Opinion
Civil Action No. 03-CV-5229.
July 14, 2004
MEMORANDUM ORDER
Presently before the Court is Plaintiff, Joseph Celmer's, Motion to Compel, (Doc. No. 16). For the following reasons, Plaintiff's Motion will be granted in part, and denied in part.
Joseph Celmer is joined by his wife, Regina Celmer, as Co-plaintiffs in the instant lawsuit. However, for purposes of this Order, use of "Plaintiff" refers only to Joseph Celmer.
I. BACKGROUND
On October 14, 2001, Plaintiff was injured while making a delivery at the Marriott Hotel/Philadelphia Airport ("Defendant"). Plaintiff contends that an incident report was written within one hour of the injury. Defendant does not dispute this contention, but simply states: "Following plaintiff's fall on October 14, 2001, an officer from Marriott's Loss Prevention Department conducted an investigation. As part of the investigation, an incident report was created and later forwarded to Marriott Claims Services to review. The report was prepared in anticipation of litigation and thus is protected from discovery." (Marriott Def.'s Resp. to Pl.'s Mot. to Compel at ¶ 7.) Defendant further contends that the report was prepared "for the purpose of obtaining advice from its counsel, and thus is protected by the work product doctrine and attorney-client privilege." (Id. at ¶ 6.)
II. LEGAL STANDARD
"It is well-established that the scope and conduct of discovery are within the sound discretion of the trial court." Gaul v. Zep Mfg. Co., Civ.A. No. 03-2439, 2004 U.S. Dist. LEXIS 1990, at *2-3 (E.D. Pa. Feb. 5, 2004) (quoting Marroquin-Manriquez v. Immigration and Naturalization Serv., 699 F.2d 129, 134 (3d Cir. 1983)). Pursuant to Federal Rule of Civil Procedure 26(b)(1), a party may seek discovery of "any matter, not privileged, which is relevant to the subject matter in the pending action." FED. R. CIV. P. 26(b)(1). "The information sought need not be admissible at the trial if the information appears reasonably calculated to lead to the discovery of admissible evidence." Id.
Rule 37 "authorizes a party who has received evasive or incomplete answers to discovery authorized by . . . Rule 26(a) to bring a motion to compel disclosure of the materials sought."Northern v. City of Phila., Civ.A. No. 98-6517, 2000 U.S. Dist. LEXIS 4278, at *3 (E.D. Pa. Apr. 4, 2000). Once a party opposes a discovery request, the party seeking the discovery must demonstrate the relevancy of the information. Id. at *5. "When this showing of relevancy is made, the burden then shifts back to the party opposing discovery to show why the discovery should not be permitted." Id. A party's statement "that the discovery sought is overly broad, burdensome, oppressive, vague or irrelevant is `not adequate to voice a successful objection.'"Id. (quoting Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982)). Further, "[i]t is well recognized that the federal rules allow broad and liberal discovery", Pacitti v. Macy's, 193 F.3d 766, 777 (3d Cir. 1999), and relevancy is broadly construed, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) ("The court should and ordinarily does interpret `relevant' very broadly to mean matter that is relevant to anything that is or may become an issue in the litigation.").
III. DISCUSSION
Despite Defendant's assertion to the contrary, the attorney-client privilege does not apply to the instant set of facts. It appears from the record that the contents of the incident report came, in part, directly from Plaintiff's version of the events in question. Jones interviewed Plaintiff immediately after the incident. In his deposition testimony, Jones states that the information in the report that he compiled was purely factual, based on his interview with Plaintiff.
The attorney-client privilege applies only if:
(1) the asserted holder of the privilege is or sought to become a client;
(2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer;
(3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and
(4) the privilege has been (a) claimed and (b) not waived by the client.Barr Marine Products, Co., Inc. v. Borg-Warner Corp., 84 F.R.D. 631, 633 (E.D. Pa. 1979). We note that while a federal court sitting in diversity is obligated to apply the law of the state in which it sits, the Third Circuit and the state of Pennsylvania apply the same test in evaluating attorney-client privilege. "[W]hether the attorney-client privilege is applicable is to be determined by Pennsylvania law, rather than federal law. However, there are no `principles or rules of law unique to Pennsylvania that should control the resolution of our decision on these matters.'" Adhesive Specialists, Inc. v. Concept Sciences, Inc., 59 Pa.D. C.4th 244, 259-60 (quoting Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir. 1994)).
We say "in part" because the deposition testimony of Robert Jones, the loss prevention officer on duty at the time of Plaintiff's alleged injury and author of the report in question, also references a witness. (Jones Dep. at 43.) However, based on the limited record before us, we are unable to ascertain the identity of the witness.
The Robert Jones referenced in this Memorandum is not the Robert Jones who is the general manager of the hotel. We also note that Jones, the general manager, claims to have had no knowledge of any incident report being filed. (Jones, general manager, Dep. at 16.)
Q. Would it be fair to say that what you entered in on that form was purely facts?
A. Absolutely.
Q. There was nothing of opinion as to what may or may not have happened?
. . . .
A. We are not allowed to give opinions. We are only allowed to print fact, that's it.
(Jones Dep. at 46-47.) It is clear that the attorney-client privilege should not be invoked to protect facts, but only confidential communications between an attorney and his or her client. Adhesive Specialists, 59 Pa.D. C.4th at 261 ("The protection of the privilege extends only to communications and not to facts. A fact is one thing, and a communication concerning that fact is an entirely different thing.") (citing Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981)).
After Jones put the factual information in the report, the report was then sent to Defendant's claims department, and it is unclear how the information was processed from there, or when Defendant's counsel gained access to the report. (Id. at 33.) In fact, Defendant has failed to explain when this report was communicated from Defendant, the client, to the attorney. Moreover, based on Jones's testimony, it seems that this procedure of interviewing guests, employees, and/or vendors after an accident, was part of the normal operating procedures at Defendant's hotel, and not necessarily intended as a communication to its attorney. (Id. at 37 ("My job is to see if this gentleman is all right or does he need medical attention. And he refused that. And at that point, I just took his name, as much information he gave me about himself and the nature of what happened, that was it.").)
Based upon this information, we are not persuaded that the incident report was communicated to an attorney "for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding." Barr, 84 F.R.D. at 633. Further, there is no indication that the report contains anything more than Plaintiff's own statements, and those of an unidentified witness, who may or may not be an employee. It is also unclear whether the witness provided Jones with the statement in the presence of Plaintiff, or others.
Defendant contends that the privilege applies, but fails to provide evidentiary support for this conclusion. In addition, Defendant attempts to distinguish the instant case from those cited in Plaintiff's Motion by stating that unlike the cases Plaintiff cites, in the instant case "the incident report at issue concentrates exclusively on the results of Marriott's investigation and contains no factual information or witness statements regarding plaintiff's fall." (Marriott Def.'s Resp. to Pl.'s Mot. to Compel at 9.) This is simply not true. While it is true that Jones did not see Plaintiff fall, it is abundantly clear from Jones's deposition that the report is only factual in nature. In addition, it appears that Jones incorporated a witness statement into the report. Overall, we conclude that Defendant has failed to demonstrate that the attorney-client privilege is applicable under the instant set of facts. Barr, 84 F.R.D. at 636 ("A party asserting the privilege has the burden of demonstrating that the privilege exists and that each of the criteria set forth . . . [in the test] is satisfied.")
Defendant also contends that the incident report is protected by the work-product privilege. We are not persuaded by Defendant's unsupported conclusion that "the incident report at issue was prepared by Marriott in anticipation of litigation and for the purpose of obtaining advice from its counsel." (Marriott Def.'s Resp. to Pl.'s Mot. to Compel at ¶ 6.) Again, Defendant has failed to meet its burden of proving that the privilege applies. "A party seeking the protection of the work product privilege must show that the materials were prepared in `the course of preparation for possible litigation.'" Haines v. Liggett Group Inc., 975 F.2d 81, 94 (3d Cir. 1992) (quotingHickman v. Taylor, 329 U.S. 495, 505 (1947)). In fact, Defendant fails to point to anything in the record that would support this assertion.
Pennsylvania Rule of Civil Procedure 4003.3 states:
Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party's representative, including his or her attorney, consultant, surety, indemnitor, insurer or agent. The discovery shall not include disclosure of the mental impressions of a party's attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party's attorney, discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.
PA.R.C.P. 4003.3.
The work-product doctrine serves to protect from discovery "the mental impressions, conclusions, notes, memoranda, theories and research of an attorney." Adhesive Specialists, 59 Pa. D. C.4th at 263 (citing Hickman, 329 U.S. 495). In the instant case, the report in question was created by a loss prevention officer, not Defendant's attorney. In addition, there is no indication that the report was created at the direction of Defendant's attorney.
In light of Jones's testimony that his primary responsibility was to ascertain Plaintiff's physical state and offer medical assistance, then collect the facts and submit them to the claims department, we cannot conclude that litigation was necessarily anticipated at the time the document was created. See Whitehead v. Allstate Ins. Co., 3 Pa. D. C.3d 56, 58 (Pa. Comm. Pl. 1977) (holding that insurance file maintained in the ordinary course of business could "in no way be considered information secured in anticipation of litigation until the company actually becomes a party to such litigation"). As discussed herein above, as the loss prevention officer on duty, Jones completed the report in the ordinary course of business.
We also note that Jones's testimony was limited to his role as the fact gatherer. He stated that he input the information into the computer system, but was not clear what happened with the report from there.
Q. That document that you entered into the computer, you said gets sent to claims?
A. We call it into claims and claims generates an incident number or whatever for tracking purposes. And once that's done, it's put in a folder and its given to my director of loss prevention. And where it goes from there, I can't tell you.
(Jones Dep. at 44.) Moreover, as stated herein above, it is unclear precisely when Defendant's counsel became involved with the incident report. Accordingly, we are not persuaded that Defendant has met its burden of demonstrating that the report was created in anticipation of litigation.
As to Defendant's contention that "plaintiffs have failed to demonstrate that there exists a substantial need [for] the incident report in preparation of their case," (Marriott Def.'s Resp. to Pl.'s Mot. to Compel at ¶ 10), we note that we can think of little else that would be necessary for a full adjudication of this lawsuit than Plaintiff's own statement and that of any witness, provided within minutes of the event in question. We also note that under Pennsylvania law, "there is no need for a showing of substantial need." Adhesive Specialists, 59 Pa. D. C.4th at 264 (citing Pa.R.C.P. 4003.3). Accordingly, Plaintiff's Motion to Compel will be granted. Defendant shall immediately provided Plaintiff with an unredacted version of the incident report prepared by Robert Jones.
Plaintiff also seeks $1,500 in reasonable expenses and counsel fees to be paid to Plaintiff's counsel "in connection with the preparation and filing of the instant Motion." (Pl.'s proposed Order in Pl.'s Mot. to Compel.) In light of the foregoing analysis, we question whether Defendant believed, in good faith, that the attorney-client and work-product privileges actually apply to the instant set of facts. In fact, Defendant fails to provide any analysis as to why the privileges should apply to the instant case. Moreover, it appears that the privileges were asserted because it was Defendant's policy to do so in all cases, not necessarily because the facts warranted doing so.
(4) Expenses and Sanctions
(A) If the motion is granted . . . the court shall, after affording an opportunity to be heard, require the party . . . whose conduct necessitated the motion . . . to pay the moving party the reasonable expenses incurred in making the motion, including attorney's fees. . . ." FED. R. CIV. P. 37(a)(4)(A).
37
That's how Marriott takes a stand with all their incident reports and no we're not going to turn over anything.
MR. MURAWSKY [Plaintiff's counsel]: I just want to put this on the record with regards to the incident report, that I understand that you're claiming privilege and at the last deposition I asked for the privileged log. I just want to be clear as to whether or not there's ever going to be either a redacted copy or some type of documentation provided with regard to this incident report or whether it's just not going to be turned over at all? MS. SHAPSON [Defendant's counsel]: I sent a correspondence to you the day after the deposition stating the privilege, stating that it was done in anticipation of litigation. (Jones Dep. at 59-60 (emphasis added).) We also note that Federal Rule of Civil Procedure 26(b)(5) states that the party claiming a privilege for information that is otherwise discoverable "shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing the information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." FED. R. CIV. P. 26(b)(5). In the instant case, Defendant has failed to do so. Defendant has done nothing more than conclude that the report was created "in anticipation of litigation and for the purpose of obtaining advice from its counsel," (Marriott Def.'s Resp. to Pl.'s Mot. to Compel at ¶ 6), and has not described the contents of an incident report in a way that would enable this Court to determine whether the privilege applies. We cannot perceive of any proper ground for Defendant's invocation of these privileges. Accordingly, we are persuaded that Defendant's assertion of the privileges, despite the dearth of facts to support these privileges, caused Plaintiff unnecessary costs and delay during the discovery process. Plaintiff initially requested the incident report and was evidently advised that it did not exist. Plaintiff then filed interrogatories requesting the report which was not provided. Plaintiff again requested the report in a request for production of documents. It was not produced. Plaintiff was then required to file the instant Motion. Under the circumstances, Plaintiff's request for monetary sanctions in the amount of $1,5000 will be granted.Plaintiff also requests a sixty-day extension of the discovery deadline. At this juncture, without having seen the precise contents of the incident report in question, we are not persuaded that an extension of the discovery deadline is necessary. Therefore, Plaintiff's request for an extension will be denied.
IV. CONCLUSION
For the foregoing reasons, Plaintiff's Motion to Compel will be granted in part, and denied in part.
An appropriate Order follows.
ORDER
AND NOW, this ____ day of July, 2004, upon consideration of Plaintiff, Joseph Celmer's, Motion to Compel, (Doc. No. 16), and all papers filed in support thereof and opposition thereto, it is ORDERED that:
1. Plaintiff's Motion to Compel the incident report is GRANTED. Defendant shall immediately provide Plaintiff with an unredacted copy of the report in question.
2. Plaintiff's request for counsel fees and expenses in the amount of $1,500 is GRANTED.
3. Plaintiff's request for a sixty-day extension of the discovery deadline is DENIED.
IT IS SO ORDERED.