Opinion
CIVIL ACTION NO. 03-3220 SECTION "A" (2).
August 12, 2004
ORDER AND REASONS
Defendant's Motion to Quash Subpoena and/or for Protective Order, Record Doc. No. 19, was previously deferred for the reasons stated in Record Doc. No. 20. As ordered, defendant, American River Transport Company ("ARTCO"), has supplemented its motion with a supplemental memorandum in support, a privilege log, and the affidavits of its attorney, Daniel J. Hoerner, and Patrick R. Benfield, the independent insurance claims adjuster who interviewed Billy Naquin, the third-party witness to the marine accident at issue. Record Doc. No. 21.
Plaintiffs, Gator Marshbuggy Excavator, L.L.C. and Essex Insurance Company, subpoenaed Benfield's entire investigative file, including the statement he took from Naquin. Plaintiffs filed a timely opposition memorandum. Record Doc. No. 23.
ARTCO also provided a copy of Benfield's file to me for in camera review. However, the documents listed as numbers 8 and 9 on defendants' privilege log are not included in the copies that were provided to me. ARTCO has stated that it does not claim work product protection for the copies of the Lafourche Parish Sheriff's office documents that are contained within Benfield's file and will provide those documents to plaintiffs.
A decision on defendant's motion to quash and/or for protective order turns on Fed.R.Civ.P. 26(b)(3), which codifies the work product doctrine. If the documents in Benfield's file were created in anticipation of litigation, they are protected from disclosure to plaintiffs by the work product doctrine, unless plaintiffs can meet their burden under Fed.R.Civ.P. 26 to show that they have substantial need of the materials in the preparation of their case and that they are unable without undue hardship to obtain the substantial equivalent of the materials by other means.
My review of the affidavits and the documents produced to me in camera reveals that the captain of the M/V RAMBLER was criminally charged with careless operation of a watercraft as a result of the June 3, 2003 incident. The Sheriff's report stated that Naquin was a witness concerning the incident.
No later than July 1, 2003, Hoerner hired Benfield to find Naquin and take his statement. Benfield interviewed Naquin and took his recorded statement on July 2, 2003. On July 8, 2003, Benfield sent to Hoerner a typed report concerning his investigation and a handwritten summary of his interview with Naquin. This lawsuit was filed on November 14, 2003.
On June 8, 2004, Benfield transmitted to Hoerner the audiotape of his interview with Naquin and a transcript of the recorded statement. The transcription was prepared on June 7, 2004.
Rule 26(b)(3) provides as follows.
[A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
Fed.R.Civ.P. 26(b)(3) (emphasis added).
ARTCO, as the party seeking protection, bears the burden to show that the disputed documents are work product, i.e., that they were prepared in anticipation of litigation. Guzzino v. Felterman, 174 F.R.D. 59, 63 (W.D. La. 1997) (Tynes, M.J.) (citing Hodges, Grant Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985)). "The law is settled that `excluded from the work product doctrine are materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation.'" Id. at 62 (quoting United States v. El Paso Co., 682 F.3d 530, 542 (5th Cir. 1982) (citing Rule 26(b)(3) advisory committee notes)).
The Fifth Circuit has described the standard for determining whether a document has been prepared in anticipation of litigation as follows:
It is admittedly difficult to reduce to a neat general formula the relationship between preparation of a document and possible litigation necessary to trigger the protection of the work product doctrine. We conclude that litigation need not necessarily be imminent, as some courts have suggested, as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.United States v. Davis, 636 F.2d 1028, 1039 (1981) (citations omitted) (emphasis added); accord In re Kaiser Alum. Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000); Guzzino, 174 F.R.D. at 63; Blockbuster Entertainment v. McComb Video, 145 F.R.D. 402, 404 (M.D. La. 1992) (Riedlinger, M.J.); Hill Tower, Inc. v. Department of Navy, 718 F. Supp. 562, 565 (N.D. Tex. 1988).
It is not dispositive that Benfield is not an attorney. Rule 26(b)(3) protects from discovery documents prepared by a party's agent, as long as they are prepared in anticipation of litigation. As the Supreme Court explained:
At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.United States v. Nobles, 422 U.S. 225, 238-39 (1975) (emphasis added).
In this context, the Seventh Circuit has held that the mere fact that litigation does eventually ensue does not, by itself, cloak materials . . . with the work product privilege; the privilege is not that broad. Rather, we look to whether in light of the factual context the document can fairly be said to have been prepared or obtained because of the prospect of litigation. While much of the paperwork generated by insurance companies is prepared with an eye toward a possible legal dispute over a claim, it is important to distinguish between an investigative report developed in the ordinary course of business as a precaution for the remote prospect of litigation and materials prepared because some articulable claim, likely to lead to litigation, has arisen.Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976-77 (7th Cir. 1996) (quotations and citations omitted); accord National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992); Hill Tower, Inc., 718 F. Supp. at 565 ("The mere fact this report deals with facts, opinions, and recommendations that later may be the focus of litigation does not establish that there was the expectation of litigation when this document was drafted.") (citing Senate of P.R. v. United States Dep't of Justice, 823 F.2d 574, 586 (D.C. Cir. 1987); Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 865 (D.C. Cir. 1980)); C.A. Wright, A.R. Miller R.L. Marcus, Federal Practice and Procedure § 2024, at 343-46 (1994) (hereinafter "Wright Miller").
Factors that courts rely on to determine the primary motivation for the creation of a document include the retention of counsel and his involvement in the generation of the document and whether it was a routine practice to prepare that type of document or whether the document was instead prepared in response to a particular circumstance. If the document would have been created regardless of whether litigation was also expected to ensue, the document is deemed to be created in the ordinary course of business and not in anticipation of litigation.Piatkowski v. Abdon Callais Offshore, L.L.C., No. 99-3759, 2000 WL 1145825, at *2 (E.D. La. Aug. 11, 2000) (Roby, M.J.) (citations omitted).
The statements in Hoerner's and Benfield's affidavits that they obtained Naquin's statement in anticipation of litigation are merely conclusory. However, other factors indicate that the primary motivating purpose behind the taking of Naquin's statement was to aid in future litigation. ARTCO knew that its captain had been criminally charged with careless operation of a watercraft and that the June 3, 2003 incident had allegedly caused property damage to plaintiffs' marshbuggy. ARTCO promptly hired counsel, who obtained the Sheriff's reports that named Naquin as a witness. ARTCO's attorney promptly retained Benfield to investigate Naquin's knowledge of the accident. Benfield's handwritten notes taken during the interview, the transcript of his interview with Naquin, his handwritten summary of the interview and his typed report to Hoerner contain indicia that he was aware that Naquin's statement was being obtained in anticipation of litigation. For example, Benfield advised Naquin that the recording was being made for an attorney because Naquin was a witness to the incident. In his typed report to Hoerner, Benfield provided his opinion concerning Naquin's credibility and the value of Naquin's information to Hoerner's client in terms of causation and liability. Finally, Benfield closed his file and billed Hoerner for his services after finishing his typed report. Benfield did not participate in any attempts to adjust or settle any potential claim, as other insurance adjusters have done in cases in which courts have found that the investigation was not performed in anticipation of litigation but in the ordinary course of business before counsel was retained. See, e.g., Piatkowski, 2000 WL 1145825, at *3; St. James Stevedoring Co., Inc. v. Femco Mach. Co., 173 F.R.D. 431, 434-35 (E.D.La. 1997) (Africk, M.J.); Insurance Co. of N. Am. v. M/V Savannah, No. 94 Civ. 8846, 1995 WL 608295, at *1 (S.D.N.Y. Oct. 17, 1995).
Accordingly, ARTCO has established that the documents in Benfield's file, including Naquin's statement, were created in anticipation of litigation and are work product.
Although I have not seen the documents listed as numbers 8 and 9 on defendants' privilege log, these documents appear from their descriptions to be attorney-client privileged documents. If plaintiffs still seek production of these two documents, they should so advise defendants' counsel, who must then provide these two documents to me for in camera review, no later than August 18, 2004.
Fed.R.Civ.P. 26(b)(3) protects Benfield's file, which was made in anticipation of litigation, from disclosure, unless the party seeking discovery shows "substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Plaintiffs have made no such showing at this time.
Plaintiffs cite Hamilton v. Canal Barge Co., 395 F. Supp. 975 (E.D. La. 1974) (Rubin, J.), which is distinguishable. In that wrongful death action, the court found that plaintiffs had a "substantial need" under Rule 26(b)(3) for witness statements because "the injured party is no longer alive to give his own account." Id. at 976. Judge Rubin distinguished cases in which survivors' accounts of the accident at issue were available. Id. at 977. There has been no showing in the instant case that the captain and crew members of the M/V RAMBLER are unavailable to give their accounts of what happened on June 3, 2003.
Judge Rubin also held, contrary to plaintiffs' argument in opposition to the instant motion to quash, that the mere passage of time does not necessarily require production of witness statements taken after an accident. He further held that the unavailability of a witness is a factor to consider in deciding whether the discovering party is unable without undue hardship to obtain the substantial equivalent of the witness's statement by other means. Id. at 978. Plaintiffs in the instant case have not shown that Naquin is unavailable.
Plaintiffs also cite Holton v. S W Marine, Inc., No. 00-1427, 2000 WL 1693667, at *4 (E.D. La. Nov. 9, 2000) (Fallon, J.). In that action, plaintiff alleged that he injured his back when he followed the orders of the captain of defendants' barge. He did not complete an accident report until six days later, when he was flown ashore for treatment. Defendants hired an independent claims adjuster, who took the captain's statement one month after the alleged incident. Plaintiff sought the statement in discovery and defendants opposed the request on work product grounds. Id. at *1.
The magistrate judge ordered that the statement be produced after plaintiff had deposed the captain. Defendants appealed and Judge Fallon reviewed the statement in camera. Id. at *2. Judge Fallon found that the captain's statement was "free of the statements and impressions of counsel that Hickman[v. Taylor, 329 U.S. 495, 511 (1947)] is intended to protect." Id. He also found that defendants had not carried their burden to show that the adjuster's "investigations were conducted primarily for the purposes of future litigation and outside the ordinary course of investigating a potential insurance claim." Id. at *3. Therefore, the statement in Holton was not work product. In the instant case, I have found that defendants have met their burdens in this regard, that Benfield's file does contain the mental impressions of the attorney's agent, and that the file, including Naquin's statement, was created in anticipation of litigation.
Furthermore, even if the captain's statement in Holton had been work product, Judge Fallon compared the statement in camera to the captain's deposition testimony. He found that the statement contained additional information, which satisfied plaintiff's Rule 26(b)(3) burden to show that the statement "is not the substantial equivalent of the deposition testimony."Id. at *4.
Plaintiffs have made no showing that they have substantial need of Benfield's file and are unable without undue hardship to obtain its substantial equivalent by other means. Plaintiffs have their own knowledge of the circumstances of the incident through the captain and crew members, and Naquin is available for deposition. After deposing Naquin, if plaintiffs are able to "demonstrate to the court with some specificity just why" they expect his statement to supply additional information that his deposition did not, Hamilton, 395 F. Supp. at 978, they can move to compel the statement. If necessary, the court can then review the statement in camera and compare it to the deposition testimony to determine whether the statement is, or is not, the substantial equivalent of the deposition testimony. Holton, 2000 WL 1693667, at *4;Hamilton, 395 F. Supp. at 978.
Of course, Naquin (as opposed to plaintiffs) is entitled as a matter of right to receive a copy of his statement upon request without making any showing. Fed.R.Civ.P. 26(b)(3);Scott v. Litton Avondale Indus., No. 01-3334, 2003 WL 1913976, at *4 (E.D. La. Apr. 16, 2003) (Roby, M.J.); Sims v. Lafayette Parish Sch. Bd., 140 F.R.D. 338, 338 (W.D. La. 1992) (Tynes, M.J.) (citing Miles v. M/V Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 1985)). If Naquin requests his own statement, it must be provided upon request, and this order is not intended to have any effect on any request that Naquin might make on his own behalf for his own statement.
For all of the foregoing reasons, and subject to the reservations of plaintiff's rights described above concerning documents No. 8 and 9 on defendants' privilege log and plaintiffs' and Naquin's rights concerning Naquin's statement, the motion to quash and/or for a protective order is GRANTED.