Opinion
C.A. No. 00C-11-048-JRS 00C-12-137-JRS
September 10, 2001
Christopher J. Sipe, Esquire, Bailey Wetzel, P.A., Wilmington, DE.
Richard P.S. Hannum, Esquire, Phillips, Goldman Spence, P.A., Wilmington, DE.
E. Martin Knepper, Jr., Esquire, Knepper Stratton, Wilmington, DE.
Dear Counsel:
The Court has considered the motion to compel filed by plaintiff, Nationwide Insurance Company ("Nationwide"), in which it seeks production of certain documents prepared by Joseph R. Kozak ("Kozak"), an investigator engaged by Harford Mutual Insurance Company ("Harford") to conduct a preliminary investigation with respect to the January 16, 1999, automobile accident at issue in this case. For the reasons that follow, the motion to compel is GRANTED in part and DENIED in part.
The documents at issue have been supplied to the Court for in camera inspection. They are: (1) a four page report dated February 2, 1999, from Kozak to Harford; (2) a one page handwritten summary of Kozak's interview of Guiseppe D'Arro, dated January 20, 1999; and, (3) a two page handwritten summary of Kozak's interview with Dennis Michael Aldershoff, dated January 20, 1999. With respect to the Kozak report, the Court has reviewed that document and is satisfied that the redacted portions of the document are not discoverable under Del. R. Civ. P. 26(b)(1). The redacted portion of the report contains absolutely no factual data. Instead, the "coverage" and "liability" portions of the Kozak report contain the legal pontifications and conclusions of a non-lawyer which have no bearing on the factual issues in dispute in this litigation. In sum, Kozak's purely legal analysis will not lead to the discovery of admissible evidence in this litigation. Nationwide's motion to compel production of the unredacted Kozak report is, therefore, DENIED.
The Court has been advised that a separate declaratory judgment action has been filed by Nationwide which addresses a coverage issue related to this litigation. The discovery requests at issue, however, do not relate to that litigation and, therefore, the Court has not considered the propriety of the request in the context of a coverage dispute. The Court appreciates that this issue may resurface in the coverage litigation.
Nationwide also seeks production of Kozak's written summaries of the interviews he conducted with Mr. D'Arro, the owner of the incident vehicle, and Mr. Aldershoff, the operator of the incident vehicle at the time of the accident. The summaries of the interviews are factual in their content and do not, on the Court's inspection, reveal the mental impressions or opinions of Mr. Kozak.
Harford has claimed that the reports are protected from discovery by virtue of the work product privilege. At the conclusion of the oral argument on the motion to compel, the Court requested that Harford support its claim of work product privilege with verified evidence documenting the circumstances pursuant to which the interviews were conducted and the summaries of the interviews were prepared. To date, Harford has submitted no such verified evidence. Harford bears the initial burden of establishing the existence of the work product privilege before the burden will shift to Nationwide to show its substantial need for the information and the absence of undue hardship to Harford. As stated, Harford has failed to carry its initial burden. Consequently, Nationwide's motion to compel production of the interview summaries must be, and hereby is, GRANTED. IT IS SO ORDERED.
See Wolhar v. General Motors Corporation, Del. Super., 712 A.2d 457, 459 (1997) (citations omitted).
Sincerely,
Joseph R. Slights, III
JRS, III/sb
Original to Prothonotary