*1 Pending before the court is Defendant Dolgencorp of Texas, Inc.'s (“Dollar General”) Motion to Quash and for Protective Order (#14), wherein it requests that the court quash two deposition notices from Plaintiff Queen E. Riley (“Riley”) and issue a protective order limiting Riley's deposition topics and deposition notices. Considering the pleadings and the applicable law, the court is of the opinion that this motion should be GRANTED in part and DENIED in part.

I. Background

This case arises out of a trip and fall incident at a Dollar General store in Beaumont, Texas, on May 8, 2017, in which Riley allegedly lost her right eye and sustained other injuries and damages. Dollar General assigned Richard Hunter (“Hunter”), a Senior Claims Adjuster in the Risk Management Department, to Riley's claim after receiving telephonic notice of the claim on October 17, 2017. Two days later, on October 19, 2017, Hunter sent Riley a letter indicating his investigation had concluded that Dollar General was not liable for her fall. This lawsuit was filed on June 18, 2018, and removed to this court on July 23, 2018. On September 12, 2018, Riley served Dollar General her first set of interrogatories. Because it was unclear from Dollar General's answers, Riley asked on February 1, 2019, that Dollar General indicate who had answered the interrogatories. Dollar General supplemented its responses on February 7, 2019, indicating that Hunter had answered or participated in answering the interrogatories. In his verification, Hunter swore that he had read Defendant's supplemental answers to Plaintiff's first and second sets of interrogatories and confirmed that “[t]he facts stated in it are within my personal knowledge and are true and correct.”

On February 28, 2019, Riley sent Dollar General a deposition request for both Hunter and a Dollar General corporate representative with respect to 48 topics. Dollar General took issue with Riley's deposition requests and communicated as much to Riley on March 5, 2019, indicating that Hunter would not be presented for deposition. On March 8, 2019, Riley unilaterally noticed the depositions of both Hunter and a Dollar General corporate representative, setting the depositions for March 18 and 19, 2019, at Dollar General's counsel's office in Houston, Texas. Dollar General filed this motion on March 13, 2019, which seeks to quash Riley's deposition notices and sustain Dollar General's objections to several deposition topics. The following day, on March 14, 2019, both parties participated in a telephonic hearing with the Honorable Christine A. Nowak, United States Magistrate Judge for the Eastern District of Texas. Judge Nowak, upon the agreement of the parties, ordered Dollar General's corporate representative's deposition to take place on April 3, 2019, and ruled on Dollar General's deposition topic objections, resolving all the disputes aside from two topics that remain open—number 3: Hunter's investigation of the incident and number 30: the job responsibilities of a senior claims examiner. The other issues before the court are whether Riley may depose Hunter and, if so, when and where that deposition may occur.

II. Analysis

*2 Dollar General claims that Riley's deposition notice of Hunter is prohibited, as his testimony is protected by work-product privilege pursuant to Federal Rule of Civil Procedure 26(b)(3)(A) and attorney-client privilege. Dollar General also claims that Riley provided insufficient notice pursuant to Federal Rule of Civil Procedure 30(b)(1) and that deposing Hunter in Houston, Texas, would violate the subpoena distance restrictions set forth in Federal Rule of Civil Procedure 45(c).

A. Work-Product Privilege

Dollar General claims that Hunter was assigned Riley's claim only after Dollar General reasonably anticipated litigation and thus his “mental impressions, opinions, conclusions, and legal theories as well as his claim notes and correspondence to nonparty witnesses and/or other agents of [Dollar General] are therefore protected” by work-product privilege. Further, Dollar General avers that attorney-client privilege also applies, because all of Hunter's aforementioned knowledge includes conversations, legal opinions, and litigation strategy of Dollar General's counsel. Hunter's testimony, Dollar General asserts, would therefore violate Federal Rule of Civil Procedure 26(b)(3)(A).

Riley contends that Dollar General has failed to meet its burden of establishing that work-product privilege applies. Riley points out that Hunter was identified as the person who answered the interrogatories she propounded and that Hunter swore the information provided was true, correct, and within his personal knowledge. Thus, Riley argues, she now seeks to depose Hunter about the factual basis of his interrogatory answers, asserting that a plaintiff is permitted to depose a company's representative who answered questions under oath related to the plaintiff's claim. Riley asserts that work-product privilege does not apply to Hunter's testimony, as it is neither a document, a tangible thing, a mental impression, conclusion, opinion, or legal theory. Alternatively, Riley argues that Hunter waived any work-product privilege by answering the interrogatories. Lastly, Riley argues that even if a work-product privilege applied, Hunter's testimony is necessary as she has a substantial need for his testimony in order to prepare her case per Federal Rule of Civil Procedure 26(b)(3), as Defendant has no incident report, photographs, or video footage regarding her fall.

Pursuant to Rule 26(b)(3)(A) of the Federal Rules of Civil Procedure, a party may obtain discovery of documents “prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)” only upon a showing that the party seeking discovery “has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” When issuing an order allowing discovery pursuant to the rule, the court “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” FED. R. CIV. P. 26(b)(3)(B). There are four elements which must be established by the party asserting work-product protection: (1) the materials at issue are documents and tangible things; (2) prepared in anticipation of litigation or for trial; (3) by or for a party's representative; (4) that contain mental impressions, conclusions, opinions, or legal theories. Ferko v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 218 F.R.D. 125, 136 (E.D. Tex. 2003).

*3 For materials to qualify as attorney work product, the party claiming the privilege must show that the party had reason to anticipate litigation and “the primary motivating purpose behind the creation of the document was to aid in possible future litigation.” In re Kaiser Aluminum & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000), cert. denied, 532 U.S. 919 (2001) (citations omitted). Work-product privilege can also protect non-attorneys' work. See United States v. ISS Marine Servs., Inc., 905 F. Supp. 2d 121, 134 (D.D.C. 2012) (“Additionally, although the doctrine is known as the attorney work-product doctrine, work product created by non-attorneys can also be protected if it is so intertwined with the legal analysis as to warrant protection.” (internal quotation omitted)); Carter-Wallace, Inc. v. Hartz Mountain Indus., Inc., 553 F. Supp. 45, 51 (S.D.N.Y. 1982) (work-product privilege applied to non-attorney investigation). Accordingly, the court is required to apply the “primary purpose” test in evaluating whether the work-product doctrine applies to the documents at issue. See In re Kaiser Aluminum & Chem. Co., 214 F.3d at 593. The party asserting work-product protection bears the burden of showing that the doctrine applies to the materials in question. See Hodges, Grant & Kaufman v. United States, 768 F.2d 719, 721 (5th Cir. 1985). The burden of showing that the materials constituting work product should be disclosed is placed upon the discovering party only after the party invoking work-product protection has established that the protection is warranted. See id.; see also FED. R. CIV. P. 26(b)(3); 6 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 26.70[5][b] (3d ed. 1999).

Dollar General's assertion that it reasonably anticipated litigation on the day it received Riley's claim and assigned it to Hunter is valid on its face, as Hunter's investigation was not initiated until its receipt of the claim, five months after the incident. The “primary purpose” test requires that the “primary motivating purpose behind the creation of the document was to aid in possible future litigation.” United States v. El Paso Co., 682 F.3d 530, 542-43 (5th Cir. 1982). Hunter is not an attorney, yet, his work appears to have been conducted with an eye toward impending litigation.

The protected materials, however, must be documents or tangible things. FED. R. CIV. P. 26(b)(3)(A); Ferko v. NASCAR, 219 F.R.D. 396, 400 (E.D. Tex. 2003); 8 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2024 (2d ed. 1994). Dollar General fails to establish this element, as there is no document or tangible thing at issue. See Johnson v. Samsung Elecs. Am., Inc., No. 10-1146, 10-1549, 2011 WL 2847696, at *7 (E.D. La. July 15, 2011) (“Here, the [plaintiff] seek[s] neither documents or tangible things, and instead seeks testimony ... as such, the [work product privilege] objections are overruled ....). While Hunter's claim notes, correspondence, or other documents and tangible things may be protected by work-product privilege, these items are not currently at issue; rather, Dollar General asserts that Hunter's testimony is protected. Testimony is markedly different from notes or correspondence, as testimony is not a tangible item or document. While these items may include Hunter's impressions, opinions, or conclusions regarding Riley's claim, Hunter ultimately controls what is included in his testimony. As such, Dollar General fails to establish a primary element necessary for asserting work-product privilege. Hence, Hunter's testimony is not protected as work-product privilege. Dollar General also fails to demonstrate that attorney-client privilege applies to Hunter's testimony, as it simply asserts as much, without further explanation or reasoning. Therefore, Riley may depose Hunter.

Moreover, work-product privilege is waived if a disclosure is “given to adversaries or is ‘treated in a manner that substantially increases the likelihood that an adversary will come into possession of the material.’ ” Wi-Lan, Inc. v. Acer, Inc., Nos. 2:07-CV-473-TJW, 2:07-CV-474-TJW, 2010 WL 4118625, at *5 (E.D. Tex. Oct. 18, 2010) (quoting Advance Tech. Incubator, Inc. v. Sharp Corp., No. 2:07-CV-468, 2009 WL 4432569, at *2 (E.D. Tex. July 29, 2009)); Ferko, 218 F.R.D. at 136. Likewise, under the implied waiver doctrine, a party waives its work-product privilege when “(1) assertion of the protection results from some affirmative act by the party invoking the protection; (2) through this affirmative act, the asserting party puts the protected information at issue by making it relevant to the case; and (3) application of the protection would deny the opposing party access to information vital to its [claim].” Stern v. O'Quinn, 253 F.R.D. 663, 676 (S.D. Fla. 2008). Dollar General's responses to interrogatories constitute disclosures adequate to waive both the attorney-client and work-product privilege with respect to their contents, thus vitiating any challenge to Hunter's testimony with regard to the interrogatory answers he provided. Further, the letter Hunter sent to Riley at the conclusion of his investigation into the incident denying her claim put the contents of the letter and the investigation at issue and made it relevant to the case.[1] Therefore, Dollar General impliedly waived the work-product privilege as to the investigation and contents of the letter declining Riley's claim. Dollar General may still, however, assert work-product or attorney-client privilege at the depositions (or at any point in the future) where it finds that Riley is attempting to elicit from Hunter, or from Dollar General's corporate representative, any litigation strategy, mental impressions, legal theories, or other information protected by the attorney-client privilege or the work-product doctrine in this case, that has not been previously waived.

B. Reasonable Notice

*4 Dollar General asserts that Riley's notice of Hunter's deposition on March 8, 2019, for a deposition to take place in Houston, Texas, on March 18, 2019, is “categorically unreasonable,” as Hunter resides in Tennessee and “handles numerous different cases nationwide.” Dollar General also claims that requiring Hunter to travel more than 800 miles and out of state violates Federal Rule of Civil Procedure 45(c). Riley asserts that she has complied with Federal Rule of Civil Procedure 30(b)(1), which requires “reasonable written notice” of an oral deposition, because she has been attempting to work with Dollar General to establish a date to depose Hunter since February 28, 2019, and Dollar General refused to provide Hunter for deposition. Riley also maintains that Hunter should be deposed either in Houston or in Beaumont, as Dollar General chose to have Hunter respond to Riley's interrogatories, thus placing him in the position to be deposed.

Federal Rule of Civil Procedure 45(c) limits subpoena power for a deposition to within 100 miles of a person's residence, place of employment, or place of regular business, or for a person who is a party or a party's officer, within the same state as that person's residence, place of employment, or place of regular business. Hunter is not a party, or a party's officer, so the state-wide limit does not apply. Still, the court cannot mandate that Hunter travel to Houston, Beaumont, or anywhere else outside of a 100-mile radius from his place of work or residence. Thus, Dollar General's motion is GRANTED as to the location of Hunter's deposition, which may occur at a place agreeable to all parties, as requested.

In her response, Riley agrees to reschedule Hunter's deposition to “an agreeable date within the next couple of weeks” as Dollar General's counsel is not available on March 18, 2019. As such, the court orders the parties to meet and confer to determine an agreeable date, time, and place at which Riley may depose Hunter. This date must fall within three weeks of the issuance of this order.

III. Conclusion

Consistent with the foregoing analysis, Dollar General's Motion to Quash and for Protective Order is GRANTED as to the date, time, and location of Hunter's deposition and DENIED in regard to its assertion of work-product and attorney-client privilege. Riley may also depose Dollar General's corporate representative on deposition topic numbers 3 and 30. The parties must determine a date within the next three weeks on which Riley may depose Hunter, as well as agree upon a time and place for the deposition to occur.

SIGNED at Beaumont, Texas, this 21st day of March, 2019.