SHELBY JENSON, Plaintiff, v. LOWE'S HOME CENTERS, LLC, Defendant No. 1:22-cv-01100-JRS-CSW United States District Court, S.D. Indiana, Indianapolis Division Filed March 15, 2024 Counsel David J. Tipton, John C. Cox, Bleecker Brodey & Andrews, Indianapolis, IN, Jason A. Shartzer, Shannon Bogard Mize, Shartzer Law Firm LLC, Indianapolis, IN, for Plaintiff. Barath Shankar Raman, Katherine S. Strawbridge, Robert R. Foos, Madeline Leigh Richmond, Lewis Wagner, LLP, Indianapolis, IN, Christie A. King, Pamela A. Paige, Plunkett Cooney, P.C., Indianapolis, IN, for Defendant. Wildeman, Crystal S., United States Magistrate Judge ORDER ON PLAINTIFF'S MOTION TO COMPEL *1 This matter is before the Court on Plaintiff's Motion to Compel Discovery from Lowe's. (Dkt. 102). Defendants filed a Response in Opposition. (Dkt. 111). Plaintiff filed a Reply in Support. (Dkt. 114). Specifically, Plaintiff seeks the Court's assistance with six (6) separate requests: (1) order the production of the digital “Incident Report” form created by Gregg Johnson on the Lowe's Risk Management or corporate portal; (2) order Defendant to produce all documents on their Privilege Log; (3) order Defendant to re-answer Interrogatory 10, which seeks a response to whether Defendant or its insurer has received any complaints since May 8, 2018, of merchandise unexpectedly falling from upper or top shelving next to customer aisles and striking customers, nationwide. If so, also provide specific details of the complaint. Alternatively, order the Defendant to re-answer Interrogatory 10 as to Indiana and its border states of Michigan, Ohio, Kentucky, and Illinois; (4) order Defendant to re-produce documents related to RFP 15, which seeks all reports made by Defendant or its insurer since May 8, 2018, related to complaints of unexpectedly falling merchandise striking customers, nationwide. Alternatively, order the Defendant to re-produce documents related to RFP 15 as to Indiana and its border states of Michigan, Ohio, Kentucky, and Illinois; (5) order Defendant to produce the surveillance photos and report; and (6) impose sanctions on the Defendant, including awarding Plaintiff her attorney's fees. (Dkt. 102 at 2-3); see (Dkt. 103-4 at 7) (interrogatory 10); see also (Dkt. 103-11 at 11) (request for production 15). For the reasons set forth below, the Motion is GRANTED IN PART and DENIED IN PART. I. BACKGROUND To provide context for the Court's ruling on the pending motion, the Court briefly summarizes the current allegations as well as the relevant procedural history. Nothing set forth herein constitutes findings of the Court; rather, this limited background is intended to provide context for the issues presented by the parties in the present motion. Plaintiff Shelby Jenson went shopping with her mother and sister at a Lowe's store in Brownsburg, Indiana, on May 8, 2020. While in the store, Plaintiff suffered injury when at least one bag (perhaps more than one) of Scott's Turf Builder, each weighing forty (40) pounds, fell approximately fifteen (15) feet from upper shelving onto the Plaintiff. Defendant Lowe's admits they were negligent in storing the product. The parties dispute whether Plaintiff retained consciousness during the incident, as well as the extent of Plaintiff's injuries, but agree an ambulance was called to the scene to transporting Plaintiff to the hospital. Plaintiff originally filed her case in Hendricks Circuit Court on May 4, 2022, and Lowe's removed the case to this Court on May 27, 2022. (Dkt. 1). Trial is currently set for April 8, 2024, and a Final Pre-Trial Conference is set for March 21, 2024. (Dkt. 39). Recently, on January 10, 2024, Plaintiff deposed Gregg Johnson, an assistant store manager who was working on the date of the incident.[1] Plaintiff asserts Mr. Johnson's deposition revealed inconsistencies related to Defendant's discovery production. (Dkt. 103 at 3). Accordingly, Plaintiff asks this Court to order Defendant to enter certain orders to remedy any defects. II. LEGAL STANDARDS *2 Given the several requests made by Plaintiff, there are multiple legal standards of which the Court must reference to resolve the present disputes. The Court addresses each of them in turn. A. DISCOVERY, GENERALLY Fed. R. Civ. P. (“Rule”) 26(b)(1) discusses the scope of discoverable information, generally. Specifically, Rule 26(b)(1) provides that the information must be (1) nonprivileged; (2) relevant; and (3) proportional. Information does not need to be admissible in evidence in order to be discoverable. Fed. R. Civ. P. 26(b)(1). The Federal Rules of Evidence (“FRE”) 401 informs that evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” However, a party faces “a significant obstacle in arguing that evidence should be barred because it is not relevant, given that the Supreme Court has stated that there is a ‘low threshold’ for establishing that evidence is relevant.” United States v. Boros, 668 F.3d 901, 907 (7th Cir. 2012) (citing Tennard v. Dretke, 542 U.S. 274, 285 (2004)). Fed. R. Civ. P. 37(a)(3)(B) authorizes a party to file a motion to compel when an opposing party fails to disclose, answer, or respond to a discovery request. Fed. R. Civ. P. 37(a)(4) instructs that “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer or respond” for purposes of Rule 37(a). B. Protections from Disclosure Even with the low threshold test for relevance, courts recognize several mechanisms—known as privileges—which a party may invoke to protect itself from the obligation to disclose otherwise discoverable and relevant information. While some privileges are recognized nationally, some are state-specific. Federal Rule of Evidence 501 provides that “in a civil case, state law governs privilege ... [when] state law supplies the rule of decision.” Here, there are three separate interests at play: (1) the work-product doctrine; (2) the insurer-insured privilege; and (3) waiver of privilege. 1. THE WORK-PRODUCT DOCTRINE The work-product doctrine is a federally recognized protection, grounded in the Federal Rules of Civil Procedure, Rule 26(b)(3), and explicitly recognized in Fed. R. Evid. 502(g)(2). Specifically, Rule 26(b)(3) protects material “prepared in anticipation of litigation or for trial by or for a[ ] party or its representative.” This Court has previously stated that a party invoking the work-product doctrine “must demonstrate that the materials ... were prepared in anticipation of litigation.” Long v. Anderson, 204 F.R.D. 129, 136 (S.D. Ind. 2001). Our Circuit established in Binks the point in time at which a document is prepared in anticipation of litigation. Binks Mfg. Co. v. Nat'l Presto Indus., Inc., 709 F.2d 1109 (7th Cir. 1983). Specifically, “while litigation need not be imminent, the primary motivating purpose behind the creation of a document or investigative report must be to aid in possible future litigation.” Binks, 709 F.2d at 1119 (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C. 1982)). However, “[t]he mere fact that litigation does eventually ensue” is insufficient to invoke the work-product doctrine. Binks, 709 F.2d at 1118. Rather, “the party seeking to assert the work product privilege has the burden of proving that at the very least some articulable claim, likely to lead to litigation, has arisen.” Id. at 1119 (internal quotation omitted). *3 This Court, reviewing Binks, has noted additional complications which may arise in a “first-party” insurance case [where an insured seeks relief from their own insurer]. Stout v. Illinois Farmers Ins. Co., 150 F.R.D. 594 (S.D. Ind. 1993). In Stout, the Court determined “[a]n insurer's investigation and evaluation of an insured's claim in fulfillment of its contractual duties” muddied the water of whether a document was prepared in anticipation of litigation, requiring an even more stringent standard than Binks, although also providing a means to overcome the standard “by specific evidentiary proof of objective facts” that a party anticipated litigation Id. at 600, 605. To overcome the protection afforded by the work-product privilege, a party must show: (1) the materials are otherwise discoverable under Rule 26(b)(1); and (2) it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Fed. R. Civ. P. 26(b)(3). 2. THE INSURER-INSURED PRIVILEGE The insurer-insured privilege is not recognized by federal law, either statutorily or under the common law. However, the Indiana Supreme Court case of Richey v. Chappell, 594 N.E.2d 443 (Ind. 1992) established the recognition of the insurer-insured privilege in Indiana. That court held “where the policy of insurance requires the insurer to defend claims against the insured, statements from the insured to the insurer concerning an occurrence which may be made the basis of a claim by a third party are protected from disclosure.” Richey, 594 N.E.2d at 447. 3. WAIVER OF PRIVILEGE Federal Rule of Evidence 502 provides the legal standard concerning waiver in a federal proceeding. Specifically, FRE 502 requires as a threshold matter that “disclosure is made in a federal proceeding... [which] waives the attorney-client privilege or work product protection.” Fed. R. Evid. 502 (emphasis added). Once such a disclosure is made, a party may move to compel other undisclosed information “only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communication or information concern the same subject matter; and (3) they ought in fairness to be considered together.” Fed. R. Evid. 502. III. DISCUSSION Turning to the specific at-issue items of discovery presented in the Motion: (1) the “Incident Report” prepared by Gregg Johnson; (2) Defendant's privilege log; (3) Interrogatory 10; (4) RFP 15; (5) the surveillance report; and (6) attorney's fees. A. THE “INCIDENT REPORT” PREPARED BY GREGG JOHNSON Plaintiff insists Defendant is withholding an “Incident Report” prepared by then-assistant manager Gregg Johnson. (Dkt. 103 at 10). Defendant produced a “Statement Regarding 5/8/2020 Incident Involving Customer Shelby Jenson at Lowe's Store #2681” in their Fourth Supplement Response on February 12, 2024. Id. Plaintiff contends this disclosure is not Mr. Johnson's “original report of the incident.” Id.; (Dkt. 90-1 at 8). The parties make much ado about whether Mr. Johnson entered a “report” or a “description” of the incident. The classification of the form Mr. Johnson entered his day-of-incident information on is irrelevant. Mr. Johnson was asked if he submitted a “digitized form,” and he responded “[y]es.” (Id. at 51-52). This is sufficient for the Court's analysis. Mr. Johnson testified that he “entered [the form] online on [Defendant's] risk management site on [Defendant]’s corporate computer.” (Id. at 50). Apparently, the form was not “standardized,” but did have specific “questions” for the preparer to answer, such as customer information, nature of the incident, location, description, and whether the injured person required medical attention. (Id. at 51-52). *4 The statement of Gregg Johnson – which Defendant produced – covers most of the information Mr. Johnson testified was the “form” fields he completed. Additionally, Defendant produced a “Call Information” sheet, which details questions like location of injury, involved products, and/or involved vehicles. (Dkt. 103-11 at 16). The three requirements to discover information under 26(b)(1) are that the information sought is (1) nonprivileged; (2) relevant; and (3) proportional. The question of whether any privilege applies to the “Incident Report” sought by Plaintiff is unclear because the parties have a fundamental disagreement about whether any such additional report exists. Defendant states unequivocally, “[n]o such ‘Incident Report’ exists, or it would be in Lowe's privilege log,” but does not detail what such privilege would apply (Dkt. 111 at 7). The Court need not resolve the parties’ disagreement in this regard, however. Notably, the Defendant has already admitted liability as to ordinary negligence. (Dkt. 109 at 4). The Plaintiff has made no showing of how the “Incident Report” would be relevant in the current posture of the case. The only argument advanced by Plaintiff in relation to relevance of this item is their reference to another section of their brief,[2] which asks the Court to order the production of: ...all requested documents as stated. Then the parties can be on equal footing to sort through the claims to determine what is relevant and what isn't. (Dkt. 103 at 28). This suggestion of procedure is not in accordance with the Federal Rules, however. Rule 26(b)(1) requires that information sought is shown to be (1) nonprivileged; (2) relevant; and (3) proportional. The Rules do not contemplate Plaintiff's suggestion for the Court to first order the production of documents and then, determine later have the parties whether they are relevant. Rather, the need for production is predicated on a showing of relevance as a threshold issue. Here, the Plaintiff has also failed to show proportionality. Rule 26(b)(1) requires the information sought to be proportional to the needs of the case, considering the parties’ access to relevant information, the importance the information in resolving the issues, and the weight of the burden compared to the likely benefit. Again, the Plaintiff has failed to show how the information would resolve the issues still present in the case. While the Court does note there likely is little burden of producing a singular, digital document, the Court also notes it would be quite burdensome indeed to attempt to produce something that does not exist. Defendant has stated unequivocally that the document does not exist. (Dkt. 111 at 7). Further, Plaintiff's reply brief states “Lowe's finally produced the Incident Report (or Gregg Johnson's narrative portion of it),” leaving open the question of whether another version actually exists. (Dkt. 114 at 4). Because Plaintiff has not convinced the Court the “Incident Report” she seeks is relevant—nor that it even exists—the Plaintiff's motion to compel is DENIED. B. DEFENDANT'S PRIVILEGE LOG *5 Plaintiff challenges the Defendant's privilege assertions as to all seven (7) documents listed on Defendant's privilege log. These items include claims notes by Defendant's Legal Claims Specialist, several emails between the Legal Claims Specialist and various other employees of the Defendant, and a General Liability Claim Report created at the direction of in-house counsel. Defendant has asserted work-product protections to all seven of the documents, and insurer-insured privileges as to six of them. (Dkt. 111 at 15). 1. WORK-PRODUCT DOCTRINE Plaintiff contends the work-product doctrine “protects documents prepared by an attorney or the attorney's agent in anticipation of litigation.” (Dkt. 103 at 12) (emphasis added). Plaintiff continues, “[i]n determining whether documents are protected as work product, the court must examine whether the sought-after documents convey an attorney's thought processes and mental impressions.” Id. (emphasis added). Plaintiff is incorrect. Rule 26(b)(3) protects “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.” Fed. R. Civ. P. 26(b)(3) (emphasis added). Thus, the question is not only whether the documents were prepared by an attorney or the attorney's agent. Rather, the party invoking the doctrine “must demonstrate that the materials ... were prepared in anticipation of litigation.” Long, 204 F.R.D. at 136. The Court notes Plaintiff has not attempted to show she is entitled to the documents if the work-product doctrine does apply. Plaintiff has not shown the documents are otherwise discoverable under Rule 26(b)(1), that she has a substantial need for the materials, or that she would face undue hardship in obtaining their substantial equivalent by other means. Plaintiff cites Stout v. Illinois Farmers Ins. Co., 150 F.R.D. 594, 604 (S.D. Ind. 1993) in support of her argument that the work-product doctrine does not protect the Defendant's documents. However, Stout was a first-party insurer case, which had different considerations than the underlying Binks decision from the Seventh Circuit. Defendant cites the quick turnaround from the incident on May 8, 2020, to the time Plaintiff informed them of legal representation on May 13, 2020, as evidence that Lowe's anticipated litigation. (Dkt. 111 at 9). While the “mere fact that litigation actually ensue[d],” does not automatically justify a claim of the work-product doctrine, this was not an ordinary “slip-and-fall” case. See Binks, 709 F.2d at 1118. Rather, according to the Plaintiff, “hundreds of pounds of fertilizer bags fell on [Plaintiff] ... knocking her to the concrete floor unconscious.” (Dkt. 103 at 3). This kind of claim is the type of “articulable claim, likely to lead to litigation” that Binks contemplated. 709 F.2d at 1119. Defendant was aware of the severity and unique nature of this case from the time of the incident. 2. INSURER-INSURED PRIVILEGE Defendant also asserts the insurer-insured privilege as a basis for withholding six of the seven documents. While the insurer-insured privilege is not recognized federally, this case is before the Court pursuant to the Court's diversity jurisdiction. (Dkt. 1). Because Indiana law supplies the rule of decision, legal privileges recognized by Indiana apply. See Fed. R. Evid. 501. Indiana recognizes the insurer-insured privilege. Richey v. Chappell, 594 N.E.2d 443 (Ind. 1992). The Court finds no other decision analyzing the effects the insurer-insured privilege from Richey in the context of a self-insured party's internal communications. Sowell v. Dominguez discussed a self-insured party's communications with an outside investigator, who also happened to be an insurer, though the outside investigator did not insure the party. 2010 WL 4974558 (N.D. Ind. Dec. 1, 2010). *6 The Court finds the analysis of a self-insured party to be much more similar to a third-party insurance dispute than a first-party insurance dispute. In a first party case, “the Trial is the file,” meaning the case largely rests on a decision of coverage for an underlying claim. However, in a third-party insurance case, the question of coverage is not necessarily the focus. Rather, in a third-party case, the defendant and their insurer are gathering information in order to investigate and evaluate the claim and, when litigation is anticipated, in order to evaluate and determine whether to mount a defense. Therefore, the Court finds that in this instance, even with Lowe's as a self-insured entity, the documents identified as protected from disclosure pursuant to the insurer-insured privilege are indeed protected in accordance with Richey. 3. WAIVER Plaintiff advocates that because Defendant was dilatory in providing a privilege log, any assertion of privilege has been altogether waived. Plaintiff is correct that FRE 502 governs waiver of privilege in federal courts, even when concerning state-specific privilege analyses. Plaintiff is also correct that Defendant should have produced a privilege log sooner than it actually did in accordance with Rule 26(b)(5)(A). However, the Court does not find that Defendant has waived the privileges. While the Court does not condone the overdue production of Defendant's privilege log, the Court does not find the proper remedy is to force Defendant to produce otherwise-privileged documents. The Defendant did assert the privileges within its responses to discovery requests and did timely produce the privilege log after a telephonic discovery conference with the Court. Therefore, Defendant has not waived its assertion of privilege. The request for Defendant to produce all documents on Lowe's privilege log is DENIED. C. INTERROGATORY 10 AND REQUEST FOR PRODUCTION 15 The Plaintiff also seeks an order compelling amended answers and additional documents related to Interrogatory 10 and Request for Production 15, which request information regarding other complaints of falling merchandise within the two years preceding the incident, nationwide. As a product of a meet-and-confer effort, the parties apparently agreed that Defendant would supplement its answers to the discovery requests to include as “all Indiana stores over the last three years for any ‘other incidents involving falling merchandise not caused by human interference.’ ” (Dkt. 103-13 at 1-6). Defendant has responded to RFP 15 in that manner, stating there were no incidents within that description at a Lowe's store in Indiana within the last two years. The Court notes the discrepancy between RFP 15 as drafted (May 2018 – May 2020), Defendant's proposal on December 15, 2023 (“over the last three years”), and Defendant's Fourth Amended Response (“within the last two years”). It is unclear whether Lowe's is calculating “the last [number of] years” from the date of the search or the date of the Incident. The Plaintiff apparently doubts the veracity of Lowe's responses, citing research Plaintiff has gathered from publicly available information. Yet, again, the threshold question for compelling information through discovery are whether material is (1) nonprivileged; (2) relevant; and (3) proportional. Fed. R. Civ. P. 26(b)(1). Defendant has not argued in its Response that these discovery requests seek privileged information. However, Plaintiff has conceded that if there are indeed other incidents, some of them may not be relevant. Yet, Plaintiff requests the Court compel Lowe's to submit amended answers and related production to then permit both parties to “sort through the claims to determine what is relevant and what isn't.” (Dkt. 103 at 28). This is not the discovery framework permitted by Rule 26(b)(1). By extension, this framework is also unsupported by Rule 33 and Rule 34, which both limit discovery requests to within the scope of Rule 26(b). See Fed. R. Civ. P. 33(a)(2) and Fed. R. Civ. P. 34(a). *7 The Court finds the requirements under 26(b)(1) are not met, and accordingly DENIES the request for additional discovery as to Interrogatory 10 and Request for Production 15. D. THE SURVEILLANCE REPORT Trial is on the horizon. The parties have filed final exhibit lists which contain any evidence they seek to use at trial. Defendant has included on its final exhibit list, filed on March 7, 2024, “[p]hotographs or videos of Plaintiff taken during video surveillance on October 5-6, 2023, during the site inspection of the Lowe's Store on November 3, 2023, or Tik Tok video of Plaintiff taken by Rachel McLaughlin.” (Dkt. 118 at 4). To date, Defendant has produced only two videos of Plaintiff. (Dkt. 103 at 29); see also (Dkt. 142 at 2-3). Plaintiff correctly notes the Third Amended Case Management Plan (Dkt. 77) requires exhibits on a final exhibit list must be made available to opposing counsel. Defendant argues Rule 26(b)(3) protects it from disclosing these documents, but the argument is unconvincing. Courts abandoned long ago the idea that cases should be “trial by ambush.” Instead, discovery is intended to be a fully transparent and cooperative endeavor. Plaintiff requests more than what is on Defendant's final exhibit list, however. Plaintiff seeks the photographs and report prepared for Defendant by the outside surveillance company hired by the Defendant. Once more, the Court revisits the Rule 26(b)(1) standards. Starting with proportionality, the Court notes Plaintiff has no other mechanism to access the report. Next, Defendant has not included the report on its privilege log, though the Court notes the report was prepared for Defendant's attorney, and the work-product doctrine applies. Work-product aside, however, the Plaintiff still has failed to show how the report is relevant. While the Court overrules the effort to obtain a copy of the report, this Court did make clear to the parties on a recent telephonic discovery dispute call that exhibits on the final trial exhibit lists must be made available to the other party. Therefore, the request for the surveillance is GRANTED IN PART and DENIED IN PART. Defendant must produce: (1) photographs or videos of Plaintiff taken during video surveillance on October 5-6, 2023; (2) photographs or videos of Plaintiff taken during the site inspection of the Lowe's Store on November 3, 2023; and (3) TikTok videos of Plaintiff taken by Rachel McLaughlin. Absent good cause, the Parties may not use any exhibit at trial which has not already been produced to the other party. The report prepared by the surveillance need not be produced. E. ATTORNEY'S FEES Federal Rules of Civil Procedure 26 and 37 provide that a prevailing party may be awarded expenses incurred in making or responding to a motion to compel or motion for a protective order. Fed. R. Civ. P. 26(c)(3); Fed. R. Civ. P. 37(a)(5). Payment will not be ordered if the losing party's actions were substantially justified, or if other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A), (B). The Court finds that while there are certainly opportunities for improvement in the timing of discovery requests and specific production in this case, there has been no circumstance shown suggesting that either party acted in a manner that was not substantially justified. *8 Therefore, the Court DENIES the request for attorney's fees. IV. Conclusion To summarize, the Plaintiff's Motion to Compel Discovery from Lowe's (Dkt. 102) is GRANTED IN PART and DENIED IN PART. The following ORDERS are entered: (1) Plaintiff's request for the “Incident Report” is DENIED. (2) Plaintiff's request for Defendants to produce documents their privilege log is DENIED. (3) Plaintiff's request for additional discovery related to Interrogatory 10 and Request for Production 15 is DENIED. (4) Plaintiff's request for the surveillance conducted by Defendant is GRANTED IN PART and DENIED IN PART. a. The request for the surveillance report is DENIED. b. The request for photographs and videos of Plaintiff is GRANTED. Defendant is ORDERED to produce: (1) photographs or videos of Plaintiff taken during video surveillance on October 5-6, 2023; (2) photographs or videos of Plaintiff taken during the site inspection of the Lowe's Store on November 3, 2023; and (3) TikTok videos of Plaintiff taken by Rachel McLaughlin. (5) Plaintiff's request for attorney's fees is DENIED. SO ORDERED. Distributed electronically to all ECF-registered counsel of record. Footnotes [1] To avoid any doubt, the Court notes Gregg Johnson was deposed as a fact witness, not a 30(b)(6) designee. See (Dkt. 90-1 at 56) (“the Court would note that this deposition of Mr. Gregg Johnson is noticed as a fact witness deposition”); see also (Dkt. 90-1 at 58) (“this is not a 30(b)(6) deposition”). [2] Plaintiff says, “Lowe's continues to withhold documents from Plaintiff relevant to Plaintiff's punitive damage claim (see next section as well to “other falling merchandise claims).” (Dkt. 103 at 11).