Opinion
Civil Action No. 03-2380, c/w 2474 Section "D" (3).
October 22, 2004
ORDER AND REASONS
Before the Court is a Motion to Compel Statements filed on behalf of Businelle Towing Corporation ("Businelle Towing"). A memorandum in opposition was filed on behalf of Monica Lee Tugs, Inc., Monica Lee Towing, Inc. and Faith Towing, Inc. (hereinafter referred to collectively as "Monica Lee"). The matter was the subject of oral argument, following which the matter was submitted for determination. For the following reasons, the Court DENIES Businelle Towing's Motion to Compel Statements as premature.
BACKGROUND
These consolidated proceedings were brought by petitioners-in-limitation, one of which is Businelle Towing, Inc., owner and operator of the M/V THERESA B. On July 5, 2003, claimants, Eric Bennett and Wesley Cade were employed by Faith Towing, Inc. Bennett was captain of the M/V FAITH, which was at all pertinent times owned by Faith Towing and bareboat chartered to and operated by Monica Lee Tugs, Inc. On the aforesaid date, the FAITH was moored alongside Businelle Towing's THERESA B in the Bayou Sorrel Locks near Baton Rouge, Louisiana. THERESA B departed the locks first and, when it did, the FAITH allegedly began taking on water due to the wheelwash of the THERESA B. The FAITH then capsized and sank in the locks causing property damage and serious personal injury to crew members aboard the FAITH. With Captain Bennett's arm was traumatically amputed and the FAITH at the bottom of the bayou, litigation was anticipated from the outset. As expected, injured crew members have filed claims in the consolidated limitation proceedings against Businelle Towing, Faith Towing and Monica Lee Tugs, alleging unseaworthiness of the FAITH and the THERESA B.
The subject of Businelle Towing's pending motion are the recorded statements of crew member witnesses who were aboard the FAITH when it sank. Within forty-eight hours of the sinking of the FAITH, recorded statements were taken of four witness/crew members, to wit: John Wesley Cade, Robert Dennis McMillan, Michael Hudgeons and Karl Milton Makofsky. Claimant John Wesley Cade's recorded statement has been produced. The statements McMillan, Hudgeons and Makofsky were withheld on the basis of privilege, i.e., attorney work product.
PARTIES' CONTENTIONS
Businelle Towing's arguments are twofold, to wit: (1) Monica Lee waived their objections by failing to timely object to the discovery requests; (2) substantial need and undue hardship trumps work product protection. As to the first argument, footnote one amply explains petitioner's argument. As to the second, petitioner explains that statements taken of witnesses employed by the adverse party two days after the accident presents precisely the type of situation recognized by the Fifth Circuit as "creat[ing] a situation of inequality between the parties with respect to gathering accurate information." Mover further argues that obtaining the substantial equivalent of witnesses' statements taken so close to the time of the accident is impossible as a matter of law. Businelle Towing further argues that as a matter of law such statements "constitute unique catalysts in the search for the truth" in that they provide an immediate impression of the facts, which cannot be replicated by depositions taken long after the fact." Essentially, the defendant's argument is that depriving Businelle Towing of these recorded statements will deprive it of the freshest and most accurate account of the incident, since these witnesses observed the condition of the FAITH just prior to its sinking.
See LeBouef v. Jag Construction Services, Inc., 2001 WL 1298693 (E.D. La., Oct. 24, 2001) (Wilkinson, M.J.) (when required log was not provided, all assertions of privilege or other protections against the requested discovery are waived); Ordoyne v. McDermott, Inc., 2000 WL 1154616 (E.D. La., Aug. 14, 2000) (Wilkinson, M.J.) ("Generally, in the absence of an extension of time or good cause, the failure to file a written response in the time fixed by the rule constitutes a waiver of any objection.").
Southern Railway Co. v. Lanham, 403 F.2d 119, 129 (5th Cir. 1968).
Id. at 128.
See Trico Marine Assets, Inc. v. Alpha Marine Service, LLC, 1999 WL 694103 (E.D. La., Sept. 3, 1993) (Livaudais, J.); Hamilton v. Canal Barge Company, 395 F.Supp. 975, 978 (E.D. La. 1974) (Rubin, J.).
Monica Lee counters that Businelle Towing has failed to demonstrate that the recorded statements of the three other crew member witnesses may supply additional information that his deposition and recorded statement does not. Monica Lee highlights that John Cade's deposition was taken on January 12, 2004 and Businelle Towing has not even made a formal request for the depositions of McMillan, Hudgeons or Makofsky. Monica Lee contends that, until such time as it makes such a request and takes their depositions, Businelle Towing cannot make the requisite showing of undue hardship and substantial need.
See Excavator v. M/V Rambler, 2004 WL 1822843 (E.D. La. 8/21/04) (Wilkinson, M.J.).
As to the waiver contention, Monica Lee notes that Fed.R.Civ.P. 34 does not contain the express waiver provision set forth in Fed.R.Civ.P. 33 and thus Businelle Towing's waiver argument is without merit. In summary, Monica Lee contends that Businelle Towing has failed to carry its burden of demonstrating either undue hardship or substantial need for the statements in that the substantial equivalent is not available.
See Fed.R.Civ.P. 33(b)(4) (specifically noting that "[a]ny ground not stated in a timely objection is waived unless the party's failure to object is excused by the court for good cause shown); compare Fed.R.Civ.P. 34 (which contains no express provision but rather relegates the parties to their remedies available under Rule 37(a)).
ANALYSIS
The statements at issue in this case are transcripts of recorded interviews taken of certain employees of Monica Lee, who witnessed the incident and were on the FAITH at the time of its sinking. The interviews, which were conducted by an investigator for Monica Lee two days after the incident, were clearly taken in anticipation of litigation and thus fall within the scope of the work product doctrine. The work product doctrine protects material gathered "in anticipation of litigation." The fact that a lawsuit has not yet been filed is not dispositive; rather, the focus of the inquiry is whether the primary motivating purpose behind the creation of the document was to aid in possible future litigation.
In the seminal case, Southern Railway Company v. Lanham, 403 F.2d 119 (5th Cir. 1969), the Fifth Circuit identified "the real question," i.e., "whether the movant can obtain the facts without production of the documents containing the original statements." The Lanham court concluded under the facts presented that it was doubtful that the movant could obtain a full and accurate disclosure of the fact from the train crew. In the Lanham case, the plaintiffs sued a railroad for negligent homicide when three of their family members were killed in a train/car collision. The court specifically noted that the plaintiffs' decedents were killed instantly and thus could not provide an account of the facts. The issue decided by the Lanham court in favor of the plaintiffs was whether the plaintiffs demonstrated "good cause," as contemplated by Rule 34, i.e., "need [for] the written statements in preparation of their case."
Southern Railway Company v. Lanham, 403 F.2d 119, 127 (5th Cir. 1969).
Id., at 128.
Lanham, 403 F.2d at 127.
In Hamilton v. Canal Barge Company, Inc., 395 F.Supp. 975 (E.D. La. 1974), the court found that statements of eyewitnesses to an accident, taken by the defendant's insurance adjuster on the day of the accident, were clearly material prepared in anticipation of litigation. The plaintiff in the Hamilton case sustained fatal injuries.
See Hamilton v. Canal Barge Company, Inc., 395 F.Supp. 975, 976 (E.D. La. 1974) (Rubin, J.).
The case at bar involves serious personal injury complaints, as well as claims for property loss ( i.e., the M/V FAITH sank). Here, as in Hamilton, the facts bristle with the inevitability of litigation, including the institution of limitation proceedings by the respective vessel owners/owners pro hac vice, as well as crew member/employee's personal injury claims and vessel owners' property damage claims.
Any inquiry into whether the reasoning of Hamilton compels the conclusion that circumstances warrant production of the statements is premature at this stage of the proceedings. Businelle Towing has not begun to shoulder its Fed.R.Civ.P. 26(b)(3) burden of demonstrating undue hardship and substantial need in that the substantial equivalent is unavailable. Unlike the situation presented in Trico Marine Assets, Inc. v. Alpha Marine Service, LLC, the FAITH was not destroyed during the salvage operation; moreover, it has not been repaired and it is available for inspection. Additionally and as aforestated, Businelle Towing has yet to attempt scheduling the depositions of the three crew member witnesses, whose statements were taken two days after the incident at issue.
Trico Marine Assets, Inc. v. Alpha Marine Service, LLC, 1999 WL 694103 (E.D. La., Sept. 3, 1999) (noting that limitation defendants/claimants had substantial need to obtain accurate information and that they were precluded from doing so because of the destruction of the vessel during salvage operations).
Most notably, even the Hamilton court suggests that, in situations where statements were not contemporaneously taken and the witnesses are available for a later deposition, the court may require counsel to take their depositions and may order production only after comparing statements and the corresponding deposition testimony in camera for the following purposes, to wit: (1) to determine whether the statement does in fact contain additional information; and (2) whether the statement is not the substantial equivalent of deposition testimony. Judge Rubin observed that all of the factors advanced by the party seeking discovery "must be interpreted in light of Rule 26's policy that `one side should not automatically have the benefit of the detailed preparatory work of the other side.'" The Hamilton court further instructed:
No statement should, I take it, be produced merely because there are minor discrepancies between it and a deposition, to be seized on for impeachment by avid counsel.
See Hamilton, 395 F.Supp. at 978. See also Holton v. S W Marine, Inc., 2000 WL 1693667 *3 (E.D. La. Nov. 9, 2000) (Fallon, J.) (noting the Hamilton court's suggestion).
Hamilton, 395 F.Supp. at 977 (citation omitted and emphasis added).
Hamilton, 395 F.Supp. at 978.
In Holton v. S W Marine, Inc., 2000 WL 1693667 (E.D. La. Nov. 9, 2000), taking note of the Hamilton court's suggestion, Judge Fallon reviewed the captain's statement and deposition in camera. The Holton court made express findings that (1) the undisclosed statement of the vessel's captain did contain additional information and (2) was not the substantial equivalent of his deposition testimony.
Holton v. S W Marine, Inc., 2000 WL 1693667 *3 (E.D. La., Nov. 9, 2000).
Id.
The jurisprudence discussed above supports this Court's opinion that the argument advanced by Businelle Towing must be interpreted in light of the particular circumstances of this case, the specific requirements of Fed.R.Civ.P. 26(b)(3) and its underlying policy that one side should not automatically have the benefit of the other's work product. Having done so, the undersigned concludes that the movant has failed to make the requisite showing required by the aforesaid rule and that, under the circumstances presented in this case, Businelle Towing is not automatically entitled to benefit from Monica Lee's work product under the rationale set forth in Southern Railway Company v. Lanham, 403 F.2d 119 (5th Cir. 1969) and its progeny.
Accordingly,IT IS ORDERED that Businelle Towing Corporation's Motion to Compel Statements is DENIED, fully reserving its right to reurge its motion after having taken the depositions of the crew member/witnesses at issue.