FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

April 24, 2008

THOMAS K. KAHN

CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-16158

________________________

D. C. Docket No. 03-21759-CV-JEM

COLIN THOMAS, on behalf of 

himself and all others 

similarly situated, 

Plaintiff-Appellant, 

versus 

GEORGE, HARTZ, LUNDEEN, FULMER, JOHNSTONE, 

KING, AND STEVENS, P.A., 

CHARLES MICHEL HARTZ, 

individually, 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(April 24, 2008)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
2

WILSON, Circuit Judge:

Colin Thomas (“Thomas”) appeals the district court’s grant of summary

judgment against his claim that attorney Charles Michael Hartz and the law firm,

George, Hartz, Lundeen, Fulmer, Johnstone, King and Stevens, P.A. (collectively,

“Hartz”) violated the Driver’s Privacy Protection Act (“DPPA”) by wrongfully

obtaining and using personal information contained in driver’s license records. 

We affirm.

I. BACKGROUND

On March 28, 2002, Hartz purchased from the Florida Department of

Highway Safety and Motor Vehicles the registration information of all individuals

in Miami-Dade County who registered both new and used motor vehicles from

January 1, 2000 through March 31, 2002. On November 15, 2002, Hartz

purchased the same information for the period April 1, 2002 through November

15, 2002. In total, Hartz accumulated 284,000 driving records of Florida

residents. Since Thomas had purchased and registered a Chevrolet Impala in June

2002, his name and address was included in the information obtained by Hartz. 

Thomas brought suit under the DPPA seeking: (1) $2,500 in statutory liquidated

damages; (2) equitable relief for the destruction of illegally obtained records; and

(3) certification of a class of consumers. 
3

II. DISCUSSION

Thomas challenges two orders of the district court: (1) the grant of summary

judgment in favor of Hartz; and (2) the denial of Thomas’ motion to compel the

production of discovery.

A. The District Court’s Summary Judgment Order

We review the district court’s grant of summary judgment de novo. 

Holloman v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). 

The DPPA “regulates the disclosure of personal information contained in

the records of state motor vehicle departments (DMVs).” Reno v. Condon, 528

U.S. 141, 143, 120 S. Ct. 666, 668, 145 L. Ed. 2d 587 (2000). One section of the

DPPA prohibits disclosures of personal information by a state’s department of

motor vehicles and any officer, employee, or contractor thereof, see 18 U.S.C. §

2721(a), while a separate section provides a private cause of action against

persons who knowingly obtain, disclose, or use personal information from a motor

vehicle record, see 18 U.S.C. § 2724(a).

Despite these prohibitions, Congress made clear that not all obtainment,

disclosure, or use of personal information from motor vehicle records is wrongful. 

In § 2721(b), the DPPA provides fourteen “permissible uses,” one of which allows

for the information to be used in connection with “investigation in anticipation of
4

litigation” (hereafter, “the litigation clause”):

For use in connection with any civil, criminal, administrative, or arbitral

proceeding in any Federal, State, or local court or agency or before any

self-regulatory body, including the service of process, investigation in

anticipation of litigation, and the execution or enforcement of judgments

and orders, or pursuant to an order of a Federal, State, or local court.

18 U.S.C. § 2721(b)(4) (emphasis added).

Hartz asserted below that it obtained and used the vehicle records for the

purpose of identifying potential witnesses to testify in lawsuits against automobile

dealerships. At summary judgment, the district court held that Thomas failed to

raise an issue of material fact as to the inapplicability of the litigation clause and

failed to raise sufficient evidence as to any alleged impermissible obtainment or

use. Thomas contends that the court: (1) erroneously placed the burden on

Thomas to show “a purpose not permitted” under 18 U.S.C. § 2724(a); and (2)

improperly weighed the summary judgment evidence. As set forth below, neither

of these arguments has merit.

1. Burden of Proof Under 18 U.S.C. § 2724(a) 

 Thomas asserts that the litigation clause in § 2721(b)(4) constitutes an

affirmative defense for which the defendant carries the burden of proof. Whether

the “permissible uses” listed in § 2721(b) constitute affirmative defenses for which

defendants carry the burden of proof is a matter of first impression for this circuit
5

and has not been addressed by our sister circuits.

The touchstone for determining the burden of proof under a statutory cause

of action is the statute itself. Schaffer v. Weast, 546 U.S. 49, 56, 126 S. Ct. 528,

534, 163 L. Ed. 2d 387 (2005). When a statute is silent as to who bears the burden

of proof, we resort to “the ordinary default rule that plaintiffs bear the risk of

failing to prove their claims.” Id. 

The ordinary default rule, however, “admits of exceptions.” Id. at 57, 126

S. Ct. at 534. One such exception is that “certain elements of a plaintiff’s claim

may be shifted to defendants, when such elements can fairly be characterized as

affirmative defenses or exemptions.” Id.; accord Fed. Trade Comm’n v. Morton

Salt Co., 334 U.S. 37, 44-45, 68 S. Ct. 822, 827, 92 L. Ed. 1196 (1948) (“[T]he

general rule of statutory construction that the burden of proving justification or

exemption under a special exception to the prohibitions of a statute generally rests

on one who claims its benefits, requires that respondent undertake this proof . . .

.”) (internal footnote omitted).

Another exception is that courts will “not place the burden upon a litigant of

establishing facts peculiarly within the knowledge of his adversary.” Schaffer,

546 U.S. at 60, 126 S. Ct. at 536 (internal quotation marks omitted). This

exception, however, “is far from being universal, and has many qualifications
 The DPPA defines “person” as “an individual, organization or entity, but does not 1

include a State or agency thereof.” 18 U.S.C. § 2725(2).

6

upon its application.” Id. (internal quotation marks omitted). 

While there have been some circumstances where the Supreme Court has

placed the burden of persuasion over an entire claim on the defendant at the outset

of a proceeding, see id. at 57, 126 S. Ct. at 534-35 (citing Alaska Dep’t of Envtl.

Conservation v. EPA, 540 U.S. 461, 494, 124 S. Ct. 983, 157 L. Ed. 2d 967

(2004)), such instances “are extremely rare.” Id., 126 S. Ct. at 535.

In examining the statute, we first turn to the DPPA’s provision for a civil

cause of action: 

A person who knowingly obtains, discloses or uses personal information,

1

from a motor vehicle record, for a purpose not permitted under this chapter

shall be liable to the individual to whom the information pertains, who

may bring a civil action in a United States district court.

18 U.S.C.A. § 2724(a).

In a straightforward fashion, section 2724(a) sets forth three elements giving

rise to liability, i.e., that a defendant (1) knowingly obtained, disclosed or used

personal information, (2) from a motor vehicle record, (3) for a purpose not

permitted. The plain meaning of the third factor is that it is only satisfied if shown

that obtainment, disclosure, or use was not for a purpose enumerated under §

2721(b). Section 2721(b) provides in full:
7

(b) Permissible uses.--Personal information referred to in subsection (a)

shall be disclosed for use in connection with matters of motor vehicle or

driver safety and theft, motor vehicle emissions, motor vehicle product

alterations, recalls, or advisories, performance monitoring of motor

vehicles and dealers by motor vehicle manufacturers, and removal of nonowner records from the original owner records of motor vehicle

manufacturers to carry out the purposes of titles I and IV of the Anti Car

Theft Act of 1992, the Automobile Information Disclosure Act (15 U.S.C.

1231 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), and chapters

301, 305, and 321-331 of title 49, and, subject to subsection (a)(2), may be

disclosed as follows:

(1) For use by any government agency, including any court or law

enforcement agency, in carrying out its functions, or any private person or

entity acting on behalf of a Federal, State, or local agency in carrying out

its functions.

(2) For use in connection with matters of motor vehicle or driver safety

and theft; motor vehicle emissions; motor vehicle product alterations,

recalls, or advisories; performance monitoring of motor vehicles, motor

vehicle parts and dealers; motor vehicle market research activities,

including survey research; and removal of non-owner records from the

original owner records of motor vehicle manufacturers.

(3) For use in the normal course of business by a legitimate business or its

agents, employees, or contractors, but only--

(A) to verify the accuracy of personal information submitted by the

individual to the business or its agents, employees, or contractors;

and

(B) if such information as so submitted is not correct or is no longer

correct, to obtain the correct information, but only for the purposes

of preventing fraud by, pursuing legal remedies against, or

recovering on a debt or security interest against, the individual.

(4) For use in connection with any civil, criminal, administrative, or

arbitral proceeding in any Federal, State, or local court or agency or before

any self-regulatory body, including the service of process, investigation in

anticipation of litigation, and the execution or enforcement of judgments

and orders, or pursuant to an order of a Federal, State, or local court.
8

(5) For use in research activities, and for use in producing statistical

reports, so long as the personal information is not published, redisclosed,

or used to contact individuals.

(6) For use by any insurer or insurance support organization, or by a selfinsured entity, or its agents, employees, or contractors, in connection with

claims investigation activities, antifraud activities, rating or underwriting.

(7) For use in providing notice to the owners of towed or impounded

vehicles.

(8) For use by any licensed private investigative agency or licensed

security service for any purpose permitted under this subsection.

(9) For use by an employer or its agent or insurer to obtain or verify

information relating to a holder of a commercial driver's license that is

required under chapter 313 of title 49.

(10) For use in connection with the operation of private toll transportation

facilities.

(11) For any other use in response to requests for individual motor vehicle

records if the State has obtained the express consent of the person to

whom such personal information pertains.

(12) For bulk distribution for surveys, marketing or solicitations if the

State has obtained the express consent of the person to whom such

personal information pertains.

(13) For use by any requester, if the requester demonstrates it has obtained

the written consent of the individual to whom the information pertains.

(14) For any other use specifically authorized under the law of the State

that holds the record, if such use is related to the operation of a motor

vehicle or public safety.

18 U.S.C. § 2721.

In reading § 2724(a) and § 2721(b) together, we conclude that the DPPA is

silent on which party carries the burden of proof and, as such, the burden is

properly upon the plaintiff. Thomas argues that the permissible uses listed in
9

§ 2721(b) function as statutory exceptions and, therefore, the defendants should

carry the burden of proof to secure entitlement of such exceptions. 

We disagree. The DPPA plainly sets forth three elements giving rise to

liability, the third of which is whether the subject act was “for a purpose not

permitted.” 18 U.S.C. § 2724(a) (emphasis added). The emphasized language

does not frame the § 2721(b) enumerations as exceptions to a general norm. That

is, Congress could have said, for example: “A person who knowingly obtains,

discloses, or uses personal information, from a motor vehicle record, shall be

liable to the individual to whom the information pertains, except as provided in 18

U.S.C. § 2721(b).” But Congress did not so draft § 2724(a), and if we read it as

such, we place the burden of proving a § 2721(b) enumeration upon the defendant

when Congress has not instructed us to do so. Just as we will not write words into

a statute to provide a different, or more preferable meaning, see, e.g., Badaracco v.

Comm'r of Internal Revenue, 464 U.S. 386, 398, 104 S. Ct. 756, 764, 78 L. Ed. 2d

549 (1984) (“Courts are not authorized to rewrite a statute because they might

deem its effects susceptible of improvement.”), so, too, will we not alter statutory

structure and language for the purpose of triggering application of a rule of

construction. See Dorelien v. U.S. Att’y Gen., 317 F.3d 1314, 1321 (11th Cir.

2003) (en banc) (“Our role is not to second-guess Congress’s drafting choices. 
Unlike § 2724(a)’s private cause of action, § 2721(a) is directed at state motor vehicle 2

departments and officers, employees, and contractors thereof—not private individuals—and

prohibits only disclosures—not obtainment and use. 

10

Rather, our function is to apply statutes, to carry out the expression of the

legislative will that is embodied in them, not to ‘improve’ statutes by altering

them.” (internal quotation marks and alterations omitted)).

Congress is adept at drafting general norms that provide for exceptions, and

frequently does so; indeed, it did just this with the DPPA in § 2721(a). In both 2

subparts of § 2721(a), Congress explicitly excepted the § 2724(b) enumerations:

(a) In general.--A State department of motor vehicles, and any officer,

employee, or contractor thereof, shall not knowingly disclose or otherwise

make available to any person or entity:

(1) personal information, as defined in 18 U.S.C. 2725(3), about any

individual obtained by the department in connection with a motor vehicle

record, except as provided in subsection (b) of this section; or

(2) highly restricted personal information, as defined in 18 U.S.C. 2725(4),

about any individual obtained by the department in connection with a

motor vehicle record, without the express consent of the person to whom

such information applies, except uses permitted in subsections (b)(1),

(b)(4), (b)(6), and (b)(9): Provided, That subsection (a)(2) shall not in any

way affect the use of organ donation information on an individual’s

driver’s license or affect the administration of organ donation initiatives in

the States.

18 U.S.C. § 2724(a) (emphasis added).

Section 2721(a) plainly sets up the enumerations in § 2721(b) as exceptions,

whereas § 2724(a) plainly does not. We do not believe that this difference in
 We note that placing the burden upon the defendant to show the third element would 3

essentially relegate the motion to dismiss stage to something less than a speed bump in § 2724(a)

actions. Plaintiffs could survive a Fed. R. Civ. P. 12(b)(6) challenge upon the bare allegation of

a defendant’s mere obtainment of information from a vehicle record.

11

language is meaningless. See Russello v. United States, 464 U.S. 16, 23, 104 S.

Ct. 296, 300, 78 L. Ed. 2d 17 (1983) (“[W]here Congress includes particular

language in one section of a statute but omits it in another section of the same Act,

it is generally presumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion.” (internal quotation marks omitted)).3

Thomas also argues that the burden to show “for a purpose not permitted”

should be allocated to defendants because the factual presence of any one

permissible purpose in § 2721(b) is “peculiarly within the knowledge” of the

defendant. Schaffer, 546 U.S. at 60, 126 S. Ct. at 536 (internal quotation marks

omitted). From the outset, we recognize that the Supreme Court is cautious in its

application of this rule. Id. (stating that the “‘rule is far from being universal and

has many qualifications upon its application.’” (quoting Greanleaf’s Lessee v.

Birth, 6 Pet. 302, 312, 8 L. Ed. 406 (1832); citing 2 J. Strong, McCormick on

Evidence § 337, p. 413 (5th ed. 1999) (“Very often one must plead and prove

matters as to which his adversary has superior access to the proof.”))). We have

previously applied this rule where a plaintiff would be unreasonably required “to
12

speculate whether defendants intend to assert [a statutory defense] and could result

in unfair surprise at trial.” Jackson v. Seaboard Coast Line R. R., 678 F.2d 992,

1013 (11th Cir. 1982). In this instance, we are unconvinced that facts giving rise

the § 2721(b) enumerations are so peculiarly within the knowledge of the

defendant as to cause a shifting of the burden of proof. 

 Many of the § 2721(b) enumerations are tied to a particular occupation or

organization and its corresponding lawful need for the information. See 18 U.S.C.

§ 2721(b)(1) (government agency); § 2721(b)(4) (legal investigation, service,

proceedings, and enforcement); § 2721(b)(5) (researchers); § 2721(b)(6)

(insurance); § 2721(b)(7) (towed or impounded vehicle); § 2721(b)(8) (private

investigative agency or security service); § 2721(b)(10) (private toll transportation

facilities). Other § 2721(b) enumerations point to a particularized purpose. See 18

U.S.C. § 2721 (b)(2) (safety, theft, emissions, product alteration, performance

monitoring, parts and dealers, research, updating of records); 

§ 2721(b)(3) (verification of individual’s submission of information);

§ 2721(b)(9) (employer verification of employee’s information); § 2721(b)(14)

(state authorized use related to operation of vehicle or public safety). Finally, the

remaining three enumerations only apply when the plaintiff has provided consent. 

See 18 U.S.C. § 2721(b)(11)-(13). 
13

Thus, for example, if a plaintiff names a law firm (as here) or an insurance

agency as the defendant, there is a high probability that subsection (b)(4) is at

issue in the former and (b)(6) in the latter. Similarly, if a plaintiff is a recipient of

a mass marketing letter, it is no secret that (b)(12) is at issue, which allows for

bulk distribution of solicitations only if express consent is obtained. Upon close

examination of § 2721(b), we conclude that plaintiffs will not typically be left in

the dark as to which § 2721(b) enumeration, if any, will be asserted as applicable

by the defendant. We are confident that proper use of discovery tools, such as

interrogatories, requests for admissions, and depositions, will reveal which

enumerations may apply and where a plaintiff must accordingly aim its argument. 

In the end, where Congress does not squarely address the question, where

the statute’s structure and language do not suggest a shift of the burden to the

defendant (through use of statutory exceptions, for example), and where plaintiffs

are not peculiarly at a disadvantage in the discovery of necessary facts, we will not

shift the burden or proof, or any element thereof, to the defendant. 

2. Whether the District Court Improperly Weighed the Summary Judgment 

 Evidence

Upon Hartz’s motion for summary judgment, the district court recognized

the evidence showing that obtainment of the information was for the purpose of
Specifically, Hartz contends that the case, Beacon Prop. Mgmt., Inc. v. PNR, Inc., 785 4

So. 2d 564 (Fla. 4th DCA 2001), required plaintiffs bringing claims under the Florida Deceptive

and Unfair Trade Practices Act to demonstrate that the defendant had a custom and practice of

engaging in deceptive acts against individuals other than the subject plaintiff. It bears

mentioning that the Florida Supreme Court reversed PNR on March 13, 2003, well after Hartz

had obtained the vehicle records. See PNR, Inc. v. Beacon Prop. Mngmt., 842 So. 2d 773 (Fla.

2003). 

14

Hartz’s investigation in anticipation of litigation. (D.E. 336 at 9.) Specifically, in

his affidavit, Charles Michael Hartz averred that he requested the information

because the automobile dealers he was litigating against were asserting that

plaintiffs needed to plead and prove multiple acts of deceptive and unfair trade

practices to state a deceptive and unfair trade practice claim under Florida law. 

(D.E. 30 at Appx. B, ¶ 5.) Thomas does not contend that this was a meritless or

even mistaken view of the law at the time. The court next recognized that the 4

deposition testimony submitted by Hartz showed that the information was used to

send one-thousand “Custom and Practice” letters, which aimed at obtaining

evidence showing a custom and practice of deceptive acts engaged in by

dealerships. (D.E. 336 at 9.) In this vein, a copy of the Custom and Practice letter

was produced in discovery as well as the number of individuals to whom Hartz

had sent the letters. 

In response to this evidence, Thomas made three claims: (1) Hartz did not

identify the names of specific cases giving rise to the Custom and Practice letters;
15

(2) Hartz obtained a large number of names, most of whom never received a

Custom and Practice letter; and (3) Thomas’ information was used, without his

express consent, to assemble and send out a marketing letter. The district court

held that Thomas failed to create a genuine issue of material fact as to “a purpose

not permitted.” We agree. 

First, as expressed by the district court, Thomas’ assertion that Hartz did not

specify which cases gave rise to the Custom and Practice letters is not a genuine

issue of material fact when Thomas, himself, never requested such information

from Hartz. Thomas was not in a position to be passive; it was incumbent upon

him to come forward with some evidence showing that the litigation clause did not

apply, which he failed to do. Id. 

Second, as the district court rightly determined, the fact that many records

were retrieved, but only a comparatively small number were used for Custom and

Practice letters did not, by itself, raise a genuine issue of material fact as to

whether the litigation clause applied. By affixing significance solely to the

number of records relating to letters sent out, Thomas overlooked that Hartz’s

initial review of the total amount of records is just as much tied to “investigation

in anticipation of litigation” as the eventual sending out. Thomas failed, however

to discredit, or even address, the initial review. 
 Thomas also argues that a particular excerpt from Hartz’s deposition indicates a “second 5

ulterior motive” for obtaining the vehicle records; i.e., they were obtained for the purpose of

creating a database of witnesses for prospective, not-yet-filed litigation—as opposed to currently

16

Third, Thomas attempted to argue that Hartz’s use of the information was

not for a litigation purpose, but rather for the purpose of sending Thomas a

marketing letter. Thomas did not produce such a letter and, at deposition, Thomas

testified that he was “less than fifty-percent” or “fifty-percent” certain that he

actually received a letter:

Q: How sure are you that you received the letter from the Hartz company? 

A: I would say less than 50 percent. 50 percent, somewhere around there. 

You could flip a coin probably would be about right. 

(D.E. 336 at 13.)

Further, Thomas attested that if he did receive a letter, he received it in June

of 2000. Id. Hartz pointed out that such a letter, if received, could not be relevant

to this case as it was undisputed that it did not request the information from the

department of motor vehicles until 2002. Id. The district court correctly

determined that this evidence was insufficient to raise a genuine issue of material

fact. See Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004) (“A mere

scintilla of evidence in support of the nonmoving party will not suffice to

overcome a motion for summary judgment.”). On the basis of the evidence before

the district court, we find no error in the decision to grant summary judgment.5
pending cases. Our review of the record reveals that Thomas did not raise this particular

argument below and, as such, the argument is waived. Irving v. Mazda Motor Corp., 136 F.3d

764, 769 (11th Cir. 1998). Nonetheless, the argument is without merit. The litigation clause

refers to investigation in anticipation of litigation. Thus, even if the accumulation of potential

witnesses related, in part, to certain cases not yet filed, we do not see how pre-suit investigation

can be considered per se inapplicable to the litigation clause.

17

B. The District Court’s Denial of the Motion to Compel

In his First Request for Production, Thomas requested “all letters sent by

[Hartz] to residents of Miami-Dade County offering to review documents 

. . . received in connection [with] the purchase or lease of a new vehicle.” (D.E.

49 at 10.) Thomas asserts that this request covered Hartz’s Custom and Practice

Letters. Hartz objected on grounds of overbreadth, relevance, retaliation, work

product, and attorney-client privilege. Upon Thomas’ Motion to Compel, the

district court declined to order the production of all one-thousand Custom and

Practice Letters. (D.E. 164 at 3.) At the hearing on the motion, it became clear

that a copy of one of the Custom and Practice letters was already in discovery

(D.E. 173 at 49, 61), and counsel for Hartz provided a copy of that letter to both

counsel for Thomas and the court. (Id.) Because the Custom and Practice letters

related to the obtainment of witnesses in ongoing lawsuits against automobile

dealerships, the district court expressed concern that the letters were covered by

the work product privilege. See Fed. R. Civ. P. 26(b)(3)(A) (“Ordinarily, a party

may not discover documents and tangible things that are prepared in anticipation
 Three copies of the Custom and Practice Letter in the record follow this general form 6

stated by the district court. (D.E. 269 at Ex. D, Bates 640, 885, 1095.) That is, the letters’

prefatory re: line provides the title of the related case and the introductory sentence states that the

law firm “represents [name of plaintiff] in the above captioned matter and we are presently

conducting the legal discovery process.” Id. The letters go on to state the general allegations

against the dealership and further explain that since the recipient purchased or leased a vehicle

from the dealership at the same time as the plaintiff, the law firm would appreciate the

opportunity to speak with the recipient “so as to further establish evidence of the custom and

practice used at [the] dealership.” Id. At the hearing, the court read out-loud the introductory

line of the letter to emphasize the point that the letters referred to particular cases. (D.E. 173 at

65.) 

18

of litigation or for trial by or for another party . . . .”). Specifically, the district

court stated: “a letter [sent] out to someone who is involved in the lawsuit saying,

‘we are looking for witnesses who were . . . defrauded by this car dealership

because I’m representing Joe Smith,’ that might be work product.” (D.E. 173 at

61.) Counsel for Thomas then stated: “I agree with that” and proceeded to 6

address a different matter. (Id. at 61-62.) The issue was not revisited prior to the

court’s ultimate denial of Thomas’ motion to compel the Custom and Practice

letters. 

Our standard of review is abuse of discretion. Castle v. Sangamo Weston,

Inc., 744 F.2d 1464, 1466 (11th Cir. 1984) (per curiam). “[W]hen employing an

abuse-of-discretion standard, we must affirm unless we find that the district court

has made a clear error of judgment, or has applied the wrong legal standard.” 

United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004). 
 The argument advanced by Thomas in his Motion to Compel and at the hearing was that 7

Hartz waived the work product privilege by failing to produce a privilege document log. (D.E.

49 at 5-7; D.E. 173 at 65.) 

19

Thomas argues that any privilege Hartz had in the Custom and Practice

letters was waived because Hartz relied on the letters in asserting that the litigation

clause applied. Thomas contends that because the letters remained protected, he

was prevented from adequately testing whether the litigation clause applied. We

decline to address this waiver argument. Thomas did not raise it below in either

his Motion to Compel (D.E. 49 at 5-7, 14) or at the hearing (D.E. 173 at 65).7

Indeed, as set forth above, Thomas’ counsel affirmatively agreed with the court’s

work product reasoning. Thomas cannot now argue that such reasoning was

erroneous. See Irving v. Mazda Motor Corp., 136 F.3d 764, 769 (11th Cir. 1998)

(“Too often our colleagues on the district courts complain that the appellate cases

about which they read were not the cases argued before them.”).

Accordingly, we affirm.

AFFIRMED.