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David Black, As Special Administrator of the v. Pilot Travel Centers

August 4, 2011


The opinion of the court was delivered by: Karen E. Schreier Chief Judge


Plaintiff, David Black,*fn1 as special administrator of the estate of George Taylor, filed suit against defendant, Pilot Travel Centers, LLC, alleging negligence in a wrongful death cause of action when a truck driver struck and killed Taylor in Pilot's parking lot. During discovery, Pilot refused to produce some documents related to a similar accident involving Gregory Zuba, which occurred five years earlier and did not result in a lawsuit against Pilot. After Black called Pilot's counsel and sent multiple emails requesting the information, Black moved to compel discovery. Pilot asserted that the attorney-client privilege and the work product doctrine protected the documents. Pilot did not provide Black with a privilege log.

The court ordered Pilot to produce a privilege log and submit the documents to the court for an in camera review. The court denied Black's motion for sanctions without prejudice.

Pilot withheld two groups of documents: (1) miscellaneous documents protected by the attorney-client privilege and the opinion work product doctrine; and (2) documents prepared by Pilot's insurance investigator, which Pilot asserted were privileged. After reviewing the documents in camera, the court held that the first group of documents were not discoverable and the second set were. Docket 35.

Black now moves for Rule 37 sanctions and requests $3,609.00 in attorney's fees and $9.80 in expenses and an award of fees and expenses incurred in drafting the pending motion. Pilot resists. The motion is granted in part and denied in part.


Federal Rule of Civil Procedure 37 governs when sanctions are appropriate for a party's failure to make disclosures in discovery. The court employs Rule 37(a)(5)(A) if the motion to compel is granted, which provides that sanctions are mandatory absent some limited exceptions. If the court grants the motion to compel in part and denies it in part, the court uses Rule 37(a)(5)(C), under which the court has discretion to award sanctions.

Black contends that Rule 37(a)(5)(A) controls the sanctions award in this case, because if Black had received a privilege log, he would not have requested the first group of miscellaneous privileged documents and, thus, the court would have granted Black's motion in its entirety:

Pilot cannot withhold a privilege log from Black, force him to file a motion to compel all documents, and then add documents into the privilege log that are clearly protected by the attorney-client privilege and work product doctrine in order to avoid being held to the standard in subsection 37(a)(5)(A). If the Court were to accept Pilot's tactics in this case, it would only encourage parties not to produce a privilege log with the benefit of avoiding sanctions by producing a privilege log after a motion to compel has been filed. Docket 41 at 2. Black cites no precedent to support his argument.

Because the court granted Black's motion to compel in part and denied it in part and Black asserts no precedent to suggest that a case's facts, and not the court's holding on the motion to compel, dictate which portion of Rule 37 should be used, Rule 37(a)(5)(C) applies to Black's motion for sanctions.

Rule 37(a)(5)(C) provides that if a Rule 37 discovery motion "is granted in part and denied in part, the court . . . may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion." Fed. R. Civ. P. 37(a)(5)(C). The district court has wide latitude in discovery and the appellate court reviews "discovery matters only 'for gross abuse of discretion resulting in fundamental unfairness in the trial of the case.' " United States ex rel. O'Keefe v. McDonnell Douglas Corp., 132 F.3d 1252, 1258 (8th Cir. 1998) (quoting Prow v. Medtronic, Inc., 770 F.2d 117, 122 (8th Cir. 1985)). Similarly, the appellate court only reverses a Rule 37 monetary award if the district court abused its discretion. Sentis Group, Inc. v. Shell Oil Co., 559 F.3d 888, 899 (8th Cir. 2009) (citing Int'l Bhd. of Elec. Workers, Local Union No. 545 v. Hope Elec., 380 F.3d 1084, 1105 (8th Cir. 2004)).

In awarding Rule 37 expenses, "[t]he fault concept . . . remains central." 8B Charles Alan Wright, Richard L. Marcus & Arthur R. Miller, Federal Practice and Procedure, § 2284 (3d ed. 2010). Rule 37 allows for expenses as a sanction for improper conduct in discovery "to encourage extra-judicial discovery with a minimum of court intervention." Id. at § 2288. When the court overrules most of the objections to a motion to compel and those objections were not substantially justified, then sanctions in the form of expenses and fees are appropriate. DIRECTV, Inc. v. Puccinelli, 224 F.R.D. 677, 692 (D. Kan. 2004). "[T]hus is placed directly on attorneys a somewhat unique sanction to refrain from the frivolous, to weigh carefully considerations of relevancy and privilege, and to advise in accordance with their best judgment."Wright, Miller & Marcus § 2288 (quotation omitted).

A. Privileged Documents

Regarding the first set of documents, South Dakota common law and the Federal Rules of Civil Procedure require a party to produce a privilege log if the party believes that documents sought during discovery are protected by the attorney-client privilege or the work product doctrine. See, e.g., Fed. R. Civ. P. 26(b)(5)(a) ("When a party withholds information . . . claiming that the information is privileged . . . the party must . . . describe the nature of the documents, communications, or tangible things produced or disclosed . . . ." (emphasis added)); Dakota, Minn. & E. R.R. Corp. v. Acuity, 771 N.W.2d 623, 637 (S.D. 2009) ...

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