United States District Court,

D. Massachusetts.

Clayton SCHWANN, Thomas Leduc, Ramon Heleodoro, James Duggan, Eric Vitale, Phinnias Muchirahondo, Temistocles Santos, Lawrence Adams, Jeff Baylies, and Robert Sangster

v.

FEDEX GROUND PACKAGE SYSTEM, INC.

 

Civil Action No. 11–11094–RGS.

Feb. 7, 2014.

 

Harold L. Lichten, Sara E. Smolik, Shannon E. Liss-Riordan, Lichten & Liss-Riordan, P.C., Boston, MA, for Clayton Schwann, Thomas Leduc, Ramon Heleodoro, James Duggan, Eric Vitale, Phinnias Muchirahondo, Temistocles Santos, Lawrence Adams, Jeff Baylies, and Robert Sangster.

 

Albert Chin, Fedex Ground Package Systems, Inc., Moon Township, PA, James Rehnquist, Caroline H. Cochenour, James P. Abely, Leann Walsh, Nancy A. Dinsmore, Goodwin Procter LLP, Boston, MA, for Fedex Ground Package System, Inc.

 

MEMORANDUM IN SUPPORT OF A CERTIFICATION OF QUESTIONS OF STATE LAW TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

STEARNS, District Judge.

*1 Plaintiffs are former pick-up and delivery drivers for FedEx Ground Package System, Inc. (FedEx) in Massachusetts.FN1 On July 3, 2013, this court entered judgment for plaintiffs after finding that they had been improperly classified by FedEx as independent contractors, in contravention of the Massachusetts Wage Act, Gen. Laws ch. 149, § 148B. See Schwann v. FedEx Ground Package Sys., Inc., 2013 WL 3353776, at *4–6 (D.Mass. July 3, 2013). The issue that remains is whether certain assessments and deductions made by FedEx from plaintiffs’ earnings are recoverable under the Wage Act.

 

FN1. Plaintiffs are dissenters from a settlement involving a previous putative class action filed in this court some eight years ago, Sheehan v. FedEx Ground Package Sys., Inc., No. 1:05–cv–10936–RGS (D.Mass. May 6, 2005). The plaintiffs in Sheehan made the same improper classification claim and sought similar remedies under the Wage Law. Shortly after the case was filed, it was transferred by the Multidistrict Litigation (MDL) Panel to the Northern District of Indiana, where it was consolidated for pretrial purposes with a number of largely identical cases brought in numerous jurisdictions against FedEx. After the case was returned to this court, the Sheehan plaintiffs entered into a global settlement with FedEx. Plaintiffs in this case did not settle—either because they rejected the terms of FedEx’s offer or because they had been inadvertently omitted from or incorrectly identified on the list of eligible drivers provided by FedEx.

 

BACKGROUND

On joining FedEx, each of the plaintiff-drivers signed a standard Operating Agreement (Agreement) conferring a transferable interest in a Primary Service Area (PSA). Within his PSA, a driver had the exclusive right to make FedEx package pick-ups and deliveries, while operating from a FedEx terminal. The drivers received a weekly “settlement” from FedEx based on a weighted formula that took into account the number of a driver’s package pickups and deliveries, the total stops, and the density of the PSA.

 

The Agreement required a driver to provide his own delivery vehicle and to “bear all costs and expenses incidental to [its] operation.” FN2 Agreement §§ 1.1–1.3. The driver bore the responsibility of obtaining non-trucking liability insurance, physical damage insurance, and work accident and workers’ compensation insurance. Id. §§ 3.1, 3.6; add. 2, § 3.9. FedEx paid the insurance premiums and deducted the cost from the driver’s weekly settlement. FN3 FedEx also deducted the cost of a “business support package,” through which FedEx provided uniforms, package scanners, vehicle washes, and federally mandated drug testing. Id. add. 7; see also id. § 1.13; add. 11, § 1.4.

 

FN2. Vehicle costs borne by the driver included “all risks of depreciation, all maintenance (including cleaning and washing), fuel, oil, tires, repairs, business taxes, consumption and sales taxes, personal property taxes …, licenses, vehicle registration renewal fees, base plates, and all highway, bridge and ferry tolls.” Agreement § 1.3.

 

FN3. FedEx retained $1,000 of each driver’s earnings in escrow to fund any amounts due on a driver’s termination. Id. § 1.9. FedEx paid interest on the balance of the account at a rate equal to the average annual yield of contemporary thirteen-week U.S. Treasury bills. Id.

 

DISCUSSION

Section 148 of the Wage Act “requires prompt and full payment of [all] wages due.” Camara v. Attorney General, 458 Mass. 756, 759, 941 N.E.2d 1118 (2011). The Act provides in pertinent part that

 

[e]very person having employees in his service shall pay weekly or bi-weekly each such employee the wages earned by him…. No person shall by a special contract with an employee or by any other means exempt himself from this section or from section one hundred and fifty …

 

Mass. Gen. Laws ch. 149, § 148. An employee wrongly classified as an independent contractor may recover “any damages incurred, and [ ] any lost wages and other benefits.” Id. § 150. Plaintiff-drivers seek to recover the deductions FedEx made from their weekly settlements for the costs of the insurance premiums and the business support package. They also seek to be reimbursed their out-of-pocket costs for maintaining and operating their delivery trucks.

 

The first dispute as to which state law gives conflicting guidance is over the deductions taken by FedEx for work accident and workers’ compensation insurance premiums. FedEx maintains that plaintiffs have effectively waived this claim because they have not alleged that they were employees within the meaning of the Workers’ Compensation Act, Mass. Gen. Laws, ch. 152. Plaintiffs, for their part, argue that the Wage Act, ch. 149, § 148B, provides the definition of employee for purposes of determining whether an employer must provide workers’ compensation insurance.FN4

 

FN4. The Workers’ Compensation Act defines an “employee” as “every person in the service of another under any contract of hire, express or implied, oral or written.” Id. § 1(4). The Wage Act defines an employee as any person “performing any service,” who does not meet each of the three prongs of the independent contractor test of ch. 149, § 148B. FedEx contends that the common-law “right to control” test must be applied in determining whether the drivers are entitled to recover. See Fleming v. Shaheen Bros., Inc., 71 Mass.App.Ct. 223, 227, 881 N.E.2d 1143 (2008).

 

*2 FedEx finds support for its position in the Massachusetts Attorney General’s interpretation of section 148B’s application to chapter 152. FN5 In briefing the issue before the Fourth Circuit Court of Appeals, the Attorney General argued against preemption of section 148B by the Federal Aviation Administration Authorization Act of 1994. According to the Attorney General’s brief:

 

FN5. The Attorney General’s interpretation of the Wage Act is entitled to “substantial deference.” See Smith v. Winter Place LLC, 447 Mass. 363, 367–368, 851 N.E.2d 417 (2006) (“Insofar as the Attorney General’s office is the department charged with enforcing the wage and hour laws, its interpretation of the protections provided thereunder is entitled to substantial deference….”).

 

[b]y its own terms, 148B operates “[f] or the purpose of this chapter [149] and chapter 151,” otherwise known collectively as the Massachusetts Wage and Hour Laws. It does not serve as the definitional section of other state laws. For instance, the Attorney General’s 148B Advisory explained … [that] [t]he Massachusetts Workers’ Compensation Law [ ] provides a different definition of employee [from section 148B].

Br. of Amicus Curiae Att’y Gen. in Supp. of Plaintiff–Appellant at 7, Sanchez v. Lasership, Inc., No. 13–1478 (4th Cir. July 24, 2013), quoting An Advisory from the Atty. Gen.’s Fair Labor Div. on M.G.L. c. 149, s. 148B (2008).FN6

 

FN6. The Wage Act’s internal reference to Chapter 152 may be read to support either party’s argument:

 

[w]hoever fails to properly classify an individual as an employee according to this section and in so doing violates chapter 152 shall be punished as provided in section 14 of said chapter 152 and shall be subject to all of the civil remedies, including debarment, provided in section 27C of this chapter. Mass. Gen. Laws. ch.149, § 148B(d).

 

The plaintiff-drivers rely on Awuah v. Coverall N. Am., Inc., 460 Mass. 484, 952 N.E.2d 890 (2011) (Coverall II ), where it is stated that “an employer may not deduct insurance costs from an employee’s wages where those costs are related to future damages that may never come to pass…. Any such deduction constitutes ‘damages incurred’ for the purposes of the Wage Act.”   Id. at 497, 952 N.E.2d 890.FN7 Because in Awuah, the defendant-employer had “concede[d] the plaintiffs are employees for the purpose of the proceeding before us,” id. at 486 n. 3, 952 N.E.2d 890, there was no reason to decide whether the definitional differences of an employee in the two laws had any practical impact on recoverable Wage Act damages.

 

FN7. Coverall II further stated that “[a]n agreement between an employer and an employee that the employee will obtain insurance for the benefit of the employer also violates the Wage Act because it is a ‘special contract’ that has the effect of exempting the employer from the obligations to pay earned wages in full.” 460 Mass. at 497 n. 22, 952 N.E.2d 890 (emphasis added). The Court explained that “[a]n employer’s insurance costs, when borne by an employee, reduce wages just as effectively as if the employer had obtained the policy and deducted funds from the wages.” Id.

 

A second dispute arises from the plaintiff-drivers’ claim for reimbursement of the deductions taken by FedEx for the business support package and for their out-of-pocket vehicle maintenance and operation costs. Plaintiffs rely on the language of Coverall II for the proposition that FedEx’s requirement that its drivers “pay for FedEx’s business expenses out of their own pockets” was an illegal “special contract.” FN8

 

FN8. Plaintiffs also rely on the citations in Coverall II to C.F.R. § 531.35 implementing the Federal Fair Labor Standards Act of 1938 (FLSA). Coverall II, 460 Mass. at 497 n. 22, 498, 952 N.E.2d 890. Because the FLSA regulation distinguishes between expenses made for the benefit of the employer and those that benefit the employee, plaintiffs assert that the Supreme Judicial Court has implicitly adopted the position that all benefits conferred by the employee on the employer are recoverable under the Wage Act.

 

The “special contract” language in section 148, however, does not appear to prohibit any agreement between employer and employee, but, as FedEx points out, only agreements that permit an employer to “deduct[ ], or withhold[ ] payment of, any earned wages.” Camara, 458 Mass. at 760, 941 N.E.2d 1118 (emphasis altered). Although the statute does not itself define the term, “earned” in section 148 has been interpreted to mean “[t]o acquire by labor, service or performance.” Mass. State Police Commissioned Officers Ass’n v. Commonwealth, 462 Mass. 219, 226, 967 N.E.2d 626 (2012). Relying on this definition, the Massachusetts Appeals Court has held that “[i]n the ordinary course, the violation of a standard expense reimbursement arrangement would not constitute a violation of the Wage Act because the reimbursement is not compensation ‘earned’ by ‘labor, service or performance.’ ” Fraelick v. PerkettPR, Inc., 83 Mass.App.Ct. 698, 706, 989 N.E.2d 517 (2013), quoting Mass. State Police, 462 Mass. at 226, 967 N.E.2d 626.

 

*3 The decision of the Supreme Judicial Court in Coverall II and the Massachusetts Appeals Court’s decision in Fraelick appear to be in tension. Where Coverall II plainly states that an employer cannot effectively reduce an employee’s wages by shifting business costs to the employee, 460 Mass. at 497 n. 22, 952 N.E.2d 890, the Appeals Court in Fraelick appears to take the position that an agreement for an employee to bear business costs is not actionable under the Wage Act, as such an agreement does not diminish “earned” wages, 83 Mass.App.Ct. at 706, 989 N.E.2d 517.

 

An additional complication is presented by the U.S. District Court’s decision in Coverall I. In certifying previous Wage Act questions to the Supreme Judicial Court, Judge Young tentatively held that an employer’s deductions for the cost of supplies and equipment did not constitute “damages incurred” under ch. 149, § 150, because no statute required the employer to bear those costs (unless the deductions for business expenses reduced an employee’s earnings below minimum wage). Awuah v. Coverall N. Am., Inc., 740 F.Supp.2d 240, 243 (D.Mass.2010), citing 455 Code of Mass. Reg. § 2.04(1) (“No deduction, other than those required by law and those allowed for lodging and meals … shall be made from the basic minimum wage.”); see also 455 Code of Mass. Reg. § 2.04(2) (where employer requires employees to wear uniforms requiring “dry-cleaning, commercial laundering, or other special treatment, the employee shall be reimbursed for the actual costs of such service to the extent that these costs reduce the employee’s hourly rate below the basic minimum wage.”); see also Awuah v. Coverall N. Am., Inc., 2012 WL 910260, at *1 (D.Mass. Mar.12, 2012) (reaffirming the holding of Coverall I on remand). FN9

 

FN9. FedEx argues that the decision not to address the issue of business expenses deductions in Coverall II should be interpreted as an implicit agreement with Judge Young’s holding that the Wage Act does not allow for recovery of deductions taken from an employee’s earnings for job-related business supplies and equipment.

 

In this court’s opinion, the question of whether business expenses and deductions borne by employees are recoverable under the Wage Act is unsettled under state law. Guidance on these issues is important considering the frequency with which Wage Act claims are now being brought in this court. Although a federal district court sitting in diversity will attempt to discern the rule a state court would apply when no precedent is on all fours, see Norton v. McOsker, 407 F.3d 501, 506 (1st Cir.2005), a federal diversity court will not presume the competence or authority to expand rights and privileges under state law where state law appears fundamentally undecided or in conflict, Ryan v. Royal Ins. Co. of Am., 916 F.2d 731, 744 (1st Cir.1990). A federal district court may in such circumstances, however, certify questions to the highest court of the state (the Supreme Judicial Court) “if there are involved in the proceeding before it questions of law of [the Commonwealth of Massachusetts] which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of [the Supreme Judicial Court].” Mass. S.J.C. Rule 1:03, § 1.

 

ORDER

*4 Pursuant to Supreme Judicial Court Rule 1:03, the following questions of state law are certified by this court to the Supreme Judicial Court of Massachusetts:

 

1. Does the employee misclassification test under Mass. Gen. Laws ch. 149, § 148B, determine the employee status of a worker seeking to recover from an employer the cost of workers’ compensation insurance premiums under the Wage Act?

 

2. Does the Wage Act prohibit a contractual arrangement in which an employee agrees to have sums deducted from his earnings for employersupplied accouterments and equipment that are necessary for the employee’s performance of the job, specifically in this case mandatory uniforms and package scanners for package pick-up and delivery drivers?

 

3. Does the Wage Act prohibit a contractual arrangement in which an employee agrees to pay a third party (without reimbursement) for expenses such as vehicle maintenance and operation, that are necessary for the performance of the job?

 

This court also welcomes the advice of the Supreme Judicial Court on any other questions of Massachusetts law it deems material to this case.

 

The Clerk of the Court is directed to forward to the Supreme Judicial Court, under official seal, copies of this Memorandum and Order and the entire record of this case. This case shall be STAYED pending a response to the certified questions from the Supreme Judicial Court.

 

SO ORDERED.

United States District Court,

M.D. Pennsylvania.

Robert JOHNSON, Plaintiff

v.

PREDATOR TRUCKING, LLC; and Michael Pareja, Defendants.

 

Civil No. 1:13–CV–1683.

Feb. 10, 2014.

 

Richard E. Freeburn, Freeburn & Hamilton, Harrisburg, PA, for Plaintiff.

 

Stephanie L. Hersperger, Stephen E. Geduldig, Thomas, Thomas & Hafer, Harrisburg, PA, for Defendants.

 

MEMORANDUM

SYLVIA H. RAMBO, District Judge.

*1 In this civil action invoking this court’s diversity jurisdiction, Plaintiff has sued Defendants for injuries allegedly sustained as a result of an incident involving a tractor and trailer allegedly operated by Defendant Pareja and owned by Defendant Pareja’s employer, Defendant Predator Trucking. Presently before the court is Plaintiff’s motion to compel. For the reasons stated herein, Plaintiff’s motion (Doc. 17) will be granted in part and denied in part.

 

I. BackgroundFN1

 

FN1. Because the court writes primarily for the parties, it will only outline the background essential to this memorandum.

 

Plaintiff filed a complaint against Defendant Pareja sounding in negligence (Count I), and against Defendant Predator Trucking sounding in negligence based on vicarious liability (Count II) and negligent hiring/retention/supervision (Count III).FN2 (Doc. 1.) The parties are currently engaged in fact discovery, which is set to conclude on June 16, 2014. (See Doc. 15.)

 

FN2. A motion for leave to file an amended complaint is pending. The motion seeks to amend Plaintiff’s complaint by adding two additional counts and one additional defendant, inter alia.

 

This case concerns an accident that occurred on January 3, 2012, at Beck Aluminum Alloy LTD’s recycling center, located within the Middle District of Pennsylvania. Defendant Pareja, employed by Defendant Predator Trucking, was operating a vehicle, owned by Defendant Predator Trucking. The vehicle had been backed into the Beck Aluminum facility as the freight was being unloaded. Defendant Parej a allegedly caused the vehicle to move forward, which resulted in the rear tires of the trailer to strike Plaintiff, who was operating a forklift near Defendant Pareja’s vehicle. Plaintiff allegedly suffered serious injuries as a result of the incident.

 

The motion sub judice concerns various documents that Defendants have refused to produce during the course of discovery. The court has previously disposed of several issues previously raised. (See Doc. 20.) Pertinent to the outstanding dispute, Plaintiff requests FN3 that the court order Defendants to produce: 1) the complete set of Michael Pareja’s Driver’s Logs from December 15, 2011, through January 18, 2012; 2) certain photographs taken following the incident, including a set depicting a re-enactment of the incident and a set included in a report by Defendant Predator Trucking’s insurance adjuster; 3) Defendant Predator Trucking’s insurance adjuster’s report, dated March 10, 2012; 4) the claim file of Defendant Predator Trucking’s insurance adjuster pertaining to the January 3, 2012 incident; 5) documentation of safety training, courses, certifications, and internal safety policies and materials; 6) information pertaining to electronic communication devices in Defendant Pareja’s tractor at the time of the incident; and 7) DOT audits and exit reports for Defendant Predator Trucking, created from January 2007 to the present.FN4 (See Docs. 17, 18 & 23.) Pursuant to the court’s order dated December 12, 2013, Defendants have submitted the outstanding documents to the court for an in camera review.FN5

 

FN3. As is not uncommon when litigating matters presented by zealous and clearly capable attorneys, the exact parameters of Plaintiff’s motion to compel have become somewhat muddled through the parties’ artful—yet cautious—brief writing. To the extent the court fails to address an issue that has already been raised in the motion to compel, Plaintiff is invited to advise the court of its oversight.

 

FN4. As highlighted by Defendants in their duly authorized sur-reply, the argument concerning the DOT Audits was raised for the first time in Plaintiff’s reply brief. Although the court agrees that a reply brief is an inappropriate mechanism in which to raise new arguments or requests, it will exercise its discretion applicable to its ability to oversee discovery and overrule any objection raised by Defendants to the request based on this procedural technicality.

 

FN5. Defendants submitted Defendant Pareja’s logs from December 26, 2011, through January 31, 2012, despite the court’s order specifically directing Defendants to “submit Defendant Pareja’s driver logs from December 15, 2011, to January 18, 2012 … to the court for an in camera review.” (Doc. 20, ¶ 3.) The court assumes this was either an innocent oversight or due to the nonexistence of the logs for the eleven days preceding December 26, 2011.

 

II. Legal Standard

Rule 26(b) (1) of the Federal Rules of Civil Procedure defines both the scope and limitations governing the use of discovery in a federal civil action:

 

*2 Parties 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 and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

 

Fed.R.Civ.P. 26(b)(1). Issues relating to the scope of discovery permitted under the Rules rest in the sound discretion of the court. Wisniewski v. Johns–Manville Corp., 812 F.2d 81, 90 (3d Cir.1987). This discretion is guided, however, by certain basic principles. Thus, at the outset, it is clear that Rule 26’s broad definition of that which can be obtained through discovery reaches only “nonprivileged matter that is relevant to any party’s claim or defense.” Therefore, valid claims of privilege still cabin and restrict the court’s discretion in ruling on discovery issues. Furthermore, the scope of discovery permitted by Rule 26 embraces all “relevant information,” a concept which is defined in the following terms: “Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). The party resisting production bears the burden of establishing lack of relevancy, and must demonstrate that the requested documents either do not come within the broad scope of relevancy defined under subsection (b)(1) or else are of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption of broad disclosure. Continental Life Ins. Co. v. Shearson Lehman Hutton, Inc., Civ. No. 88–cv–9279, 1990 WL 209290, *2 (E.D.Pa. Dec.13, 1990).

 

The work product protection, which derives from Federal Rule of Civil Procedure 26(b)(3), states that “documents and tangible things otherwise discoverable,” but which were “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative” are not discoverable. Raso v. CMC Equip. Rental, Inc., 154 F.R.D. 126, 127 (E.D.Pa.1994). The party asserting the work product protection has the burden of demonstrating that the documents were “prepared in anticipation of litigation,” Conoco, Inc. v. United States Dep’t of Justice, 687 F.2d 724, 730 (3d Cir.1982). The mainstay of work product protection, and the gravamen of the instant dispute, lies in the deceivingly simple phrase, “in anticipation of litigation.” To determine whether a document was “prepared in anticipation of litigation,” the appropriate inquiry is “whether in light of the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” Maertin v. Armstrong World Indus., Inc., 172 F.R.D. 143, 148 (D.N.J.1997). Litigation need not be imminent as long as the main purpose behind the creation of the document was to aid in future litigation; however, the mere possibility of future litigation is insufficient to meet the “in anticipation of litigation” standard. Leonen v. Johns–Manville, 135 F.R.D. 94, 97 (D.N.J.1990); United States v. Rockwell Int’l, 897 F.2d 1255, 1266 (3d Cir.1990). Thus, a document that was prepared “in the ordinary course of business” may not be found to have been prepared in anticipation of litigation.

 

III. Discussion

*3 At the outset, the court notes that several of the aforementioned requested materials are no longer in dispute. Specifically, based on Defendants’ representations in their sur-reply, Defendants have fulfilled Plaintiff’s requests pertaining to documentation of safety training, courses, certifications, and internal safety policies and materials and information pertaining to electronic communication devices in Defendant Parej a’s tractor at the time of the incident.

 

A. Defendant Pareja’s Driver’s Logs

Plaintiff requested that Defendants produce Defendant Pareja’s Driver’s Logs from December 15, 2011, through January 3, 2012.FN6 Defendants objected on the basis of relevancy, arguing that the Federal Motor Carrier Safety Provisions require a commercial driver to retain a copy of his logs for only the previous seven consecutive days. Defendants reason that anything beyond seven days preceding the January 3, 2012 incident is irrelevant. Defendants, as the objecting party, have failed to sustain their burden in demonstrating the additional Driver’s Logs lack relevancy.

 

FN6. Plaintiff originally requested logs through January 18, 2012. Plaintiff has since conceded that any logs documenting Defendant Pareja’s status following the incident is not reasonably calculated to produce admissible evidence, and has therefore abandoned his request pertaining to Driver’s Logs from January 3, 2012, through January 18, 2012.

 

At this stage of the litigation, the court will exercise its discretion in accordance with the broad scope of discovery. While the court questions whether Defendant Pareja’s Driver’s Logs for December 15, 2011, through December 26, 2011, will be admissible as relevant in and of themselves, the court cannot definitively conclude that such evidence will not lead to the discovery of admissible evidence. Accordingly, Defendants will be compelled to produce Defendant Pareja’s Driver’s Logs from December 15, 2011, through January 3, 2012. If Defendants do not have a Driver’s Log for any date within the aforementioned period, Defendants will certify that such a document does not exist, and further certify whether one was ever created.

 

B. Photographs Depicting Reenactment of Incident

Plaintiff requested that Defendants produce photographs related to the January 3, 2012 incident. Defendants objected insofar as they claimed certain photographs depicting a reenactment of the incident were protected as non-discoverable by the work product protection. The court agrees with Defendants.

 

Defendants represent that the set of photographs was taken on April 5, 2012, over three months following the incident and after defense counsel was retained. Additionally, the photographs depict a reenactment of the incident, which is reasonably assumed to be related to defending the instant action. The court has little trouble concluding that the photographs were prepared in anticipation of litigation by Defendants’ representative. Accordingly, Defendants will not be ordered to provide copies of the photographs depicting a reenactment of the January 3, 2012 incident.

 

C. Frontier Adjuster Report

Plaintiff requested Defendants produce the insurance adjuster report prepared by Peter P. Tarsi. Defendants objected, claiming that the report was protected as non-discoverable work product. The court agrees with Defendants.

 

*4 The court concludes that the report was prepared in anticipation of litigation. The report is dated March 10, 2012, which was over two months from the date of the accident. Furthermore, the report indicates that Attorney William L.S. Ross, counsel for Beck Aluminum Alloys, had contacted Defendant Predator Trucking on February 28, 2012, and relayed that Plaintiff had obtained counsel in connection with the January 3, 2012 incident. Although the report was created several weeks prior to Defendants’ retaining defense counsel, the chance of litigation was certainly more than a “mere possibility.” Accordingly, the court will not compel Defendants to produce the March 10, 2012 report.

 

The same cannot be said of the photographs contained in the report. The court will compel Defendants to produce the photographs attached to the March 10, 2012 report. The report itself indicates that these photographs were created by the South Lebanon Police. Although the March 10, 2012 report was created by Defendants’ representative, the same cannot be said for the photographs attached thereto. Accordingly, Defendants will be compelled to produce the photographs attached to the March 10, 2012 report.

 

D. TCS–ONE Claims File

Plaintiff’s broad request for discovery also includes a Claims File, which contains, inter alia, a document titled “Major Loss Report.” Defendants objected, claiming that the report was protected as non-discoverable work product. After review, the court concludes that the file contains documents that were prepared in the ordinary course of business and are, therefore, discoverable. A document, prepared by Wendy Griffin, was prepared on February 16, 2012, slightly more than a month following the January 3, 2012 incident, and before Defendants became aware that Plaintiff had retained counsel. (See supra, Part III.C.) While there may have been a possibility of litigation as of February 16, 2012, as there is following any injury-causing event, the court cannot conclude the document was prepared in anticipation of litigation.

 

However, the February 16, 2012 document also contains work product of the adjusters in the nature of assessments. The court concludes this information to be non-discoverable and will permit Defendants to redact any work product in the nature of valuations, reserves, opinions, and mental impressions. Furthermore, Defendants will be entitled to withhold any portion of the claims file that the court has ruled is non-discoverable. Accordingly, Defendants will be compelled to produce, subject to redaction and exclusion in accordance with this memorandum, the claims file that was submitted to the court as Exhibit D for its in camera inspection.

 

E. Audits

Plaintiff requested that Defendants provide all DOT audits and exit reports from January 3, 2007, through the present. Defendants objected, claiming the request was overly broad and unduly burdensome. Plaintiff has since limited his request to coincide with the dates of Defendant Pareja’s employment, i.e., October 9, 2010, until January 3, 2012. The court finds that Defendants have failed to sustain their burden in demonstrating that Plaintiff’s request would be overly burdensome.

 

*5 At this stage of the litigation, the court will exercise its discretion in line with the broad scope of discovery. While the court questions whether the audits for October 9, 2010, through January 3, 2012, will be admissible as relevant in and of themselves, the court cannot definitively conclude that such evidence will not lead to the discovery of admissible evidence. Accordingly, Defendants will be compelled to produce DOT audits from October 9, 2010, through January 3, 2012. If Defendants do not have a corresponding audit for any time within the aforementioned period, Defendants will certify that such a document does not exist.

 

IV. Conclusion

Based on the foregoing reasons, Plaintiff’s motion to compel will be granted to the extent it seeks production of: (a) Defendant Pareja’s Driver’s Logs from December 15, 2011, through January 3, 2012 (see supra, Part III.A); (b) photographs taken by the South Lebanon Police Department that are attached to the March 10, 2012 report (see supra, Part III.C); (c) the claims file, including the February 16, 2012 report completed by Wendy Griffin, subject to redactions for adjuster’s work product and otherwise limited by this memorandum (see supra, Part III.D); and (d) DOT Audits from October 9, 2010, through January 3, 2012 (see supra, Part III.E). Plaintiff’s motion to compel will be denied in all other respects.

 

An appropriate order will issue.

 

ORDER

In accordance with the accompanying memorandum of law, IT IS HEREBY ORDERED that Plaintiff’s motion to compel (Doc. 17) is GRANTED IN PART and DENIED IN PART.

 

Defendants shall produce the following:

 

(1) Defendant Pareja’s Driver’s Logs from December 15, 2011, through January 3, 2012;

 

(2) The photographs taken by the South Lebanon Police Department that are attached to the March 10, 2012 report;

 

(3) The claims file, including the February 16, 2012 report completed by Wendy Griffin, subject to redactions for adjuster’s work product and otherwise limited by the memorandum accompanying this order; and

 

(4) All DOT Audits from October 9, 2010, through January 3, 2012.

 

Plaintiff’s motion is denied in all other respects.

 

For any document ordered to be produced but is not in existence, Defendants shall certify its nonexistence and further certify whether the document ever existed.

 

Defendants shall comply with this order within 21 days from the date of this order.