Summary
holding that a statement taken from a witness by insurance claims adjuster was routine and not protected by work-product doctrine because the claim involved a non-life-threatening injury on a barge, "a fact of life for vessel owners and their crew members," and differentiating from Hamilton v. Canal Barge Co., Inc., 395 F.Supp. 975 (E.D. La. 1974) (where a serious accident caused the plaintiff fatal injuries)
Summary of this case from Costly v. Nissan Motor Co.Opinion
CIVIL ACTION NO. 00-1427 SECTION "L"(5).
November 9, 2000.
ORDER AND REASONS
Defendants move this Court to review the Magistrate Judge's Order requiring defendant to produce a witness's statement to the plaintiff. On September 13, 2000, the Court heard oral argument on the motion and ordered that the statement be produced for in-camera review. After in-camera inspection of the statement and review of the applicable law and record, the Court orders the defendants to produce the statement to the plaintiff for the following reasons.
I. BACKGROUND
On December 7, 1999, plaintiff James C. Holton alleges that he was injured while working aboard the M/V Jenny W. Holton alleges that his relief captain, Dean Ockman, told him to jump six to ten feet from the barge to the dock in order to secure a mooring line. Holton claims that he suffered severe injuries to his lower back as a result of that jump.
On December 13, 1999, Holton completed an accident report and was removed from the M/V Jenny W. and flown to New Orleans for treatment. Defendants notified their underwriters of a potential claim by the plaintiff. The underwriters retained a third-party adjuster, E.J. Halverson Assoc., Inc. ("Halverson"), to investigate the incident. Halverson took Holton's statement in late December, 1999 and obtained Captain Ockman's statement on January 7, 2000.
Holton received treatment for his injuries and defendant paid him maintenance and cure benefits uneventfully until March, 2000. Holton did not hire counsel until March 29, 2000 and did not file suit until May 15, 2000. During written discovery, Holton's counsel requested a copy of Captain Ockman's statement, but defense counsel refused to provide it explaining that the statement was protected workproduct prepared in anticipation of litigation. Counsel deposed Captain Ockman on August 28, 2000. Before the deposition, however, United States Magistrate Judge Chasez convened a status conference at the request of plaintiff's counsel to discuss the production of Captain Ockman's statement. Magistrate Chasez ruled that Captain Ockman should first be deposed without reviewing his statement and thereafter the statement could be given to him and plaintiff's counsel in order to resolve any further issues in the deposition. Defense counsel noted its objection and indicated their intent to appeal the Magistrate Judge's order.
Defendants sought review of the Magistrate's Order from this Court. Defendants requested oral argument on whether Ockman's statement was protected from discovery as a document prepared in anticipation of litigation pursuant to Federal Rule of Civil Procedure 26(b)(3). Plaintiff responded that Ockman's statement is not protected by Rule 26(b)(3) because it was taken in advance of anticipation of litigation and that plaintiff will suffer undue hardship if the statement is not produced because Ockman's deposition testimony is not a substantial equivalent to the statement.
The Court heard oral argument on the motion for reconsideration on September 13, 2000. The Court ruled that the defendants must submit the statement for in-camera review. On October 11, 2000, after in-camera inspection of the statement, the Court ordered the defendant to produce the statement to the plaintiff. Defendants requested from the Court reasons for its Order so that they may seek a writ of mandamus on the issue of producing the statement.
II. ANALYSIS
Defendants have asked this Court to review an order of a United States Magistrate Judge concerning a pretrial matter. The standard of review of a Magistrate's order concerning pretrial matters is "clearly erroneous or contrary to law" pursuant to title 28, United States Code, section 636(b)(1)(A). See Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995).
The statement is undiscoverable work product only if the defendant can show that it was "prepared in anticipation of litigation." Fed.R.Civ.P. 26(b)(3). If it was prepared in anticipation of litigation, the plaintiff must demonstrate that it has "substantial need" for the privileged document and that they could not procure equivalent evidence without undue hardship. Id.
A. Defendants have failed to prove the statement was prepared in anticipation of litigation.
To prevent discovery of Ockman's statement, the defendants must prove that the statement was "prepared in anticipation of litigation." Fed.R.Civ.P. 26(b)(3). Defendants assert that the Supreme Court's rule in Hickman v. Taylor has been extended to the point that Ockman's statement, which was given to a third-party investigator, is entitled to the same "degree of privacy" as a statement taken by an attorney preparing a case for litigation. 329 U.S. 495, 510 (1947). The defendants note that the Supreme Court established the Hickman rule to protect an attorney's work whether it was reflected in "interview, statements, memorandum, correspondence, briefs, and mental impression." 329 U.S. at 511. If such material were available to an opposing counsel, inefficiency and unfairness "would inevitably develop in the giving of legal advice and in the preparation of cases for trial." Id.
The defendants do not, however, take the final step of demonstrating how the release of an eye-witness's statement, taken by a third-party investigator who was hired by an insurance company but is not an attorney, will cause inefficiency and unfairness in future legal proceedings. The Hickman rule is intended to allow attorneys to communicate freely with their clients, including eliciting information that will support certain legal theories or exclude other theories from consideration. A third-party insurance adjustor attempting to ascertain exactly what happened from eye-witnesses is not in the same position as an attorney. The Court has reviewed Ockman's statement in-camera and is confident that the statement is free of the thoughts and impressions of counsel that Hickman is intended to protect.
Of course, this is not to say that a statement given to a non-attorney cannot be protected under Rule 26(b)(3). Defendants cite Hamilton v. Canal Barge Company, Inc. to prove that Ockman's statement is privileged work product. See 395 F. Supp. 975 (E.D.La. 1974). In Hamilton, this 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. 395 F. Supp. at 976. However, Hamilton did not establish a brightline rule that every statement taken by a defendant's insurance adjuster is prepared in anticipation of litigation. Materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes are not privileged work product. See Fed.R.Civ.P. 26(b)(3) Advisory Committee Notes (1970); United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982).
In Hamilton, a serious accident caused the plaintiff fatal injuries. The defendants' insurer was on the scene hours after the accident to begin collecting information for the lawsuit that would inevitably be filed. Based on those facts, the Court found that the insurer was not acting in the ordinary course of adjusting a potential claim but was taking statements clearly in anticipation of litigation. See Hamilton, 395 F. Supp. at 976. However, there is a vast difference between the investigation of the death of an employee, which is an extraordinary and tragic event, and the investigation of a non-life threatening injury on a barge, which is a fact of life for vessel owners and their crew members.
In the present case, the facts do not point to inevitable litigation or even that the defendants were paying specific attention to prospective litigation when Ockman's statement was taken. The plaintiff had no prior history of litigation and had neither obtained counsel nor filed suit when Ockman's statement was taken. The plaintiff did not seek medical treatment until six days after the incident and the investigator did not take Ockman's statement until thirty days thereafter.
Insurance companies regularly take statements from witnesses during the routine adjustment of a potential insurance claim. The collection of Ockman's statement during the ordinary course of business need not raise the protections afforded to attorney workproduct despite defendants' claim that prudent parties anticipate litigation and act with that possibility in mind. Defendants' assertions cannot protect the witness's statement from discovery absent a showing that their investigations were conducted primarily for the purposes of future litigation and outside the ordinary course of investigating a potential insurance claim.
B. Even if the statement is privileged workproduct, Ockman's statement would nonetheless be producible.
Even if the statement qualified as privileged work product, the privilege would be defeated because plaintiff has demonstrated both the substantial need and the undue hardship necessary for discovery of work product. See Fed.R.Civ.P. 26(b)(3).
The reasoning of Hamilton supports production of the statement. In Hamilton, the Court recognized that discovery is intended to be a search for the truth and that eye-witness statements are one way of providing that truth. The court explained that "[t]he notion that the statement taken nearest to the event will most accurately reflect the perception the witness had of the event is amply supported by psychological studies, as well as by common sense." 395 F. Supp. at 977. Even though the statements in Hamilton were taken the same day as the accident and not a few weeks later as in the present case, the reasoning of Hamilton still supports production. Memories fade over time, and during the intervening nine months, Ockman may have forgotten details that could be important in this litigation.
The Fifth Circuit has recognized that statements taken from the witnesses shortly after accidents are "`unique catalysts in the search for truth' in that they provide an immediate impression of the facts that cannot be recreated or duplicated by a deposition that relies upon memory, and many courts have held that the mere lapse of time in itself is enough to justify production of the statements." Southern Ry. Co. v. Lanham, 403 F.2d 119, 128 (5th Cir. 1968) (citations omitted). Even where a witness is available for interrogation by the plaintiff, the facts disclosed would not necessarily be identical to that witness's original statement. Id. at 127. The Fifth Circuit has also noted that written statements from witnesses who were employed by an adverse party appear "to create a situation of inequality between the parties with respect to gathering accurate statements from [the employees]." Id. at 129.
In this case, the plaintiff and Captain Ockman are the only two witnesses to the accident. Depriving the plaintiff of Ockman's statement will deprive him of Ockman's freshest and most accurate account of the incident. Although Ockman gave the statement one month after the accident, a greater lapse in time creates the need to produce statements taken near the time of the event. See Hamilton, 395 F. Supp. at 977. After comparing Ockman's statement and deposition testimony in-camera, as suggested by the Hamilton court in situations where the witness is available for later deposition, the Court finds that Ockman's statement does contain additional information and is not the substantial equivalent of the deposition testimony.
It is in the interests of justice to allow each side access to available evidence, particularly when the evidence is relevant, not privileged, and the access would not result in hardship or expense to either party. See, e.g., United States v. Procter Gamble Co., 356 U.S. 677, 682 (1958) (stating that the rules of discovery and pretrial procedure "make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.") To restrict access to the statement in this case would encourage gamesmenship and promote procedure over substance.
III. CONCLUSION
For the foregoing reasons, defendants have not shown that the Magistrate's order to produce Ockman's statement was clearly erroneous or contrary to law, and therefore, defendants' motion to reconsider the Magistrate's order is DENIED and defendants are ORDERED to produce the statement to the plaintiff.
New Orleans, Louisiana, this 9th day of November, 2000.