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Bishop Rink Holdings, LLC v. Cimco Refrigeration, Inc.

United States District Court, Tenth Circuit

August 9, 2013



KENNETH G. GALE, Magistrate Judge.

This case is before the Court on Defendant's motion requesting an Order compelling Plaintiff to produce certain documents (Doc. 38) and Plaintiff's motion requesting an Order to quash or modify a subpoena for documents from a third-party, Charlesworth & Associates, LC (Doc. 36). After reviewing the submissions of the parties, the Court GRANTS in part and DENIES in part Defendant's Motion to Compel and GRANTS Plaintiff's Motion to Quash the subpoena issued to Charlesworth & Associates.


Plaintiff Bishop Rink Holdings, LLC, owned and operated Ice Midwest, an ice rink sports facility in Kansas City, Kansas. Defendant CIMCO manufactured, installed, serviced, and repaired equipment and materials for ice rinks. On or about March 24, 2010, Plaintiff and Defendant entered into a contract whereby Defendant agreed to provide services to Plaintiff for $530, 500. During the course of service, Plaintiff alleges that Defendant misrepresented the amount of corrosive inhibitor necessary to maintain the ice rinks which resulted in accelerated and undetected corrosion. Plaintiff also alleges that Defendant negligently performed services on the rink's cooling system which resulted in damage to pipes in the system. The ultimate result of the damage caused by the allegedly negligent service was the break-down of the rink's chiller on January 10, 2011, after which Plaintiff was unable to resume operation of the ice rink.

Defendant brings the present Motion to Compel to challenge privileges asserted by Plaintiff in their amended privilege log and objections asserted in response to Request for Production No. 5.[1] Plaintiff's brings the present Motion to Quash in regards to a subpoena served to Plaintiff's contracted risk manager, Charlesworth & Associates, LC.


A. Work Product Doctrine.

The general limitation on the discovery of work product is described in Fed.R.Civ.P. 26(b)(3), which provides that, with limited exceptions, "documents and tangible things" prepared by a party or its agents "in anticipation of litigation or for trial" are not discoverable. U.S. Fire Ins. Co. V. Bunge North America, Inc., No. 05-2192-JWL-DJW, 2008 WL 2548129, at *5 (D. Kan. June 23, 2008). "The test for work-product protection turns on the primary purpose for which the documents were created." Marten v. Yellow Freight Sys., Inc., CIV.A.96-2013-GTV, 1998 WL 13244 (D. Kan. Jan. 6, 1998). In order for work product to apply, the document must have been created based upon a request for legal advice in response to a real and imminent threat of litigation. Raytheon Aircraft Co. V. U.S. Army Corps of Engineers, 183 F.Supp.2d 1280, 1288 (D. Kan. 2001). "Even the likely chance of litigation, does not give rise to the privilege." Id.

Plaintiff has asserted work product doctrine for emails dated 7/23/2010 through 9/11/2011. Defendant challenges the assertion with the argument that because these emails were created ten months to nearly two years before this lawsuit was filed, the threat of litigation was not "real or imminent." (Doc. 38, at 2). Plaintiff asserts, however, that it hired its "previous counsel, who began providing legal advice regarding its claims on or before September 10, 2010" - less than two months after the first allegedly negligent act occurred on July 12, 2010. (Doc. 46, at 3.) Communications prior to hiring counsel pertained to legal claims against Defendant and how to move forward in pursuing legal action. This indicates that there was more than a possibility of litigation and that the threat of litigation was real and imminent. Defendant also argues that the communication on March 11, 2011, indicating that Plaintiff considered Defendant to be the leading candidate for future work on the rink is evidence that there was no imminent threat of litigation. This correspondence is not convincing evidence that the threat of litigation was not imminent because impending litigation does not necessarily preclude two companies from continuing business relations. The Court therefore DENIES Defendant's motion requesting documents for which work product doctrine has been asserted.

B. Attorney-Client Privilege

Defendant has requested documents dated 9/01/2010, 1/31/2011, 2/09/2011, 2/17/2011, 4/25/2011, 5/17/2011 and the Risk Manager File (2010-2011), for which Plaintiff has asserted attorney-client privilege. Defendant's challenge to this privilege claim is that the privilege in communications to Plaintiff's attorney was waived because the communications were shared with "Tanner Shaw" and "Risk Manager." In a second amended privilege log, attached to Plaintiff's response to this motion, Plaintiff identifies participants in communications with counsel as James Charlesworth, "Previous Counsel, " Lyn Shaw, Hal Edwards, and Chock Chapple.

In a letter to Defense counsel concerning this issue (Exhibit B, Response), Plaintiff's counsel identified these persons as the owner of the corporate owner of the skating rink (Lyn Shaw), the manager of the rink (Hal Edwards), and the managing agent of Plaintiff's insurer (Chock Chappel). Charlesworth is the outside risk management contractor. Tanner Shaw, Lyn Shaw's son, is an engineer who consulted on the technical issues.[2] While recognizing that a risk manager may be generally within the privilege, White v. Graceland Coll. Ctr. For Prof. Dev. & Livelong Learning, Inc., 586 F.Supp.2d 1250 (D. Kan. 2008), Defendant urges a ruling that communications with an outside risk manager, as opposed to an employee, are outside the privilege. Defendant offers no authority or rationale for this distinction, and the Court sees no reason to make one. The persons listed are the Plaintiff's agents or share a "commonality of interest" such that the privilege is not waived. High Point SARL v. Spring Nextel Corp., 2012 WL 234024 at *1 (D. Kan. 2012).[3]

The motion to compel production of documents logged as attorney-client ...

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