[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 24, 2008
No. 06-16158 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-21759-CV-JEM
COLIN THOMAS, on behalf of
himself and all others
similarly situated,
Plaintiff-Appellant,
versus
GEORGE, HARTZ, LUNDEEN, FULMER, JOHNSTONE,
KING, AND STEVENS, P.A.,
CHARLES MICHEL HARTZ,
individually,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 24, 2008)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
WILSON, Circuit Judge:
Colin Thomas (“Thomas”) appeals the district court’s grant of summary
judgment against his claim that attorney Charles Michael Hartz and the law firm,
George, Hartz, Lundeen, Fulmer, Johnstone, King and Stevens, P.A. (collectively,
“Hartz”) violated the Driver’s Privacy Protection Act (“DPPA”) by wrongfully
obtaining and using personal information contained in driver’s license records.
We affirm.
I. BACKGROUND
On March 28, 2002, Hartz purchased from the Florida Department of
Highway Safety and Motor Vehicles the registration information of all individuals
in Miami-Dade County who registered both new and used motor vehicles from
January 1, 2000 through March 31, 2002. On November 15, 2002, Hartz
purchased the same information for the period April 1, 2002 through November
15, 2002. In total, Hartz accumulated 284,000 driving records of Florida
residents. Since Thomas had purchased and registered a Chevrolet Impala in June
2002, his name and address was included in the information obtained by Hartz.
Thomas brought suit under the DPPA seeking: (1) $2,500 in statutory liquidated
damages; (2) equitable relief for the destruction of illegally obtained records; and
(3) certification of a class of consumers.
2
II. DISCUSSION
Thomas challenges two orders of the district court: (1) the grant of summary
judgment in favor of Hartz; and (2) the denial of Thomas’ motion to compel the
production of discovery.
A. The District Court’s Summary Judgment Order
We review the district court’s grant of summary judgment de novo.
Holloman v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006).
The DPPA “regulates the disclosure of personal information contained in
the records of state motor vehicle departments (DMVs).” Reno v. Condon, 528
U.S. 141, 143, 120 S. Ct. 666, 668, 145 L. Ed. 2d 587 (2000). One section of the
DPPA prohibits disclosures of personal information by a state’s department of
motor vehicles and any officer, employee, or contractor thereof, see 18 U.S.C. §
2721(a), while a separate section provides a private cause of action against
persons who knowingly obtain, disclose, or use personal information from a motor
vehicle record, see 18 U.S.C. § 2724(a).
Despite these prohibitions, Congress made clear that not all obtainment,
disclosure, or use of personal information from motor vehicle records is wrongful.
In § 2721(b), the DPPA provides fourteen “permissible uses,” one of which allows
for the information to be used in connection with “investigation in anticipation of
3
litigation” (hereafter, “the litigation clause”):
For use in connection with any civil, criminal, administrative, or arbitral
proceeding in any Federal, State, or local court or agency or before any
self-regulatory body, including the service of process, investigation in
anticipation of litigation, and the execution or enforcement of judgments
and orders, or pursuant to an order of a Federal, State, or local court.
18 U.S.C. § 2721(b)(4) (emphasis added).
Hartz asserted below that it obtained and used the vehicle records for the
purpose of identifying potential witnesses to testify in lawsuits against automobile
dealerships. At summary judgment, the district court held that Thomas failed to
raise an issue of material fact as to the inapplicability of the litigation clause and
failed to raise sufficient evidence as to any alleged impermissible obtainment or
use. Thomas contends that the court: (1) erroneously placed the burden on
Thomas to show “a purpose not permitted” under 18 U.S.C. § 2724(a); and (2)
improperly weighed the summary judgment evidence. As set forth below, neither
of these arguments has merit.
1. Burden of Proof Under 18 U.S.C. § 2724(a)
Thomas asserts that the litigation clause in § 2721(b)(4) constitutes an
affirmative defense for which the defendant carries the burden of proof. Whether
the “permissible uses” listed in § 2721(b) constitute affirmative defenses for which
defendants carry the burden of proof is a matter of first impression for this circuit
4
and has not been addressed by our sister circuits.
The touchstone for determining the burden of proof under a statutory cause
of action is the statute itself. Schaffer v. Weast, 546 U.S. 49, 56, 126 S. Ct. 528,
534, 163 L. Ed. 2d 387 (2005). When a statute is silent as to who bears the burden
of proof, we resort to “the ordinary default rule that plaintiffs bear the risk of
failing to prove their claims.” Id.
The ordinary default rule, however, “admits of exceptions.” Id. at 57, 126
S. Ct. at 534. One such exception is that “certain elements of a plaintiff’s claim
may be shifted to defendants, when such elements can fairly be characterized as
affirmative defenses or exemptions.” Id.; accord Fed. Trade Comm’n v. Morton
Salt Co., 334 U.S. 37, 44-45, 68 S. Ct. 822, 827, 92 L. Ed. 1196 (1948) (“[T]he
general rule of statutory construction that the burden of proving justification or
exemption under a special exception to the prohibitions of a statute generally rests
on one who claims its benefits, requires that respondent undertake this proof . . .
.”) (internal footnote omitted).
Another exception is that courts will “not place the burden upon a litigant of
establishing facts peculiarly within the knowledge of his adversary.” Schaffer,
546 U.S. at 60, 126 S. Ct. at 536 (internal quotation marks omitted). This
exception, however, “is far from being universal, and has many qualifications
5
upon its application.” Id. (internal quotation marks omitted).
While there have been some circumstances where the Supreme Court has
placed the burden of persuasion over an entire claim on the defendant at the outset
of a proceeding, see id. at 57, 126 S. Ct. at 534-35 (citing Alaska Dep’t of Envtl.
Conservation v. EPA, 540 U.S. 461, 494, 124 S. Ct. 983, 157 L. Ed. 2d 967
(2004)), such instances “are extremely rare.” Id., 126 S. Ct. at 535.
In examining the statute, we first turn to the DPPA’s provision for a civil
cause of action:
A person1 who knowingly obtains, discloses or uses personal information,
from a motor vehicle record, for a purpose not permitted under this chapter
shall be liable to the individual to whom the information pertains, who
may bring a civil action in a United States district court.
18 U.S.C.A. § 2724(a).
In a straightforward fashion, section 2724(a) sets forth three elements giving
rise to liability, i.e., that a defendant (1) knowingly obtained, disclosed or used
personal information, (2) from a motor vehicle record, (3) for a purpose not
permitted. The plain meaning of the third factor is that it is only satisfied if shown
that obtainment, disclosure, or use was not for a purpose enumerated under §
2721(b). Section 2721(b) provides in full:
1
The DPPA defines “person” as “an individual, organization or entity, but does not
include a State or agency thereof.” 18 U.S.C. § 2725(2).
6
(b) Permissible uses.--Personal information referred to in subsection (a)
shall be disclosed for use in connection with matters of motor vehicle or
driver safety and theft, motor vehicle emissions, motor vehicle product
alterations, recalls, or advisories, performance monitoring of motor
vehicles and dealers by motor vehicle manufacturers, and removal of non-
owner records from the original owner records of motor vehicle
manufacturers to carry out the purposes of titles I and IV of the Anti Car
Theft Act of 1992, the Automobile Information Disclosure Act (15 U.S.C.
1231 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), and chapters
301, 305, and 321-331 of title 49, and, subject to subsection (a)(2), may be
disclosed as follows:
(1) For use by any government agency, including any court or law
enforcement agency, in carrying out its functions, or any private person or
entity acting on behalf of a Federal, State, or local agency in carrying out
its functions.
(2) For use in connection with matters of motor vehicle or driver safety
and theft; motor vehicle emissions; motor vehicle product alterations,
recalls, or advisories; performance monitoring of motor vehicles, motor
vehicle parts and dealers; motor vehicle market research activities,
including survey research; and removal of non-owner records from the
original owner records of motor vehicle manufacturers.
(3) For use in the normal course of business by a legitimate business or its
agents, employees, or contractors, but only--
(A) to verify the accuracy of personal information submitted by the
individual to the business or its agents, employees, or contractors;
and
(B) if such information as so submitted is not correct or is no longer
correct, to obtain the correct information, but only for the purposes
of preventing fraud by, pursuing legal remedies against, or
recovering on a debt or security interest against, the individual.
(4) For use in connection with any civil, criminal, administrative, or
arbitral proceeding in any Federal, State, or local court or agency or before
any self-regulatory body, including the service of process, investigation in
anticipation of litigation, and the execution or enforcement of judgments
and orders, or pursuant to an order of a Federal, State, or local court.
7
(5) For use in research activities, and for use in producing statistical
reports, so long as the personal information is not published, redisclosed,
or used to contact individuals.
(6) For use by any insurer or insurance support organization, or by a self-
insured entity, or its agents, employees, or contractors, in connection with
claims investigation activities, antifraud activities, rating or underwriting.
(7) For use in providing notice to the owners of towed or impounded
vehicles.
(8) For use by any licensed private investigative agency or licensed
security service for any purpose permitted under this subsection.
(9) For use by an employer or its agent or insurer to obtain or verify
information relating to a holder of a commercial driver's license that is
required under chapter 313 of title 49.
(10) For use in connection with the operation of private toll transportation
facilities.
(11) For any other use in response to requests for individual motor vehicle
records if the State has obtained the express consent of the person to
whom such personal information pertains.
(12) For bulk distribution for surveys, marketing or solicitations if the
State has obtained the express consent of the person to whom such
personal information pertains.
(13) For use by any requester, if the requester demonstrates it has obtained
the written consent of the individual to whom the information pertains.
(14) For any other use specifically authorized under the law of the State
that holds the record, if such use is related to the operation of a motor
vehicle or public safety.
18 U.S.C. § 2721.
In reading § 2724(a) and § 2721(b) together, we conclude that the DPPA is
silent on which party carries the burden of proof and, as such, the burden is
properly upon the plaintiff. Thomas argues that the permissible uses listed in
8
§ 2721(b) function as statutory exceptions and, therefore, the defendants should
carry the burden of proof to secure entitlement of such exceptions.
We disagree. The DPPA plainly sets forth three elements giving rise to
liability, the third of which is whether the subject act was “for a purpose not
permitted.” 18 U.S.C. § 2724(a) (emphasis added). The emphasized language
does not frame the § 2721(b) enumerations as exceptions to a general norm. That
is, Congress could have said, for example: “A person who knowingly obtains,
discloses, or uses personal information, from a motor vehicle record, shall be
liable to the individual to whom the information pertains, except as provided in 18
U.S.C. § 2721(b).” But Congress did not so draft § 2724(a), and if we read it as
such, we place the burden of proving a § 2721(b) enumeration upon the defendant
when Congress has not instructed us to do so. Just as we will not write words into
a statute to provide a different, or more preferable meaning, see, e.g., Badaracco v.
Comm'r of Internal Revenue, 464 U.S. 386, 398, 104 S. Ct. 756, 764, 78 L. Ed. 2d
549 (1984) (“Courts are not authorized to rewrite a statute because they might
deem its effects susceptible of improvement.”), so, too, will we not alter statutory
structure and language for the purpose of triggering application of a rule of
construction. See Dorelien v. U.S. Att’y Gen., 317 F.3d 1314, 1321 (11th Cir.
2003) (en banc) (“Our role is not to second-guess Congress’s drafting choices.
9
Rather, our function is to apply statutes, to carry out the expression of the
legislative will that is embodied in them, not to ‘improve’ statutes by altering
them.” (internal quotation marks and alterations omitted)).
Congress is adept at drafting general norms that provide for exceptions, and
frequently does so; indeed, it did just this with the DPPA in § 2721(a).2 In both
subparts of § 2721(a), Congress explicitly excepted the § 2724(b) enumerations:
(a) In general.--A State department of motor vehicles, and any officer,
employee, or contractor thereof, shall not knowingly disclose or otherwise
make available to any person or entity:
(1) personal information, as defined in 18 U.S.C. 2725(3), about any
individual obtained by the department in connection with a motor vehicle
record, except as provided in subsection (b) of this section; or
(2) highly restricted personal information, as defined in 18 U.S.C. 2725(4),
about any individual obtained by the department in connection with a
motor vehicle record, without the express consent of the person to whom
such information applies, except uses permitted in subsections (b)(1),
(b)(4), (b)(6), and (b)(9): Provided, That subsection (a)(2) shall not in any
way affect the use of organ donation information on an individual’s
driver’s license or affect the administration of organ donation initiatives in
the States.
18 U.S.C. § 2724(a) (emphasis added).
Section 2721(a) plainly sets up the enumerations in § 2721(b) as exceptions,
whereas § 2724(a) plainly does not. We do not believe that this difference in
2
Unlike § 2724(a)’s private cause of action, § 2721(a) is directed at state motor vehicle
departments and officers, employees, and contractors thereof—not private individuals—and
prohibits only disclosures—not obtainment and use.
10
language is meaningless. See Russello v. United States, 464 U.S. 16, 23, 104 S.
Ct. 296, 300, 78 L. Ed. 2d 17 (1983) (“[W]here Congress includes particular
language in one section of a statute but omits it in another section of the same Act,
it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.” (internal quotation marks omitted)).3
Thomas also argues that the burden to show “for a purpose not permitted”
should be allocated to defendants because the factual presence of any one
permissible purpose in § 2721(b) is “peculiarly within the knowledge” of the
defendant. Schaffer, 546 U.S. at 60, 126 S. Ct. at 536 (internal quotation marks
omitted). From the outset, we recognize that the Supreme Court is cautious in its
application of this rule. Id. (stating that the “‘rule is far from being universal and
has many qualifications upon its application.’” (quoting Greanleaf’s Lessee v.
Birth, 6 Pet. 302, 312, 8 L. Ed. 406 (1832); citing 2 J. Strong, McCormick on
Evidence § 337, p. 413 (5th ed. 1999) (“Very often one must plead and prove
matters as to which his adversary has superior access to the proof.”))). We have
previously applied this rule where a plaintiff would be unreasonably required “to
3
We note that placing the burden upon the defendant to show the third element would
essentially relegate the motion to dismiss stage to something less than a speed bump in § 2724(a)
actions. Plaintiffs could survive a Fed. R. Civ. P. 12(b)(6) challenge upon the bare allegation of
a defendant’s mere obtainment of information from a vehicle record.
11
speculate whether defendants intend to assert [a statutory defense] and could result
in unfair surprise at trial.” Jackson v. Seaboard Coast Line R. R., 678 F.2d 992,
1013 (11th Cir. 1982). In this instance, we are unconvinced that facts giving rise
the § 2721(b) enumerations are so peculiarly within the knowledge of the
defendant as to cause a shifting of the burden of proof.
Many of the § 2721(b) enumerations are tied to a particular occupation or
organization and its corresponding lawful need for the information. See 18 U.S.C.
§ 2721(b)(1) (government agency); § 2721(b)(4) (legal investigation, service,
proceedings, and enforcement); § 2721(b)(5) (researchers); § 2721(b)(6)
(insurance); § 2721(b)(7) (towed or impounded vehicle); § 2721(b)(8) (private
investigative agency or security service); § 2721(b)(10) (private toll transportation
facilities). Other § 2721(b) enumerations point to a particularized purpose. See 18
U.S.C. § 2721 (b)(2) (safety, theft, emissions, product alteration, performance
monitoring, parts and dealers, research, updating of records);
§ 2721(b)(3) (verification of individual’s submission of information);
§ 2721(b)(9) (employer verification of employee’s information); § 2721(b)(14)
(state authorized use related to operation of vehicle or public safety). Finally, the
remaining three enumerations only apply when the plaintiff has provided consent.
See 18 U.S.C. § 2721(b)(11)-(13).
12
Thus, for example, if a plaintiff names a law firm (as here) or an insurance
agency as the defendant, there is a high probability that subsection (b)(4) is at
issue in the former and (b)(6) in the latter. Similarly, if a plaintiff is a recipient of
a mass marketing letter, it is no secret that (b)(12) is at issue, which allows for
bulk distribution of solicitations only if express consent is obtained. Upon close
examination of § 2721(b), we conclude that plaintiffs will not typically be left in
the dark as to which § 2721(b) enumeration, if any, will be asserted as applicable
by the defendant. We are confident that proper use of discovery tools, such as
interrogatories, requests for admissions, and depositions, will reveal which
enumerations may apply and where a plaintiff must accordingly aim its argument.
In the end, where Congress does not squarely address the question, where
the statute’s structure and language do not suggest a shift of the burden to the
defendant (through use of statutory exceptions, for example), and where plaintiffs
are not peculiarly at a disadvantage in the discovery of necessary facts, we will not
shift the burden or proof, or any element thereof, to the defendant.
2. Whether the District Court Improperly Weighed the Summary Judgment
Evidence
Upon Hartz’s motion for summary judgment, the district court recognized
the evidence showing that obtainment of the information was for the purpose of
13
Hartz’s investigation in anticipation of litigation. (D.E. 336 at 9.) Specifically, in
his affidavit, Charles Michael Hartz averred that he requested the information
because the automobile dealers he was litigating against were asserting that
plaintiffs needed to plead and prove multiple acts of deceptive and unfair trade
practices to state a deceptive and unfair trade practice claim under Florida law.
(D.E. 30 at Appx. B, ¶ 5.) Thomas does not contend that this was a meritless or
even mistaken view of the law at the time.4 The court next recognized that the
deposition testimony submitted by Hartz showed that the information was used to
send one-thousand “Custom and Practice” letters, which aimed at obtaining
evidence showing a custom and practice of deceptive acts engaged in by
dealerships. (D.E. 336 at 9.) In this vein, a copy of the Custom and Practice letter
was produced in discovery as well as the number of individuals to whom Hartz
had sent the letters.
In response to this evidence, Thomas made three claims: (1) Hartz did not
identify the names of specific cases giving rise to the Custom and Practice letters;
4
Specifically, Hartz contends that the case, Beacon Prop. Mgmt., Inc. v. PNR, Inc., 785
So. 2d 564 (Fla. 4th DCA 2001), required plaintiffs bringing claims under the Florida Deceptive
and Unfair Trade Practices Act to demonstrate that the defendant had a custom and practice of
engaging in deceptive acts against individuals other than the subject plaintiff. It bears
mentioning that the Florida Supreme Court reversed PNR on March 13, 2003, well after Hartz
had obtained the vehicle records. See PNR, Inc. v. Beacon Prop. Mngmt., 842 So. 2d 773 (Fla.
2003).
14
(2) Hartz obtained a large number of names, most of whom never received a
Custom and Practice letter; and (3) Thomas’ information was used, without his
express consent, to assemble and send out a marketing letter. The district court
held that Thomas failed to create a genuine issue of material fact as to “a purpose
not permitted.” We agree.
First, as expressed by the district court, Thomas’ assertion that Hartz did not
specify which cases gave rise to the Custom and Practice letters is not a genuine
issue of material fact when Thomas, himself, never requested such information
from Hartz. Thomas was not in a position to be passive; it was incumbent upon
him to come forward with some evidence showing that the litigation clause did not
apply, which he failed to do. Id.
Second, as the district court rightly determined, the fact that many records
were retrieved, but only a comparatively small number were used for Custom and
Practice letters did not, by itself, raise a genuine issue of material fact as to
whether the litigation clause applied. By affixing significance solely to the
number of records relating to letters sent out, Thomas overlooked that Hartz’s
initial review of the total amount of records is just as much tied to “investigation
in anticipation of litigation” as the eventual sending out. Thomas failed, however
to discredit, or even address, the initial review.
15
Third, Thomas attempted to argue that Hartz’s use of the information was
not for a litigation purpose, but rather for the purpose of sending Thomas a
marketing letter. Thomas did not produce such a letter and, at deposition, Thomas
testified that he was “less than fifty-percent” or “fifty-percent” certain that he
actually received a letter:
Q: How sure are you that you received the letter from the Hartz company?
A: I would say less than 50 percent. 50 percent, somewhere around there.
You could flip a coin probably would be about right.
(D.E. 336 at 13.)
Further, Thomas attested that if he did receive a letter, he received it in June
of 2000. Id. Hartz pointed out that such a letter, if received, could not be relevant
to this case as it was undisputed that it did not request the information from the
department of motor vehicles until 2002. Id. The district court correctly
determined that this evidence was insufficient to raise a genuine issue of material
fact. See Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004) (“A mere
scintilla of evidence in support of the nonmoving party will not suffice to
overcome a motion for summary judgment.”). On the basis of the evidence before
the district court, we find no error in the decision to grant summary judgment.5
5
Thomas also argues that a particular excerpt from Hartz’s deposition indicates a “second
ulterior motive” for obtaining the vehicle records; i.e., they were obtained for the purpose of
creating a database of witnesses for prospective, not-yet-filed litigation—as opposed to currently
16
B. The District Court’s Denial of the Motion to Compel
In his First Request for Production, Thomas requested “all letters sent by
[Hartz] to residents of Miami-Dade County offering to review documents
. . . received in connection [with] the purchase or lease of a new vehicle.” (D.E.
49 at 10.) Thomas asserts that this request covered Hartz’s Custom and Practice
Letters. Hartz objected on grounds of overbreadth, relevance, retaliation, work
product, and attorney-client privilege. Upon Thomas’ Motion to Compel, the
district court declined to order the production of all one-thousand Custom and
Practice Letters. (D.E. 164 at 3.) At the hearing on the motion, it became clear
that a copy of one of the Custom and Practice letters was already in discovery
(D.E. 173 at 49, 61), and counsel for Hartz provided a copy of that letter to both
counsel for Thomas and the court. (Id.) Because the Custom and Practice letters
related to the obtainment of witnesses in ongoing lawsuits against automobile
dealerships, the district court expressed concern that the letters were covered by
the work product privilege. See Fed. R. Civ. P. 26(b)(3)(A) (“Ordinarily, a party
may not discover documents and tangible things that are prepared in anticipation
pending cases. Our review of the record reveals that Thomas did not raise this particular
argument below and, as such, the argument is waived. Irving v. Mazda Motor Corp., 136 F.3d
764, 769 (11th Cir. 1998). Nonetheless, the argument is without merit. The litigation clause
refers to investigation in anticipation of litigation. Thus, even if the accumulation of potential
witnesses related, in part, to certain cases not yet filed, we do not see how pre-suit investigation
can be considered per se inapplicable to the litigation clause.
17
of litigation or for trial by or for another party . . . .”). Specifically, the district
court stated: “a letter [sent] out to someone who is involved in the lawsuit saying,
‘we are looking for witnesses who were . . . defrauded by this car dealership
because I’m representing Joe Smith,’ that might be work product.” (D.E. 173 at
61.)6 Counsel for Thomas then stated: “I agree with that” and proceeded to
address a different matter. (Id. at 61-62.) The issue was not revisited prior to the
court’s ultimate denial of Thomas’ motion to compel the Custom and Practice
letters.
Our standard of review is abuse of discretion. Castle v. Sangamo Weston,
Inc., 744 F.2d 1464, 1466 (11th Cir. 1984) (per curiam). “[W]hen employing an
abuse-of-discretion standard, we must affirm unless we find that the district court
has made a clear error of judgment, or has applied the wrong legal standard.”
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004).
6
Three copies of the Custom and Practice Letter in the record follow this general form
stated by the district court. (D.E. 269 at Ex. D, Bates 640, 885, 1095.) That is, the letters’
prefatory re: line provides the title of the related case and the introductory sentence states that the
law firm “represents [name of plaintiff] in the above captioned matter and we are presently
conducting the legal discovery process.” Id. The letters go on to state the general allegations
against the dealership and further explain that since the recipient purchased or leased a vehicle
from the dealership at the same time as the plaintiff, the law firm would appreciate the
opportunity to speak with the recipient “so as to further establish evidence of the custom and
practice used at [the] dealership.” Id. At the hearing, the court read out-loud the introductory
line of the letter to emphasize the point that the letters referred to particular cases. (D.E. 173 at
65.)
18
Thomas argues that any privilege Hartz had in the Custom and Practice
letters was waived because Hartz relied on the letters in asserting that the litigation
clause applied. Thomas contends that because the letters remained protected, he
was prevented from adequately testing whether the litigation clause applied. We
decline to address this waiver argument. Thomas did not raise it below in either
his Motion to Compel (D.E. 49 at 5-7, 14) or at the hearing (D.E. 173 at 65).7
Indeed, as set forth above, Thomas’ counsel affirmatively agreed with the court’s
work product reasoning. Thomas cannot now argue that such reasoning was
erroneous. See Irving v. Mazda Motor Corp., 136 F.3d 764, 769 (11th Cir. 1998)
(“Too often our colleagues on the district courts complain that the appellate cases
about which they read were not the cases argued before them.”).
Accordingly, we affirm.
AFFIRMED.
7
The argument advanced by Thomas in his Motion to Compel and at the hearing was that
Hartz waived the work product privilege by failing to produce a privilege document log. (D.E.
49 at 5-7; D.E. 173 at 65.)
19