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Lakes v. Bath And Body Works, LLC

United States District Court, E.D. California

May 24, 2018




         Introduction and Summary

         Plaintiff has brought a second motion to compel discovery (ECF 64), and defendant has brought its first (ECF 58). The parties utilized one joint statement for both motions, yet unfiled, and this order will likewise address both motions. For the reasons that follow, plaintiff's motion is granted in part and denied in part; defendant's motion is denied with the exception of one in-court representation by plaintiff's counsel.

         The undersigned will not issue a sealing order for the yet-to-be- filed Joint Statement. Background Facts

         The parties each do their best to convince the undersigned that each should win the case. However, for the purposes of these discovery motions, the undersigned will use the more sterile recitation of facts which were set forth in the Order following plaintiff's initial motion to compel. ECF No. 40. Facts pertinent to each disputed issue will be set forth in each section herein as necessary.

         Plaintiff sues for damages arising from an incident in which a candle sold by Defendant “exploded” when she attempted to put it out, splashing and burning her with the melted, molten wax, inflicting what she characterizes as significant injuries and permanent scarring. ECF No. 2 at 9. In an action originally filed in Sacramento Superior Court which was removed to this court on diversity jurisdiction, 28 U.S.C. section 1332, id. at 2, she states claims for general negligence, id. at 9, and products liability, id. at 10, and seeks recovery of general and exemplary damages. Id. at 11. Plaintiff does not specifically allege whether claims are based upon a theory of product design or product manufacture, but she does claim failure to warn of the potential danger in the use of the candle. Id. at 12-13. The specific product at issue is described as “a three-wick Bath & Body Works Aromatherapy - Eucalyptus Spearmint scented candle purchased through ECF 2 at 18.

         To make a long order short (ECF 40), after conducting a proportionality analysis, the undersigned required production of information related to three wick candles in general that were manufactured or distributed by defendant. Most relevant to the issues here, defendant was required to produce information related to flaring or explosion of candles, referred to by defendant as “flash-overs.” That last term will be used as the universal reference for the candle problems alleged in this case.

         Part of the production by defendant herein included a spread sheet or chart listing 1, 283 potential candle flash-over incidents (perhaps containing some “high flames” incidents as well) since 2005. Many of the disputed issues raised by plaintiff's motion that is resolved in this order directly or indirectly revolve around that chart.


         The undersigned will discuss all issues, but in an order which makes more sense in light of the rulings herein, i.e., some later issues depend in part or in whole on the resolution of the issues first discussed. ////

         A. SEA Reports

         SEA is a firm hired by defendant to analyze reports that were generated from consumer complaints involving candle fires or flash-overs. According to plaintiff, discovery has indicated so far that when a person called into a Bath and Body call center with a complaint about a candle's flash-over incident a scripted response was given, the generic substance of which was --such an incident has never occurred with this candle, but could you give us more information about your incident. The information (sometimes ultimately including pictures and the candle itself) was given to corporate officials who then forwarded the information to its lawyers, who then retained the forensic engineering firm, SEA. Reports regarding each incident were then generated by SEA. See Osterman Declaration, Exhibit 11.[1]

         These reports, as produced to plaintiff, contained nothing but redactions for the most part, i.e., no information was given. However, the production was not consistently redacted, and some few reports contained more or less information about the analysis of a particular candle incident.

         Defendant claims that all the SEA reports are protected by the attorney work product doctrine because the information transmitted to SEA was transmitted “in anticipation of litigation.” It does appear from the facts, however, that any flash-over complaint received by defendant was sent off to SEA regardless of the imminence or reality of any litigation. Plaintiff recounts one example where an attorney initiated retention of SEA was undertaken where the complainant specifically told the information gatherers that she was not going to sue anyone.

         Work product is not a “privilege, ” but is rather a doctrine initially created by the courts to protect the industry of counsel who were preparing their client's cases for trial or other proceeding. See Admiral Ins. Co. v USDC, Arizona, 881 F.2d 1486, 1494 (9th Cir. 1989). The party seeking work product immunity has the burden of demonstrating the conditions for its application. Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 634 (D.Nev. 2013). There are two types of work product: the less protected factual investigations (“qualified”), and the more protected attorney thought processes themselves (sometimes referred to as “absolute”). Only qualified immunity is at issue here. However, the sine qua non for any work product immunity is that the information for which protection is sought was acquired by the transmitting attorney in anticipation of litigation.

         The courts are not completely uniform in their determinations of what circumstances must exist in order for investigations of facts can be found to have been “made in anticipation of litigation.” It is nonetheless clear that, at one end of the spectrum, investigations mandated by law or even company policy are not protected regardless of whether the information might later see the light of day in litigation. See Miller v. Pancucci, 141 F.R.D. 292, 303 (C.D.Cal. 1992). Investigations specifically commissioned for the purpose of obtaining information for use in a specific litigation are clear work product at the other end of the spectrum. The various standards used for grayer work product situations -- the so called “dual purpose” situations -- are well set forth in Garcia v. City of El Centro, 214 F.R.D. 587, 592-593 (S.D. Cal. 2003). However, the Ninth Circuit has spoken to the standard to be utilized in dual purpose situations, and that is the standard which will be used herein:

To qualify for work-product protection, documents must: (1) be “prepared in anticipation of litigation or for trial” and (2) be prepared “by or for another party or by or for that other party's representative.” In re Grand Jury Subpoena, Mark Torf/Torf Envtl. Mgmt. (Torf), 357 F.3d 900, 907 (2004). In circumstances where a document serves a dual purpose, that is, where it was not prepared exclusively for litigation, then the “because of” test is used. Id. Dual purpose documents are deemed prepared because of litigation if “in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.” Id. In applying the “because of” standard, courts must consider the totality of the circumstances and determine whether the “ ‘document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of litigation.' ” Id. at 908 (quoting United States v. Adlman, 134 F.3d 1194 (2d Cir.1998)).

United States v. Richey, 632 F.3d 559, 567-568 (9th Cir. 2011)

         Clearly, despite the conclusion of counsel, Exhibit 11, the SEA reports cannot be viewed to have been created “because of” litigation. Simply because the potential for litigation is “in the air” or remotely forseeable does not give rise to anticipation of litigation. Phillips, supra, 290 F.R.D. at 635. As set forth above, it appears that the references to SEA were routinely (and perhaps for laudable reasons) made for the business purpose of simply investigating the possible flash-over of a candle regardless of the potential for litigation. As plaintiff points out, at least one complainant referred to SEA for analysis disclaimed any intent to file litigation. The reference to SEA has all the earmarks of a business policy to ensure that every reference to SEA was made at the rubber stamp, behest of counsel - just to cover the remote chance litigation would arise, and to attempt to ensure that all investigations could be undertaken with the cloak of work product secrecy. Exhibit 11 does not indicate in any way the percentage of complaints which ultimately resulted in litigation, and the undersigned finds the lack of this information telling. Indeed, drawing an adverse inference from the lack of this important information, it appears probable that the vast majority of incidents never saw the inside of a courthouse; the complainants were given a gift card or refund and such was the end of the matter. It appears that the preeminent reason for referring every incident to SEA, or at least the number that were referred, was to monitor the Bath and Body candle design/manufacture or distribution. This is predominantly a business policy, not the real anticipation of litigation. To place this issue in the words of the case relied upon by defendant's counsel for the “anticipation of litigation” issue, the SEA reports are not “permeated” with a created-for-litigation reason. See In re Grand Jury Subpoena, 357 F.3d 900, 910 (9th Cir. 2004). The SEA reports should be produced.

         Even if the court has not correctly assessed the “anticipation of litigation” issue, the undersigned ultimately finds that this qualified work product immunity should be negated because of the needs of the litigation. Qualified work product may be discovered regardless of its confirmed status as work product. “The party seeking the qualified work product has the burden of demonstrating a ‘substantial need' for the qualified work product, as well as an inability to obtain the information from other sources without undue hardship. Doubleday v. Ruh, 149 F.R.D. 601, 607 (E.D. Cal. ...

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