The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MICHAEL QUILES,
Plaintiff,
v. Case No: 6:24-cv-1610-PGB-DCI
CSX TRANSPORTATION, INC.,
Defendant.
ORDER
This matter comes before the Court on Plaintiff’s Motion to Compel. Doc. 90 (the Motion).
Upon review, the Motion is due to be GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
Plaintiff Michael Quiles (Quiles) commenced this action in September 2024. Doc. 1. On
July 31, 2025, Quiles filed an Unopposed Renewed Motion to Extend Case Deadlines. Doc. 56.
In that motion, Quiles represented that:
Plaintiff has not yet received discovery from Defendant that Plaintiff
will require for expert disclosures and will not receive it until after
the current deadline. This is in part because Defendant required an
extension of time to provide that discovery. Absent an extension of
case deadlines, Plaintiff will be greatly prejudiced in his ability to
present his case.
Doc. 56 at 2. Quiles also proposed an amended schedule for the Court’s consideration, with a
proposed discovery deadline of December 5, 2025. Id. at 3. The Court granted the unopposed
motion (Doc. 57) and issued an amended case management and scheduling order the very next
day. Doc. 58. The Court set a discovery deadline of December 1, 2025. Id. at 1. Approximately
two weeks before the discovery deadline, Quiles filed a motion to compel discovery. Doc. 64.
The Court struck that motion for failure to comply with the standing order on discovery motions.
Doc. 68.1
With just one week left before the close of discovery, Quiles filed a compliant motion.
Doc. 70 (the Initial Motion to Compel). In the Initial Motion to Compel, Quiles sought an order
compelling Defendant CSX Transportation, Inc. (CSX) “to search for and produce documents
responsive to Plaintiff’s Requests for Production Nos. 1, 2, 3, and 6, including documents CSX
has improperly withheld based on unsubstantiated claims of privilege.” Doc. 70 at 1. CSX filed
a response the following day and asserted that: “CSXT has fully complied with its discovery
obligations”; “Plaintiff’s requests encompass privilege communications between defense counsel
and CSXT”; “Any post-accident investigations or written statements are protected pursuant to the
work-product doctrine”; and “Plaintiff has not demonstrated a substantial need for the privileged
materials or an inability to obtain their substantial equivalent by other means.” Doc. 71. On
December 1, 2025, Quiles also filed a motion to extend the discovery deadline. Doc. 72. CSX
opposed that motion (Doc. 74) which remains pending.
On January 14, 2026, the Court held a hearing on the Initial Motion to Compel where it
heard arguments from both parties. Doc. 85. The same day, the Court ordered as follows:
1. The Motion (Doc. 70) is GRANTED in part such that CSX’s
objection to Request for Production No. 1 is stricken as boilerplate.
However, the Court accepts CSX’s representation that it has no
responsive documents to Request No. 1.
2. The Motion (Doc. 70) is DENIED in part to the extent that
Quiles requests that CSX be ordered to make additional
searches or produce additional documents in relation to Request
Nos. 2, 3, and 6, except as related to the documents on the amended
privilege log provided to the Court at the hearing.
1 Quiles initially filed a 21-page motion to compel. The standing order on discovery motions limits
parties to filing a 500-word motion whenever there may be a discovery dispute. Doc. 12 at 1.
3. The Motion (Doc. 70) is DENIED in part without prejudice to
allow Quiles to file an amended motion with full briefing as it relates
to the documents on CSX’s privilege log. As to those documents on
the privilege log:
a. On or before January 15, 2026 at 5:00 pm, CSX shall
provide Quiles with an amended privilege log including the
following elements for each entry: author’s name, author’s
job title, and the name of any person (including that person’s
employer and job title) and entity with whom the document
was shared; and
b. To the extent any disputes remain concerning the
documents included in the amended privilege log, on or
before January 21, 2026, Quiles may file an amended
motion to compel in accordance with Local Rule 3.01(b)
and (g).1 CSX may file a response in accordance with Local
Rule 3.01(c) and (d).
Doc. 86 at 2 (emphasis added). In short, the Court denied Quiles’ request to require CSX to search
for or produce additional documents. The Court ordered CSX to prepare an amended privilege
log and gave Quiles leave to file an amended motion to compel should any dispute remain as to
the documents included in the amended privilege log.
Quiles then filed the instant motion compel. Doc. 90 (the Motion). In the Motion, Quiles
seeks an order compelling “CSX to search for and produce documents responsive to Plaintiff’s
Requests for Production Nos. 2, 3, and 6, including all documents CSX has improperly withheld
based on unsubstantiated claims of privilege.” Id. at 90.2 CSX responds that, “The motion should
be denied because: (1) CSXT properly objected to the requests; (2) contrary to Plaintiff’s
2 The instant Motion is nearly identical to the previously stricken motion to compel. Compare
Doc. 64 with Doc. 90. It appears that Quiles made a few minor changes to the stricken motion and
re-filed it. Accordingly, many of Quiles’ arguments appear disjointed from recent and pertinent
events in the case—namely, the January 14, 2026 hearing, CSX’s filing of the amended privilege
log, and the Court’s post-hearing order granting leave to file an amended motion to compel only
“[t]o the extent any disputes remain concerning the documents included in the amended privilege
log.” Doc. 86 at 2. The Court will only address those arguments related to the amended privilege
log. Indeed, many of the issues raised in the Motion were resolved at the hearing, and Quiles fails
to cite, let alone meet, the standard for reconsideration of those prior rulings.
assertions, CSXT conducted a reasonable search and produced all non-privileged responsive
documents in its possession; and (3) this Court has already denied Plaintiff’s request for CSX to
conduct additional searches or produce further documents related to Requests Nos. 2, 3, and 6.
[D.E. 89]. Plaintiff also fails to demonstrate any waiver of privilege or that a substantial need and
undue hardship overcomes the work product protection in the instant case.” Doc. 92 at 1-2 (the
Response). The matter is now ripe for review.
II. LEGAL STANDARD
“[D]istrict courts are entitled to broad discretion in managing pretrial discovery matters,”
Perez v. Miami–Dade Cnty., 297 F.3d 1255, 1263 (11th Cir. 2002); see also Josendis v. Wall to
Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir.2011). This discretion includes ruling
on the applicability of the work product doctrine. See, e.g., United Kingdom v. United States, 238
F.3d 1312, 1321 (11th Cir.2001) (holding that “the district court did not abuse its discretion by
declining to order the production of the Government's confidential work product”); see also
Bradley v. King, 556 F.3d 1225, 1229 (11th Cir. 2009) (“A district court has wide discretion in
discovery matters and our review is accordingly deferential.” (internal quotation marks omitted)).
The burden of establishing that the work product doctrine protects potential discovery lies
with the party asserting the protection. CSX Transp., Inc. v. Admiral Ins. Co., 1995 U.S. Dist.
LEXIS 22359, at *4 (M.D. Fla. July 20, 1995). This burden can be met only by an evidentiary
showing based on competent evidence; “the mere conclusory assertion that material sought is
covered by . . . work product privilege is not sufficient to render such material undiscoverable.”
Ameritrust Co., N.A. v. White, Civ. No. 1:90-CV-2691-JEC, 1993 WL 819124, *3 (N.D. Ga. Oct.
20, 1993). A party objecting to production on the grounds of privilege, including work product
privilege, must produce a privilege log. Federal Rule of Civil Procedure 26 provides:
When a party withholds information otherwise discoverable under
these rules by claiming that it is privileged or subject to protection
as trial preparation material, the party shall make the claim expressly
and shall describe the nature of the documents, communications, or
things not produced or disclosed in a manner that, without revealing
information itself privileged or protected, will enable other parties
to assess the applicability of the privilege or protection.
Fed. R. Civ. P. 26(b)(5). To preserve the privilege, the objecting party must provide a log or index
of withheld materials that includes, for each separate document, the authors and their capacities,
the recipients (including copy recipients) and their capacities, the subject matter of the document,
the purpose for its production, and a detailed, specific explanation of why the document is
privileged or immune from discovery. See Universal City Dev. Partners, Ltd. v. Ride & Show
Eng’g, 230 F.R.D. 688, 695 (M.D. Fla. 2005).
Claims of work product “immunity” or “privilege” are governed by the principles set out
in Rule 26(b)(3), which states in pertinent part:
[A] party may obtain discovery of documents and tangible things
otherwise discoverable ... and prepared in anticipation of litigation
or for trial by or for another party or by or for that other party's
representative (including the other party's attorney, consultant,
surety, indemnitor, insurer or agent) only upon a showing that the
party seeking discovery has substantial need of the materials in the
preparation of the party's case and that the party is unable without
undue hardship to obtain the substantial equivalent of the materials
by other means. In ordering discovery of such materials when the
required showing has been made, the court shall protect against
disclosure of the mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party concerning
the litigation.
Fed. R. Civ. P. 26(b)(3).
In determining whether documents were prepared “in anticipation of litigation,” the law is
clear that if documents are prepared for a business purpose – or for some other non-litigation
purpose – they fall outside the protection of the work product doctrine. See, e.g., Johnson v.
Westgate Vacation Villas, LLC, 2018 WL 7461685, at *3 (M.D. Fla. Oct. 23, 2018). At bottom,
the question becomes whether the purportedly privileged documents were prepared with the
“primary motivating purpose” of aiding in possible litigation. United States v. Davis, 636 F.2d
1028, 1040 (5th Cir. 1981). Additionally, “[i]n determining whether a document was prepared in
anticipation of litigation, key issues the court must consider are the function the document serves,
the circumstances surrounding its creation, and the driving force behind its preparation.” Trenary
v. Busch Entm’t Corp., 2006 U.S. Dist. LEXIS 70584, at *5-6 (M.D. Fla. Sept. 28, 2006).
If the work product privilege applies, then the burden shifts to the party seeking disclosure
to demonstrate that the materials are discoverable under Rule 26(b)(1) because there is a
“substantial need” or the movant cannot obtain the substantial equivalent without “undue
hardship.” Batchelor v. Geico Cas. Co., 2014 U.S. Dist. LEXIS 104992, at *9 (M.D. Fla. June 4,
2014).
III. DISCUSSION
The only matter properly before the Court is Quiles’ request to compel production of the
items listed in CSX’s amended privilege log. Docs. 90 at 16-24; 91-7. CSX claims these items
are subject to work product and “self-critical analysis” privileges. Doc. 91-7. Quiles contends
that these privileges do not apply, but even if they did, any privilege is overcome by Quiles’
substantial need. Doc. 90 at 16-24. CSX responds that the work product privilege is properly
asserted and that Quiles has not demonstrated a substantial need to overcome that privilege.3 Upon
3 CSX appears to have abandoned the “self-critical analysis” privilege by only defending the work
product privilege in the Response. See generally, Doc. 92 (referencing “self-critical analysis” only
three times, in block quotes from CSX’s objections to Quiles’ requests for production; aside from
these quotations, the Response does not otherwise reference the self-critical analysis privilege).
Accordingly, the Court will only consider the applicability of the work product privilege.
Regardless, CSX has not identified—nor has the Court found—any binding precedent recognizing
the existence of a “self-critical analysis” privilege. See, e.g., Bonnell v. Carnival Corp., No. 13-
22265-CIV, 2014 WL 10979823 (S.D. Fla. Jan. 31, 2014) (noting that “the Eleventh Circuit has
yet to recognize the self-critical analysis privilege”); see also Harvard v. Inch, No. 4:19CV212-
review, the Court finds that the work product privilege applies to the items in the amended
privilege log, but Quiles’ substantial need overcomes the privilege with respect to the witness
statements of Charles Brown and J.L. Gary and any contemporaneous photographs of the accident
scene and equipment.
A. Work Product Privilege
The amended privilege log includes the following five entries:
No. Description Date Author Shared With
Charles Brown’s Written 6/6/2022 Charles Brown,
1 Statement Conductor
J.L. Gary’s Written 6/6/2022 J.L. Gary, Engineer
2 Statement
CSX PSCC Incident Report 6/6/2022 Traci Harris, Manager of
(two pages with seven Train Operations.
photographs of manlift and Defense
locomotive) The incident was added Counsel;
3 by Alyson Trouba, PSCC
Specialist and updated by CSXT Claims
Sean Reid, Manager of Department;
Emergency Preparedness
and Training Manager of
Field
Incident Record Report 6/6/2022 Tuesdi Sweatt – Director Investigations;
4 of Accident Reporting and
Compliance Field
Investigations
Railroad Accident 6/6/2022 Denise Lynch, Manager Analyst
Reporting (x3, two pages and of Field Investigations
each) 6/13/2022
Vicki Stewart Johnson,
5 Accident Reporting
Specialist
Traci Harris, Manager of
Train Operations.
MW/CAS, 2020 WL 701990, at *8 (N.D. Fla. Feb. 7, 2020) (“Defendants have the burden to
establish self-critical analysis privilege.”) (citation omitted).
See Doc. 91-7. Quiles contends that the work product privilege does not apply to any of these
entries and, alternatively, that the privilege is overcome by substantial need. Doc. 90 at 21-22. In
the Response, CSX describes these items as “internal incident reports and witness statements” and
contends that they are work product “generated as part of its investigation of the subject incident
in anticipation of litigation.” Doc. 92 at 13. In support, CSX Field Investigations Analyst Jacob
Underwood provided an affidavit stating the following:
4. These incident reports and photographs are routinely prepared by
CSXT employees as part of their standard operating procedures,
however, their primary purpose is to assist CSXT’s claims
department and defense counsel in litigation. When an accident
occurs, CSXT routinely faces lawsuits related to such incidents.
5. The preparation of any reports, photographs, and witness
statements are conducted at the direction of CSXT's legal counsel to
ensure that they are properly documented for potential legal
proceedings.
Doc. 92-6 at 2.
The Court addresses whether to compel each category of materials—incident reports,
written witness statements, and photographs—in turn.
1. Incident Reports
First, the Court finds that the three incident reports constitute work product. Courts have
recognized that “attorneys often must rely on the assistance of investigators and other agents in
the compilation of materials in preparation for trial. It is therefore necessary that the [work product]
doctrine protect material prepared by agents for the attorney as well as those prepared by the
attorney himself.” United States v. Nobles, 422 U.S. 225, 238-39 (1975). Accident or incident
reports prepared as part of an incident investigation fall within the work-product doctrine where
they are created at the advice of counsel. See e.g., Meyer v. NCL (Bahamas), Ltd., 2017 WL
3396410, at *4 (S.D. Fla. Aug. 8, 2017) (holding that incident report prepared by cruise ship
personnel was prepared in anticipation of litigation); see also Bridgewater v. Carnival Corp., 286
F.R.D. 636 (S.D. Fla. 2011) (finding that an accident report constituted work product where it was
a directed collection of information geared toward defending potential claims). In Fojtasek, the
court held that an incident report regarding a cruise ship passenger’s death was protected work
product where the cruise line established that such reports were prepared pursuant to a policy
implemented on the advice of counsel in anticipation of litigation. Fojtasek v. NCL (Bahamas)
Ltd., 262 F.R.D. 650, 655-56 (S.D. Fla. 2009) (noting that “the NCL policy, as determined by
NCL’s legal counsel, required that the tour operator prepare and submit a report to NCL in
anticipation of litigation”).
Here, CSX represents that the reports at issue were generated as part of its post-incident
investigation pursuant to procedures implemented in anticipation of litigation. Doc. 92-6 at 2
(“The preparation of any reports, photographs, and witness statements are conducted at the
direction of CSXT’s legal counsel to ensure that they are properly documented for potential legal
proceedings”). Like the plaintiff in Fojtasek, Quiles has “not refuted” that the reports were
prepared for this purpose nor has he suggested some other reason CSX might have had to prepare
these reports. And a review of the amended privilege log reveals that the authors of the reports
worked for CSX in the following capacities: compliance, investigations, operations, and
emergency preparedness. Doc. 91-7 at 2-3 (listing the following CSX employees as authors of the
reports: Traci Harris (Manager of Train Operations), Alyson Trouba (PSCC Specialist), Sean Reid
(Manager of Emergency Preparedness and Training), Tuesdi Sweatt (Director of Accident
Reporting and Compliance), and Denise Lynch (Manager of Field Investigations)). Lastly, the
dates on the reports reflect that they were prepared the day of the incident, with one report finalized
a week later. Doc. 1 at 2 (alleging that the incident took place on June 6, 2022); Doc. 91-7
(amended privilege log lists reports as dated June 6, 2022). On this record, the Court is satisfied
that the reports were in anticipation of litigation and therefore fall within Rule 26(b)(3)’s definition
of work product.
Quiles has not meaningfully briefed any argument that the CSX reports are not work
product nor demonstrated substantial need or undue hardship sufficient to overcome the privilege.
See generally, Doc. 90. Quiles does not explain why the information contained in the reports
cannot be obtained through other discovery methods, including depositions of the individuals
involved in the incident. Id. Accordingly, the motion to compel should be denied with respect to
the production of the incident reports.
2. Witness Statements
Quiles also seeks written witness statements obtained from members of CSX’s crew who
were present at the time of the incident—Charles Brown and J.L. Gary. The Court concludes that
the witness statements likewise constitute protected fact work product, nevertheless, Quiles has
made a showing of substantial need and undue hardship sufficient to overcome the privilege.
As a general matter, courts have held that statements taken from witnesses by a party or its
agents during an investigation conducted in anticipation of litigation fall within the work-product
doctrine. See Bridgewater, 286 F.R.D. at 643 (noting that a witness statement taken by a party’s
attorney or agent in anticipation of litigation is protected work product); Meyer, 2017 WL
3396410, at *4 (finding witness statements taken by a party’s personnel are protected work-
product). But Quiles contends that some courts have treated narrative statements in a witness’s
own handwriting differently and concluded that such statements are not work product. See Collazo
v. Carnival Corp., No. 23-CV-23451, 2024 WL 2752431, at *5 (S.D. Fla. May 24, 2024) (noting
that Bridgewater “does not differentiate between statements written by a party’s attorney or agent
and those filled out with factual information by the witness in his or her own handwriting”). In
the response, CSX distinguished Collazo by pointing out that “the statements were taken from
unrelated injured passengers who were not involved in the related case, were not prepared to aid
in the investigation of the subject incident and were prepared on a form with pre-marked
questions.” Doc. 92 at 14-15. The points are well taken, as here the witnesses who wrote the
statements are also CSX employees. Considering the weight of authority on the matter, and the
lack of case law addressing instances where the witness who authored the statement is also an
employee of a party, the undersigned is inclined to find that the witness statements do constitute
work product.
Nevertheless, the Court finds that Quiles has demonstrated substantial need and undue
hardship to overcome the work product privilege. See Batchelor v. Geico Cas. Co., No. 6:11-CV-
1071-ORL, 2014 WL 3697682, at *4 (M.D. Fla. June 4, 2014) (work product materials may be
discoverable if: “the party shows that it has substantial need for the materials to prepare its case
and cannot, without undue hardship, obtain their substantial equivalent by other means”). Quiles
asserts that he has a substantial need for the witness statements because “only CSX knows what
caused its train to strike Quiles, and there are not other sources of information available to Plaintiff
at this point—certainly no other contemporaneous sources.” Doc. 90 at 23. Further, Quiles made
clear at the January 14, 2026 hearing that he is seeking the witness statements of Charles Brown
and J.L. Gary. Docs. 84, 90. The Court is inclined to agree with Quiles that the written statements
of the crew operating the train involved the accident would be critical to Quiles’ case—particularly
where Quiles was transported directly to the hospital from the scene.
The Court also finds that Quiles has demonstrated undue hardship in obtaining the
substantial equivalent of the Charles Brown and J.L. Gary witness statements. CSX contends that
“Plaintiff had the opportunity to depose relevant witnesses, including employees he mistakenly
believed were CSXT’s, as well as the dozens of individuals identified in the Bombardier Report.
See Ex. A. Despite this opportunity, Plaintiff elected not to do so.” Doc. 92 at 19. And while it is
true that courts have denied discovery of employee witness statements where the requesting party
can obtain the information by deposing the same witnesses, Quiles has deposed Charles Brown
and J.L. Gary. Docs. 91-10 (excerpt of Charles Brown deposition), 92-2 (excerpt of J.L. Gary
deposition); see Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1467 (11th Cir. 1984)
(“Appellee's claim apparently rests on the alleged undue hardship of procuring the information it
seeks in any other manner. There has been no showing, however, that appellee could not obtain
that information by deposing the very same witnesses”). At the January 14 hearing, Quiles
explained that the witnesses largely could not recall the events of June 6, 2022. CSX has not
meaningfully contended with this assertion. Given that Quiles’ legal team has already deposed
the witnesses—who in large part did not recall the events—and has no other way of obtaining the
substantial equivalent of their contemporaneous narrative of events leading up to the incident, the
Court agrees that undue hardship exists.
Accordingly, the motion to compel production of the written witness statements should be
granted.
3. Photographs
Quiles also seeks production of the photographs CSX included in its reports. Doc. 90 at
17, 22. The Court agrees with CSX that these photographs were taken as part of the post-incident
investigation and therefore constitute work product. Doc. 92 at 18-19. Nevertheless, the Court
concludes that Quiles has demonstrated the substantial need and undue hardship required to obtain
them.
Photographs taken at or near the time of an accident often constitute unique factual
evidence depicting the objective condition of the scene at the relevant time. Courts have
recognized that such depictions may be discoverable because they capture information that cannot
later be recreated or sufficiently described in a deposition. See Reedy v. Lull Engineering Co.,
Inc., 137 F.R.D. 405, at 407 (M.D. Fla. 1991) (“Plaintiffs’ argument that deposing witnesses who
were present at the scene would provide the same information about the condition of the accident
site and equipment to the defendant is unpersuasive. It is doubtful that those individuals, two and
one-half years later, would be able to recall the same detailed information about the condition of
the site and equipment at the time of an accident which a photograph or videotape would
provide.”). Quiles alleges that he sustained injuries to “his back, ribs, hip and knee” when a train
collided with a lift Quiles was working in. Doc. 1 at 2. Accordingly, the undersigned is doubtful
that Quiles had the opportunity to photograph or otherwise document the condition of the accident
scene or the equipment involved. And although Quiles may have some photographs of the scene
from the Bombardier Report, CSX contends only that the Bombardier photographs are “reasonably
equivalent” and does not otherwise dispute the assertion that Quiles may glean additional
information from the Bombardier photographs that would be unavailable elsewhere. Lastly, as
explained in Reedy, it is “doubtful” that a deposed witness would be able to recall the same detailed
information about the condition of an accident site that a photograph would provide. Reedy, 137
F.R.D. at 407.
Under these circumstances, Quiles has demonstrated both a substantial need for the
photographs and an undue hardship. Accordingly, the motion to compel production of the
photographs should be granted.
IV. CONCLUSION
Accordingly, it is ORDERED that:
1. The Motion (Doc. 90) is GRANTED in part such that on or before March 19, 2026,
CSX shall produce to Quiles:
a. any photographs—including any photographs contained within reports—
identified in the amended privilege log and withheld for work product privilege;
and
b. the hand-written witness statements of Charles Brown and J.L. Gary.
2. The Motion (Doc. 90) is otherwise DENIED.
ORDERED in Orlando, Florida on March 12, 2026.
ae —
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
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