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Darby v. Gordon Food Service, Inc.

United States District Court, Sixth Circuit

September 24, 2013

RONALD DARBY, Plaintiff,


JAMES D. MOYER, District Judge.

The plaintiff has filed a motion to compel discovery of certain documents withheld by Gordon Food Service, Inc. ("GFS") on the basis of attorney-client privilege and the work product doctrine. After reviewing the contested documents in camera and considering the arguments presented in the motion and all responses thereto, the court concludes that the assertions of privilege were appropriate with respect to some, but not all, of the documents and will therefore grant in part and deny in part Mr. Darby's motion to compel.


In December 2009, Mr. Darby, who was then employed as a mechanic by GFS, sustained a work-related injury. He promptly notified GFS of the injury and filed a claim for workman's compensation benefits and, one year later, hired a lawyer to represent him. Approximately four months after that, GFS sent Mr. Darby a letter notifying him that his employment was terminated because could not meet the lifting requirements of his job. A few months after that, Mr. Darby filed this lawsuit in which he principally alleges that GFS retaliated against him for filing a workman's compensation claim.

GFS self-insures its workman's compensation coverage, but for several years it has retained a company called Specialty Risk services ("SRS"), and later called Sedgwick, to investigate and assist GFS with the resolution of those claims. SRS, in turn, contracted with a company called Coventry Workers' Comp Services, which retained nurses who serve a dual role. Coventry nurses accompany claimants to their medical appointments and help explain the diagnoses and recommended treatment. They also report regularly to SRS about the claimant's evaluations, medical status, and prognosis.

During the course of discovery, GFS withheld several documents chiefly on the basis of the attorney-client privilege and, with respect to a few of the documents, on the basis of the work product doctrine. Other than the type of privilege asserted, the withheld documents fall generally into two broad categories: (1) communications among GFS employees (almost exclusively among members of the Human Resources department), SRS consultants, and the Coventry nurse manager assigned to Mr. Darby's claim; and (2) communications between GFS employees and the company's outside counsel.

There exists a corresponding temporal division of the documents, as well. Although the dates of the withheld documents range from January 2010 to April 2012, with the vast majority dated sometime during 2010, there are no documents containing communications between any GFS, SRS, or Coventry employee and either retained counsel or an in-house attorney identified as such until February 8, 2011 (Document 90). From that date on, however, it is clear that GFS retained outside counsel to assist it in negotiations with Mr. Darby's lawyer, who began communicating with GFS about Mr. Darby's claim in December 2010. Nevertheless, most of the documents withheld on the basis of the attorney-client privilege involve no communications with an attorney (or a representative of an attorney). This factor is central to much of the analysis below


Because this is a diversity case, the court must consult federal law to resolve contested assertions of attorney work product claims and consult state law to resolve claims of privilege. See Fed.R.Evid. 501; In re Professionals Direct Ins. Co., 578 F.3d 432, 438 (6th Cir. 2009).

A. The Documents Withheld on the Basis of the Work Product Doctrine.

The work product doctrine, as delineated by Federal Rule of Civil Procedure 26(b)(3) "protects (1) documents and tangible things; (2) prepared in anticipation of litigation or for trial; (3) by or for another party or its representative." In re Professionals Direct, 578 F.3d at 438 (internal citation omitted). To determine whether a document has been prepared Ain anticipation of litigation, @ and therefore potentially contains attorney work product, this court must ask two questions: (1) whether that document was prepared Abecause of@ a party's subjective anticipation of litigation, as contrasted with ordinary business purpose; and (2) whether that subjective anticipation was objectively reasonable. Id. at 439. The party claiming protection carries the burden of showing that anticipated litigation was the driving force behind the preparation of each requested document. Id. (internal citations omitted).

1. Whether the Work Product Doctrine Is Applicable to Certain Documents.

GFS withheld relatively few documents on the basis of the attorney work product doctrine. They are documents 11, 17-18, 28-29, 45, 90, 93, and 98-108. Documents 90, 93, and 107, which were also withheld on the basis of the attorney-client privilege, need not be produced. They are all communications between GFS personnel and their outside counsel, or among GFS, SRS/Sedgwick, and Coventry personnel in response to questions or requests from the attorneys GFS hired to defend GFS after Mr. Darby had retained counsel. As such they are indeed work product, in addition to being attorney-client communications.

Documents 11, 17-18, 28-29 and 45[1] are not work product. They all pertain to communications from Tracy Tolson, the Coventry nurse manager who was assigned to Mr. Darby's claim and who accompanied him on occasion to his medical appointments and then reported back to SRS or GFS's Human Resources Department regarding his status and remaining physical limitations. As subsequent documents[2] and deposition testimony establish, however, Mr. Darby had not retained counsel at the time these Tolson documents were generated, and there is no indication that Mr. Darby had then threatened litigation. Rather, he had simply filed a workers' compensation claim, ...

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