SCOTLYNN USA DIVISION, INC.

v.

TITAN TRANS CORPORATION

Before the Court is Plaintiff’s Motion to Compel Discovery (Doc. 68). Plaintiff Scotlynn USA Division requests the Court compel Defendant Titan Trans Corporation to produce unredacted documents with Bates Nos. 94-128. (Id., p. 3). Plaintiff argues Titan asserted the work-product protection for these documents, but did not meet the burden of showing this protection applies. (Id.). Titan filed a Response, arguing it properly asserted the work-product protection. (Doc. 69). For the reasons below, the Court grants the motion to compel.

BACKGROUND

Scotlynn alleges it contracted with Titan, a common carrier, to transport freight by truck to various areas throughout the country. (Doc. 62, ¶¶ 5-6). The parties executed a contract entitled “Property Broker/Carrier Agreement.” (Id., ¶ 7). On September 21, 2016,1 and on behalf of its client FPL Food, Scotlynn hired Titan to transport 21 boxes containing

2016, Scotlynn sent Titan a “Final Claim Notice.” (Doc. 69-1, p. 1). The next day, Titan reported the loss of the load to its insurer, Lancer Insurance Company. (Doc. 68, p. 2). And on September 30, 2016, Lancer Insurance sent a “Cargo Mitigation Letter” to Scotlynn with a copy to Titan as its insured. (Doc. 68-8, p. 5). On November 8, 2016, Lancer Insurance sent Scotlynn and Cargill (the designated recipient that had refused delivery) an “Urgent 2nd Request,” explaining who must show damage and who must submit all loss or damage paperwork for Lancer’s review. (Doc. 68-6, p. 2). As Lancer represented in this request, additional documentation was needed “to complete our investigation, review and eval of this incident. Please be advised that the current status of this file is the load investigation is underway and as soon as this investigation is complete Lancer will be in contact with you.” (Id.). Nearly six months later, on April 27, 2017, Lancer Insurance sent Scotlynn’s client, FPL Food, a letter reflecting it had investigated the claim, concluded the boxes “merely shifted” during transport because there was no bracing or airbags to hold the pallets in place, and since Titan was not allowed on the dock while the tractor trailer was loaded, the claimed loss was apparently due to FPL Food’s error. (Doc. 68-2, p. 1). Lancer Insurance also informed FPL Food it was Cargill’s duty to “take back this load” and if FPL was claiming a total loss, it was required to have lab testing done on the load, which did not occur. (Id.). Lancer Insurance had previously sent a salvage check for $4,636.17 to Scotlynn, but Scotlynn returned the check. (Id.). Lancer Insurance enclosed a salvage check in the same amount with the April 27 letter to FPL Food. (Id.). Lancer Insurance stated, “[a]t this time, Lancer Insurance Company will make no further payments in this matter.” (Id.). FPL

Food filed a claim against Scotlynn for $89,823.68, which Scotlynn paid. (Doc 62, ¶ 11). Scotlynn now seeks to recover the damages it suffered due to Titan’s alleged mishandling of the cargo. (Id., ¶ 12).

DISCUSSION

Scotlynn argues Titan’s privilege log is inadequate because it: (1) does not provide adequate descriptions of the documents; (2) does not identify the individuals listed in the privilege log; and (3) does not support the contention that Titan anticipated litigation on September 30, 2016 such that all documents from that date forward were prepared in anticipation of litigation and are protected under the work-product doctrine. (Doc. 68, pp. 6-8). The Court agrees on both fronts.

The Privilege Log The Middle District Discovery Handbook provides guidance on the content of a privilege log. As to the description of a document—unless doing so would result in the disclosure of protected information—the privilege log should provide an appropriate date for the document, the identity of its author(s), the purpose for which the document was created or transmitted, the subject of the document, the identity of the addressee(s), and the identity of all recipients. Middle District Discovery (2015) at 20-21. But Titan’s privilege log does not sufficiently identify either the authors or the recipients of the documents. According to the Middle District Discovery Handbook, the privilege log should contain the address, job title, and employer of anyone who sent or received a copy of the document, and include the relationship to the author, addressee, or any other recipient. Id. at 21. Here, the November 4, 2019 Privilege Log contains the names of the individual senders, composers, and recipients, but does not identify their employer, their position, and the relationship between any of these individuals. (Doc. 68- 5 , pp. 1-4).2 The Court therefore will require Titan to supplement its privilege log to include this information. The Anticipation-of-Litigation Date Scotlynn argues Titan does not support its contention that the date it and its insurer anticipated litigation was September 30, 2016. (Doc. 68, p. 7). Scotlynn asserts September 30, 2016 is just four days after the parties learned the shipper (FPL) would not accept return of the beef, and just two days after Titan reported the claim to its insurer. (Id., pp. 7-8). Scotlynn further argues the affidavit in support of the privilege log contains no information as to why Lancer Insurance Company’s Senior Claims Examiner concluded he anticipated litigation on September 30, 2016. (Doc. 68, p. 8; Doc. 68-7, pp. 1-2). Titan argues its insurer reasonably anticipated litigation on September 30, 2016 when, purportedly due to Scotlynn’s failure to comply with regulations, the insurer sent

Scotlynn’s refusal to follow Federal regulations, Lancer Insurance anticipated litigation as of September 30, 2016, the date of the Cargo Mitigation Letter to Scotlynn. (Doc. 69-2, pp. 1-2). But Titan had contacted Lancer Insurance only two days before, on September 28, 2016 about this claim, allowing insufficient time to complete even a preliminary investigation. (Doc. 69, p. 2). And on November 8, 2016, Lancer sent the Urgent 2nd Request representing it continued to investigate the claim and that as soon as its investigation was complete, Lancer Insurance would contact Scotlynn and Cargill. (Doc. 68-6, p. 2). The language of this document demonstrates Lancer Insurance was continuing to investigate the claim after September 30, 2016. Furthermore, Lancer Insurance sent a final notice denying the claim to FPL Food on April 27, 2017. (Doc. 68-2, p. 1). From the language of this claim-denial letter, Lancer Insurance had reviewed the circumstances, examined photos sent by FPL Food, investigated whether Titan or FPL Food loaded the cargo, considered who was responsible under federal law, and concluded that at most Lancer Insurance would pay for the salvage of the load and make no further payments. (Id.). This retelling of Lancer’s apparently comprehensive investigation into whether fault, from its perspective, lied with FPL Food, Cargill, Scotlynn or Titan, undermines Titan’s ability to “concretely” connect the Cargo Mitigation Letter to possible litigation such that the Court would be assured that it is not simply withholding documents to shield them from discovery. Milinazzo, 247 F.R.D. at 697. The Court finds Titan has not overcome the rebuttable presumption that documents prepared before its insurer’s definitive denial of the claim against the insurance policy were created in anticipation of litigation. Rather, from the submissions provided, documents generated before the transmission of the claim denial letter were created in the ordinary course of business to investigate the insurance claim. Based on the parties’ submissions, the Court finds Lancer Insurance did not reasonably anticipate litigation prior to denying the claim, and all documents prepared by Lancer Insurance before the transmittal of the of the April 27, 2017 claim-denial letter are not entitled to work-product protection. The Bates Nos. 154 and 155 Issue Finally, Scotlynn represents it received an unredacted document bates-stamped No. 154 that is listed in the privilege log as allegedly protected by the work-product protection, and a redacted document bates-stamped No. 155 that is not listed in the privilege log. When amending the privilege log consistent with the ruling made in this order, Titan must clarify which document it meant to protect by the work-product protection. Accordingly, it is hereby ORDERED: (1) The Motion to Compel Discovery (Doc. 68) is GRANTED. (2) By June 19, 2020, Titan will furnish an amended privilege log to Scotlynn that includes more detailed information as set forth above. (3) By June 19, 2020, Titan will produce all documents created before the transmission of the April 27, 2017 claim-denial letter, withheld based on the work-product protection, unless another privilege applies. (4) By June 19, 2020, the parties will confer and resolve the Bates Nos. 154, 155 issue. DONE and ORDERED in Fort Myers, Florida on June 11, 2020.

Lida Ee Line [...]

NICHOLAS P. MIZEL

UNITED STATES MAGISTRATE JUDGE