United States District Court, D. Minnesota
S.T. Specialty Foods, Inc., Plaintiff,
Copesan Services Inc. and Wil-Kil Pest Control Company, Inc., Defendants.
BOWBEER UNITED STATES MAGISTRATE JUDGE
S.T. Specialty Foods, Inc. (“S.T. Specialty”)
moves to compel Defendants to fully respond to several discovery
requests. For the reasons set forth below, the motion is
granted in part and denied in part.
Specialty, a food products manufacturer, arranged with
Copesan to conduct a fumigation at S.T. Specialty's food
processing facility in Brooklyn Park, Minnesota beginning on
Friday, September 30, 2016. (Compl. ¶ 1 [Doc. No. 1].)
S.T. Specialty alleges that Copesan used a pesticide that
caused virtually all the mechanical equipment in the facility
to fail, including manufacturing equipment, forklifts,
printers, and computer servers. (Id. ¶ 30.)
S.T. Specialty discovered the damage on Monday, October 3,
2016, when its employees returned to work. (Id.)
S.T. Specialty did not initially suspect the fumigant caused
the damage, and began to investigate various possible causes,
such as an electrical surge. (Hutchinson Decl. Ex. A [Doc.
Monday, October 10, 2016-one week after the fumigation was
completed- Ryko Cenin of S.T. Specialty called John Degner,
the sales and service manager for Wil-Kil, to “ask some
questions” about the fumigant Copesan used and its
“potential of fine electrical damage.”
(Stellpflug Decl. Ex. 1 [Doc. No. 35 at 5].) Degner recounted
his conversation with Cenin in an email to colleagues at
Copesan, reporting that “[Cenin] is stating that they
are running into some issues with some of their equipment and
asked if it was fumigant related.” (Id.)
November 2, 2016, Rob Musiel, a manager at Copesan, called
Diane Evans, a Senior Claim Examiner for Sedgwick Claims
Management Services, a third-party claims manager for
Copesan's insurer (hereafter “Sedgwick”), to
put the insurer “on notice of S.T. Specialty's
claim.” (Evans Decl. ¶¶ 2, 5 [Doc. No. 34].)
Musiel advised Evans that S.T. Specialty “was alleging
that a fumigation provided at the S.T. Specialty Facility in
Brooklyn Park, MN by representatives of Copesan and Wil-Kil
over the weekend of September 30, 2016 had caused damage to
equipment estimated to be over $100, 000.”
(Id. ¶ 6.) Musiel further advised Evans that
Copesan disagreed strongly with the allegation that the
fumigation had caused the damage, “wished to defend
against the claim” and intended “to put up an
aggressive fight against these allegations.”
(Id. ¶¶ 7-9.)
November 17, 2016, Thuan Moran, Senior Director of Operations
for S.T. Specialty's parent company, wrote a formal
letter to Copesan in which he stated S.T. Specialty had
concluded that Copesan's fumigant had caused
“widespread damage and loss, ” and that
“[a]s the expert, Copesan was obligated to provide much
clearer direction and oversight in terms of protecting
ST's equipment.” As a result, Moran stated, S.T.
Specialty was seeking $515, 955.42 to cover the loss. (Evans
Decl. Ex. B [Doc. No. 34 at 8].) Copesan forwarded the letter
to Sedgwick on or around December 2, and Evans began
communicating directly with S.T. Specialty. (Evans Decl.
¶¶ 10-11.) In a telephone call with Moran on
December 13, she learned that “only ‘some' of
the damaged equipment was still available to be
inspected.” As a result of that “loss of
evidence, ” she thought “litigation would even
more certainly ensue.” Id.
December 15, 2016, Evans had a telephone conversation with
Sedgwick's regular counsel in Minnesota, Janet
Stellpflug. Less than a week later, Evans hired a local
claims adjuster, Stephen Kessler, who in turn, on December
22, retained Ryan Haase, a consulting engineer with expertise
in metallurgy. (Evans Decl. ¶¶ 12-14.) Over the
course of the next four months, Haase and others began
working with S.T. Specialty to collect and test samples of
the ruined electrical components. (Hutchinson Decl. Ex. D
[Doc. No. 28-4 at 7-21].) It appears those interactions were
cooperative. (See Hutchinson Decl. Ex. D (examples
of communications between S.T. Specialty and Sedgwick
representatives)). None of the communications from S.T.
Specialty during this period appear to have explicitly
threatened litigation, but Evans states that Haase and
Kessler “were both hired … to defend the claims
being made that were unsupported, ” and that they were
“aggressively defending and preparing for litigation by
investigating and attempting to gather evidence.”
(Evans Decl. ¶ 15.)
April of 2017, Copesan formally retained Stellpflug as
outside counsel on the case. (Stellpflug Decl. ¶¶
2-3.) She first contacted S.T. Specialty on behalf of Copesan
on April 27, 2017. (Pl.'s Mem. Supp. at 9 [Doc. No. 27].)
In September 2018, S.T. Specialty filed suit against Copesan.
(Compl. [Doc. No. 1].)
S.T. Specialty's Subpoenas to Kessler and
22, 2019, S.T. Specialty served Stephen Kessler,
Sedgwick's local claims adjuster, with a subpoena to
testify and produce all documents related to his inspection
of S.T. Specialty's facility. (Hutchinson Decl. Ex. G
[Doc. No. 28-7].) A week later Copesan responded via letter
to say that it did not object to Kessler's deposition,
but that portions of his testimony and certain documents
would be withheld on grounds of attorney-client privilege
and/or work product. (Hutchinson Decl. Ex. H [Doc. No.
28-8].) S.T. Specialty later withdrew the request for
Kessler's deposition but maintained its request for
documents. ((Pl.'s Mem. Supp. at 20.) Kessler produced
some documents (Stellpflug Decl. Exs. 4, 5). As of the date
the motion was argued, Kessler had not himself served
objections or a privilege log, nor had he moved to quash the
subpoena, and Copesan's privilege log did not include a
log of the documents that were withheld from Kessler's
production, although it appeared likely there was significant
overlap between the documents on Copesan's log and the
documents withheld from Kessler's production.
(See Pl.'s Mem. Supp. at 21; Hutchinson Decl.
Ex. E [Doc. No. 28-5].)
September or October 2019, S.T. Specialty served Sedgwick,
through Evans, with a subpoena for all documents related to
the investigation of the claimed damage at S.T.
Specialty's facility. (Hutchinson Decl. Ex. I [Doc. No.
28-9].) Attorney Stellpflug, on behalf of Copesan, served
formal objections asserting both work product protection and
attorney-client privilege. (Hutchinson Decl. Ex. J [Doc. No.
28-10].) Sedgwick did, however, produce approximately
“500 pages of documents, almost all of which [S.T.
Specialty] itself has already produced in this case.”
(Pl.'s Mem. Supp. at 21.) As with Kessler, Sedgwick did
not separately serve objections to the subpoena or a
privilege log, or move to quash the subpoena, but again,
there appeared to be significant overlap between the
documents on Copesan's log and the documents withheld by
Sedgwick. (See Pl.'s Mem. Supp. at 21-22;
Hutchinson Decl. Ex. E.)
S.T. Specialty's Subpoena to Haase
22, 2019, S.T. Specialty served Copesan's engineering
consultant Ryan Haase with a subpoena seeking his deposition
on September 6, 2019, and production of all documents
relating to his inspection of the S.T. Specialty facility and
related analysis and testing of the equipment. (Hutchinson
Decl. Ex. K [Doc. No. 28-11].) A week later Copesan served
objections both to the deposition and to the demand for
documents, asserting that Haase was a non-testifying
consulting expert retained in anticipation of litigation
under Federal Rule of Civil Procedure 26(b)(4)(D).
(Hutchinson Decl. Ex. L [Doc. No. 28-12].) As Defendants'
counsel made it clear Haase would not appear for the
September 6 deposition, Plaintiff canceled the deposition
(although it has not withdrawn the subpoena). Haase did not
separately object, move to quash the subpoena, or produce a
privilege log, and he has not produced any documents.
Specialty filed the instant motion on November 4, 2019,
seeking to compel production of documents that fall generally
into three categories. First, S.T. Specialty seeks to
discover documents in the possession of Copesan that were
generated in the immediate aftermath of the fumigation and
during the insurance claim investigation. Specifically, the
documents sought by S.T. Specialty include documents Copesan
withheld on work product grounds that were generated after
Ryko Cenin's call to Copesan on October 10. 2016, and
prior to April 27, 2017, when Stellpflug first contacted S.T.
Specialty shortly after she was formally retained to
represent Copesan in this matter. The documents include notes,
timelines, emails, and reports. (Pl.'s Mem. Supp. at 7-9;
Def. Mem. Opp'n at 8; Hutchinson Decl. Ex. E [Doc. No.
28-5].) Copesan has produced some responsive documents, but
has withheld a number of others on the ground that they were
produced in anticipation of litigation and are therefore
protected by the work product doctrine.
S.T. Specialty moves to enforce the subpoenas it served on
Sedgwick and Kessler to compel production of documents
relating to their investigation and assessment of S.T.
Specialty's claims. Finally, S.T. Specialty seeks to
enforce the subpoena it served on Haase seeking information
pertaining to Haase's inspection and testing of S.T.
Specialty's equipment and his analysis of S.T.
all three categories of documents, S.T. Specialty contends
that any documents generated at least prior to April 27,
2017, were not generated in anticipation of litigation and
therefore were not properly withheld on work product grounds.
In addition, S.T. Specialty contends that any objections to
the Sedgwick, Kessler, and Haase subpoenas were waived
because the subpoena recipients themselves did not object or
move to quash the subpoenas, and Copesan did not have
standing to interpose objections on their behalf.
Rule of Civil Procedure 26(b)(3) delineates the scope of work
product protection in the federal courts:
Ordinarily, a party “may not discovery documents and
tangible things that are prepared in anticipation of
litigation or for trial by or for another party or its
representative (including the other party's attorney,
consultant, surety, indemnitor, insurer, or agent).
Fed. R. Civ. P. 26(b)(3)(A). In addition, Rule 26(b)(4)(D)
protects facts known or opinions held by an expert “who
has been retained or specially employed by another party in
anticipation of litigation or to prepare for trial and who is
not expected to be called as a witness at trial.”
while work product is often that of an attorney, the work
product doctrine is not confined to information or materials
gathered or assembled by a lawyer, nor need it have been
requested by an attorney or communicated by or to a client of
an attorney. Diversified Indus., Inc. v. Meredith,
572 F.2d 596, 603 (8th Cir. 1977).
work product protection may, and often does, begin before a
lawsuit is actually ...