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Jaroslaw Wielgus v. Ryobi Technologies

December 10, 2010

JAROSLAW WIELGUS, PLAINTIFF,
v.
RYOBI TECHNOLOGIES, INC., ONE WORLD TECHNOLOGIES, INC., AND HOME DEPOT USA, INC., DEFENDANTS.
RYOBI TECHNOLOGIES, INC., ONE WORLD TECHNOLOGIES, INC., AND HOME DEPOT USA, INC., THIRD-PARTY PLAINTIFFS,
v.
JTD CONSTRUCTION, INC., THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Young B. Kim

MEMORANDUM OPINION and ORDER

Before the court are the motions of plaintiff Jaroslaw Wielgus*fn1 ("Wielgus") and third-party defendant JTD Construction, Inc. ("JTD") for reconsideration of the court's August 4, 2010 ruling. On August 4, 2010, the court granted third-party defendants' ("defendants") motion to compel and required the production of certain documents withheld by JTD based on the attorney-client and attorney work-product privileges. For the following reasons, the motions are denied:

Background

JTD employee Wielgus sustained injuries in March 2006 while using a power saw manufactured and distributed by the defendants. Wielgus submitted a claim for and Travelers paid him workers' compensation benefits. Wielgus also filed this instant product liability case in March 2008 against the defendants on the basis that the subject power saw was unsafe as it lacked a flesh-detection safety feature and that the lack of this feature caused him serious injuries. Because Travelers compensated Wielgus in his workers' compensation claim against his employer JTD, both Wielgus and Travelers have a stake in this lawsuit. In defense of this action, the defendants filed a third-party complaint against JTD. The defense of JTD in this action is also financed by its insurer, Travelers.

On December 5, 2008, the defendants served a subpoena on Travelers for "[a]ny and all records relating to worker's compensation cause no. FZW2491, Jaroslaw Wielgus v. JTD Construction, Inc." The subpoena ordered Travelers to produce the records by December 22, 2008. (R. 98, Ex. A.) Travelers did not respond to the subpoena and did not seek a protective order. (R. 98.) On November 3, 2009, the defendants served Travelers with a more detailed subpoena requesting documents pertaining to Wielgus' workers' compensation claim against JTD. (R. 98, Ex. B.) This second subpoena required a response from Travelers by November 17, 2009. Travelers again did not respond to the subpoena or petition the court for a protective order.

However, on December 4, 2009, JTD advised the defendants that Travelers sent the documents responsive to the subpoena to JTD. (R. 98, Ex. C.) JTD further advised that it was withholding these documents based on "attorney-client and/or attorney work product privileges." (Id.) Ten days later, on December 14, 2009, the defendants asked JTD to provide them with a detailed privilege log. (R. 96, Ex. D.) JTD did not release any logs explaining the nature of the privilege it asserted.

On March 10, 2010, the defendants again requested JTD to provide a privilege log within 14 days. (R. 96, Ex. D.) JTD ignored this request as well. Then on April 6, 2010, the court ordered JTD to either produce the documents responsive to the Travelers subpoena or to submit a privilege log to the defendants by April 20, 2010. (R. 88.) JTD ignored this order and offered the defendants nothing. On May 26, 2010, the parties appeared for a status hearing. When asked by the court why JTD failed to produce the ordered privilege log, JTD did not have a response. JTD merely asked for another chance to produce its privilege log. The court granted the oral request and permitted JTD one more chance to produce a privilege log by June 11, 2010. (R. 92.) On June 9, 2010, JTD finally sent the defendants its privilege log in response to the documents they asked for in its subpoena to Travelers. (R. 93.)

On July 6, 2010, the defendants filed a motion to compel JTD or Travelers to produce the documents requested in their third-party subpoena. (R. 98.) On July 8, 2010, the court gave JTD until July 15, 2010, to file its response to the defendants' motion to compel. (R. 100.) JTD then filed a motion for an in camera inspection of the subpoenaed documents on July 8, 2010. (R. 101.) Neither JTD nor Travelers filed a response to the motion to compel. On July 20, 2010, the court denied JTD's motion noting that if an in camera inspection of certain documents was needed to rule on the pending motion to compel, the court would notify the parties. (R. 104.) On August 4, 2010, the court granted in part and denied in part the defendants' motion to compel. (R. 107, 125.) The court ordered JTD (as corrected) to turn over a copy of the documents identified in the Memorandum Opinion and Order as 1-6, 10, 11, 14, 15, 17, 22-27, and 29-36 to the defendants by August 20, 2010. (Id.)

On September 20, 2010, the court held a status hearing and gave JTD until October 8, 2010, to either file a motion for reconsideration of the August 4, 2010 order, or to comply with the order. (R. 112.) On October 8, 2010, JTD filed a motion for reconsideration. (R. 116.) JTD also moved to require the defendants to return certain privileged documents that it had erroneously disclosed to them. (Id.) Travelers also filed a motion for reconsideration of the August 4, 2010 order. (R. 119.) This was the first time since the defendants issued their third-party subpoena to Travelers in December 2008 that Travelers voiced an objection to turning over its records pertaining to Wielgus.

On October 22, 2010, the court held a status hearing and denied the two motions for reconsideration without prejudice. (R. 123.) However, the court granted JTD's motion seeking the return of certain privileged documents it erroneously disclosed to the defendants.

(Id.) The court ordered the defendants to destroy the privileged documents as well as any copies made of those documents. (Id.) The court further ordered the defendants to confirm the destruction of those documents by October 29, 2010, by providing either a fax or e-mail confirmation to JTD. (Id.)

At this status hearing, Travelers and JTD also orally moved for clarification of the court's August 4, 2010 order about which documents JTD was required to turn over to the defendants. (R. 123.) They explained that the court had denied the defendants' motion to compel as to documents 12 and 13, but also ordered their production. (R. 124.) They also pointed out that the privilege log prepared by JTD should have listed 36 documents, not 37 documents because JTD erroneously listed one group of documents twice on the log. (Id.) The court granted their oral motion and advised the parties that a clarification order would be issued by October 29, 2010. (R. 123.) The court also gave JTD until November 5, 2010, to file an amended motion for reconsideration. (Id.)

On October 29, 2010, the court entered an Amended Memorandum Opinion and Order nunc pro tunc to August 4, 2010, remedying the document conflicts identified by Travelers and JTD. (R. 124, 125.) A few days later, on November 3, 2010, and on November 5, 2010, JTD and Travelers filed their motions for reconsideration. (R. 128, 129.) The defendants filed their response in opposition to the motions on ...


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