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Kratzer v. Scott Hotel Group, LLC

United States District Court, S.D. Indiana, New Albany Division

April 30, 2019

PAUL KRATZER, Individually and on Behalf of All Others Similarly Situated, Plaintiff,



         This matter is before the Court on Defendant Scott Hotel Group LLC's (“Scott Hotel”) Objections to the Magistrate Judge's decision not to compel Plaintiff Paul Kratzer (“Kratzer”) to produce an unredacted narrative of events. (Filing No. 50.) For the reasons stated below, the Court denies Scott Hotel's Objection.

         I. BACKGROUND

         On November 9, 2017, Kratzer filed this class action lawsuit against Scott Hotel alleging violation of the Indiana Consumer Protection Act, breach of contract, and misrepresentation. (Filing No. 1.) On June 27, 2018, during a deposition, Kratzer revealed that he had created a narrative of events in a Microsoft Word file to document his hotel stays and interactions with hotel staff. (Filing No. 50-3 at 13.) Later, Kratzer produced a redacted version of the narrative in PDF format and claimed work product privilege over the redactions. Scott Hotel objected to those redactions. On October 29, 2018, the parties convened for a discovery conference with Magistrate Judge Debra Lynch (“the Magistrate Judge”) to address the issue of work-product privilege. After hearing arguments from each party, the Magistrate Judge, under the impression that only one version of the narrative existed, denied Scott Hotel's request to require Kratzer to produce the unredacted version of the narrative. (Filing No. 50 at 5.) On November 12, 2018, Scott Hotel filed its Objection to the Magistrate Judge's ruling pursuant to Federal Rule of Civil Procedure 72(a). (Filing No. 50.)

         Subsequently, the Magistrate Judge discovered that Kratzer's counsel misrepresented the facts at that discovery conference. (Filing No. 99 at 4.) Kratzer's counsel indicated that Kratzer could not produce the earliest, so-called “native version” of the narrative-the first version Kratzer had saved as a Microsoft Word document-because he had saved over it with other versions of the document that were created in preparation for litigation. Id. That turned out not to be the case. Kratzer's privilege log revealed that he had sent the earliest, native version of the document to attorney Sean McCarty at Jones Ward on September 19, 2017. Id. at 5 (citing Filing No. 52-1). Kratzer had sent subsequent versions of the document, updated in preparation of litigation, to McCarty on April 1, 2018 (the second iteration) and June 26, 2018 (the third iteration). Id. Thus, the narrative was not a single document that required redaction to approximate the initial, discoverable version of the narrative. It was three separate documents-the earliest version discoverable because it was not made in anticipation of litigation. Upon learning this information, the Magistrate Judge amended her ruling rendered at the October 29, 2018 discovery conference and ordered Kratzer to produce the September 19, 2017 version of the narrative in its native Word document format. Id. at 5-6.

         Scott Hotel's maintains objections to The Magistrate Judge's ruling as to the second and third iterations of the narrative.


         When a non-dispositive matter is referred to a magistrate judge, a district court judge may only “modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a). The clear error standard, which is highly deferential, permits reversal only when “the district court is left with the definite and firm conviction that a mistake has been made.” Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 943 (7th Cir. 1997). “Under the ‘contrary to law' standard, the district court conducts a plenary review of the magistrate judge's purely legal determinations, setting aside the magistrate judge's order only if it applied an incorrect legal standard” or if it “misapplie[d] relevant statutes, case law, or rules of procedure.” Barton v. Zimmer, No. 1:06-cv-208-TLS, 2008 WL 2484604, at *1 (N.D. Ind. June 19, 2008) (internal citations and quotations omitted). If the issue results in multiple permissible views, “the reviewing court should not overturn the decision solely because it would have not chosen the other view.” Hunter v. Dutton, No. 06-444-DRH, 2009 WL 230088, at * 1 (S.D. Ind. Jan. 30, 2009) (citing American Motors Corp. v. Great American Surplus Lines Insurance Co., No. 87-C-2496, 1988 WL 2788 at *1 (N.D. Ill. Jan. 30, 1988)).


         As an initial matter, the Court notes that Scott Hotel presents numerous arguments that were not made at the October 29, 2018 conference before the Magistrate Judge. The Court will first address those arguments and then turn to the issue that was solely in front of the Magistrate Judge - work product privilege.

         A. Waiver - Work Product and Attorney-Client Privilege

         Scott Hotel contends the Magistrate Judge committed clear error by not considering that Kratzer allegedly waived work product and attorney-client privileges surrounding the narrative. Kratzer argues that Scott Hotel waived this argument in the first place because it was not presented to the Magistrate Judge. The Seventh Circuit's waiver standard is that “arguments not made before a magistrate judge are normally waived.” United States v. Melgar, 227 F.3d 1038, 1040 (7th Cir. 2000). This rule ensures a fair process because “[f]ailure to raise arguments will often mean that facts relevant to their resolution will not have been developed” or “one of the parties may be prejudiced by the untimely resolution of an argument.” Id. at 1041. Referring motions to magistrate judges is intended to promote judicial efficiency, so it follows that a magistrate should hear all arguments a party wishes to make. See Anna Ready Mix, Inc. v. N.E. Pierson Constr. Co., 747 F.Supp. 1299, 1303 (S.D. Ill. 1990). As a result, “discovery disputes should be vigorously litigated in front of the magistrate judge in the first instance, and this Court will review the magistrate judge's decision only through the narrow lens prescribed by Congress and the Federal Rules of Civil Procedure.” Indianapolis Airport Authority v. Travelers Property Casualty Co. of America, No. 1:13-cv-0316-JMS-TAB, 2015 WL 1013952, at *3 (S.D. Ind. Mar. 9, 2015).

         Scott Hotel's objection briefing “treats the Court's review of the Magistrate Judge's decision as an opportunity for de novo presentation and review.” Id. at *3. For example, Scott Hotel now asserts that Kratzer waived work product protection at his deposition when discussing the narrative and waived attorney-client privilege when he produced the redacted version of narrative. (Filing No. 50 at 6-8.) Despite the Magistrate Judge's offer to accept briefing on the matter, the parties asked the magistrate judge to rule on the arguments presented orally during the conference. (Filing No. 96 at 11-12.) This Court has previously concluded that the presentation of arguments not raised before a magistrate judge is “clearly inappropriate.” Indianapolis Airport Authority, 2015 WL 1013952, at *3. Consequently, the Court will confine its review of the Magistrate Judge's ruling to the arguments presented and will disregard newly submitted arguments regarding waiver of work product protection and attorney-client privilege. “To invoke schoolyard vernacular: no do-overs.” Id. at *3.

         B. Work ...

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