Opinion
Case No. 02-75164
November 24, 2003
ORDER DENYING PLAINTIFFS' OBJECTIONS TO MAGISTRATE JUDGE'S SEPTEMBER 30, 2003 ORDER
At a session of said Court, held in the U.S. District Courthouse, City of Detroit, County of Wayne, State of Michigan, on NOV 24 2003
Plaintiffs brought this lawsuit on behalf of retirees and surviving spouses of retirees, seeking fully funded lifetime retiree health care benefits from Defendants. In May 2003, Defendant Case Corporation ("Case") served Requests for Production of Documents on Plaintiffs and document subpoenas on third-party witnesses. Plaintiffs subsequently moved to quash some of Case's requests. Magistrate Judge Wallace Capel, Jr. held hearings on Plaintiffs' motion to quash on June 26 and July 31, 2003. At the latter hearing, Magistrate Judge Capel granted in part and denied in part Plaintiffs' motion and directed the parties to draft and file a proposed order consistent with the Court's oral ruling. On September 25, 2003, the parties filed a proposed order, which Magistrate Judge Capel signed on September 30, 2003. Plaintiffs filed an objection to the order on November 6, 2003. After considering these objections, this Court must modify or set aside any portion of Magistrate Judge Capel's order found to be clearly erroneous or contrary to law. FED. R. CIV. P. 72(a).
As an initial matter, Plaintiffs' objections were filed 37 days after Magistrate Judge Capel entered his order. Pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, a party must serve and file any objections to a magistrate's order "[w]ithin 10 days after being served with a copy of the magistrate judge's order . . ." FED. R. CIV. P. 72(a). The rule further provides that "a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made." Id. Plaintiffs claim, however, that they only learned that Magistrate Judge Capel signed the order when their counsel received a letter from Case's counsel on October 27, 2003. According to Plaintiffs, their attorneys only received the order when Case's counsel sent them a copy on October 27, 2003. As there is no other evidence indicating that Plaintiffs were served with the order prior to that date, the Court will address the merits of their objections.
In fact, according to Magistrate Judge Capel's chambers, copies of the signed order only were sent to Kirkland Ellis, Case's counsel, with the expectation that counsel would serve the other parties with copies, as set forth in Local Rule 5.2(a). Local Rule 5, 2(a), however, requires the Clerk to "send the movant seeking a non-dispositive order a copy of the order signed by the judicial officer" and requires the movant, unless otherwise directed by the judge, to serve copies of the order on all other parties within ten days of the date of the order. See E.D. Mich. LR 5.2(a). Magistrate Judge Capel's chambers did not specifically instruct Case's attorneys to serve the other parties. There is no evidence indicating that copies of the order were otherwise sent to plaintiffs' counsel before October 30, 2003.
Plaintiffs' objections relate to questionnaires completed by members of the proposed class and letters discussing the subject matter of the litigation which were sent by members of the proposed class or their relatives to Plaintiffs' counsel. With respect to the questionnaires, Jim Reynolds, a putative class member and the Retiree Chapter Chairman for UAW Local 1304, wrote an article which contained a blank questionnaire in the December 20, 2002, Local 1304's retiree newsletter, "Strictly Retired." See Pls.' Obj., Ex. B. In his article, Mr. Reynolds described Plaintiffs' counsel's previous attendance at a Local 1304 meeting, where counsel addressed the attendees and stated that it was "important to collect as much testimony and written evidence as possible." Mr. Reynolds asked the retirees and surviving spouses to complete the questionnaire by providing certain information-such as date of birth, social security number, date or retirement — and "[a] brief, written and signed explaination [sic] especially on verbal conversations at the time of retirement . . ." Mr. Reynolds stated that the information provided would be forwarded to the attorney.
Plaintiffs contend that Case is not entitled to discovery of the completed questionnaires or letters, arguing that they are protected under the work product doctrine. Plaintiffs argue that the answers to the questionnaire and statements in the letters were made by or for members of the putative class and that they were solicited by Mr. Reynolds, a proposed class member, in direct response to Plaintiffs' counsel's request.
Case responds that Plaintiffs' counsel informed Magistrate Judge Capel at the hearing on July 31, 2003, that the questionnaire was prepared and distributed by Mr. Reynolds without counsel's direction or input. See Case's Resp., Ex. 5 at 6-8. Case argues that Mr. Reynolds is a third-party witness, not Plaintiffs' counsel's client. Case further argues that the persons who provided the statements in the questionnaires and letters also are third-party witnesses.
Magistrate Judge Capel concluded that the questionnaires were not protected by the work product doctrine, reasoning that they were not prepared by Plaintiffs' counsel, at Plaintiffs' counsel's request, or under counsel's supervision and because they were answered by third-party witnesses, rather than clients. Magistrate Judge Capel further concluded that letters written to counsel by proposed class members or their family members did not constitute work product, as they also were prepared by third-party witnesses and were not prepared at counsel's request or under counsel's supervision. Magistrate Judge Capel held that a basic request for information to a third party did not transform the parties' future written statements into the requestor's work product.
The Court concludes that Magistrate Judge Capel's order was neither clearly erroneous nor contrary to law. There is no dispute that Mr. Reynolds prepared the questionnaire without Plaintiffs' counsel's input or direction. Thus the questionnaire is not Plaintiffs' counsel's work product. The questionnaires were answered and the letters were written by putative class members or their family members. Several district courts have concluded that the work product doctrine does not attach to proposed class members' statements. See, e.g., Vallone v. CNA Fin. Corp., 2002 WL 1726524, *1 (N.D. Ill. March 19, 2002) (holding that attorney client privilege and work product doctrine do not protect questionnaires returned by putative class member from discovery); Morisky v. Pub. Serv. Elec. and Gas Co., 191 F.R.D. 419, 424-25 (D. N.J. 2000) (holding that putative class members are neither parties to the litigation nor clients of plaintiff's counsel and that questionnaires answered by putative class members, therefore, are not protected by the work product doctrine); Hudson v. Gen. Dynamics Corp., 186 F.R.D. 271, 276-77 (D. Conn. 1999) (holding that questionnaires prepared by attorneys for former employees, completed by latter before becoming clients, were not protected under the attorney client privilege or the work product doctrine); Dobbs v. Laments Apparel, Inc., 155 F.R.D. 650, 654 (D. Alaska 1994) (holding that proposed class members' statements in response to attorney questionnaire constituted third-party witness statements that were not protected from discovery by work product doctrine).
Accordingly,
Plaintiffs' Objections to the September 30, 2003 Order Granting in Part and Denying in Part Plaintiffs' Motion to Quash and for Protective Order is DENIED.