact that documents “were not authored or received by
an attorney, standing alone, is insufficient to demonstrate
that no protection applies to those documents.” In
re Denture Cream Products Liability Litigation, 2012 WL
5057844, at *14, *19 (S.D. Fla. Oct. 18, 2012) (product
analysis documents in employee's file protected by
work-product privilege where defendant established by
declaration that the analysis was requested by counsel as
part of crafting a litigation strategy). It is unrefuted that
the Tab A-1 documents were generated as part of
Defendant's mediation strategy and, thus, the
work-product privilege applies.
Plaintiff argues that the Tab A-1 Documents cannot be
protected by work-product privilege because they do not
contain any “core attorney opinions” or
“opinion of counsel.” Again, Plaintiff defines
work product too narrowly. The work-product doctrine protects
both opinion work product, such as “core attorney
opinions” and the like, as well as “fact
work-product, ” such as the Tab A-1 Documents. See
Hickman v. Taylor, 329 U.S. 495 (1947); Stern v.
O'Quinn, 253 F.R.D. 663, 685 (S.D. Fla. 2008)
(documents generated during defendant's fact
investigation were fact work product). Fact work product
includes “documents and tangible things . . . prepared
in anticipation of litigation or for trial by or for another
party or by or for that other party's
representative.” Id. (citations omitted).
Although “the same level of protection [afforded to
opinion work product] does not apply to fact work product,
” disclosure is still prohibited unless the party
seeking the discovery establishes substantial need and
inability to obtain the information by other means.
Id. The Court finds that the Tab A-1 Documents
consist of fact work product and that Plaintiff has not made
the necessary showing that would require disclosure.
contains documents labeled PRIVID00102 to 00109, which
consist of email strings from July 14 to 17, 2017 (referred
to collectively as the “Tab A-2 Documents”). The
Declaration of Tom Steffen (DE [101-1]) explains that these
emails were generated in response to outside counsel's
requests for information about sales data and contracts in
Ohio. According to Steffen, these documents were gathered
“so that Point Blank and its Counsel could evaluate the
allegations in the Proposed Complaint and to assist in the
parties' settlement-related discussions.” For the
reasons set forth above, the undersigned concludes that the
Tab A-2 Documents are protected by the work-product
includes documents labeled PRIVID00067 to PRIVID00079
(referred to collectively as “Tab A-3
Documents”). According to the Declaration of Tom
Steffen (DE [101-1]), ”[a]fter receiving the Proposed
Complaint, Point Blank and its counsel (Morgan Lewis and
Berger Singerman) had numerous conversations regarding
defenses to the Proposed Complaint, Plaintiffs'
settlement-related demands, and potential resolution of the
dispute. Counsel for Point Blank asked me to instruct other
Point Blank employees to provide certain information to aid
in those discussions and our ongoing analysis of the claims
and allegations in the Proposed Complaint.” Upon review
of the Tab A-3 Documents, the Court finds that the documents
directly pertain to strategies for pre-suit settlement, as
well as litigation strategy. No. outside expert was copied on
the email chains, but outside attorneys were either included
in or commenced the email chains in question. See In re
Denture Cream Prod. Liab. Litig., 2012 WL 5057844, at
*13 (work-product doctrine “does not require that the
withheld document be prepared by an attorney, or even
reviewed by an attorney”). Accordingly, the Court
concludes that the Tab A-3 documents are protected by the
attorney-client and work-product privileges.
includes documents labeled PRIVID00047 to PRIVID00055 and
PRIVID00059 to PRIVID00064 (referred to collectively as
“Tab A-4 Documents”). The Tab A-4 Documents are
emails between Defendant's employees and employees of the
consulting firm Exponent. The emails were sent between June
14, 2017, and July 6, 2017, and reportedly “reflect
communications regarding expert consulting work, including
testing, for purposes of the pre-settlement discussions with
Plaintiff's counsel and the defense of threatened,
anticipated litigation.” (DE , p. 11].
argues that the communications reflected in the Tab A-4
Documents are protected by the work-product privilege because
Defendant hired Exponent on a consulting basis in
anticipation of litigation after Defendant had been provided
a copy of the proposed complaint in the First Class Action.
Rule 26(b)(4)(B) provides that a litigation consultant is
“generally immune from discovery.” Fed.R.Civ.P.
26(b)(4)(B). “However, when an expert serves as both a
litigation consultant and a testifying witness, an issue
arises as to whether the party relinquishes the privilege
that would otherwise attach to the litigation
consultant's work.” In re Commercial Money
Center, Inc. Equipment Lease Litigation, 248 F.R.D. 532,
538 (N.D. Ohio 2008)
in a footnote in its memorandum of law, Defendant
acknowledges that nearly one year after retaining Exponent in
a consulting capacity, Defendant designated Christian Page
from Exponent as a testifying expert (DE , n.7).
Nevertheless, Defendant argues that all communications with
Exponent prior to the filing of the First Class Action were