*1 In this tort action stemming from a collision between the plaintiffs’ vehicle and Gypsum Express Ltd.’s vehicle, the plaintiffs move for an order compelling Gypsum to produce (1) photographs and (2) reports with information from the vehicle's computer system. Docs. 53 (motion), 59 (response), 74 (reply). The photographs and reports have been filed under seal for an in-camera review. Doc. 64 (order); S-Docs. 67, 67-1 (photographs and reports). The Court has undertaken that review.

I. Background

The collision occurred on January 18, 2021, in Jacksonville, Florida. Doc. 4 ¶ 11; Doc. 11 ¶ 11. Carla Laribee was driving the plaintiffs’ vehicle, and Rollison Tucker Higgs was driving Gypsum's vehicle. Doc. 4 ¶ 13; Doc. 11 ¶ 13. According to the plaintiffs, Higgs's negligent or reckless driving caused the accident and resulting injuries to Carla Laribee, and her injuries were made worse by defects in the plaintiffs’ vehicle. Doc. 4 ¶¶ 14–17. After the accident, Higgs turned off Gypsum's vehicle, “attended” the accident scene, restarted the vehicle, drove the vehicle to a gas station for an inspection at the direction of the Florida Highway Patrol, turned off the vehicle for the inspection, restarted the vehicle, drove to complete a delivery, turned off the vehicle during the delivery, restarted the vehicle, and returned the vehicle to Gypsum's terminal in Savannah, Georgia. Doc. 59 at 12. At some point that day, the Florida Highway Patrol took photographs. Doc. 74 at 1–2.

An internal Gypsum email sent shortly after the accident describes the accident and states “Protective”—presumably Gypsum's insurer—“is already involved working on getting an [independent adjuster] to the scene and looking for an attorney in the Jacksonville area.” Doc. 74-2 at 2. Another internal email sent an hour later states, “Protective has an [independent adjuster] that should be on the scene shortly, if not already there. Per [Gypsum's counsel], [the independent adjuster] is not to discuss the accident with our driver for now. Our driver is aware to only speak to police, us, and [Gypsum's counsel] regarding the accident.” Id.

Later that day, the independent adjuster investigated the accident and took 58 photographs. Doc. 59 at 3. Generally speaking, the photographs are of Gypsum's vehicle taken while parked at the gas station, a “Traffic Crash Report” also available through the Florida Department of Highway Safety and Motor Vehicles, and the site of the accident after the scene had been cleared. S-Doc. 67 at 2–59.

On January 19—the day after the accident—Gypsum inspected its vehicle and took 510 photographs of the vehicle. Doc. 59 at 6; S-Doc. 67 at 61–76 (thumbnail image index); S-Doc. 67 at 77–399 (full images); S-Doc. 67-1 at 1–189 (full images). In an amended privilege log, Gypsum describes the photographs as “[a]pproximately 510 photographs of Defendant's International truck taken on or about January 19, 2021,” states “Defense Counsel/Expert(s)” is the person or persons who prepared and received the photographs, states the photographs were taken for “[f]act investigation,” and asserts the photographs are attorney work product because they were “prepared in anticipation of litigation at the direction of counsel and in furtherance of defense strategy.” Doc. 53-1 at 6–7. Gypsum also downloaded information from the vehicle's computer system, resulting in the withheld reports at issue. Id. at 6–7, 9.

*2 On January 25, Gypsum received a letter of representation sent by the plaintiffs’ counsel to Gypsum and its insurer. Doc. 74 at 4, 8. The letter is not in the record but apparently is dated January 19 (the day after the accident). Id. at 4.

On January 27, the plaintiffs’ counsel emailed defense counsel to discuss scheduling an inspection of Gypsum's vehicle. Doc. 59 at 21–22. The same day, Gypsum's counsel emailed the plaintiffs’ counsel to express Gypsum's interest in having the inspection completed promptly so the vehicle could be returned to service and to request days on which the plaintiffs could conduct the inspection. Id. at 20. The next day, the plaintiffs’ counsel emailed to explain he would provide days as soon as counsel heard from the plaintiffs’ experts but observed that providing days would “take some time due to the number of schedules that need to be coordinated.” Id.

According to the plaintiffs, on January 30 and February 2, Gypsum's vehicle was driven. Doc. 53 at 4.

On February 4, the plaintiffs inspected the vehicle. Id. at 4; Doc. 59 at 6. Between the accident and the plaintiffs’ inspection, Gypsum's vehicle was kept outside. Doc. 53 at 4; Doc. 59 at 8.

II. Law

Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery. Under the rule, “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense[.]” Fed. R. Civ. P. 26(b)(1). The discovery must be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id.

Rule 26(b)(3)(A) governs attorney work product. The rule provides, “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A). The rule recognizes that “a lawyer [must be able to] work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Hickman v. Taylor, 329 U.S. 495, 510 (1947). The rule provides not a privilege but a qualified immunity from discovery. Kirkland v. Morton Salt Co., 46 F.R.D. 28, 30 (N.D. Ga. 1968). The party invoking protection has the burden of establishing protection is warranted. Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1189 (11th Cir. 2013).

The rule includes an exception. Subject to Rule 26(b)(4) (the rule governing experts used to prepare for trial), “those materials may be discovered if (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A). But “[i]f the court orders discovery of those materials, it 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). Factors helpful for determining substantial need include (1) the importance of the materials to the party seeking them for case preparation, (2) the difficulty the party will have obtaining them by other means, and (3) the likelihood that the party, even if he obtains the information by independent means, will not have the substantial equivalent of the documents he seeks. Fed. R. Civ. P. 26 advisory committee's note to 1970 amendment.

*3 Rule 26(b)(5)(A) governs privilege logs. Under the rule, “When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A); accord Middle District Discovery (2021) at Section VI.A. The rule “provides a procedure for a party that has withheld information on the basis of privilege or protection as trial-preparation material to make the claim so that the requesting party can decide whether to contest the claim and the court can resolve the dispute.” Fed. R. Civ. P. 26 advisory committee's note to 2006 amendment.

Federal Rule of Civil Procedure 37 governs sanctions for discovery violations. Under the rule, “[i]f a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions.” Fed. R. Civ. P. 37(a)(3)(A). “[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Id. at 37(a)(4). “If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Id. at 37(a)(5)(A). “But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Id. “If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees.” Id. at 37(a)(5)(B). “But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.” Id. “If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Id. at 37(a)(5)(C). “Substantially justified means that reasonable people could differ as to the appropriateness of the contested action.” Maddow v. Procter & Gamble Co., Inc., 107 F.3d 846, 853 (11th Cir. 1997).

In assessing whether an incomplete privilege log warrants sanctions,

*4 8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2016.1 (3d ed. Apr. 2022 update) (internal footnote omitted).

III. Analysis

A. The Photographs Taken by the Independent Adjuster on the Day of the Accident (Sealed Exhibit C to Gypsum's Response)

Gypsum has withheld the 58 photographs taken by the independent adjuster on the day of the accident. S-Doc. 67 at 2–59. Gypsum does not dispute their relevancy under Rule 26(b)(1); rather, Gypsum asserts they are attorney work product protected under Rule 26(b)(3)(A). Doc. 59 at 2–6. The plaintiffs ask the Court to order Gypsum to produce the photographs, arguing the photographs are not protected and, in any event, Gypsum waived its right to claim protection by failing to identify the photographs in its privilege log or amended privilege log. Doc. 53 at 2–3; Doc. 74 at 1–4.

At a minimum, Gypsum fails to satisfy its burden of showing the photographs were taken “in anticipation of litigation or for trial” as opposed to in the course of the insurer's business or for some other reason. See Fed. R. Civ. P. 26(b)(3)(A) (quoted). Gypsum provides a declaration in opposition to the motion—“Declaration of Dennis Plucinik”—but says nothing in the declaration about the photographs. See generally Doc. 59 at 24–26. Insufficient are the facts that the independent adjuster took the photographs on behalf of Gypsum's insurer, the independent adjuster took the photographs on the day of the accident, the photographs pertain to the accident, and Gypsum's counsel advised Gypsum that the independent adjuster should not speak to the driver.

Gypsum must produce the 58 photographs by April 10, 2023.

Gypsum has withheld the 510 photographs taken by Gypsum or its agents the day after the accident. Doc. 53-1 at 6; S-Doc. 67 at 61–399, Doc. 67-1 at 1–189. Again, Gypsum does not dispute their relevancy under Rule 26(b)(1); rather, Gypsum asserts they are attorney work product protected under Rule 26(b)(3)(A). Doc. 59 at 7. The plaintiffs ask the Court to order Gypsum to produce the photographs, arguing “the exceptions to assertions of privilege found in Rule 26(b)(3)(A) apply.” Doc. 53 at 4. The plaintiffs contend the condition of the vehicle when the accident occurred is “critical” to their claims and they cannot replicate that condition because the vehicle was altered between the time the photographs were taken and their own inspection, as evidenced by an alleged overwrite of computer information when the vehicle was driven on January 30 and February 2, evident removal of dirt from the brake actuators to pen markings on them for identification, and exposure of the vehicle to the elements. Doc. 53 at 3–4; Doc. 74 at 4–6.

Gypsum responds with Mr. Plucinik's declaration that neither Gypsum nor anyone acting on Gypsum's behalf altered Gypsum's vehicle and he is unaware of any way in which the vehicle has been altered. Doc. 59 at 25, ¶¶ 8–9. Gypsum argues the plaintiffs’ claims of alteration are “based solely on speculation and conjecture.” Doc. 59 at 8.

*5 The plaintiffs reply with photographs of the brake actuators, contending, “These photographs, taken during the February 4 ... inspection, clearly show that the accumulated dirt has been wiped away and the brake actuators identified by their relative positions.” Doc. 74 at 5. The plaintiffs contend that without the 510 photographs, they “have no way to verify that other components of the tractor were not altered between the collision and [their] inspection.” Doc. 74 at 6. The plaintiffs argue that “if the Court finds that Defendant Gypsum's inspection and the photos of that inspection are privileged, the exceptions to assertions of privilege found in Rule 26(b)(3)(A) apply and the materials are discoverable.” Doc. 53 at 4.

As tacitly conceded by the plaintiffs, the photographs are attorney work product and thus enjoy a qualified immunity from discovery under Rule 26(b)(3)(A). The plaintiffs fail to show they have a “substantial need for the materials to prepare their case and cannot, without undue hardship, obtain their substantial equivalent by other means.” See Fed. R. Civ. P. 26(b)(3)(A) (quoted). The plaintiffs have pleaded their claims to allege negligent or reckless driving by Higgs and defective parts of their own vehicle—not Gypsum's vehicle—undermining their claim that the photographs of Gypsum's vehicle are “critical” to the preparation of their case. See Doc. 53 at 4 (quoted). The plaintiffs fail to show how twice driving the vehicle, removing dirt from the brake actuators to pen markings on them for identification, and keeping the vehicle outside for 17 days during unknown weather conditions could have altered the vehicle in a way material to their claims or evidence alterations to the vehicle material to their claims. The plaintiffs will have the photographs taken by the independent adjuster the day of the accident as well as the photographs taken by the Florida Highway Patrol the day of the accident, giving the plaintiffs the ability to compare the condition of Gypsum's vehicle the day of the accident with the condition of Gypsum's vehicle when the plaintiffs performed their February 4 inspection. Gypsum may keep its work product in these 510 photographs to itself without sharing them with its adversaries.

Gypsum has withheld what it describes as the “ECM [Electronic Control Module] and Brake Module Imaging of the Defendant's International Truck downloaded on or about January 19, 2021.” Doc. 53-1 at 6; S-Doc. 67-1 at 191–221. Gypsum contends the reports are attorney work product protected under Rule 26(b)(3)(A). Doc. 59 at 7. Gypsum adds, “The only events the vehicle's ECM and brake module imaging record are trip day, configuration data, and freeze frame data from fault codes, none of which Plaintiffs seek.” Doc. 59 at 11. The plaintiffs ask the Court to order Gypsum to produce the reports, arguing the reports are not protected and, alternatively, the plaintiffs show the exception to the protection of work product applies. Doc. 53 at 5–6. The plaintiffs allege:

Doc. 53 at 5–6.

The parties dispute the type of information recorded on Gypsum's vehicle. Compare Doc. 59 at 25–26, with Doc. 53 at 5–6, and Doc. 74 at 7. Resolving the dispute is unnecessary. Even accepting the plaintiffs’ allegations quoted directly above, the movement of the vehicle on the day of the accident—undisputed by the plaintiffs—would have erased the information the plaintiffs want, and, from the in-camera review of the reports, the information the plaintiffs want does not appear to be there. To the extent the plaintiffs move for sanctions for alleged spoliation, the motion will not be considered as made for the first time in the reply. Compare Doc. 53 at 5–6, with Doc. 74 at 6–8.

Still, to ensure Gypsum has produced all responsive, relevant, proportional, non-privileged, and non-protected discovery, Gypsum must supplement its response by April 10, 2023, by (1) describing the type of information in sealed Exhibit E (including the date of the event information on the first page of the exhibit) without disclosing any arguably protected content; (2) stating whether the information in sealed Exhibit E was available to the plaintiffs during their inspection of the vehicle on February 4; and (3) stating whether any of the information is responsive to any discovery request, and, if so, restating the reason the information has not been produced. This aspect of the motion to compel is denied without prejudice to the plaintiffs filing a motion based on the supplement, after trying to resolve any lingering dispute in good faith in accordance with Local Rule 3.01(g).

In response to a request for memos, emails, correspondence, and reports relating to the accident, Gypsum stated in its privilege log:

As to Gypsum Request for Production Number 11, 26.

As to Higgs Request for Production Number 9

Tabular or graphical material not displayable at this time.

As to Gypsum Request to Produce 52.

As to Higgs Request for Production Number 27, 34, 52, 53, 56, 59

Tabular or graphical material not displayable at this time.

Doc. 53-1 at 10, 12.

Observing that Gypsum omits information about “when the materials were produced, the identity of the individuals involved in creating the materials or receiving the materials or information claimed to be privileged and the purpose for preparing the materials,” Doc. 53 at 7, the plaintiffs ask the Court to (1) find Gypsum has waived any right to assert responsive materials are privileged or protected by failing to comply with an earlier order directing Gypsum to supplement and respond to outstanding discovery requests or (2) conduct an in-camera review to determine if the materials are privileged or protected. Doc. 53 at 8; see Doc. 47 (earlier order). Gypsum responds court intervention is inappropriate because the plaintiffs fail to call into question Gypsum's claim the materials are privileged or protected and the privilege log provides sufficient information. Doc. 59 at 13–17. To support the latter argument, Gypsum points to other sections of the privilege log; specifically, sections pertaining to the withheld photographs and reports at issue, Doc. 59 at 15, about which the plaintiffs apparently are not complaining, see Doc. 53 at 7 (citing only pages 10 and 12 of Doc. 53-1).

*7 Discerning no willfulness, bad faith, or similar conduct, the harsh sanction of waiver of privilege or protection is unwarranted. And discerning no indication that Gypsum may be withholding discovery Gypsum should not be withholding, in camera review likewise is unwarranted. But to give the plaintiffs enough information to enable them to assess Gypsum's claim of privilege or protection, by April 10, 2023, Gypsum must supplement its descriptions to identify, for each withheld document, when the document was produced, who produced the document, who received the document, the purpose of the document, and whether Gypsum is withholding the document based on attorney-client privilege or work-product protection or both. To ensure reasonableness, Gypsum need not provide this additional information for any email, letter, or other communication exchanged between only members of Gypsum's legal team or between only Gypsum and anyone on Gypsum's legal team. This aspect of the motion to compel is denied without prejudice to the plaintiffs filing a motion based on the supplement, after trying to resolve any lingering dispute in good faith in accordance with Local Rule 3.01(g).

The plaintiffs summarily request an award of a reasonable attorney's fee incurred in preparing the motion. See Doc. 53 at 8; Doc. 74 at 10. Considering the mixed results and the presence of substantial justification for the positions taken, no award to either side is warranted.

IV. Conclusion

The motion to compel, Doc. 53, is granted in part and denied in part.

Ordered in Jacksonville, Florida, on March 27, 2023.