IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Benjamin Laws, Jr., et al., :

 

Plaintiffs, :

 

v. : Case No. 2:12-cv-544 

 

Stevens Transport, Inc., : JUDGE GREGORY L. FROST

et al., Magistrate Judge Kemp

 

Defendants. :

 

 

OPINION AND ORDER

This is a personal injury case arising out of a motor

vehicle accident which occurred on June 4, 2010. According to

the parties, the accident occurred in Lima, Ohio when plaintiff

Benjamin Laws’ rental car and a truck owned by defendant Stevens

Transport and driven by defendant Charles G. Dunn, III collided. 

Pursuant to this Court’s direction following a telephonic

discovery conference held on February 7, 2013, defendants Stevens

Transport, Inc., Stevens Transport CD, Inc., Stevens Transport T

L, Inc., and Charles G. Dunn III (collectively “defendants”)

filed a “Motion Opposing Plaintiff Chandra Laws’ First Set of

Interrogatories to Defendant Stevens Transport, Inc. and Motion

to Strike Certain ‘Areas of Inquiry’ Set Forth in Plaintiffs’

30(b)(6) Deposition Notice.” (Doc. #46). Plaintiffs Benjamin

Laws, Jr. and Chandra Laws filed a “Motion to Compel Discovery

Regarding Preventable Accident Determination/Investigation and

Remedial Training/Discipline.” (Doc. #47). The motions are ripe

for consideration.

The first issue the parties address is whether Chandra Laws’

interrogatories should be stricken on the ground that they exceed

the maximum number allowable under Fed. R. Civ. P. 33(a). The

second issue is whether Fed. R. Evid. 407 bars discovery

pertaining to Mr. Dunn’s post-accident remedial training and

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discipline. Finally, the Court will determine whether plaintiffs

should be denied discovery pertaining to post-accident

investigations and “preventability” determinations on the ground

that the information is protected by the attorney-client

privilege. 

I. Plaintiff Chandra Laws’ First Set of Interrogatories

 In January 2013, plaintiff Chandra Laws served the

following first set of interrogatories on defendant Stevens

Transport, Inc.:

INTERROGATORY NO. 1: Identify each person who

participated in the determination or investigation of the

subject occurrence being a preventable accident as

described by Dunn in his deposition at pg. 53-56.

INTERROGATORY NO. 2: Identify each document created in

connection with the determination or investigation of the

subject occurrence being a preventable accident as

described by Dunn in his deposition at pg. 53-56.

INTERROGATORY NO. 3: Identify each person who was

involved in remedial training provided to Dunn as a

result of the subject occurrence as described by Dunn in

his deposition at pg. 41-49.

INTERROGATORY NO. 4: Identify each document created or

provided to Dunn in connection with the remedial training

provided to Dunn as a result of the subject occurrence as

described by Dunn in his deposition at pg. 41-49.

INTERROGATORY NO. 5: Identify each person within Stevens

Transport who met with Charles Dunn as a result of the

subject occurrence as described by Dunn in his deposition

at pg.40-49.

INTERROGATORY NO. 6: Identify each document created in

connection with meetings between Dunn and

employees/representatives of Stevens Transport as

described by Dunn in his deposition at pg. 40-49. 

(Doc. #46, Ex. 1). Defendants argue that these interrogatories

should be stricken because they exceed the maximum allowable

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number of interrogatories under Fed. R. Civ. P. 33(a) when

combined with the interrogatories served by plaintiff Benjamin

Laws, Jr. (Id. at 2-3). In particular, defendants assert that

plaintiffs Chandra Laws and Benjamin Laws, Jr. “should be treated

as a single, unified entity” for discovery purposes, and

plaintiff Chandra Laws should not be entitled to serve a separate

set of interrogatories. (Id. at 3). Defendants claim that

plaintiffs should be treated this way because “Chandra Laws has

asserted merely a derivative loss of consortium claim.” (Id. at

4). 

Fed. R. Civ. P. 33(a)(1) provides, in pertinent part,

“[u]nless otherwise stipulated or ordered by the court, a party

may serve on any other party no more than 25 written

interrogatories, including discrete subparts.” Although Fed. R.

Civ. P. 33(a)(1) allows 25 written interrogatories per party, as

opposed to per side, in some instances nominally separate parties

are considered one party for purposes of the 25-interrogatory

limitation. See Vinton v. Adam Aircraft Indus., Inc., 232 F.R.D.

650, 664 (D. Colo. 2005) (quoting 8A Wright, Miller and Marcus,

Federal Practice and Procedure, Civil 2d §2168.1). 

It is within this Court’s broad discretion to determine the

proper scope of discovery, including the number of

interrogatories any party may serve. See Karl v. Bizar, No.

2:09-CV-34, 2009 WL 3418676, at *2 (S.D. Ohio Oct. 19, 2009). 

Here, the Court finds that an application of the plain language

of Fed. R. Civ. P. 33(a)(1) is warranted. The same result was

reached in Auther v. Oshkosh Corp., No. 09-CV-00527, 2010 WL

1404125, at *3-4 (W.D.N.Y. Mar. 30, 2010), a case in which a

plaintiff husband brought negligence and products liability

claims for injuries he sustained from an exploding tire on a

military vehicle, and his wife brought a claim for loss of

consortium based on the same incident. While acknowledging that

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both the husband and wife brought claims arising from the same

incident, the court determined that they should be considered

separate parties for purposes of the 25-interrogatory limitation. 

Id. Hence, the parties were found to be more than nominally

separate parties for purposes of determining the appropriate

number of interrogatories. Id. Here, as in Auther, plaintiffs

Benjamin Laws, Jr. and Chandra Laws have asserted claims that are

sufficiently distinct so as to allow them to be considered

separate parties for purposes of the 25-interrogatory limitation. 

Even were that not so, it does not appear that defendants will be

unduly burdened by having to answer these particular

interrogatories. Consequently, the Court, in its discretion,

will deny defendants’ motion to strike the interrogatories of

Chandra Laws on the ground that they exceed the maximum allowable

number under Fed. R. Civ. P. 33(a). 

II. Requests for Re-Training and Discipline Information

Defendants likewise seek to strike Chandra Laws’

interrogatory nos. 3-6 on the ground that they “improperly seek

discovery relating to Defendant Dunn’s post-accident remedial

training.” (Doc. #46 at 5). Defendants also contend that

“Plaintiffs’ 30(b)(6) deposition notice to Defendants’ corporate

representatives . . . improperly requests discovery regarding,

among other things, the post-accident training (including any retraining or remedial training) of Defendant Dunn.” Id.

Defendants argue that post-accident personnel actions, such as

counseling and supplemental training, are subsequent remedial

measures under Fed. R. Evid. 407 and are inadmissible to prove

negligence or culpable conduct. Id. at 5-6. Consequently,

defendants argue that the information sought is not discoverable

on the grounds that it is irrelevant to the liability issues and

constitutes inadmissible evidence at trial.

In the motion to compel, plaintiffs argue that they are

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entitled to discovery relating to the remedial training and

discipline of Mr. Dunn after the accident. (Doc. #47 at 1-2). 

Plaintiffs state that defendants “employ the wrong standard” in

seeking to avoid the discovery by requesting “that the Court make

an evidentiary ruling without allowing [them] the opportunity to

develop what evidence would be through discovery.” Id. at 4. 

Further, the plaintiffs contend that the re-training and

discipline information sought is discoverable because it is

reasonably calculated to lead to the discovery of admissible

evidence under Fed. R. Civ. P. 26(b)(1). Id.

The liberal discovery policies of the federal courts are

based upon a desire for full disclosure before trial. See Vardon

Golf, Co., Inc. v. BBMG Golf Ltd., 156 F.R.D. 641, 650 (N.D. Ill.

1994). Consequently, evidence which may be inadmissible at trial

may still be discoverable if the information appears to be

reasonably calculated to lead to the discovery of admissible

evidence. See id. Stated another way, “[t]he touchstone of the

relevancy of documents is not whether the discovery is evidence

that is, or even may be, admissible at trial, but rather whether

the discovery is ‘reasonably calculated to lead to the discovery

of admissible evidence.’” Sonnino v. University of Kansas Hosp.

Auth., 220 F.R.D. 633, 646 (D. Kan. 2004)(quoting Fed. R. Civ. P.

26(b)(1)). 

Fed. R. Evid. 407 provides that when measures are taken that

would have made an earlier injury or harm less likely to occur,

evidence of those subsequent measures is not admissible to prove

negligence or culpable conduct. Even if the re-training and

discipline of a driver involved in an accident are subsequent

remedial measures under Fed. R. Evid. 407, discovery of such

evidence may still be permitted because Fed. R. Evid. 407 does

not require the exclusion of evidence that is offered for another

purpose, “such as impeachment or – if disputed – proving

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ownership, control, or the feasibility of precautionary

measures.” Fed. R. Evid. 407. It is certainly possible that

plaintiffs will wish to use this evidence for one of these

purposes – but they will not know that until they take discovery

on the issue. Because Fed. R. Evid. 407 governs the

admissibility of evidence and does not control pretrial

discovery, the objections to discovery based on this evidentiary

rule will be overruled. See Bernat v. California City, No. 1:10-

cv-00305, 2010 WL 4008361, at *5 (E.D. Cal. Oct. 12, 2010)

(stating that “though the evidence discovered may not,

ultimately, be admitted at trial, this is no basis for refusing

to disclose it during discovery”). 

III. Requests for Investigations and

“Preventability” Determinations

Next, defendants assert that plaintiffs should be denied

discovery pertaining to “post-accident actions, including

internal audits, safety review determinations and

‘preventability’ determinations” because that information is

protected by the attorney-client privilege. (Doc. #46 at 10-15). 

Defendants state that defense counsel:

was retained within hours of the June 4, 2010 accident to

undertake an investigation of this personal injury

accident in anticipation of possible litigation. Defense

counsel immediately undertook an investigation to assess

liability and damages. Thereafter, any internal

investigation conducted by or on behalf of Stevens

Transport, Inc., including ‘preventability’

determinations enabled defense counsel to give sound

legal advice. It is precisely for this reason that

defense counsel was retained.

Id. at 11. On this basis, defendants claim that the information

sought is protected by the attorney-client privilege. Id. 

In the motion to compel, plaintiffs argue that defendants’

claim of privilege is wholly without merit. (Doc. #47 at 5). 

Plaintiffs state that there is no claim that defense counsel was

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involved in “the determination/investigation of the subject

collision being a preventable accident. . . .” Id. Rather,

plaintiffs assert that the investigation and related

preventability determinations were undertaken in the normal

course of business in accordance with the Federal Motor Carrier

Safety Regulations. Id. at 6. Thus, according to plaintiffs, 

“[t]hat [d]efendants had retained counsel with respect to the

subject collision is of no consequence, and provide [sic] no

protection.” Id. at 6.

The burden of establishing the protection of the attorneyclient privilege rests with the person or entity asserting it. 

See United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999). 

Like all privileges, the attorney-client privilege is to be

construed narrowly because it operates in derogation of the

truth-seeking process. See United States v. Nixon, 418 U.S. 683,

710 (1974). In this case, the question is whether an internal

investigation of the accident, including a “preventability”

determination, which defense counsel claims “enabled” him “to

give sound legal advice” can be protected from disclosure based

upon the attorney-client privilege. (Doc. #46 at 11). 

A similar issue arose in Byrd v. Wal-Mart Transp., LLC, No.

CV609-014, 2009 WL 3055303, at *1 (S.D. Ga. Sept. 23, 2009),

which involved a fatal accident between a Wal-Mart tractortrailer and a minivan. The court explained that “due to the

severity of the accident,” counsel became involved “immediately.” 

Id. A discovery dispute arose relating to plaintiffs’ request to

explore Wal-Mart’s post-accident investigation. Id. The court

described that Wal-Mart’s investigation of serious accidents

involved gathering documents and photographs, which were then

forwarded to Wal-Mart’s Serious Accident Review (“SAR”)

committee. Id. Upon review of the material, the committee then

issued an opinion finding that the accident was either

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“preventable” or “non-preventable.” Id.

During Wal-Mart’s corporate deposition, plaintiffs’ counsel

asked whether Wal-Mart had ever attributed any fault to its

driver for the accident. Id. Wal-Mart’s counsel instructed the

deponent not to answer the question, which prompted plaintiffs to

file a motion to compel an answer to the fault-attribution

question. Id. In denying plaintiffs’ motion to compel, the court

noted that plaintiffs’ counsel improperly sought protected work

product in the form of “a legal conclusion on one of the ultimate

issues of the case.” Id. at *2. Consequently, the court held

that “[a]ny subjective evaluation by Wal-Mart of its legal

responsibility for the accident (i.e., its failure to maintain

some legally mandated standard of conduct) necessarily steps into

the mental impressions of the merits of the case.” Id. (emphasis

in original). 

In reaching its decision, the court made clear that had

plaintiffs’ counsel instead sought unprotected facts uncovered

during the investigation or information about the precise

criteria used to determine whether the accident could have been

prevented, such information would have been discoverable. Id. at

*1-2. The court stated, “[w]hile Wal-Mart apparently concedes

that its SAR committee assessment was prepared in the ordinary

course of business and thus enjoys no special work product

protection, the Court is satisfied that plaintiffs’ line of

questioning as to fault impermissibly sought — through the

30(b)(6) deponent’s reasonably expected answers — protected

mental impressions prepared in anticipation of litigation.” Id.

at *2. Consistent with that finding, the court determined that

“[i]f the SAR committee applies a uniform methodology in making

preventability assessments, that information (the how and why of

its methodology) should be discoverable.” Id. at *3. 

Unlike the plaintiffs in Byrd, plaintiffs have not sought to

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obtain counsel’s mental impressions concerning defendants’ legal

responsibility for the accident. Consistent with Byrd, however,

an investigation or preventability determination conducted by

defendants in the ordinary course of business is not subject to

such protection. See id. at *2; see also Smith v. Marten

Transp., Ltd., No. 10-cv-293, 2010 WL 5313537, at *4 (D. Colo.

Dec. 17, 2010) (holding that original investigation report was

not privileged when produced in the ordinary course of business

to investigate multi-car accident involving one of defendant’s

trucks and drivers); Sajda v. Brewton, 265 F.R.D. 334, 340 (N.D.

Ind. 2009) (finding that company’s accident report and computer

template used to compile accident information were discoverable

when generated in the ordinary course of business and forwarding

the information to counsel did “not cloak it in attorney-client

privilege”); cf. Carlson v. Freightliner LLC, 226 F.R.D. 343, 366

(D. Neb. 2004)(stating that “risk management documents prepared

by investigators” are not protected from discovery as privileged,

unless they disclose “the individual case reserves for files and

any mental impressions, thoughts, and conclusions in evaluating a

legal claim”). The record evidence in this case suggests that

the information at issue was gathered in the ordinary course of

business which, according Mr. Dunn, was then reviewed by “a

driver review board. . . .” (Doc. #47, Ex. 2 at 5). The fact

that defendants had retained counsel at the time that this

information was generated, or that they informed him of the

results of the process, does not alter this conclusion. See,

e.g., Heavin v. Owens-Corning Fiberglass, No. 02-2572, 2004 WL

316072, at *3 (D. Kansas Feb. 3, 2004) (noting that the attorneyclient privilege applies to communications only and not to

facts). Plaintiffs may not inquire as to what defendants

communicated to counsel, or what advice he gave in response, but

they are entitled to discover the facts which the investigation

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uncovered and any conclusion reached by defendants’ personnel. 

The burden of establishing the protection of the attorneyclient privilege rests with defendants, and they have failed to

satisfy that burden. Consequently, this Court will not deny

plaintiffs discovery pertaining to post-accident investigations

and “preventability” determinations. 

IV. Order

For the reasons set forth above, the Court grants

plaintiffs’ “Motion to Compel Discovery Regarding Preventable

Accident Determination/Investigation and Remedial

Training/Discipline” (Doc. #47) and denies defendants’ “Motion

Opposing Plaintiff Chandra Laws’ First Set of Interrogatories to

Defendant Stevens Transport, Inc. and Motion to Strike Certain

‘Areas of Inquiry’ Set Forth in Plaintiffs’ 30(b)(6) Deposition

Notice” (Doc. #46). 

V. Procedure for Reconsideration

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.

I., F., 5. The motion must specifically designate the order or

part in question and the basis for any objection. Responses to

objections are due fourteen days after objections are filed and

replies by the objecting party are due seven days thereafter. 

The District Judge, upon consideration of the motion, shall set

aside any part of this Order found to be clearly erroneous or

contrary to law.

This order is in full force and effect, notwithstanding the

filing of any objections, unless stayed by the Magistrate Judge

or District Judge. S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp 

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United States Magistrate Judge

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