UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JOHN SPARKS, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:14-CV-40-JTM-PRC

)

NORFOLK SOUTHERN RAILWAY )

COMPANY, )

 Defendant. ) 

OPINION AND ORDER

This matter is before the Court on Plaintiff’s Motion to Compel Defendant Norfolk Southern

Railway Company to Respond to Plaintiff’s Request for Production [DE 26], filed by Plaintiff John

Sparks on August 14, 2015. Defendant Norfolk Southern Railway Company filed a response on

August 31, 2015. No reply was filed, and the time to do so has passed. 

In this lawsuit, Plaintiff alleges that Defendant owes him money damages arising from

injuries Plaintiff sustained on November 9, 2008, while working for Defendant. Plaintiff seeks

damages in excess of $1,000,000. Defendant has raised the affirmative defense of release, but

Plaintiff argues the release signed regarding the injury should be set aside because of mutual

mistake.

On June 14, 2014, Plaintiff served his First Request for Production of Documents on

Defendant. On August 29, 2014, Defendant filed its responses to Plaintiff’s Request. At issue in the

instant Motion are documents withheld from Request Numbers 28 and 30 in the Request. Number

28 is a request for a “complete copy of defendant’s claims file as it existed prior to the date the

release was signed that defendant asserts releases the underlying claim.” Number 30 is a request for

“[a]ll correspondence, emails, memos or other communications between defendant’s employees or

agents regarding plaintiff’s injury up until the date the release was signed that defendant asserts
releases the underlying claim.” Defendant produced its non-privileged documents that fell under

Numbers 28 and 30 but objected to the extent they requested materials protected by attorney-client

privilege or the work product doctrine. This production included 150 pages of documents, including

all documents containing information related to Plaintiff’s medical condition at the time of the

settlement. Upon subsequent review of the file, Defendant produced additional documents that had

been withheld as privileged, but still claimed privilege for thirteen of the documents, listed in the

privilege log as numbers 4-7, 9, 13, 14, 17-19, and 21-23. As a result, Plaintiff filed the instant

Motion to Compel these unproduced documents.

A party may “obtain discovery regarding any nonprivileged matter that is relevant to any

party’s claim or defense--including the existence, description, nature, custody, condition, and

location of any documents or other tangible things.” Fed. R. Civ. P. 26(b)(1). Relevancy is construed

broadly to encompass “any matter that bears on, or that reasonably could lead to other matter that

could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S.

340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). A party may seek an order

compelling discovery when an opposing party fails to respond to discovery requests or has provided

evasive or incomplete responses. Fed. R. Civ. P. 37(a). The burden is on the objecting party to show

why a particular discovery request is improper.

Plaintiff asks the Court to compel Defendant to produce documents that have been withheld

based on the work product privilege. The work product doctrine applies to documents and tangible

things that are prepared in anticipation of litigation or for trial by and for another party or its

representatives. Fed. R. Civ. P. 26(b)(3)(A). However, these materials may be discovered if they are

otherwise discoverable under Rule 26(b)(1) and “ the party shows that it has substantial need for the

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materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent

by other means.” Fed. R. Civ. P. 26(b)(3)(A). The work product privilege serves “dual purposes: (1)

to protect an attorney’s thought processes and mental impressions against disclosure; and (2) to limit

the circumstances in which attorneys may piggyback on the fact-finding investigation of their more

diligent counterparts.” Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 621-22 (7th Cir.

2010). In determining whether the doctrine applies, courts “look to whether in light of the factual

context ‘the document can fairly be said to have been prepared or obtained because of the prospect

of litigation.’” Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976-77 (7th Cir. 1996) (quoting

Binks Mfg. Co. v. National Presto Indus., 709 F.2d 1109, 1119 (7th Cir. 1983)). The burden is on

the party asserting the doctrine’s protection to show that it applies. Sullivan v. Alcatel-Lucent USA,

Inc., No. 12-C-7528, 2013 WL 2637936, *10 (N.D. Ill. June 12, 2013).

As an initial matter, the Court notes that Plaintiff does not object to Defendant’s

determination that the material in question is work product, and the Court considers Plaintiff to have

conceded the status of the documents as work product. Instead of rejecting the determination of

work product, Plaintiff presents two reasons why the material should be produced despite being

work product. First, Plaintiff asserts that Defendant’s affirmative defense of release has caused

Defendant to waive the work product privilege. Second, Plaintiff argues that, even if the work

product privilege is not waived, Plaintiff has a substantial need for the material and is unable to

obtain its equivalent, so the material should be produced pursuant to Federal Rule of Civil Procedure

26(b)(3)(A). The Court addresses each argument in turn.

Plaintiff argues that Defendant’s affirmative defense of release causes Defendant to waive

its work product privilege regarding the injury claim file and related communications. In support

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of this argument, Plaintiff directs the Court to Harding v. Dana Transportation, Inc., 914 F. Supp.

1084 (D.N.J. 1996). The Harding court found that the defendant had waived the work product

privilege as applied to the investigation file by asserting the defense that it had conducted a

reasonable investigation and was consequently not liable under the doctrine of respondeat superior.

Id. at 1099.

Unlike in Harding, however, Defendant did not raise as a defense the adequacy of its

investigation. Instead, Defendant is arguing that the executed release provides a defense to liability.

A privilege-holder may waive its work product protections by putting privileged matter in issue as

evidence in a case, but that is not what has happened here. It is Plaintiff who argues mutual mistake,

and it is Plaintiff who wants to prove this mutual mistake through the items sought in discovery.

Further, even under Plaintiff’s theory of mutual mistake in the underlying case, the question is what

Defendant knew about Plaintiff’s condition at the time of settlement, not what the disputed

documents say or the method or nature of Defendant’s investigation. 

Asserting release as a defense does not mandate unrestricted access to Defendant’s claim file

or communications between Defendant’s employees or agents regarding Plaintiff’s injury. Defendant

has not put in issue the disputed materials. “Parties may forfeit a privilege by exposing privileged

evidence, but do not forfeit one merely by taking a position that the evidence might contradict.” U.S.

v. Salerno, 505 U.S. 317, 323 (1992).Work product protection is not waived.

Next, Plaintiff argues that, even if work product privilege is not waived, Defendant should

be compelled to produce the documents because Plaintiff has a substantial need for them and has

no ability to obtain their substantial equivalents without undue hardship. See Fed. R. Civ. P.

26(b)(3)(A). The Court notes that eleven of the thirteen documents withheld are documents written

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by Defendant’s claim agent Frank Mahoney. Plaintiff was scheduled to depose Mr. Mahoney on

August 19, 2015, indicating that Plaintiff has a means of obtaining the substantial equivalent of the

eleven documents written by Mr. Mahoney, namely a deposition of the documents’ author. The

exception to the work product privilege does not apply to these documents, so the Court will not

compel their production.

The remaining two documents are a “Checklist - Prior to Settlement,” described as an

“internal claims checklist to document steps taken in claims administration,” and a “Claims database

of prior settlements for unrelated claims (including claimants other than [Defendant]).” (Def. Resp.

3). Plaintiff makes no claims of substantial need specific to any particular document, and instead

asserts he requires the entirety of the materials requested because “the defendant and its claim file

are the only sources of information as to what it knew at the time it settled Plaintiff’s claim.” (Pl.

Mem. Law 5). The Court notes that Plaintiff has made no allegation of how these two documents

might contain evidence of mutual mistake. Even if there is no method by which Plaintiff could

obtain the substantial equivalent of these two documents, Plaintiff has failed to demonstrate

substantial need for them. Plaintiff’s argument that the exception to the work product privilege

requires production of these documents fails, and the Court will not compel Defendant to produce

them.

Finally, Defendant represents in its response brief that it has produced all documents in the

claim file that relate to Plaintiff’s medical condition prior to the release. Plaintiff has not filed a reply

brief to contest this representation or to request an in camera inspection of the withheld documents.

Because the Court denies Plaintiff’s Motion to Compel, the Court grants Defendant’s request

for a protective order allowing it to not respond to the discovery request.

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CONCLUSION

Based on the foregoing, the Court hereby DENIES Plaintiff’s Motion to Compel Defendant

Norfolk Southern Railway Company to Respond to Plaintiff’s Request for Production [DE 26], and

ORDERS that Defendant need not produce documents 4-7, 9, 13, 14, 17-19, and 21-23 in its

privilege log in response to Numbers 28 and 29 of Plaintiff’s Request for Production of Documents,

served June 14, 2014.

Further, pursuant to Federal Rule of Civil Procedure 37(a)(5)(B), the Court hereby ORDERS

Plaintiff, by October 19, 2015, to FILE a statement explaining why the Motion was substantially

justified or why it would be unjust for the Court to order him to pay Defendant’s reasonable

expenses, including attorney’s fees, incurred in opposing the Motion.

SO ORDERED this 5th day of October, 2015.

 s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES MAGISTRATE JUDGE

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