Weyerhaeuser Company v. Daniel International Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

EASTERN DIVISION

No. 4:23-CV-45-FL-KS

WEYERHAEUSER COMPANY, )

)

Plaintiff, )

)

v. ) ORDER

)

DANIEL INTERNATIONAL CORPORATION, )

f/k/a Daniel Construction Company, )

)

Defendant. )

This matter is before the court on Defendant’s motion to compel written

discovery responses pursuant to Fed. R. Civ. P. 37 and for Plaintiff to designate a

corporate witness to testify on topics pursuant to a Fed. R. Civ. P. 30(b)(6) notice

[DE #36]. Plaintiff has responded in opposition [DE #38], and Defendant has replied

[DE #39].1 For the reasons stated below, Defendant’s motion to compel is granted.

BACKGROUND

On March 13, 2023, Weyerhaeuser Company (“Weyerhaeuser” or “Plaintiff”)

initiated this lawsuit against Daniel International Corporation (“Daniel” or

“Defendant”) alleging breach of a contractual indemnity provision from a contract

purportedly entered into by the parties in 1971. Weyerhaeuser asserts that it

“incur[red] damages, costs, and expenses in excess of $500,000” by defending and

settling a South Carolina state-court mesothelioma lawsuit brought by a plaintiff

1 The court held two informal discovery hearings about this discovery dispute

named Nicholas Murphy (hereinafter “the Murphy litigation”2). (Compl. [DE #1] at

4.)

Murphy sued producers of asbestos and owners of premises containing

asbestos where Murphy worked over the course of his career as a welder. (

Pl.’s Resp. Opp’n, Ex. 3 – Complaint [DE #38-4] (“

Compl.”).) In the Murphy litigation, Weyerhaeuser was sued as a premises defendant

in connection with Murphy’s work and alleged asbestos exposure at Weyerhaeuser’s

paper mill in New Bern, North Carolina. ( Compl. ¶¶ 73, 81; Compl. ¶ 11.) As

a premises defendant, Weyerhaeuser was expressly sued for negligence. (

Compl. ¶¶ 179–193.)

During the course of the Murphy litigation, Weyerhaeuser tendered its defense

to Daniel. ( Compl. ¶ 15.) These tenders do not appear to be based on the

indemnity provision at issue from the alleged 1971 contract, but rather appear to

have been made pursuant to an alleged 1970 agreement between the parties. (

Pl.’s Resp. Opp’n, Ex. 6 – Tender Correspondence [DE #38-7] (“Tender

Correspondence”) at 2–12.) Daniel rejected Weyerhaeuser’s tenders. (Compl. ¶ 16;

Tender Correspondence at 2–12.)

2 Weyerhaeuser has attached a copy of the Murphy litigation complaint. (Pl.’s

Resp. Opp’n, Ex. 3 – Complaint [DE #38-4].) The case appears to be captioned

as , No. 2020CP4001354, Court of Common Pleas,

Richland County, South Carolina (filed Mar. 6, 2020). Daniel was also sued in the

Murphy litigation.

Weyerhaeuser claims it settled the Murphy litigation for an undisclosed

amount on November 4, 2021. (Compl. ¶ 17.) Thereafter, Weyerhaeuser received

(from Daniel) a copy of the purported 1971 contract containing the indemnity

provision that forms the basis of this action. (Compl. ¶ 18.) Weyerhaeuser again

tendered the Murphy litigation to Daniel, this time on the express basis of the 1971

contract indemnity provision,3 and Daniel again rejected Weyerhaeuser’s tender.

(Compl. ¶¶ 19–20; Tender Correspondence at 13–15.) Weyerhaeuser filed this lawsuit

shortly thereafter.

Weyerhaeuser did not attach to its complaint a copy of the purported 1971

contract with the indemnity provision, but the complaint alleges that the indemnity

provision “provides, in pertinent part,” that the “Contractor [Daniel] shall indemnify

and hold harmless the Owner [Weyerhaeuser] . . . from and against any loss, liability,

claim, demand for damages for bodily injuries . . . . arising out of or relating to the

performance of the Work under Contract . . . .” (Compl. ¶ 9) (alterations and ellipses

in original). In its response to the instant motion to compel, Weyerhaeuser has

attached excerpts from the purported 1971 contract which contain the indemnity

provision at issue. (Pl.’s Resp. Opp’n, Ex. 1 – 1971 Contract Excerpts [DE #38-2]

(“1971 Contract Excerpts”) at 7.) The unaltered text of the indemnity provision is as

follows:

3 This tender was also made in reliance on another alleged contract between

Weyerhaeuser and Daniel. (Tender Correspondence at 13–15 (referencing an

indemnity provision in a 1975 contract).)

(b) The Contractor shall indemnify and hold harmless the Owner and

Engineer from and against any loss, liability, claim or demand for

damages for bodily injuries including death and/or property damage

arising out of or relating to the performance of the Work under this

Contract, except when caused by the negligence of the Owner or

Engineer.

( )4

The gravamen of the instant discovery dispute centers on the following broad

categories of information sought by Daniel and resisted by Weyerhaeuser:

(A) Weyerhaeuser’s or its Engineer’s potential negligence in relation to Murphy’s

exposure to asbestos at the New Bern mill; (B) work performed by other contractors

at the New Bern mill for whom Murphy worked, when and for whom Murphy worked

at the New Bern mill, and under which specific contracts Murphy worked (including

other contracts between Daniel and Weyerhaeuser); and (C) Weyerhaeuser’s damages

in connection with the Murphy litigation settlement and Weyerhaeuser’s decision and

underlying reasons for settling the claims against it.

Weyerhaeuser has refused to provide discovery regarding these categories for

several reasons. First and foremost, Weyerhaeuser contends that its potential

negligence is irrelevant because, as a matter of law, it owed no duty to Murphy. (Pl.’s

4 The excerpts provided by Weyerhaeuser appear to be from different parts of

the alleged 1971 contract. For example, the indemnity provision appears to be from

an excerpt of a section called “General Conditions” (1971 Contract Excerpts at 6–7),

but other excerpts appear to be from different sections or separate documents (

at 8–12). More specifically, one section of the excerpts titled “Article V – The Contract

Documents” (which itself appears to be excerpted from a component titled “Contract

Agreement”) lists several components of the “Contract Documents,” including, among

other things, “The General Conditions” and “The Contract.” ( at 11.) The “Contract

Agreement” excerpt is not dated and only bears an unwitnessed signature from a

purported Daniel representative. ( at 9, 12.)

Resp. Opp’n at 4–6 (“Weyerhaeuser did not owe any duty to Mr. Murphy. As a result,

nothing Daniel seeks in its discovery requests ‘relating to the negligence of

Weyerhaeuser’ will ever be of any consequence in determining this action.”). In

support, Weyerhaeuser relies heavily on , 986 F.3d

482 (4th Cir. 2021) (per curiam). (Pl’s Resp. Opp’n at 4–5.) Second, Weyerhaeuser

contends that information regarding work performed by other contractors and from

the time period of 1965 through 1980 (as requested by Daniel) is irrelevant. ( at 9.)

Third, while Weyerhaeuser has repeatedly said that it will disclose the amount it

paid to settle the Murphy claims pursuant to a court order and that it has no objection

to the court “ruling partially in Daniel’s favor . . . if solely limited to disclosing the

amount for which Weyerhaeuser settled the lawsuit,” it objects to Daniel’s

requests for “extraneous information regarding the settlement that is unrelated to

the amount of damages Weyerhaeuser seeks from Daniel in this case.” ( at 6–7.)

Weyerhaeuser has specifically identified as seeking extraneous information Daniel’s

Request for Production (“RFP”) 225 and RFP 246, and more broadly, any request for

5 RFP 22 requests “[a]ll documents comprising or concerning or relating to any

and all analysis of the facts, reasons, and recommendations for settling the Nicholas

Murphy Lawsuit on behalf of [Weyerhaeuser] including, but not limited to, any

memos, pre-trial reports, asbestos case profiles, Asbestos Litigation Form (ALFs), or

similar Documents.” (Def.’s Mot. Compel, Ex. 2 – Daniel’s First Set of RFPs [DE #36-

2] at 5–6.)

6 RFP 24 requests “[c]opies of any and all agreements and correspondence with

counsel for Nicholas Murphy in the Nicholas Murphy Lawsuit, including any

settlement agreements entered by Weyerhaeuser Company and plaintiffs in the

Nicholas Murphy Lawsuit. (Def.’s Mot. Compel, Ex. 2 – Daniel’s First Set of RFPs

[DE #36-2] at 6.)

information related to Weyerhaeuser’s potential negligence as to the Murphy

litigation. ( at 7–8.)

DDISCUSSION

Rule 26 of the Federal Rules of Civil Procedure provides for a broad scope of

discovery:

Parties may obtain discovery regarding any nonprivileged matter that

is relevant to any party’s claim or defense and proportional to the needs

of the case, considering the importance of the issues at stake in the

action, the amount in controversy, the parties’ relative access to relevant

information, the parties’ resources, the importance of the discovery in

resolving the issues, and whether the burden or expense of the proposed

discovery outweighs its likely benefit. Information within this scope of

discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). Relevance “has been broadly construed to encompass ‘any

possibility’ that the information sought may be relevant to the claim or defense of any

party.” , No. 1:06-CV-00889, 2007 WL 1726560, at *3

(M.D.N.C. June 13, 2007); , 313 F.R.D. 1, 5

(E.D.N.C. 2016) (quoting , 2007 WL 1726560, at *3);

, No. 5:18-CV-66, 2020 WL 2311668, at *2 (W.D. Va. May 8, 2020)

(acknowledging the 2000 and 2015 amendments to Rule 26(b)(1) and concluding that

the discovery rules are to be interpreted broadly); 8 Wright & Miller, Fed. Prac. &

Proc. § 2008 (3d ed.) (summarizing history of Rule 26 and noting that the 2015

amendment “did not affect a dramatic change in the scope of discovery”).

Rule 26 requires the court to limit the frequency or extent of discovery if “the

discovery sought is unreasonably cumulative or duplicative, or can be obtained from

some other source that is more convenient, less burdensome, or less expensive”; “the

party seeking discovery has had ample opportunity to obtain the information by

discovery in the action”; or the discovery sought is outside the scope of Rule 26(b)(1).

Fed. R. Civ. P. 26(b)(2)(C). The rule also authorizes the court to impose appropriate

limitations on discovery in order “to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).

Such protective orders may include, among other things, provisions “forbidding the

disclosure or discovery,” “specifying terms . . . for the disclosure or discovery,”

“prescribing a discovery method other than the one selected by the party seeking

discovery,” or “forbidding inquiry into certain matters, or limiting the scope of

disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c)(1)(A)–(c)(1)(D).

“The party resisting discovery bears the burden of showing why [the motion to

compel] should not be granted.” , 270

F.R.D. 238, 241 (E.D.N.C. 2010). “To meet this burden, the non-moving party ‘must

make a particularized showing of why discovery should be denied, and conclusory or

generalized statements fail to satisfy this burden as a matter of law.’”

, No. 5:16-CV-679-FL, 2018 WL 5831997, at *5 (E.D.N.C. Nov. 7, 2018)

(quoting , 270 F.R.D. at 241). “[T]he court has ‘substantial

discretion’ to grant or deny motions to compel discovery.” , No. 5:11-

CT-3206-D, 2014 WL 555661, at *4 (E.D.N.C. Feb. 11, 2014) (quoting

, 43 F.3d 922, 929 (4th Cir. 1995)).

If a motion to compel is granted, then “the court must, after giving an

opportunity to be heard, require the party or deponent whose conduct necessitated

the motion, the party or attorney advising that conduct, or both to pay the movant’s

reasonable expenses incurred in making the motion, including attorney’s fees.” Fed.

R. Civ. P. 37(a)(5)(A). A court may decline to award reasonable expenses only if one

of three exceptions apply. Fed. R. Civ. P. 37(a)(5)(A)(i)–(iii).

AA. Weyerhaeuser’s and its Engineer’s Potential Negligence is Discoverable

Weyerhaeuser takes the position, based on , 986 F.3d

482 (4th Cir. 2021) (per curiam), that its potential negligence will never be at issue

in this lawsuit. Weyerhaeuser’s position is meritless.

Assuming Weyerhaeuser’s interpretation and application of is correct,7

the text of the alleged indemnity provision contains an express carve-out for

7 The court offers no opinion as to the applicability of to the instant

discovery dispute. However, as Daniel has pointed out, there are several reasons to

question its applicability. (Def.’s Reply [DE #39] at 1–4.)

First, dealt with application of what the Fourth Circuit labeled “the

independent-contractor exception” to the general rule in North Carolina that

“landowners owe a duty of reasonable care to all lawful visitors” and said duty of care

“extends to lawfully present independent contractors and their employees.” ,

986 F.3d at 489–90 (first citing , 349 N.C. 615 (1998); and then

citing , 208 N.C. App. 711 (2010)), 492

(“independent-contractor exception to landowner liability”). However, to determine

whether this exception applies, a court must look to “the actual work undertaken by

independent contractors and their employees.” , 986 F.3d at 490 (quoting

, 208 N.C. App. at 715); , 208 N.C. App. at 714 (“[W]hether

the duty of reasonable care applies depends on whether or not the danger at issue

may be categorized as “incident to the work undertaken” by the independent

contractor.” (footnote omitted).) It is the landowner who bears the burden “to

establish that another entity in fact had ‘exclusive dominion and control of the

defective’ aspect of the property.” , 986 F.3d at 490 (quoting

, 85 N.C. App. 391, 394–95 (1987)). Here, the 1971 Contract Excerpts offer

no insight into this fact-dependent inquiry; these excerpts only indicate that the

alleged 1971 contract was for “Production Efficiency Increase” work and that the type

of project was “Plant Addition.” (1971 Contract Excerpts at 3–6.) Weyerhaeuser’s

Weyerhaeuser’s or its Engineer’s negligence. (1971 Contract Excerpts at 7.) North

Carolina law8 is clear that parties may enter into contractual agreements that except

or modify common-law duties so long as such contractual agreements are not

“contrary to public policy or prohibited by statute.”9

claim that it was “in doing this work for Daniel pursuant to contract with

Weyerhaeuser that Mr. Murphy alleges he was injured” (Pl.’s Resp. Opp’n at 6) misses

the point. The question is whether the alleged asbestos exposure was incident to the

work undertaken by Daniel pursuant to the alleged 1971 contract, or whether the

alleged asbestos exposure was still within the dominion and control of Weyerhaeuser

as landowner such that the independent-contractor exception should not apply. Given

the briefing and supporting evidence presented by Weyerhaeuser in its opposition to

the motion to compel, the court cannot say at this point.

, 101 N.C. App. 578, 588 (1991) (“[W]hen the facts are in

dispute or when more than a single inference can be drawn from the evidence, the

issue of whether a duty exists is a mixed question of law and fact.”), , 331 N.C.

182 (1992).

Other facts may render inapposite. dealt with a ground-up

construction of a new lock production facility, , 986 F.3d at 485, 490, but here

it is unclear what the “Production Efficiency Increase” work/project involved. Daniel

has proffered evidence that Murphy was exposed to insulation dust by Weyerhaeuser

employees. (Def.’s Reply, Ex. B – Murphy Deposition Excerpts [DE #39-2].) This

raises a factual issue as to whether Weyerhaeuser’s New Bern mill was in operation

while Murphy was working there pursuant to the “Production Efficiency Increase”

project. , 101 N.C. App. at 588.

Also, the procedural juncture of is different than that here.

affirmed a summary judgment order by the district court, so there was a more fully

developed factual record upon which those courts could determine the correct

application of North Carolina law. Here, though, the factual record is undeveloped on

relevant issues. , 101 N.C. App. at 588.

8 This court’s subject-matter jurisdiction is invoked pursuant to 28 U.S.C.

§ 1332. (Compl. ¶ 4.) North Carolina substantive law is therefore applied.

, 304 U.S. 64, 78 (1938).

9 Weyerhaeuser does not contend that the negligence carve-out in the alleged

indemnity provision is contrary to public policy or prohibited by statute. (Pl.’s Resp.

Opp’n at 1–9.)

, 175 N.C. App. 423, 427 (2006) (quoting ,

353 N.C. 240, 242–43 (2000)); , 53

N.C. App. 306, 308 (1981) (“In an indemnity contract, the agreement will be construed

to cover all losses, damages, and liabilities which reasonably appear to have been

within the contemplation of the parties, but not those which are neither expressed

nor reasonably inferable from the terms.”). “[W]hen parties contract at arm’s length,

the provisions in the parties’ contract are ‘the law of their case,’ and courts are

without power to revise the contract.” , 175 N.C. App. at 427 (quoting

, 249 N.C. 383, 386 (1959)). Accordingly, the alleged

contractual indemnity provision that forms the basis of this lawsuit expressly puts

Weyerhaeuser’s and its Engineer’s negligence at issue. That Weyerhaeuser settled

the claims against it in the Murphy litigation, which presumably included the

negligence claim referenced above, only bolsters the relevance of its and its Engineer’s

potential negligence. At this procedural juncture, Daniel is thus entitled to discovery

on this issue.

Daniel contends that this issue is raised by Interrogatories 4, 5, & 7–12; RFPs

6–9, 15–17, 20–24, & 29; and Deposition Topics 4–6, 11, & 17–21. (Def.’s Mem. Supp.

Mot. Compel [DE #37] at 5.) Weyerhaeuser has not contended otherwise. (Pl.’s Resp.

Opp’n at 4–6.) Weyerhaeuser has therefore failed to carry its burden to show why

Daniel’s motion to compel should be denied. , 270 F.R.D. at

241; , 2018 WL 5831997, at *5. Daniel’s motion to compel as to

Interrogatories 4, 5, & 7–12; RFPs 6–9, 15–17, 20–24, & 29; and Deposition Topics 4–

6, 11, & 17–21 is therefore granted.

BB. Work Performed by Other Contractors for Whom Murphy Worked is

Discoverable as is Work Murphy May Have Performed for Daniel under

Other Contracts with Weyerhaeuser

Daniel also seeks discovery regarding work performed by other contractors at

the New Bern mill for whom Murphy worked, particularly a contractor known as

Brown & Root, as well as work performed by Murphy for Daniel pursuant to other

contracts/projects at the New Bern mill. (Def.’s Mem. Supp. Mot. Compel at 7–8.)

These requests are mostly summed up in Daniel’s RFP 14, which requests “[a]ll

[d]ocuments establishing when Nicholas Murphy worked at the New Bern facility,

who he was working for, and what projects he was working on.” (Def.’s Mot. Compel,

Ex. 2 – Daniel’s First Set of RFPs [DE #36-2] at 5.) In response, Weyerhaeuser argues

that Daniel’s requests are irrelevant because “Daniel did not assert as an affirmative

defense any sort of apportionment or allocation of fault by other contractors for whom

Murphy may have worked at the New Bern facility at other times.”10 (Pl.’s Resp.

Opp’n at 9.)

Daniel is entitled to discovery regarding Murphy’s potential asbestos exposure

at the New Bern mill while performing work for Daniel under another

10 In the heading of this section of its brief, Weyerhaeuser states that the time

period for which Daniel seeks information is “irrelevant.” (Pl.’s Resp. Opp’n at 9;

Def.’s Mot. Compel, Ex. 2 at 5 (RFP 13 and RFP 16 requesting information for time

period of 1965 through 1980).) Weyerhaeuser does not explain why the time period of

1965 through 1980 is irrelevant. (Pl.’s Resp. Opp’n at 9.)

contract/project (i.e. not the alleged 1971 Production Efficiency Increase project) or

for other contractors at the New Bern mill.11 Such information is relevant to whether

Murphy was exposed to asbestos at the New Bern mill while working for Daniel under

any contract containing the indemnity provision at issue in this lawsuit.

Weyerhaeuser fails to appreciate that this information is relevant to the question of

whether injuries suffered by Murphy “arose from” or “are related to” work performed

by Murphy for Daniel under the alleged 1971 contract. ( 1971 Contract Excerpts

at 7.) Such information is critical to Weyerhaeuser’s contractual indemnity claim;

Daniel need not have pleaded an affirmative defense of apportionment to discover

such information. Lastly, the time period for which Daniel seeks this information

appears reasonable. ( Pl.’s Resp. Opp’n at 9; Def.’s Mem. Supp. Mot. Compel at 9

(arguing that the timeframes are relevant).)

Daniel’s requests for information related to work performed by Brown & Root

at the New Bern mill are also relevant under Rule 26(b)(1). If Murphy was exposed

to asbestos while working for Brown & Root at the New Bern mill, that would be

relevant to the contractual indemnity claim at issue in this lawsuit. Accordingly,

Daniel’s discovery requests seeking such information are relevant. Similarly relevant

11 Daniel has pointed to evidence that Murphy worked at the New Bern mill

for other contractors (Brown & Root and Cost Effective Maintenance). (Def.’s Mem.

Supp. Mot. Compel at 7–8; Def.’s Reply at 5–6). The Social Security records for

Murphy provided by Weyerhaeuser also show that Murphy worked for Daniel both

before and after the likely time period for the 1971 Production Efficiency Increase

project. (Pl.’s Resp. Opp’n, Ex. 4 – Murphy Social Security Records [DE #38-5]; Def.’s

Reply, Ex. A – Daniel’s Notification of Contract for Production Efficiency Project

[DE #39-1] at 2 (indicating schedule dates for project).)

would be any information, requested in RFP 16, provided by Weyerhaeuser to Daniel

or Brown & Root regarding asbestos exposure at the New Bern mill.12

Daniel contends that RFPs 13, 14, & 16, and Deposition Topics 3, 4, 8, & 10

seek such information. (Def.’s Mem. Supp. Mot. Compel at 5.) Weyerhaeuser does not

contend otherwise, arguing only irrelevancy based upon the time period and lack of

an apportionment argument. (Pl.’s Resp. Opp’n at 9.) Weyerhaeuser has therefore

failed to carry its burden to show why Daniel’s motion to compel should be denied.

, 270 F.R.D. at 241; , 2018 WL 5831997, at *5.

Accordingly, Daniel’s motion to compel responses to RFPs 13, 14, & 16, and

Deposition Topics 3, 4, 8, & 10 is therefore granted.

CC. Weyerhaeuser’s Settlement of the Murphy Litigation and Related

Information is Discoverable

Daniel further seeks to compel discovery concerning the Murphy litigation.

Murphy sued Weyerhaeuser for negligence. ( Compl. ¶¶ 179–193.)

Weyerhaeuser purportedly settled for an undisclosed amount. (Compl. ¶ 17.)

Weyerhaeuser claims to have paid approximately $621,195.50 in legal fees defending

and settling the Murphy litigation. (Pl.’s Resp. Opp’n at 7 (citing Pl’s Resp. Opp’n, Ex.

7 [DE #38-8] (Pl.’s Initial Discl.) at 3).) Weyerhaeuser now seeks to recover from

Daniel the undisclosed amount of settlement plus its legal fees.

Weyerhaeuser states that it “has no objection to the Court ruling partially in

Daniel’s favor . . . if solely limited to disclosing the amount for which Weyerhaeuser

12 This is also relevant to the potential negligence of Weyerhaeuser.

settled the lawsuit” but contends that “[a]ll other discovery sought by Daniel

regarding Weyerhaeuser’s damages and settlement of the lawsuit is

irrelevant under Rule 26(b)(1).” (Pl.’s Resp. Opp’n at 8.) In its brief, Weyerhaeuser

only specifically discusses Daniel’s RFP 22 and RFP 24. (Pl.’s Resp. Opp’n at 6–8.)

The settlement information sought by Daniel is relevant and proportional to

the claims of this action. The basis of Murphy’s suit was negligence. By seeking

indemnification of the amount paid in settlement of the Murphy litigation,

Weyerhaeuser has put into question the terms of the settlement. The contractual

indemnity provision upon which Weyerhaeuser relies expressly excludes damages

resulting from Weyerhaeuser’s or its Engineer’s negligence. Furthermore, any

obligation to indemnify Weyerhaeuser is limited to work performed by Daniel

pursuant to the alleged 1971 contract. The terms of the settlement agreement are

relevant to an important issue in this case (Daniel’s alleged liability under the

indemnification provision), and Daniel does not have access to the information.

Accordingly, Daniel is entitled to discovery of the settlement agreement.

Communications between Weyerhaeuser and Murphy are also relevant and

discoverable under Rule 26(b)(1). Such communications are not privileged as they are

not between Weyerhaeuser and its counsel. , 696 F.2d

1069, 1072 (4th Cir. 1982) (per curiam); , No. 4:07-CV-156-D,

2008 WL 1766753, at *1 (E.D.N.C. Apr. 17, 2008) (“The attorney-client privilege

applies to confidential communications between an attorney and a client, but does

not necessarily apply to all documents or correspondence that are in an attorney’s

possession.” (citations omitted)). Accordingly, Weyerhaeuser’s objections to Daniel’s

RFP 24 are rejected. ( Pl.’s Resp. Opp’n at 7; Def.’s Mot. Compel, Ex. 4 – Daniel’s

First Set of RFPs at 14 (RFP 24 and Weyerhaeuser’s objections to RFP 24).)

Daniel’s RFP 22 does request some information which may be attorney-client

privileged and/or protected under the attorney work-product doctrine. RFP 22

demands documents containing “analysis of the facts, reasons, and recommendations

for settling the Nicholas Murphy Lawsuit . . . including, but not limited to, any

memos, pre-trial reports, asbestos case profiles, Asbestos Litigation Forms (ALFs), or

similar Documents.” (Def.’s Mot. Compel, Ex. 4 – Daniel’s First Set of RFPs [DE #36-

4] at 13 (RFP 22).) Such information would be relevant to Weyerhaeuser’s potential

negligence for the reasons discussed above. To the extent RFP 22 requests legal

analysis of facts and recommendations based on that analysis, such information may

be privileged or protected.13 However, privileged communications between an

attorney and a client “may be inapplicable to facts incorporated in the

communications.”14 , 32 F.3d 851, 862

(3d Cir. 1994) (citing , 449 U.S. 383, 395–96 (1981)).

Weyerhaeuser has not submitted a privilege log in connection with its briefing, so the

13 Weyerhaeuser raised attorney-client privilege and attorney work-product

protection in its objections to RFP 22 (Def.’s Mot. Compel, Ex. 4 – RFP 24 [DE #36-4]

at 14), but only hinted at attorney work product protection in its briefing (Pl.’s Resp.

Opp’n at 7 (arguing that RFP 22 seeks “Weyerhauser’s mental impressions

concerning the lawsuit”)).

14 A waiver of attorney-client privilege can also occur when a party asserts a

claim or defense that puts its attorney’s advice at issue. , 32

F.3d at 863–64; , 68 F.R.D. 574, 581 (E.D. Wash. 1975).

court is unable to determine whether the documents and communications requested

in RFP 22 are, in fact, privileged or protected. Accordingly, Daniel’s motion to compel

as to RFP 22 is granted. Weyerhaeuser may produce a sufficiently detailed privilege

log, , 281 F.R.D. 270, 276–77 (E.D.N.C. 2012), with respect

to RFP 22 if it believes certain components of its response are privileged or protected

and the parties may proceed as they normally would in such circumstances, seeking

the court’s intervention only after complying with the procedures outlined in the case

management order that governs this lawsuit.

Daniel contends that this issue is relevant to RFPs 7, 17, & 20–25, and

Interrogatories 3, 4, 6, & 8–12. (Def.’s Mem. Supp. Mot. Compel at 4, 7.)

Weyerhaeuser has not contended otherwise. (Pl.’s Resp. Opp’n at 6–9.) Overruling

Weyerhaeuser’s relevancy objection to these requests, the court determines that

Weyerhaeuser has failed to carry its burden to show why Daniel’s motion to compel

should be denied. , 270 F.R.D. at 241; , 2018 WL

5831997, at *5. Daniel’s motion to compel as to RFPs 7, 17, & 20–25, and

Interrogatories 3, 4, 6, & 8–12, is therefore granted.

DD. Costs and Fees

Daniel has requested the court award costs and fees in connection with the

instant motion to compel. (Def.’s Mot. Compel at 3.) Subject to enumerated

exceptions, Rule 37 requires the court, upon granting a motion to compel, to award

expenses and fees incurred making the motion. Fed. R. Civ. P. 37(a)(5)(A);

, 285 F.R.D. 350, 365 (D. Md. 2012). These exceptions

are where “(i) the movant filed the motion before attempting in good faith to obtain

the disclosure or discovery without court action; (ii) the opposing party's

nondisclosure, response, or objection was substantially justified; or (iii) other

circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A). None

of the exceptions apply.

Daniel attempted in good faith to obtain the discovery from Weyerhaeuser

prior to filing its motion to compel. Daniel tried numerous times to address these

issues with Weyerhaeuser (Mot. Compel at 2–3), and the court held two informal

discovery conferences in an attempt to address the dispute. It was only after the

conferences that Daniel was given authorization to and filed the motion to compel.

Fed. R. Civ. P. 37 (a)(5)(A)(i).

Weyerhaeuser’s position was not substantially justified. As explained by Judge

Grimm,

[a] party satisfies the “substantially justified” standard “if there is a

‘genuine dispute’ as to proper resolution or if ‘a reasonable person could

think [that the failure to produce discovery is] correct, that is, if it has a

reasonable basis in law and fact.’”

, 311 F. App’x 586, 599 (4th Cir. 2009) (quoting ,

487 U.S. 552, 565 (1988)). “Courts have concluded that ‘substantial

justification’ could include making meritorious objections to requested

discovery, or even engaging in a legitimate dispute over the sequence of

discovery.” , 263 F.R.D. 293, 296–97 (D. Md. 2009)

(citations omitted). However, to avoid the imposition of costs, “parties

must sufficiently argue that they were substantially justified in their

actions.” . at 297 (citing , 62

F.R.D. 392, 394 (D. Md. 1974)).

, 285 F.R.D. at 365. The bulk of Weyerhaeuser’s refusal to provide the sought-

after discovery stems from its position that its potential negligence is not relevant.

(Pl.’s Resp. Opp’n at 6.) Plaintiff can only reach that conclusion by ignoring15 the plain

text of the indemnity provision upon which it relies. These errors permeate

Weyerhaeuser’s refusal to provide discovery on factual issues regarding when and for

whom Murphy worked at the New Bern mill and Weyerhaeuser’s settlement of the

Murphy litigation. Weyerhaeuser also chose not to provide specific objections and/or

privilege log documentation regarding a potentially meritorious position regarding

RFP 22. Thus, Weyerhaeuser has not shown it was substantially justified in resisting

discovery. Fed. R. Civ. P. 37 (a)(5)(A)(ii).

Lastly, the court discerns no other circumstances that would render an award

of costs and fees unjust. Fed. R. Civ. P. 37 (a)(5)(A)(iii). Accordingly, the court

grants Daniel’s request for attorney’s fees and expenses, the amount of which will be

determined by separate order. Daniel shall have fourteen (14) days from the date of

this order to file a notice with accompanying affidavit of its costs and fees incurred in

bringing the motion to compel. Weyerhaeuser shall have ten (10) days to file written

objections to the costs and fees requested. Daniel shall have seven (7) days to respond

to any objections.

CCONCLUSION

For the reasons explained above, Defendant’s motion to compel [DE #36] is

GRANTED. Plaintiff shall have thirty (30) days from the date of this order to provide

the requested information. Defendant shall file its notice and affidavit of costs and

15 Plaintiff’s decision to elide key text from the alleged indemnity provision only

underscores that its position is not substantially justified. ( Compl. ¶ 9 (omitting

express exclusion for negligence).)

fees within fourteen (14) days. Plaintiff shall have ten (10) days to object to the costs

and fees requested, and Defendant shall have seven (7) days to respond thereto.

This 28th day of June 2024.

Dorm bol Araick

KIMBERIY A. SWANK

United States Magistrate Judge

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