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denying production of party's/deponent's own statement to party prior to the start of his deposition
Summary of this case from Zabin v. Burlington StoresOpinion
Civil Action No. 04-0508 Section: "E" (1).
July 29, 2004
DEFENDANT'S MOTION FOR PRODUCTION OF STATEMENT
Sullivan did not file a motion for this statement. Instead he made the request orally by telephone and in a letter to Atlantic Sounding. Accordingly, there is no record document number for the motion.
DENIED
The deposition of the defendant and counterclaimant, John G. Sullivan ("Sullivan"), was scheduled for July 29, 2004. The deposition was scheduled in a telephone conference on July 23, 2004. Rec. doc. 14. Thereafter Sullivan requested that the plaintiff, Atlantic Sounding Co., Inc. ("Atlantic Sounding"), produce Sullivan's statement that was recorded by an adjuster on January 29, 2004 while plaintiff was unrepresented. The accident at issue in the litigation occurred on January 14, 2004. Atlantic Sounding refused to produce the statement. By letter and by telephone on July 28, 2004, the parties requested that a ruling be made prior to the start of the deposition. The undersigned notified the parties that Atlantic Sounding was not required to produce the statement until after it concluded its examination of Sullivan. After the production of the statement, the parties were to take a reasonable break to permit counsel for Sullivan to review the statement with Sullivan. Sullivan's counsel could then resume the deposition of Sullivan and ask questions of him if he desired to do so. Sullivan's counsel expressed dissatisfaction with this ruling and requested an opportunity to appeal. The deposition was canceled.
Sullivan urges that, pursuant to Fed.R.Civ.P. 26(b)(3), he is entitled to his statement prior to the start of the deposition. He urges that the Advisory Committee Notes support this conclusion. He also contends that the status of the parties is pertinent in that the action was initiated by Atlantic Sounding and he appears as a defendant and as a counterclaimant, as a Jones Act seaman. Atlantic Sounding contends that it should not be required to produce the statement until after it has deposed Sullivan and determined the extent of his present unrefreshed recollection. It offers no other reason for delayed production of the statement.
Pursuant to Fed.R.Civ.P. 26(b)(3) "[a] party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party." In making this exception to the procedures for the discovery of trial preparation materials the Advisory Committee said:
Ordinarily, a party gives a statement without insisting on a copy because he does not yet have a lawyer and does not understand the legal consequences of his actions. Thus, the statement is given at a time when he functions at a disadvantage. Discrepancies between his trial testimony and earlier statement may result from lapse of memory or ordinary inaccuracy; a written statement produced for the first time at trial may give such discrepancies a prominence which they do not deserve. In appropriate cases the court may order a party to be deposed before his statement is produced.
Fed. Rule Civ. P. 26(b)(3) Advisory Committee's Note, 1970 amendments. The Advisory Committee cited two decisions: Smith v. Central Linen Service Company, 39 F.R.D. 15 (D. Md. 1966) andMcCoy v. General Motors Corporation, 33 F.R.D. 354 (W.D. Pa. 1963). In both of these cases the defendants were required to produce the statements of the plaintiff, but not until after the defendants deposed the plaintiffs. In McCoy the plaintiff was interviewed by a representative of the defendant's insurance carrier within a month of the accident. The plaintiff was without counsel when the statement was taken. The plaintiff argued that if he did not receive the statement prior to his deposition, then he would be placed in an unfair tactical position. The district court said:
[W]e are not unmindful of the interest of defendant. There is always the danger that pretrial inspection will afford an opportunity to tailor testimony in accordance with the prior explanation. We agree . . . that it is necessary to protect the legitimate interests of both parties — defendant's interest in determining the extent of plaintiff's present unrefreshed recollection, and plaintiff's interest in examining post-accident disclosures prior to trial so that he may honestly explain any inaccuracies or errors in his present or past account of the accident.33 F.R.D. at 356 (Citations, quotation marks and brackets omitted). In Smith, the plaintiff sought a copy of his statement. The district court cited McCoy and said:
This Court thus rules that the mere fact that a party gave a statement to his adversary is good cause for him to be allowed to examine and copy it, but the adverse party is entitled to a protective order, if he wishes it, permitting him, before making the statement available, to take the deposition of the party who gave the statement.39 F.R.D. at 18. The 1970 Advisory Committee Notes reflect that the court may order a party to be deposed before his statement is produced. Smith and McCoy held that the defendant's interest in determining the extent of a plaintiff's present unrefreshed recollection was a sufficient basis for delaying the production until after the plaintiff's deposition.
McCoy was followed in Torres-Paulett v. Tradition Mariner, Inc., et al, 157 F.R.D. 487, 489 (S.D. Cal. 1994) (production of statement would deprive defendant of "plaintiff's unrefreshed recollection of the events that give rise to the accident that is the subject of this litigation.")
In Miles v. M/V Mississippi Queen, 753 F.2d 1349 (5th Cir. 1985), the plaintiff was a Jones Act seaman who was fired for violating company rules. Before he could be put off the vessel, he alleged he injured his back in an unwitnessed accident. The defendant obtained statements that the plaintiff gave to adjusters in other cases in which the plaintiff made claims for personal injuries. The district court questioned the plaintiff's veracity and permitted the defendant to retain the statements until after it examined the plaintiff at the trial. The Fifth Circuit held that: (1) pursuant to Fed.R.Civ.P. 26(b)(3) a party may obtain his statement without showing any need for it; (2) the rule was mandatory, and the district court's failure to order production was clearly erroneous; and (3) the violation was not reversible error per se because the plaintiff was not prejudiced by his failure to review his statement before testifying. Judge Rubin said:
The right of a party to have his own statement, however, is not diminished when the district court suspects duplicity. The rule does not bend to the discretion of the trial court. It allows no room for the weighing of pros and cons, although the court has some latitude in determining the time when the statement must be produced; the court may permit, for example, the party's deposition to be taken first. . . .Id. at 1351-52. In a footnote, the majority referred toStraughan v. Barge MVL No. 802, 291 F. Supp. 282 (S.D. Tex. 1968), in which the district court ordered the production of the plaintiff's statement but noted that the impeachment value of the statement was protected because the plaintiff was deposed before production of the statement was required. Id. at 285.
These authorities demonstrate that where Atlantic Sounding requests the opportunity to examine Sullivan on his present unrefreshed recollection, it has made a sufficient demonstration to withhold production of the statement until after it has examined him. The fact that Sullivan is not a plaintiff, but a defendant and a Jones Act counterclaimant, does not alter this result.
IT IS ORDERED that Sullivan's request for production of his January 29, 2004 statement prior to the start of his deposition is DENIED. Atlantic Sounding shall produce the statement immediately after it concludes its examination of Sullivan in accord with the terms of this minute entry.