United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on the Defendants' Motion to Quash Plaintiff's Subpoena to Non-Party Custard Insurance Adjusters .
On August 6, 2011, Plaintiff's vehicle collided with Defendant Linda Smith's ("Smith") tractor-trailer on I-85 near the metro Atlanta area. Second Am. Compl. at ¶ 14. Plaintiff alleges that Defendant Smith negligently crossed the dividing line on the highway, collided with Plaintiff's vehicle, caused Plaintiff to lose control of his vehicle, and forced him to exit the highway. Id. at ¶ 15. Defendant Smith is the owner and sole shareholder of Defendant Try God, Inc. ("Try God"). Id. at ¶ 23. Plaintiff alleges that Defendant Smith and Defendant Try God operated the tractor-trailer on behalf of Defendant Schneider National Carriers, Inc. ("Schneider National") pursuant to a contractual agreement that gave Schneider National "exclusive possession, control and use of" the tractor-trailer. Id. at ¶ 28. The Complaint alleges that Defendants INS Insurance, Inc. ("INS") and Liberty Mutual Fire Insurance, Inc. provide liability insurance to Schneider National, and thus are responsible for any judgment entered against Defendant Smith and Schneider National pursuant to O.C.G.A. § 46-7-12. Id. at ¶¶ 44-46.
On November 25, 2013, Plaintiff filed a six (6) count Complaint against the Defendants seeking compensatory and punitive damages that he alleges he sustained for "severe and permanent injuries" when his vehicle collided with Defendant Smith's tractor-trailer. Id. at 18.
The matter before the Court concerns a Subpoena that Plaintiff issued to Custard Insurance Adjusters ("Custard"). On August 6, 2011, Defendant INS hired Custard to investigate the cause of the collision between Plaintiff's vehicle and Defendant Smith's tractor-trailer. On behalf of INS, Custard photographed the scene of the accident, interviewed witnesses, and performed additional investigatory tasks. Levash Aff. at ¶ 5. On August 8, 2011, and September 1, 2011, Custard photographed the scene of the accident. Id. at ¶ 6. On August 18, 2011, and August 22, 2011, Custard interviewed Mary Eber and Bruce Baker. These individuals witnessed the collision between Plaintiff's vehicle and Defendant Smith's tractor-trailer.
On October 30, 2013, Plaintiff subpoenaed Custard to produce "[a]ny and all statements taken on behalf of [Schneider National] in connection with an accident which occurred on August 8, 2011 involving Luis Hunte and Linda R. Dailey Smith, including, but not limited to statements of Bruce Baker and Mary Eber." See Def.'s Ex. A at 2. The Subpoena directed Custard to produce the documents at the law offices of Plaintiff's counsel, on or before "0:00 a.m." on November 19, 2013.
On November 19, 2013, Defendants moved to quash the Subpoena on the grounds that the witness statements of Baker and Eber are protected by the work-product doctrine. Defendants claim that they have a right to withhold Eber's and Baker's written testimony about the accident because the statements were prepared by Custard for Defendant INS in anticipation of litigation. In support of this conclusory claim, the Defendants submitted an equally conclusory affidavit made by Jean Levash, a Senior Claims Adjuster employed by Defendant INS. Levash states that Defendant INS received notice of the accident at 6:20 p.m. on August 6, 2011. Levash Aff. at ¶ 2. According to Levash, Custard was hired to investigate the accident at approximately 7:00 p.m. on August 6, 2011. Id. at ¶ 4. Levash claims that Defendant INS was "motivated to investigate further because of anticipated litigation against itself, its insured, [Standard National], and [Defendant Smith]." Id. at ¶ 3. This claim is factually unsupported, and the affidavit does not explain why Defendant INS anticipated litigation within forty minutes of being informed of an accident that involved its insured.
Defendants also seek to quash the Subpoena because it contains typographical errors. The accident occurred on August 6, 2011, but the Subpoena directs Custard to produce documents related to an accident that occurred on August 8, 2011. The Subpoena also directs Custard to produce documents on or before November 19, 2014 at "0:00 a.m." Defendants argue that these typographical errors require that the Subpoena should be quashed because it does not contain the correct date for the materials sought, or the correct time for production of the documents.
A. Legal Standard
1. Motion to Quash Subpoena
Federal Rule of Civil Procedure 45(c)(3)(A) provides that, upon timely motion, a court must ...