Opinion
Civil Action No. 99-3759, Section "K" (4).
August 11, 2000.
On May 2, 2000, the plaintiff, Richard Piatkowski ("plaintiff') filed a Motion to Compel (doc £ 8) against the defendant, Abdon Callais Offshore, L.L.C. ("defendant"), testing the sufficiency of the defendant's objection that two witness statements secured by the defendant's claims adjuster are work product and therefore not discoverable.
I. Factual Background
The plaintiff alleges that shortly after his August 10, 1999 accident, the defendant hired Aucoin Claims to investigate and adjust his claim. The plaintiff contends that his attorney was contacted by Pat Aucoin of Aucoin Claims for the purpose of discussing possible settlement prior to the defendant retaining an attorney. To facilitate settlement, the plaintiff contends that his counsel and Mr. Aucoin orally reached an agreement to exchange witnesses' statements. However, the claims adjuster did not settle the case. The plaintiff contends that despite the agreement, when it became clear that the case would not settle, the defendant retained an attorney, who refused to honor Mr. Aucoin's agreement to provide copies of the two witness statements.
The plaintiff further asserts that the defendant's work product objection to identifying the names of all persons from whom it has obtained statements, in response to plaintiff's Interrogatory No. 5, is inappropriate. Thus, the plaintiff seeks an order from the Court, compelling the defendant to produce the two witness statements and to provide a full response to Interrogatory No. 5.
Interrogatory No. 5 requests that defendant: "identify each and every person from whom a statement has been taken in conjunction with this litigation and/or investigation of this occurrence." See Record doc. £ 8, Plaintiff's Interrogatories attached to Plaintiff's Motion to Compel.
The defendant, on the other hand, contends that Mr. Aucoin never agreed to release the witness statements to plaintiff's counsel, without the defendant's prior approval. According to the defendant, it never gave its permission to Mr. Aucoin to release the statements. The defendant further argues that the statements were taken long after the accident and in anticipation of litigation, and protected by the work product doctrine. The defendant contends that since the statements are work product, the plaintiff has not demonstrated any showing of "substantial need" or "undue hardship."
Although the defendant asserted a privilege objection, it failed to comply with Rule 26(b)(5) of the Federal Rules of Civil Procedure. On July 13, 2000, the Court ordered the defendant to produce a privilege log, detailing the identity of the witnesses and the date of the statements to permit the Court to assess the applicability of the work product doctrine to the subject documents. The defendant produced the privilege log on July 20, 2000, in compliance with the Court's order (doc. £ 16).
According to the privilege log, the statements were taken five to six months after the incident. The recorded statement of Robert Taylor was taken by Aucoin on January 13, 2000. The recorded statement of Thomas Dollins was taken on February 18, 2000.
The log also indicates that defense counsel took a recorded statement of Captain Taylor on April 14, 2000. that statement is, however, not at issue. Plaintiff's motion only requests an order compelling the production of the two statements taken by Mr. Aucoin.
II. Legal Analysis: Work Product Doctrine
The work-product doctrine shields from discovery the materials prepared by or for an attorney in preparation of litigation. Blockbuster Entertainment Corp. v. McComb Video, Inc., 145 F.R.D. 402, 403 (M.D. La. 1992). It protects two categories of materials: ordinary workproduct and opinion work product. Snowden v. Connaught Lab. Inc., 137 F.R.D. 325, 330-32 (D.Kan. 1991); See generally Upjohn Co. v. U.S., 449 U.S. 383, 400-02 (1981).
However, the Doctrine is not an umbrella that shades all materials prepared by a lawyer, or agent of the client. It focuses only on materials assembled and brought into being in anticipation of litigation. Excluded from the work-product doctrine are materials assembled in the ordinary course of business. United States v. El Paso Co., 682 F.2d 530 (5th Cir. 1982), cert. denied, 466 U.S. 944 (1984). It also does not extend to the underlying facts relevant to the litigation. See generally Upjohn, 449 U.S. at 395-96.
In determining whether a document was made in anticipation of litigation, the primary focus is on the reason or purpose for creating the document. Beal V. Treasure Chest Casino, No. 98-0786, 1999 WL 461970, *3 (E.D. La. July 1, 1999). Moreover, the burden of showing that documents were prepared in anticipation of litigation, and therefore, constitute work product, falls on the party seeking to protect the documents from discovery. St. James Stevedoring Co., Inc. v. Femco Machine Co., 173 F.R.D. 431, 432 (E.D. La. 1997). We now turn to an analysis of the documents and whether they should be shielded from discovery pursuant to the work product doctrine.
A. Witness Statements
The defendant contends that because the statements were taken after the August 10, 1999 accident and the December 12, 2000 lawsuit, they were taken in anticipation of litigation, and are therefore the defendant's protected work product. According to the defendant's privilege log, the statements were taken on January 13, 2000 and February 18, 2000. However, this fact is not pivotal to the work product determination. Indeed, the case law is clear that while a document created before a complaint is filed does not exempt it from work product protection, the converse is also true. The mere fact that litigation is pending does not transform everything done by or for a party into work product worthy of protection. See generally, Sandberg v. Virginia Bankshares, Inc., 979 F.2d 332 (4th Cir. 1992). Instead, the key to determining work product protection is what was the primary motivating purpose behind the creation of the document. See United States v. Davis, 636 F.2d 10289, 1040 (5th Cir.), cert. denied, 454 U.S. 862 (1981).
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. See e.g., First Pac. Networks, Inc. v. Atlantic Mut. Ins. Co., 163 F.R.D. 574 (N.D. Cal. 1995).
See Fine v. Bellefonte Underwriters Ins., 91 F.R.D. 420, 422 (S.D.N.Y. 1981); Spaulding v. Denton, 68 F.R.D. 342, 345 (D. Del. 1975).
See e.g., Atlanta Coca-Cola Botthng Co. v. Transamerica, Inc., 61 F.R.D. 115, 118 (N.D. Ga. 1972).
For example, courts have routinely recognized that the investigation and evaluation of claims is part of the regular, ordinary, and principal business of insurance companies. Thus, even though litigation is pending or may eventually ensue does not cloak such routinely generated documents with work product protection. See Amak Food Corp. v. The Travelers Co., No. 80-5753, slip op. at 2 (S.D. N.Y. April 27, 1981); Atlanta Coca-Cola Botthng, Co. v. Transamerica Ins. Co., 61 F.R.D. 115, 118 (N.D. Ga. 1972).
In the case at bar, the defendant provides the Court with only the following information: in January of 2000, Aucoin Claims was retained by the defendant to investigate and adjust the Mr. Piatkowski's accident claim; during his investigation, Mr. Aucoin took statements from two employees on January 13, 2000 and February 18, 2000; in January of 2000 and early February 2000, Mr. Aucoin and counsel for plaintiff engaged in settlement negotiations, during which they discussed exchanging witness statements to facilitate settlement; when it became clear that the case would not settle, counsel was then retained.
Affidavit of Pat Aucoin, attached as Exhibit "A" to defendant's Opposition Memorandum.
The defendant does not provide the Court with specific information as to the nature of Aucoin's services or whether Aucoin is routinely used by the defendant to investigate and adjust on scene accident claims. From the scant information provided, the Court, however deduces that Aucoin provides services similar to that of an insurance company; it adjusts claims and resolves disputes short of litigation. The defendant also does not provide the Court with any information as to the date counsel was formally retained.
As the party withholding documents from discovery, the burden is on the defendant to establish work product protection. St. James, 173 F.R.D. at 432. The information provided to the Court does not satisfy the defendant's burden of demonstrating that the primary motivating purpose in securing the witness statements was in furtherance of a sufficiently identifiable resolve to litigate, rather than a more or less routine investigation of a possibly resolvable claim. See Fine, 91 F.R.D.at 423. Plaintiff's request to compel the defendant to produce the two witness statements, taken by the defendant's claims representative is, therefore, GRANTED.
B. Interrogatory No. 5
In light of the defendant's production of a privilege log, the plaintiff's request to compel a response to Interrogatory No. 5 is DENIED, as moot. The defendant, however, should be cognizant of its continuing obligation to supplement its discovery responses should additional witness statements be taken in this case. See Fed.R.Civ.Proc. 26(e).
Accordingly,
IT IS THEREFORE ORDERED that plaintiff, Richard Piatkowski's Motion to Compel (doc £ 8) is hereby GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that plaintiff's request for an order compelling the defendant to produce the January 13, 2000 statement of Robert Taylor and the February 18, 2000 statement of Thomas Dollins is hereby GRANTED. The defendant shall produce copies of the statements within twenty (20) days of this order.
IT IS FURTHER ORDERED that plaintiff's request for an order compelling defendant to respond to Interrogatory No. 5 is hereby DENIED AS MOOT.