The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
________________________________________________________________
)
BRYAN HUBBARD and )
DAISA M. ROBINSON, )
)
Plaintiffs, )
)
v. )
) No. 22-cv-2080-TLP-tmp
DARRIN JAY RIDENOUR and )
RAILSERVE, INC., )
)
)
Defendants. )
________________________________________________________________
ORDER GRANTING IN PART AND DENYING IN PART SECOND MOTION TO
COMPEL
________________________________________________________________
Before the court by order of reference is a second Motion to
Compel filed by plaintiffs Bryan Hubbard and Daisa M. Robinson on
February 14, 2023. (ECF No. 53.) Defendant Railserve, Inc.
(“Railserve”) filed a response on February 28, 2023, and plaintiffs
filed a reply on March 10, 2023.1 (ECF Nos. 59, 63.) For the reasons
below, the motion is GRANTED in part and DENIED in part.
I. BACKGROUND
A. First Motion to Compel
Plaintiffs served their first set of interrogatories and
requests for production (“RFPs”) on Railserve on August 21, 2022.
1In their response, Railserve requested a hearing. The undersigned
finds that a hearing is unnecessary and that the motion can be
decided on the briefs.
(ECF No. 53 at PageID 340.) Responses were due on September 20,
2022. (Id.) Because Railserve had not responded to the discovery
requests, counsel for plaintiffs emailed counsel for Railserve on
October 12, 2022, October 17, 2022, October 27, 2022, and October
31, 2022. (ECF No. 33 at PageID 227-28.) They also called and left
a voicemail for Railserve’s counsel on October 27, 2022, and mailed
a letter on October 31, 2022. (Id. at PageID 228.) On November 2,
2022, counsel for Railserve sent the following email to plaintiffs’
counsel: “There’s been some turnover at Marmon and we are trying
to get the right people to get the information. Chase has been
doing most of the communication, so he can give you a better
timeline, but I promise we are working on it. Sorry for the delay.”
(ECF No. 33-1 at PageID 233.) Plaintiffs sent two more emails to
counsel for Railserve on November 10, 2022, and November 23, 2022,
regarding the lack of discovery responses. (ECF No. 33 at PageID
227.) On December 6, 2022, counsel for plaintiffs and an attorney
for Railserve spoke via telephone. (ECF No. 53 at PageID 340.)
Counsel for Railserve stated that he would provide plaintiffs’
counsel with a timetable for responding to the discovery by the
end of the day. (Id.) By December 11, 2022, plaintiffs’ counsel
had not received that timetable and emailed counsel for Railserve
to follow up. (ECF No. 33 at PageID 228.) As of December 21, 2022,
plaintiffs’ counsel had still received no response from counsel
for Railserve, and as a result, filed a motion to compel that was
referred to the undersigned.2 (ECF No. 34.) Railserve failed to
respond to the motion, as required by Local Rule 7.2(a)(2).
On January 9, 2023, the undersigned entered an order granting
the plaintiffs’ first Motion to Compel. (ECF No. 38.) The order
directed Railserve to respond to plaintiffs’ interrogatories and
RFPs within ten days and that “[a]ny objections that Railserve may
have had are hereby waived.” (Id. at PageID 271.) Further, the
undersigned granted plaintiffs’ motion for attorney’s fees and
directed plaintiffs to submit a declaration with accompanying
invoices showing fees incurred in connection with the Motion to
Compel. (Id.) Railserve did not timely appeal the January 9 Order.
On January 26, 2023, plaintiffs’ attorneys provided the
necessary declarations and invoices to support their request for
attorney’s fees in connection with their first Motion to Compel.
(ECF No. 42, 45.) On February 1, 2023, the undersigned entered a
Report and Recommendation recommending that attorney’s fees be
awarded in the amount of $3,240. (ECF No. 48 at PageID 328.)
On February 10, 2023, Stephen McDonald, an attorney at Lewis
Brisbois Bisgaard & Smith, one of the two firms representing
2On December 28, 2022, Railserve’s counsel sent via email documents
Bates stamped 00001-000368 to plaintiffs’ counsel. (ECF No. 53 at
PageID 341.) The documents were produced without reference to which
request the documents were responsive to. (Id.) Because Railserve
did not respond to the first Motion to Compel, the undersigned was
not aware of this production.
Railserve, filed a notice of appearance.3 On February 15, 2023,
Railserve filed an objection to the Report and Recommendation.
(ECF No. 55.) Even though the Report and Recommendation only
addressed the amount of attorney’s fees to be awarded, defense
counsel raised objections to determinations made in the January 9
Order granting the Motion to Compel. Railserve argued that the
undersigned relied on erroneous findings of fact because the court
was not made aware of the December 28, 2022 production. (Id. at
PageID 497.) They also argued that the undersigned’s determination
that all of Railserve’s objections had been waived was overly broad
to the extent that it required the disclosure of privileged
documents. (Id.)
In their objections, Railserve explained that they had failed
to respond to the Motion to Compel because one of the attorneys
went on paternity leave on January 2, 2023. (Id. at PageID 500.)
The response to the Motion to Compel was due January 7, 2023. (Id.)
Railserve does not explain why their other counsel of record was
unable to respond to the motion or appeal the January 9 Order. The
Report and Recommendation on the amount of attorney’s fees remains
pending.
B. Second Motion to Compel
3Railserve’s response explains that Attorney McDonald began working
on the case in mid-January. (ECF No. 59 at PageID 581.)
On January 19, 2023, defendants provided plaintiffs’ counsel
with a document titled “Defendant Railserve, Inc.’s Responses to
Plaintiffs’ First Interrogatories and Requests for Production of
Documents.” (ECF No. 53 at PageID 342.) Plaintiffs also received
a set of documents Bates stamped 369-593, which included “the
Ameritrack Safety Manual, the 911 call report, the Internal Crash
Investigation Incident Report, the AT&T Customer Authorization for
Release of Records, the police report including one photo, and the
EMS ambulance records of plaintiff.” (Id.) On January 25, 2023,
plaintiffs’ counsel sent Railserve’s counsel a detailed letter
regarding the deficiencies in the responses to the interrogatories
and the RFPs. (Id.) The letter stated, “If I have not received
supplemental and sufficient responses to the above within ten (10)
business days of the above date, we will file another Motion to
Compel and request additional sanctions.” (ECF No. 53-3 at PageID
442.)
As of February 6, 2023, plaintiffs’ counsel had not received
a response to the January 25 letter, and as a result called
Railserve’s counsel to follow up. (ECF No. 53 at PageID 343.)
Plaintiffs’ counsel also sent an email the same day that confirmed
Railserve’s agreement to provide documents by February 8, 2023.
(Id.) On February 8, 2023, defense counsel supplemented their
responses to plaintiffs’ interrogatories and RFPs. (Id.) The
documents provided were not Bates stamped, nor did they identify
which request each document was responsive to. (Id.)
On February 14, 2023, plaintiffs filed the instant motion.
(ECF No. 53.) The following interrogatories and RFPs remain in
dispute: Interrogatories 2, 6, and 11, and RFPs 2 and 4. Railserve
asserts they have provided every responsive document in their
possession and the documents that they do not have are currently
being retrieved and reviewed. (ECF No. 59 at PageID 589.) The bulk
of Railserve’s response is dedicated to challenging the January 9
Order to the extent it found that Railserve’s privilege and work
product objections had been waived. Plaintiffs argue that the
“waiver” should be upheld because of “Railserve’s sustained and
ongoing refusal to provide information that was due on September
20, 2022.” (ECF No. 63 at PageID 606.) Plaintiffs also seek
attorney’s fees in connection with the second Motion to Compel.
(Id. at PageID 608.)
II. ANALYSIS
Plaintiffs argue that the January 9 Order granting
plaintiff’s Motion to Compel included documents potentially
protected by attorney-client privilege and work product. Rule
34(b) gives parties thirty days from the date of service to respond
to discovery requests. Fed. R. Civ. P. 34(b)(2). This thirty-day
period includes the time that a party has to raise objections to
discovery requests. Cooey v. Strickland, 269 F.R.D. 643, 647 (S.D.
Ohio 2010). A party's “failure to respond within that thirty-day
period operates as a waiver of all objections a party might
have.” Id. (internal citations omitted). However, this general
rule does not always apply to attorney-client privilege and work
product objections.
In certain situations, “[t]he complete failure of a
responding party to provide a privilege log may . . . result in a
waiver of the claimed privilege.” Brown v. Tax Ease Lien Servicing
LLC, No. 3:15-CV-208-CRS, 2017 WL 6940735, at *4 (W.D. Ky. Aug.
21, 2017) (citing Ritacca v. Abbott Lab., 203 F.R.D. 332, 334-35
(N.D. Ill. 2001) (citation omitted)); see also Etheredge v.
Etheredge, No. 1:12-0165, 2013 WL 4084642, at *4 (M.D. Tenn. Aug.
12, 2013) (“to assert any privilege, the Defendants had to prepare
and serve a privilege log, and their failures to do so constitute
waivers of these privileges.”). Such a waiver, however, is not
automatic given the harshness of such a result. Factory Mut. Ins.
Co. v. Derby Indus., LLC, No. 3:17CV-00198-JHM-RSE, 2018 WL
11412924, at *3 (W.D. Ky. Sept. 18, 2018) (citing First Sav. Bank,
F.S.B. v. First Bank System, Inc., 902 F. Supp. 1356, 1361-62 (D.
Kan. 1995)). Minor procedural violations, good faith attempts at
compliance, and other mitigating circumstances militate against
finding waiver. Id. (citing Ritacca, 203 F.R.D. at 335). On the
other hand, evidence of foot-dragging or a cavalier attitude toward
following court orders and the discovery rules supports finding
waiver. Id.
Here, the first Motion to Compel did not specifically discuss
the issue of waiver of attorney-client privilege and work product,
and the January 9 Order did not specifically find such a waiver.
Although Railserve’s handling of discovery has been deficient,
particularly their failure to respond to the first Motion to
Compel, it does not justify the automatic waiver of privilege and
work product objections. Railserve is directed to fully respond to
plaintiffs’ interrogatories and RFPs within ten days of the entry
of this Order. Along with these responses, Railserve must provide
a complete privilege log. As to all other objections, the January
9 Order finding waiver remains in effect. As to plaintiffs’ request
for attorney’s fees, based on the court’s finding that Railserve’s
privilege and work product objections have not been waived, as
well as Railserve’s recent efforts to comply with discovery, the
undersigned finds that an award of attorney’s fees and costs is
not warranted at this time.
III. CONCLUSION
Plaintiffs’ second Motion to Compel is GRANTED in part and
DENIED in part. Further, should Railserve fail to comply with the
Federal Rules of Civil Procedure, Local Rules, or this court's
orders in the future, they may be subject to sanctions, including
but not limited to attorney’s fees and/or the striking of their
answer.
IT IS SO ORDERED.
s/ Tu M. Pham ____
TU M. PHAM
Chief United States Magistrate Judge
April 10, 2023___
Date