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Lofgren v. Polaris Industries Inc.

United States District Court, M.D. Tennessee, Nashville Division

April 30, 2018

CHRISTOPHER LARS LOFGREN
v.
POLARIS INDUSTRIES, INC.

          ORDER

          BARBARA D. HOLMES UNITED STATES MAGISTRATE JUDGE

          This matter is before the Court on a motion by Plaintiff, Christopher Lars Lofgren (“Plaintiff” or “Lofgren”), requesting that Defendant, Polaris Industries, Inc. (“Defendant” or “Polaris”), be precluded from using a document purporting to be an unredacted portion of a Ground Accident Investigation Report (“Safety Board Report”) in discovery or at trial and that Defendant be sanctioned for its prior conduct related to the Safety Board Report.[1] (Docket No. 49).

         The Court has reviewed and considered the motion, the parties' respective responsive filings, and exhibits and declarations appended to the filings. For the reasons below, Plaintiff's motion is GRANTED in part and DENIED in part.[2]

         I. BACKGROUND

         This case arises out of an incident involving the June 30, 2015 injury of Plaintiff at Fort Campbell in Tennessee while he was driving a vehicle manufactured by Defendant. (Docket No. 1 at 5). In response to the subject incident, the United States Department of the Army (“Army”) conducted two investigations. The first investigation proceeded under Army Regulation 15-6 (see Docket No. 52-2 at 6-7), a general investigatory regulation, which resulted in an AR 15-6 report (Docket No. 52-2 at 1-5) that was authorized for release and produced by the Army in this litigation, not subject to any privilege.[3] Later, an accident investigation followed under the provisions of Army Regulation 385-10 (see Docket No. 52-3 at 24), the purpose of which is to investigate all accidents to prevent future occurrences. A.R. 385-10 § 3-2. This investigation resulted in a 385 Ground Incident Report, also referred to as a Safety Board Report (Docket No. 52-3), a portion of which is at issue here.

         Counsel for Plaintiff attempted to obtain a copy of the Safety Board Report on February 1, 2017 by submitting a request for the document in accordance with the Army's Touhy regulations. (Docket No. 65-3). In response, the Army requested that the parties submit a joint Touhy request. (Docket No. 65 at 5). The parties followed up by submitting a joint Touhy request on February 10, 2017 asking for, among other things, “[a] complete and unredacted copy of the Safety Report.” (Docket No. 49-2).

         The Army, via legal counsel, responded to the parties' Touhy request on July 26, 2017 by producing a redacted copy of the Safety Board Report. (Docket Nos. 52-3 and 65-6). The accompanying email stated that “[a]ll redacted material was privileged safety information redacted pursuant to Department of Defense Instruction 6055.07 and Army Regulation 385-10.” (Docket No. 65-6). Importantly, the document contained a heavily redacted section titled “Findings and Recommendations Case Number 20150630.” (Docket No. 52-3 at 10).

         Defendant contends that, at some point after the incident but prior to the lawsuit, a Polaris employee, whose regular job responsibilities include acting as a point of contact between the Army and Defendant about Polaris military products generally, inquired of the U.S. Special Operations Command whether any reports of the Lofgren incident were available. (Declaration of Jed Leonard, Docket No. 65-2 at ¶¶ 2-5). Defendant further contends that, at a later unspecified date, but still before the present litigation began, the Polaris employee received an envelope containing an unredacted document, the first page of which has no official heading and begins with “Findings and Recommendations Case Number 20150630.”[4] (Id. at ¶ 6). The envelope displayed no return address and included no cover letter. (Declaration of Ernest H. Eubanks, Docket No. 65-4 at ¶ 5). Defendant contends that it believed the document was received in response to its informal inquiry. (Leonard Declaration, Docket No. 65-2 at ¶ 7).

         Defendant provided the unredacted Findings and Recommendations to Plaintiff on April 19, 2017 as part of the discovery process in this case. (Eubanks Declaration, Docket No. 65-4 at ¶ 7). After receiving the redacted version of the entire Safety Board Report in July 2017 (but without any other specificity as to timing), counsel for Defendant recognized that the findings and conclusions in the redacted Safety Board Report resembled the unredacted Findings and Recommendations previously received by Polaris. (Id. at ¶ 9). Defendant maintains that the “Report”, presumably referring to the unredacted Findings and Recommendations, “was openly discussed by the parties and the Court during [an] October 10, 2017 confidential settlement conference.” Id. at ¶ 10.

         According to Plaintiff, after the settlement conference held on October 10 and a review of documents produced by Defendant in discovery, Plaintiff's counsel likewise recognized that the Findings and Recommendations were similar in format to redacted sections of the Safety Board Report. (Docket No. 52 at 9).[5] Based on this review and discussions during the settlement conference, Plaintiff's counsel concluded that the Findings and Recommendations document received from Defendant in discovery was an unredacted version of some of the redacted portions of the Safety Board Report provided by the Army. (Id.). Plaintiff's counsel also determined that counsel for Defendant used the unredacted Findings and Recommendations during the settlement conference. (Id.). On October 16, 2017, counsel for Plaintiff advised Army counsel of the existence of the unredacted Findings and Recommendations. (Id. and Docket No. 49-3 at 4-5).

         Upon receiving this information, Army counsel inquired on October 17, 2017 via email how Defendant obtained an unredacted copy of the Findings and Recommendations. (Id.). In this email, Army counsel stated that they were “not aware of any waiver of the safety privilege in this case.” (Id.). After hearing Defendant's version of events, Army counsel responded by email to the parties on October 18, 2017 and stated that “the documents you received were released without authorization and in violation of Army policy. I will notify the parties if the Army intends to take action with regard to this matter.” (Id.). Army counsel followed up with a second email several hours later to clarify that “assuming the documents Polaris received are authentic, they were released without authorization and in violation of Army policy.”[6] (Id.).

         Defendant then made additional Touhy requests on October 23, 2017. (Docket No. 49-6). Within these requests, Defendant again asked for a complete and unredacted copy of the Safety Board Report. (Id. at 5). On October 27, 2017, before sending a response to Defendant's Touhy request, Army counsel emailed the parties to communicate that “the Army does not consider the safety privilege waived in this case and will assert the safety privilege if and when required to do so to protect the Army's interests.” (Docket No. 49-4). The Army, via counsel, responded to Defendant's additional Touhy requests on October 31, 2017. (Docket No. 49-7). The Army again declined to produce the unredacted copy of the Safety Board Report, stating that “Defendant's request also seeks [a deposition], as well as a complete, unredacted copy of the Ground Accident Investigation Report, information which falls under the Army's safety privilege. Both requests are therefore denied based on DOD and Army Regulations and instructions regarding safety privilege.” (Id.)

         The parties participated in a deposition on November 7, 2017, where Plaintiff alleges that counsel for Defendant read from a copy of the unredacted Findings and Recommendations. (Docket No. 52 at 7). Prior to participating in the deposition, counsel for Defendant advised Army counsel on October 23, that Defendant “had not determined whether it intended to introduce the document at some future point in the litigation.” (Eubanks Declaration, Docket No. 65-4 at ¶ 12). This exchange occurred during the discussions following Plaintiff's notification to the Army of the existence of the unredacted Findings and Recommendations, and was in response to a direct question from Army counsel to Defendant's counsel about what use, if any, Defendant had made of the documents “received anonymously relating to finding[s] and recommendations in the Lofgren accident, ” and “whether or not [Defendant] intends to attempt to introduce these documents during future litigation of this case.” (Id.). There is no indication that Defendant's counsel notified the Army of Defendant's intent to use the unredacted Findings and Recommendations during Plaintiff's November 7 deposition.

         This sequence of events, among other things, was the subject of a discovery conference on November 13, 2017 that resulted in an order to brief the issues. (Docket No. 45). In his motion and accompanying memorandum of law, Plaintiff requests that the Court decide two issues. First, whether Defendant should be precluded from using the privileged portions of the unredacted Findings and Recommendations, as well as all information gleaned from that document, in discovery and at trial in this case. Second, whether Defendant should be sanctioned for its use of the unredacted Findings and Recommendations, specifically whether counsel for Defendant should be disqualified, whether Defendant's defense of comparative fault should be stricken, or both.

         In its response, Defendant asserts that the Army has not invoked the safety privilege and that even if the privilege was asserted, it has been waived. Defendant maintains that, for these reasons, Plaintiff's motion to preclude the use of the unredacted Findings and Recommendations must be denied. Defendant further contests that Plaintiff's request for sanctions has any basis.

         II. ...


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