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noting that courts are not obligated to do "counsel's work for him or her"
Summary of this case from Cuffy v. KrusheskiOpinion
C.A. No. 07C-06-225 JAP.
Submitted: October 22, 2008.
Decided: November 12, 2008.
On Plaintiff's Motion to Compel DENIED.
L. Vincent Ramunno, Esquire, Ramunno Ramunno, P.A., Wilmington, Delaware, Attorney for Plaintiff.
Michael A. Pedicone, Esquire, Michael A. Pedicone, P.A., Wilmington, Delaware, Attorney for Defendant.
Dear Counsel:
Before the Court is Plaintiff Gonzalez's motion to compel a tape recorded statement made by Defendant Caraballo to his insurance company about a slip and fall incident that allegedly took place while Gonzalez was a business invitee of Caraballo. The issue is whether Caraballo's taped statement is protected from discovery pursuant to the work product doctrine. Because the taped statement was made to the insurance adjuster just a few weeks after Gonzalez's attorney contacted Caraballo and Caraballo's insurer, the Court finds that the statement was made in anticipation of litigation, and therefore, that the statement is protected by the work product doctrine.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises from a slip and fall, which allegedly occurred on November 9, 2005 while Gonzalez was a business invitee of Caraballo. In April 2006, Gonzalez's attorney wrote to both Caraballo and Caraballo's insurer. The letter to the insurer stated:
Compl., D.I. 1.
I represent Ms. Nilsa Gonzalez who was injured on November 9, 2005 when she fell down the stairs at [110 N. Scott Street, Wilmington, Delaware]. It is of course clear that your insured is at fault and is liable for the injuries of my client who is still under doctor's care for the injuries sustained in this accident. We are unable to determine the extent of the injuries at this time. When my client condition stabilizes, however, we will seek to hold your insured responsible for the injuries sustained.
Please refer all correspondence to my attention and refrain from contacting my client directly to discuss this matter. Shortly thereafter, in May 2006, an insurance adjuster from Caraballo's insurance company took a taped statement from Caraballo about the incident.
Def. Resp. to Pl. Mot. to Compel, D.I. 8, at Ex. 2.
In June 2007, Gonzalez filed a complaint seeking damages arising from her fall. During discovery, Gonzalez's attorney requested a copy of Caraballo's taped statement, however, Caraballo's attorney refused to turn over the tape on the basis that the statement constituted work product and was therefore privileged. Gonzalez then filed the present motion to compel the taped statement, and Caraballo filed an opposition to the motion.
II. DISCUSSION
The work product doctrine in Delaware is set forth in Superior Court Civil Rule 26(b)(3), which provides that:
[A] party may obtain discovery of documents and tangible things . . . 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 material by other means.
Del. Super. Civ. R. 26(b)(3).
In order to determine whether materials are protected by the work product doctrine, Delaware courts have adopted a five factor test announced in Mullins v. Vakili: (1) whether the event that prompted the preparation of the materials is one that is likely to lead to litigation; (2) whether the materials contain legal analysis and opinions or purely factual matters; (3) whether the materials were prepared or requested by the party or a representative; (4) whether the materials were routinely prepared; (5) whether specific claims were present or whether discussion or negation had occurred at the time the materials were prepared.
506 A.2d 192 (Del.Super.).
Following the analysis of Mullins, the first factor requires the Court to consider the event that prompted the preparation of the materials. In Mullins, which was a medical malpractice case, the Court stated that "[l]itigation is far more likely to be anticipated from an event such as the notification by an attorney representing a patient in regard to former care, than from the actual events relating to that care." Similarly, here, it was the letter from Plaintiff's attorney that prompted the insurance adjuster's preparation of Defendant's statement. The insurance adjuster did not take Caraballo's statement until six months after Plaintiff fell, but only weeks after the insurance company received notification from Plaintiff's lawyer. Therefore, there is "substantial likelihood that the materials prepared in response to the plaintiff['s] attorney's letter were prepared in anticipation of litigation."
Id. at 199. See also Harris v. Parmi Tool Company, Inc., 1990 WL 9495 (Del.Super.) ("A letter from an attorney representing an injured party is significant because it raises the specter of litigation and places the parties in anticipation of the real potential for litigation.").
The second Mullins factor is whether the sought materials contain legal or factual contents. The record is not clear as to the contents of taped statement; however, it likely provides the factual basis of Caraballo's view of the accident.
The third factor is whether the materials were prepared by the party or an authorized representative. The taped statement was clearly prepared by the insurance adjuster, Defendant's representative.
Fourth, the Court must consider whether the materials were routinely prepared, as materials prepared in the ordinary course of business are less likely to be considered work product. In Mullins, the Court noted that where materials are prepared by an insurance company, whose business is to anticipate and to prepare for litigation, it may be said that the documents were routinely prepared. The Court, however, stated that:
it is necessary to go beyond this conclusion and consider the purposes for which these documents were prepared. These documents were all prepared subsequent to notification by the plaintiffs' attorney that he represented the plaintiffs in regard to the care provided by the defendant two months earlier . . . Whether or not [the insurance company's] activity can be characterized as `routine,' it is reasonable to conclude that these documents were prepared either for litigation or for trial and not in the ordinary course of business.
Mullins, 506 A.2d at 200.
As in Mullins, the Court finds that the taped statement made to the insurance adjuster after Plaintiff's attorney contacted Defendant and his insurer, was made in preparation for litigation, not in the ordinary course of business.
This conclusion is further supported by examining the fifth factor, the timing of the preparation of the materials. At the time Caraballo made the taped statement, he and his insurance company were aware of a specific claim against him. "A specific claim was present and although the plaintiffs' attorney did not participate in discussion or settlement negotiation prior to the time the materials were prepared, to conclude that the documents sought were not prepared in anticipation of litigation would exalt form over substance."
Id. at 200.
Therefore, after consideration of all five factors, the Court concludes that the taped statement "`can fairly be said to have been prepared or obtained because of the prospect of litigation' within the meaning of Rule 26(b)(3) and [is], therefore, protected from discovery under the work product doctrine." Furthermore, Gonzalez has made no showing that he has a "substantial need" of the statement or that he cannot obtain the substantial equivalent without "undue hardship."
Id. at 199. See also Hart v. Edwards, 1990 WL 1104266 (Del.Super.) (denying the plaintiff's motion to compel discovery of three transcribed statements taken by defendant's insurance carrier in a personal injury case); Roeper v. Greggo Ferrara, Inc., Del. Super., C.A. No. 77-0C-108, Christie, J. (Aug. 28, 1978) (denying plaintiff's motion to compel statements made to an insurer's claims representative in a personal injury case were where "[a]ll four statements were preceded by letters from plaintiff's attorney suggesting the likelihood of litigation in the absence of a settlement").
Id. at 200 (holding that because statements made to insurance company two months after an incident were "not unique, immediate impressions of the facts as argued by plaintiffs, the plaintiffs have failed to establish that they are `unable without undue hardship to obtain the substantial equivalent of the materials by other means' as required under Rule 26(b)(3)").
III. COUNSELS' PERFORMANCE
The Court takes this occasion, albeit reluctantly, to express its dissatisfaction with the performance of counsel for both parties in conjunction with this motion. Although the issue presented in this motion involves the application of law to fact, plaintiff's counsel did not cite a single case in support of his motion. Defense counsel's response was no better; he too failed to cite any authority in his response. Perhaps most disturbing of all, when the Court asked defense counsel at oral argument why he failed to cite any caselaw, his response was that he did not do so "because plaintiff didn't cite any cases." It is apparent that both attorneys expected that the Court would do their work for them.
At oral argument the Court requested the parties to submit written argument, with authorities, supporting their respective positions. The Court specifically brought Mullins v. Vakili to the attention of counsel and asked that they consider that opinion along with any other pertinent authority in their supplemental submissions. Plaintiff's counsel's supplemental submission was little better than his motion, containing only a perfunctory attempt to distinguish Mullins and one other authority cited by defendant in his supplemental submission. Notably plaintiff's counsel still failed to cite a single authority — from this or any other jurisdiction — to support his client's position.
506 A.2d 192 (Del.Super.).
The Supreme Court has stated repeatedly that it will not consider arguments which are not fully briefed, with citations to supporting authorities. The Supreme Court just recently reiterated the obligation of counsel to provide supporting authorities:
e.g. Roca v.E. I. DuPont de Nemours Co., Inc. 842 A.2d 1238, 1242 (Del. 2004) (argument considered waived when brief did not "fully state grounds for appeal, as well as arguments and supporting authorities"; emphasis added); VonFeldt v. Stifel Fn. Corp., 714 A.2d 79, 86 n. 29 (Del. 1998); Williamson v. State, 707 A.2d 350 (Del. 1998); Turnbull v. Fink, 644 A.2d 1322, 1324 (Del. 1994)
In order to develop a legal argument effectively, the Opening Brief must marshall the relevant facts and establish reversible error by demonstrating why the action at trial was contrary to either controlling precedent or persuasive decisional authority from other jurisdictions. The failure to cite any authority in support of a legal argument constitutes a waiver of the issue on appeal. Accordingly, we hold that all of the legal issues raised by Flamer in this appeal have been waived.
Flamer v. State, 953 A.2d 130,134 (Del. 2008)
These principles apply with equal force to papers filed in this Court. Courts throughout the country hold that they are not obligated to do "counsel's work for him or her." The Court is not asking counsel to routinely submit arguments worthy of publication in a law review; indeed, in some instances (such as a party's failure to provide discovery) it is often unnecessary to cite any authorities. Nonetheless, in all but the simplest motions, counsel is required to develop a reasoned argument supported by pertinent authorities. Counsels' performance in this matter fell well short of that standard. Counsel are on notice that henceforth this Judge will summarily deny any motion filed by a represented party involving a question of law or the application of law to fact in which the party does not meet this standard.
E.g. Pinto v. Universidad de Puerto Rico, 895 F.2d 18, 19 (1st Cir. 1990); Pratt v. Illinois Department of Correction, 2007 U.S. Dist. LEXIS 90965 (S.D. Ill., Dec. 11, 2001) ("The Court must, once again, remind counsel that it is not its job to do counsel's work of organizing or formulating a party's arguments").
IV. CONCLUSION
IT IS SO ORDERED.
DENIED.