Tillman v. Advanced Public Safety, Inc.

9:15-cv-81782 | S.D. Fla. | Jan 18, 2017


Civil N o. IS-CV-BI78Z-M ARR A/M A TTH EW M AN K 1M PETER TILLM AN , Plaintiff, FILE D by D . C. VS. JAN 1 2 2217 A DV AN CED PU BLIC SA FETY , lN C., and TR IM BLE N A V IGA TION , LTD .,

STEVEN M LAjIMORE #2 f- u . - RJ y j o gj; Defendants. . O RD ER AFTER IN CA M ER A R EV IE W THIS CAUSE is before the Court on Plaintiff, Kim Peter Tillman's (ûiplaintiff ') M otion to Compel First Request for Production gDE 61j. This matter was referred to the undersigned by U nited States District Judge Kenneth A . M arra. See D E 37.

Pursuant to A greed Order on Plaintiff s M otion to Com pel First Request for Production dated August 3, 2016 (DE 691, Defendants, Advanced Public Safety, lnc., and Trimble Navigation, LTD. (ttDefendants'') were required to submit to the undersigned for in camera review all docum ents identified on D efendants' Supplem ental Privilege Log dated June 15, 2016, as tiAttorney/client Privilege'' or :iW ork Product.'' Defendants submitted the docum ents as required. At an O ctober 19, 2016 discovery hearing, the Court and parties further discussed the parameters Of the in camera review. On November 7, 2016, the Coul't issued an Order (DE 941 requiring D efendants to re-subm it the docum ents for in cam era review after elim inating any non-privileged docum ents. The Court also required that Defendants include Bates stam ps on the docum ents and to revise their privilege log. 1d. Defendants re-submitted the docum ents as required, and the Court has carefully conducted an in camera review of the documents.


ln Plaintiff's m otion to com pel, he asserted that the Court should review the docum ents from D efendants' Supplem ental Privilege Log to determ ine w hether D efendants' claim of work product 'çis overcome by M r. Tillm an's substantial need'' for docum ents related to an internal audit performed by Defendants. gDE 61, p. 41. Plaintiff asserted that the t'resulting çinternal audit' conducted by D efendants in reaction to his whistle-blow ing is critical evidence that w ill dem onstrate D efendants' then-existing retaliatory intent. Thus, Plaintiff argued that he has a substantial need for the contem poraneous docum ents created in 2014 regarding the status of D efendants' then-existing versions of softw are that are at issue in this litigation, as w ell as the docum ents showing Defendants' contem poraneous decisions on Plaintiff's em ploym ent status.'' 1d. at pp. 4-5. A ccording to Plaintiff, he cannot obtain a substantial equivalent of these docum ents. Id at p. 5.


Federal Rule of Civil Procedure 26(b)(3), which sets forth the work product doctrine, states in relevant part: (A) Documents and Tangible Things. Ordinarily, a party may not discover docum ents 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 attonwy, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and calm ot, w ithout undue hardship, obtain their substantial equivalent by other m eans.
(B) Protection Against Disclosure. lf the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.

Fed. R. Civ. P. 26(b)(3). The burden is on the party withholding discovery to show that the docum ents are protected by the work-product privilege. M ilinazzo v. State Farm Ins. Co., 247 F.R.D. 691, 698 (S.D. Fla. 2007).

Upon careful review of the documents that Defendants have withheld on the basis of the work-product privilege, the Court finds that the follow ing docum ents are not protected by the work-product doctrine as asserted by Defendants: Bates Stamp #13960-13964, 14052-14079, 14121-14182 , 14195-14266, 14423-14429, 14438-14447, 14458-14469 , 1 14470-14471

, 14712-14717, 1471 8-14723, the bottom tw o-thirds of 14734-14741, the bottom three-fourths of 14742-14744, 14746-14761, 14500-14503, and 14602-14650.

W ith regard to Bates Stam p #14777-14830, which is a position statem ent to the low a Civil Rights Com m ission, the C ourt finds that the docum ent is not protected by the w ork-product doctrine. M oreover, there is a notation in the privilege log that Plaintiff already has a copy of the position statem ent. D efendants shall be required to produce B ates stam p #14777-14830 to Plaintiff in an abundance of caution.

The following docum ents shall be produced to Plaintiff has he has a substantial need for the docum ents and is unable to obtain their substantial equivalent elsew here w ithout undue hardship: Bates Stam p # 14730-14733, 14585-14589, 14593-14657, and 14766-14770. The first set of docum ents, Bates Stam p #14730-14733, includes a corrective action that w as w ritten for Plaintiff 1 These documents are not claim ed on the privilege log , but are included in the docum ents subm itted for in cam era while he worked for Defendants, but which was never given to him . The remaining docum ents consist of correspondence from D efendants to an investigator to the U nited States D epartm ent of Labor, O ccupational Safety and Health A dm inistration. A l1 of these docum ents are highly relevant to Plaintiff s claim s and cannot be obtained elsew here w ithout undue hardship.


çiconfidential disclosures by a client to an attonw y m ade in order to obtain legal assistance are privileged.'' Fisher v. United States, 425 U .S. 391, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976). Upon careful review of the documents that Defendants have withheld on the basis of the attonw y-client privilege, the Court tinds that the follow ing docum ents are not protected by the attom ey-client privilege: Bates Stam p #13978-13983, 14287, 14291-14338, 14340-14414, 14423-14429, 14438-14447, the bottom half 14450-14452, 14676-14677, 14470-14471 , 14458-14469 , 2 14712-14717 14718-14723 the bottom tw o-thirds of 14734-14741

, , , the bottom three-fourths of 14742-14744, 14746-14761 , 14480-14486, 14488, 14500-14503, 14565-14582, 14602-14650, and 14777-14830. A1l of these docum ents shall be produced to Plaintiff.

Based on the foregoing,it is hereby ORD ERED that D efendants shall produce the above-described docum ents to Plaintiff on or before January 25, 2017. D NE and O R D ERED in Cham bers at W est Palm Beach, Palm B each County, Florida, this / ? day of January, 2017.


W - -


United States M agistrate Judge

2 These docum ents are not claim ed on the privilege log , but are included in the docum ents subm itted for in camera