United States District Court, E.D. North Carolina, Western Division
E. Gates United States Magistrate Judge
TO COMPEL (D.E. 32)
case, which concerns insurance coverage arising from a motor
vehicle accident, comes before the court, in part, on the
motion (D.E. 32) by the sole defendant against which default
has not been entered, Michael Barlow ("Barlow"),
both as administrator of the estate of Michelle Barlow and
individually, for a motion to compel production of documents
from plaintiff Progressive Southeastern Insurance Company
("plaintiff) pursuant to a subpoena he directed to
plaintiff While, as issued, the subpoena sought a
broad range of documents, the parties appear to have limited
the requested documents to two groups, plaintiffs liability
claim file for defendant Timothy Robbins and its coverage
file regarding the policy for defendant Arbormax Tree
contends that the documents at issue are entitled to work
product protection. In order to show entitlement to such
protection, "a party must establish three things: (1)
that the material consists of documents or tangible things,
(2) which were prepared in anticipation of litigation or for
trial, and (3) by or for another party or its representatives
which may include an attorney, consultant, surety,
indemnitor, insurer or agent." Suggs v.
Whitaker, 152 F.R.D. 501, 504-05 (M.D. N.C. 1993)
(citing Ennis By and Through McMillan v. Anderson
Trucking, 141 F.R.D. 258, 259 (E.D. N.C. 1991)). A claim
file kept by an insurance company often does not qualify for
work product protection; however, if there is a reasonable
threat of litigation, the information gathered thereafter
"might be said to be acquired in anticipation of
litigation." Pete Rinaldi's Fast Foods v. Great
American Ins., 123 F.R.D. 198, 204 (M.D. N.C. 1988). A
party may discover work product prepared in anticipation of
litigation only upon a showing that the party has
"substantial need for the materials" and "is
unable without undue hardship to obtain the substantial
equivalent of the materials by other means."
first and third elements of the work product doctrine are not
in dispute. The court finds that, for the reasons plaintiff
states, it has shown that the documents sought were prepared
in anticipation of litigation in satisfaction of the second
element. Barlow presents no arguments to the contrary. The
documents are therefore entitled to work product protection.
Barlow has demonstrated neither a substantial need for them,
nor undue hardship in obtaining equivalent materials.
Barlow's motion to compel will accordingly be denied.
FOR EXTENSION (D.E. 36 & D.E.
case is also before the court on two additional motions by
Barlow. One (D.E. 36), filed on 24 May 2017 pursuant to
Fed.R.Civ.P. 6(b)(1), seeks extension of the time allowed
Barlow by Local Civil Rule 7.1(f)(1), E.D. N.C. to respond to
plaintiffs motion for summary judgment (D.E. 34). The other
(D.E. 37), filed 25 May 2017 pursuant to Fed.R.Civ.P.
16(b)(4), seeks extension of the 15 June 2017 deadline set in
the Scheduling Order (D.E. 27 at 2 ¶ 3), as amended by
the 17 March 2017 Order (D.E. 31 at 2 ¶ 2), for Barlow
to fde his own motion for summary judgment. Barlow seeks the
extensions pending ruling on his motion to compel. He argues
that if the court were to grant his motion to compel, the
resulting production could have a bearing on his response to
plaintiffs motion for summary judgment and his own motion for
opposes both motions. See D.E. 40, 41. It argues
that: (1) Barlow acted tardily by not filing his motion to
compel until the last day of the discovery period, 15 May
2017 (see 17 Mar. 2017 Ord. 2 ¶ 1); (2) if the
court were to grant the motion to compel, the additional
information would not change the outcome of the court's
decision on summary judgment; and (3) plaintiff would be
prejudiced if the deadlines were extended because it faces
having a judgment entered against it in the underlying
wrongful death case in state court.
"[w]hen an act may or must be done within a specified
time, the court may, for good cause, extend the time."
Fed.R.Civ.P. 6(b)(1). Additionally, a scheduling order
"may be modified only for good cause . . . ."
Fed.R.Civ.P. 16(b)(4). The good cause modification provision
specific to Rule 16(b)(4) takes precedence over the generally
applicable extension provisions of Rule 6(b)(1). E.g.,
Corkrey v. Internal Revenue Serv., 192 F.R.D. 66, 67
(N.D.N.Y. 2000); Dilmar Oil Co. v. Federated Mut. Ins.
Co., 986 F.Supp. 959, 980 (D.S.C. 1997),
aff'd, 129 F.3d 116 (4th Cir. 1997). The good
cause provision of Rule 16(b)(4) does not focus on the
prejudice to the non-movant or bad faith of the moving party,
but rather on the moving party's diligence. Dilmar
Oil Co., 986 F.Supp. at 980; see also Cook v.
Howard, 484 F.App'x 805, 815 (4th Cir. 2012)
("'Good cause' requires 'the party seeking
relief [to] show that the deadlines cannot reasonably be met
despite the party's diligence, ' and whatever other
factors are also considered, 'the good-cause standard
will not be satisfied if the [district] court concludes that
the party seeking relief (or that party's attorney) has
not acted diligently in compliance with the
schedule.'") (quoting 6A Charles Alan Wright, Arthur
R. Miller, and Mary Kay Kane, Federal Practice and Procedure
Civ. 3d § 1522.2 (2010)). The party moving to modify a
scheduling order bears the burden of demonstrating the
existence of good cause. United States v. Cochran,
No. 4:12-CV-220-FL, 2014 WL 347426, at *2 (E.D. N.C. 30 Jan.
2014) (citing Nourison Rug Corp. v. Parvizian, 535
F.3d 295, 298 (4th Cir. 2008)).
court finds that Barlow has shown good cause for the
extensions sought. Contrary to plaintiffs contention, Barlow
has not acted tardily. The timing of his motion to compel was
justified by, among other circumstances, his diligent efforts
to resolve the matters in dispute through conferral with
plaintiff. See D.E. 38-2. Further, he filed his
motion for extension of time to respond to plaintiffs summary
judgment motion before the date the response was due (6 June
2017) and his motion for extension of the deadline for his
own summary judgment motion before the deadline for it (15
June 2017) had expired. The court cannot dismiss the
potential relevance the documents sought by the motion to
compel may have had to issues presentable on summary
addition, the prejudice plaintiff asserts is, at the moment,
speculative. Plaintiff may, in any event, seek remedies for
any such prejudice in the state court case.
the length of the extensions Barlow seeks is reasonable. The
period of 21 days he seeks to respond to plaintiffs summary
judgment is the same length of time he would have otherwise
had under Local Civil Rule 7.1(f)(1), although running from
the court's ruling on his motion to compel rather than
service of plaintiffs motion. Similarly, the 30-day period he
seeks to file his own summary judgment motion is the same
length of time he would have under the Scheduling Order (p. 2
¶ 3), as amended by the 17 March 2017 Order (p. 2 ¶
2), although, again, running from the court's ruling on
his motion to compel rather than the close of discovery. The
fact that the extended deadlines would run from the ruling on
Barlow's motion to compel does not represent a windfall
to him or undue prejudice to plaintiff because Barlow
arguably required the ruling to be able to prepare his
response and own summary judgment motion, and the delay
entailed is relatively modest. Barlow's motions for
extension of time will therefore be allowed.
THEREFORE ORDERED as follows:
Barlow's motion to compel ...