Opinion
C.A. No. 00C-05-010
Submitted: April 11, 2001
Decided: June 15, 2001
Upon Defendant's Motion for Reargument. Denied.
I. Barry Guerke, Parkowski Guerke, P.A., Dover, Delaware, attorneys for the Plaintiff.
Michael K. Tighe and Joseph Scott Shannon, Tighe, Cottrell Logan, P.A., Wilmington, Delaware, attorneys for the Defendants.
ORDER
On this 15th day of June, 2001, upon consideration of the Defendant's Motion for Reargument and the record from the Commissioner's hearing, it appears that:
(1) John A. Figueira ("Plaintiff") sustained severe injury in a motor vehicle accident when his car collided head-on with a tractor-trailer driven by Lewis B. Thompson, Jr., an employee of Jevic Transportation, Inc. ("Defendants"). Defendants filed a Motion to Quash and/or for Protective Order on the basis of Notices of Deposition and subpoenas duces tecum filed by the Plaintiff for a report prepared by two investigators of the motor vehicle accident in question. The report, prepared by April Boltz and Shaun R. Ogale, two insurance investigators or adjustors, is based on an investigation that started at the accident scene itself, within hours of the accident. The Defendants claim that this report was prepared in anticipation of litigation and therefore the mental impressions, opinions and conclusions contained in the report are not discoverable. Defendants have provided the Plaintiff with a redacted version of this report. On the other hand, Plaintiff argues that the report is discoverable under blackletter common law. One of Plaintiffs key arguments is that because the investigators were some of the first people to speak with witnesses, the full report is necessary to determine if the witnesses were influenced by the investigation.
Defense counsel supplied Plaintiff with the portions of the report containing factual material and redacted what they believed to be the investigators' mental impressions and conclusions.
(2) The Court referred the Defendants' Motion to Quash and/or for Protective Order to Superior Court Commissioner Andrea M. Freud for a determination pursuant to 10 Del. C. § 512(b) and Superior Court Civil Rule 132.
(3) On a procedural matter, Plaintiff raises the issue that Defendant brought this Motion for Reargument, pursuant to Superior Court Civil Rule 56(e), instead of complying with Rule 132 which addresses Commissioners. The Defendant argues that Rule 132 falls under the heading of " XV. Rules Governing Actions Subject to Summary Proceedings for Commercial Disputes," therefore, Rule 132 does not apply to the appellate process in this matter. Upon reviewing the rules, the structure is confusing as Rules 131-133 are included in the summary proceeding section even though they do not apply exclusively to summary proceedings. However, Rule 132 is the only rule that discusses the jurisdiction and procedure of Commissioners. The Court will not dismiss the Motion for Reargument, but notes that it would prefer that parties comply with Rule 132 when appealing an order from the Commissioner, especially when it involves discovery disputes. One reason for this rule is to save the Court the expense of having a transcript made as Rule 132(a)(3)(iii) requires the moving party to submit a transcript. Needless to say, the Court will consider the Motion for Reargument under the standard set forth in Rule 132(a)(3)(iv), that is "[a] judge may reconsider any hearing or pretrial matter under subparagraph (3) only where it has been shown on the record that the Commissioner's order is based upon findings of fact that are clearly erroneous, or is contrary to law, or is an abuse of discretion." Defendants claim that the Commissioner's order misapplied or was contrary to the controlling law.
(4) The issue before the Court is whether the investigators prepared their report in the ordinary course of business or in anticipation of litigation. The record from the hearing before the Commissioner reveals discussion about expert testimony and admissibility of evidence, but the underlying issue is whether or not the report is properly considered a privileged trial preparation document. According to the work product doctrine and Superior Court Civil Rule 26, materials prepared in anticipation of litigation are generally not discoverable. However, materials prepared in the ordinary course of business generally are discoverable. The Court in Mullins v. Vakili noted that "Cases involving insurance companies present particularly tricky questions of determining at what point `an insurance company's activity shifts from the ordinary course of business to anticipation of litigation.'" Plaintiff directs the Court to Delaware cases which found that the Court does not accept the proposition "that materials prepared with the general knowledge that a suit may follow the incident investigated are prepared in anticipation of trial within the meaning of the amended rules." Defendants cite to the Mullins case which recalled a five factor test essentially amounting to a careful examination of the facts of each case to determine whether or not the documents were produced in anticipation of litigation. The common law cited by both parties can be reconciled by simply using the Mullins factors as part of the determination of whether the materials "were produced with the general knowledge that a suit may follow" or were prepared in anticipation of litigation. (5) Oral argument was held on March 22, 2001 before Commissioner Andrea M. Freud. At the end of oral argument, the Commissioner denied the Defendant's Motion to Quash and/or for Protective Order. In her Order from the bench, the Commissioner found that the report by Ogale and Boltz would be discoverable based on common law and the circumstances presented in this case.
Defense counsel urged the Court to view Ogale and Boltz as accident reconstruction experts. Defense counsel also noted that neither Boltz nor Ogale will be called to testify at trial.
Mullins V. Vakili, Del. Super., 506 A.2d 192, 197 (1986).
Conley v. Graybeal, Del. Super., 315 A.2d 609, 610 (1974).; see also Hopkins v. Chesapeake Utilities Corp., Del. Super., 300 A.2d 12, 14 (1972).
Mullins at 198 (stating that factors include: nature of the event that prompted preparation of the materials, contents of the material — factual or opinions, who prepared the materials — party or representative, whether the materials are routinely prepared and the timing of the preparation of the materials).
After careful review of the record, the Court finds that the Commissioner correctly applied the law to the facts of the immediate case in her finding that under these facts the Ogale/Boltz report would be discoverable.
NOW, THEREFORE, after careful and de novo review of the record in this motion, IT IS ORDERED that:
(a) The Defendants' Motion for Reargument or the Motion for Reconsideration of Commissioner's Order is DENIED; and
(b) Defendants are hereby ordered to comply with the Commissioner's Order.