IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

BENJAMIN ROGERS, individually )

and as personal representative )

of THE ESTATE OF ASHLEY ROGERS, )

 )

Plaintiff, )

 )

vs. ) CAUSE NO. 4:15-cv-22

 )

QUALITY CARRIERS, INC., and )

KIMBERLY THIETJE, )

 )

Defendants. )

OPINION AND ORDER

This matter is before the Court on the Report and

Recommendation of United States Magistrate Judge Pursuant to 28

U.S.C. § 636(b)(3) and Local Rule 72-1, dated November 15, 2016 (DE

#91), and Plaintiff’s Written Objections to 28 U.S.C. 636 (b)(3)

and Local Rule 72-1 Recommendation, filed by Plaintiff on November

28, 2016 (DE #95). For the reasons set forth below, the objections

are OVERRULED and the report and recommendation (DE #91) ADOPTED.

BACKGROUND

Plaintiff filed this wrongful death suit against Defendant,

Quality Carriers, and its employee, Kimberly Thietje, in state

court in 2014. Defendants removed the case to this Court on March

10, 2015. The case stems from a car crash in December 2013, which
killed Ashley Rogers. 

On January 11, 2016, Plaintiff filed a renewed motion to

compel. (DE #40.) In response to Plaintiff’s request for

documents, Defendants had produced Thietje’s employee file,

including a three-page completely redacted document identified as

the Quality Incident Investigation, Root Cause, and Corrective

Action Report (“QIRCR”). Defendants refused to produce an

unredacted version of the QIRCR, so Plaintiff filed the motion to

compel, asking the Court to order Defendants to produce an

unredacted version.

In response to the motion to compel, Defendants argued the

redacted portions included work product and mental impressions of

defense counsel. (DE #44 at 1-2.) Specifically, they set forth

that within 2.5 hours of the accident, Quality Carriers retained

counsel and dispatched him to the scene of the accident, and that

the privileged information from the QIRCR came into existence

because of a claim likely to lead to litigation. (DE #44 at 8.) 

Additionally, Quality Carriers argued the document was privileged

work product, not prepared in the ordinary course of business, but

in anticipation of litigation. (DE #44 at 10.) 

In ruling on the motion to compel, Magistrate Judge John E.

Martin considered a number of potentially applicable privileges,

including attorney work product, attorney-client privilege, the

self-critical analysis privilege, and whether the Department of

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Transportation Act, 49 U.S.C. § 504(f), barred the QIRCR from

discovery. Ultimately, in a lengthy order, Judge Martin found that

the report was not attorney work product because the form itself

was not completed by counsel and did not include any legal theories

or legal opinions, plus it was not covered by the attorney-client

privilege because Quality Carriers did not satisfy the burden of

showing the document was an attorney-client communication

requesting or relaying legal advice. (DE #66 at 7-9.) Judge

Martin determined none of the potential privileges were available,

and ordered production of the full QIRCR. 

In accordance with Federal Rule of Civil Procedure

37(a)(5)(A), which provides “the court must, after giving an

opportunity to be heard, require the party . . . or attorney

advising that conduct, or both to pay the movant’s reasonable

expenses incurred in making the motion, including attorney’s fees,”

the Court ordered Plaintiff to file an itemization of costs and

fees incurred in making the motion to compel. (DE #66 at 16.) 

Plaintiff filed an itemization on June 24, 2016 (DE #67),

requesting $5,240 in fees and costs. Defendants filed a response

in opposition on July 7, 2016. (DE #72). Defendants did not

challenge the amount of the expenses, but argued the award of costs

would be inappropriate because under Rule 37, their nondisclosure

“was substantially justified.” (Fed. R. Civ. P. 37(a)(5)(A); see

also DE # 72 at 2.) Defendants claim they acted in good faith in

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asserting the privileges, and because their counsel directed an

alcohol and controlled substance test (the results of which were

reflected in the QIRCR), they believed the testing was protected by

the several privileges. (Id. at 4-5.) I n his report and

recommendation, Judge Martin correctly cited to the legal standard

under Rule 37 and found:

The Court agrees with Defendants and finds that

Defendants’ refusal to produce the unredacted

incident report was substantially justified. 

Although the Court rejected Defendants’ position on

the merits, Defendants cited case law in support of

their position, and the Court spent 7 pages

resolving the dispute. See DE 66 at 6-12. And

nothing suggests that Defendants acted in bad

faith, as they produced a redacted version of the

incident report and listed it in their privilege

log in October 2014.

 

(DE #91 at 3-4.) 

In the instant objection, Plaintiff urges the Court to reexamine the motion to compel and arguments made therein, and argues

the QIRCR “is a routine form filled out every time a QC driver gets

into a collision. Substantial justification cannot be found in the

defendant’s argument that the document was prepared in anticipation

of litigation.” (DE #95 at 2.) This Court has reviewed and

considered all the relevant memoranda.

DISCUSSION

When a party makes objections to a magistrate judge’s

recommendations, “[t]he district court is required to conduct a de

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novo determination of those portions of the magistrate judge’s

report and recommendations to which objections have been filed.” 

Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995). “[T]he court

may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. §

636(b)(1); see also Fed. R. Civ. P. 72(b). “[I]f following a

review of the record the district court is satisfied with the

magistrate judge’s findings and recommendations it may in its

discretion treat those findings and recommendations as its own.” 

Goffman, 59 F.3d at 671. It must be noted that district courts

possess “wide latitude” in fashioning sanctions and evaluating the

reasonableness of requests for attorney fees. Johnson v. Kakvand,

192 F.3d 656, 661 (7th Cir. 1999). 

Rule 37 provides the “court must . . . require the party . .

. whose conduct necessitated the motion . . . to pay the movant’s

reasonable expenses incurred in making the motion, including

attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). However, the

movant is not entitled to such fees and expenses where: (1) the

movant did not make a good faith attempt to resolve the matter

before involving the court; (2) the nondisclosure was substantially

justified; or (3) other circumstances make an award of expenses

unjust. Id. This standard has been described as “the loser pays”

unless he establishes “that his position was substantially

justified.” Rickels v. City of South Bend, Ind., 33 F.3d at 785,

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786-87 (7th Cir. 1994). Judge Martin properly recited and applied

this correct legal standard. 

Here, Judge Martin concluded Defendants were substantially

justified because they did provide legal support for their belief

that certain privileges applied, they produced the document

(although redacted), listed it in their privilege log, and there

was no evidence of bad faith. This Court also finds there is no

evidence of bad faith, and it is important that Defendants did

produce the redacted document and record it in the privilege log. 

Moreover, this Court concurs that because Defendants put forth a

cogent argument, supported by caselaw, that the QIRCR was protected

by the attorney-client privilege and work product doctrine, an

award of costs and fees is inappropriate. See Thermal Design, Inc.

v. Guardian Bldg. Prods., Inc., 270 F.R.D. 437, 439 (E.D. Wis.

2010); Saunders v. Wesleyan Health Care Ctr., Inc., No. 1:1–cv00384, 2011 WL 839664, at *3 (N.D. Ind. Mar. 7, 2011) (declining to

award fees where, inter alia, a colorable written objection was

given); Frazier v. Se. Pennsylvania Transp. Auth., 161 F.R.D. 309,

314 (E.D. Pa. 1995) (declining to impose sanctions where position

was not completely without basis in the law); Hartland Lakeside v.

WEA Ins. Corp., No. 12-C-154, 2013 WL 12180510, at *4 (E.D. Wis.

June 25, 2014)(declining to impose fees where court was satisfied

the position was substantially justified). 

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CONCLUSION

For the reasons set forth above, the Court OVERRULES

Plaintiff’s written objections to the report and recommendation of

Magistrate Judge Martin (DE #95) and ADOPTS the report and

recommendation (DE #91). 

DATED: June 19, 2017 /s/ RUDY LOZANO, Judge

United States District Court

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