Opinion
No. 03 Civ. 4304 (HB) (DFE).
June 21, 2005
MEMORANDUM AND ORDER
The attorneys have presented this discovery dispute to me in a joint letter dated June 17, 2005, followed by a June 21 declaration by Gilles Raymond (a non-lawyer representative of the owner of the M/V Kariba).
This lawsuit arises from the collision of the M/V Kariba and the M/V Tricolor. Kariba contends that a third vessel, the M/V Clary, contributed to the cause of the collision. Mr. Raymond writes that, some 23 minutes after the collision, he received a telephone call from the M/V Kariba "because I was a member of the Emergency Team." He says that he anticipated litigation and therefore requested that a statement of facts be prepared by Kariba's Captain Kamola. A few hours after the collision, Capt. Kamola typed a one-page "Statement of Facts" and faxed it to Kariba's management company. (Depo. Exh. 135.) Mr. Raymond soon obtained a copy, discussed it with a lawyer, and then telephoned Capt. Kamola and requested some clarifications. On his copy, Mr. Raymond made a few handwritten notations. (Depo. Exh. 135A.) Capt. Kamola then typed a revised "Statement of Facts." (Depo. Exh. 135B.) On his copy of this revised statement, Mr. Raymond made one handwritten notation. (Depo. Exh. 135C.)
These four documents were produced by Kariba pursuant to a stipulation that was so ordered by Judge Baer in September 2004 and said: "In the event the Court determines the draft statements are privileged or protected by the work-product rule, they shall not be admissible in evidence at trial nor used in depositions or other discovery proceedings." On May 3, 2005, Judge Baer referred this discovery dispute to me. The matter has now come to a head with the commencement of expert depositions.
In the June 17 joint letter to me, Kariba invokes the work-product doctrine. Kariba quotes from U.S. v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998), but fails to quote the most pertinent passage written on that page by Judge Leval:
Conversely, it should be emphasized that the "because of" formulation that we adopt here withholds protection from documents . . . that would have been created in essentially similar form irrespective of the litigation. It is well established that work-product privilege does not apply to such documents.
Similarly, Kariba quotes from Weber v. Paduano, 2003 WL 161340, *4 (S.D.N.Y. Jan. 22, 2003), but fails to quote Judge Lynch's next sentence:
. . . A party . . . must establish, by objective evidence, that the author of the document . . . would not have created the document in essentially the same way had the prospect of litigation not existed.
Whether Kariba's owners did or did not anticipate litigation, they had business reasons for obtaining a statement from their captain — to decide whether to take any measures with respect to the captain, and with respect to the vessel. Depending on what answers were given, such measures might prevent future accidents. I find that, if the prospect of litigation had not existed, Capt. Kamola would still have created the Statement of Facts and the revised Statement of Facts in essentially the same way, and his superiors would still have made the handwritten notations in essentially the same way. Accordingly, the work-product doctrine does not apply to any of the four documents. Even if it did, the other parties have shown "substantial need" and "undue hardship" within the meaning of Rule 26 (b) (3), F.R.Civ.P.
"No one doubts that production should be ordered if the witness has a faulty memory and no longer remembers details of the event. There is now a substantial body of authority that goes beyond this and suggests that statements taken from witnesses at about the time of the occurrence described in them are unique, in that they provide an immediate impression of the facts." Wright, Miller Marcus, Federal Practice and Procedure: Civil 2d § 2025.
Nevertheless, Kariba writes:
. . . There has been no showing of "undue hardship" in this case requiring disclosure. The parties herein were present when Captain Kamola was interrogated about the collision [one day later] on December 15, 2002 by the Surveyor appointed by the Belgian Court to investigate the causes of the collision. The statement given by Captain Kamola under questioning by the Belgian Court Surveyor, which is substantially similar to the draft statements in issue, has been made available to all concerned.
To the extent that Capt. Kamola's statement to the Surveyor is similar to the drafts he wrote one day earlier, Kariba has no reason to preclude the drafts. To the extent it is dissimilar, the other parties have shown "substantial need" and "undue hardship" within the meaning of Rule 26 (b) (3). That rule also requires me to "protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." In this regard, I see no need to redact any part of the two typewritten drafts, or any of the handwritten notations.
I am faxing this Memorandum and Order to the attorneys for Kariba and the attorneys for Tricolor. I direct Tricolor's law firm to deliver (by fax or by hand) a copy of this Memorandum and Order to each of the attorneys other than Kariba's attorneys.