Opinion
Civil Action No: 01-3334, SECTION: "E" (4)
April 16, 2003
MINUTE ENTRY
On December 9, 2002, the plaintiff, Ricky N. Scott, filed a Motion to Compel Production of Investigative File (doc. #25) seeking to compel the defendant to produce the investigative files of Chris Powers and Eric Evans. The defendant, Avondale Industries, Inc., opposes the motion claiming that the investigative files are shielded from production by the work product privilege.
I. Background
The plaintiff filed the instant pursuant to Title VII of the Civil Rights Act of 1964 seeking to recover for sexual harassment and retaliation. The plaintiff was employed by Litton Avondale Industries ("Avondale") as a welder beginning on October 25, 1999. On March 3, 2000 the plaintiff was given a written warning for lack of productivity and failure to complete job assignments. She was officially terminated by Avondale on March 14, 2000. Following her termination, the plaintiff filed a complaint of sexual harassment with Avondale's Human Resources Office.
The plaintiff contends that during her employment with Avondale, she worked for the welder foreman, James Hooker. However, her immediate supervisor was Norris Pertuit. The plaintiff claims that shortly after she began working at Avondale, Hooker "began looking at her very strange, as for example, staring at her" on a daily basis. She also claims that Hooker often made sexually suggestive comments such as "who are you staying with?" and "I would like to taste your lips." After she was "written-up" by Hooker on March 3, 2000, the plaintiff complained to Pertuit that Hooker had been sexually harassing her. Avondale investigated the incident and determined that there was no evidence of inappropriate behavior. The plaintiff thereafter filed the instant suit seeking to recover compensatory and punitive damages and lost wages.
On July 29, 2002, the plaintiff propounded several discovery requests upon Avondale. Included in these requests was a request for "all files related to the plaintiff, including the file related to her termination." Avondale responded by contending that the request seeks privileged information. Avondale thereafter submitted a privilege log to the plaintiff indicating that documents prepared by its EEO officer, Chris Powers, its Human Resources employee, Eric Evans, and Kristen Barney were prepared in anticipation of litigation and are thus shielded by the work product doctrine.
The plaintiff subsequently filed the instant motion seeking to compel the production of the investigative files of Chris Powers and Eric Evans. She contends that the documents contained in these files were not prepared in anticipation of litigation and as such, are not subject to the work product doctrine. The plaintiff also argues that the files of Powers and Evans were not prepared at the request or direction of counsel. To support her contentions, the plaintiff submits that Evans stated during his deposition that he did not conduct his investigation in preparation of litigation.
The plaintiff has not provided the deposition testimony to the Court for review.
Avondale opposes the motion contending that following her suspension on March 3, 2000, the plaintiff filed a sexual harassment complaint with Avondale's Human Resource's office. Avondale contends that Chris Powers immediately recognized that the plaintiffs complaint could lead to litigation. Powers thereafter instructed Eric Evans to interview witnesses regarding the plaintiffs complaint. Evans interviewed Hooker, the plaintiffs sister, Willie Ray, and the plaintiffs co-worker, Steve Augustus. As such, Avondale contends that the documents at issue were prepared in anticipation of litigation and are shielded from production.
II. Analysis A. Work Product Doctrine
Rule 26(b)(3) of the Federal Rules of Civil Procedure governs the disclosure of documents prepared in anticipation of litigation and provides:
. . . a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
The work-product doctrine shields from discovery the materials prepared by or for an attorney in preparation of litigation. Hickman v. Taylor, 329 U.S. 495 (1947); Blockbuster Entertainment Corp. v. McComb Video, Inc., 145 F.R.D. 402, 403 (M.D. La. 1992). It protects two categories of materials: ordinary work-product and opinion work product. Snowden v. Connaught Lab. Inc., 137 F.R.D. 325, 330-32 (D. Kan. 1991); see generally Upjohn Co. v. U.S., 449 U.S. 383, 400-02 (1981).
However, the doctrine is not an umbrella that shades all materials prepared by a lawyer, or agent of the client. It focuses only on materials assembled and brought into being in anticipation of litigation. Piatkowski v. Abdon Callais Offshore, L.L.C., 2000 WL 1145825, at *2 (E.D. La. Aug. 11, 2000). Excluded from the work-product doctrine are materials assembled in the ordinary course of business. United States v. El Paso Co., 682 F.2d 530 (5th Cir. 1982), cert. denied, 466 U.S. 944 (1984). It also does not extend to the underlying facts relevant to the litigation. See generally Upjohn, 449 U.S. at 395-96.
In determining whether a document was made in anticipation of litigation, the primary focus is on the reason or purpose for creating the document. Beal v. Treasure Chest, No. 98-0786, 1999 WL 461970, at *3 (E.D. La. July 1, 1999). Factors that courts rely on to determine the primary motivation for the creation of a document include the retention of counsel and his involvement in the generation of the document and whether it was a routine practice to prepare that type of document or whether the document was instead prepared in response to a particular circumstance. Piatkoivski, 2000 WL 1145825, at *2. If the document would have been created regardless of whether litigation was expected to ensue, the document is deemed to have been created in the ordinary course of business and not in anticipation of litigation. Id.
In the instant case, Avondale argues that the documents prepared by its EEO officer, Chris Powers, and its Human Resources employee, Eric Evans, were prepared in anticipation of litigation. However, not all documents generated from an internal investigation are protected by the work product doctrine "simply because a company's internal investigation is coexistent with a present or anticipated lawsuit that is the same subject matter of the litigation." Caremark. Inc., v. Affiliated Computer Services, Inc., 195 F.R.D. 610, 614 (N.D. Ill. 2000); see Long v. Anderson University, 204 F.R.D. 129, 136 (S.D. Ind. 2001). Therefore, documents that are created in the ordinary course of business and "would have been created irrespective of litigation are not under the protection of the work product doctrine." Caremark, 195 F.R.D. at 614-15.
Although neither party has submitted a copy of Avondale's sexual harassment policy, Avondale concedes that it conducted an investigation upon receiving the plaintiffs complaints. In fact, Avondale answered the instant suit by stating that it promptly and adequately completed an investigation of the plaintiff's charge. Avondale further submits that it "has adopted clearly articulated and documented policies and procedures regarding the prohibition, reporting and remediation of all types of discrimination and/or harassment . . . and . . . any such report or complaint was promptly and adequately investigated . . ." Further, Avondale has not responded to the plaintiffs assertion that the statements were taken in the normal course of business. Thus, it is reasonable to believe that Avondale maintained a policy that set forth reporting procedures which triggered an investigation.
Rec. Doc. No. 6. Answer, Fifth Defense ¶ 26, 27.
Rec. Doc. No. 6. Answer, Eighth Defense.
Moreover, the Court notes that Avondale has not provided any evidence to suggest that it expected litigation to result from the plaintiffs complaint. Notably, the statements at issue were not taken at the request of an attorney, nor is there any evidence that the matter had been referred to an attorney. Also, Avondale concedes that Eric Evans did not take the statements with the belief that litigation was imminent. Although, Evans took the statements at the direction of Chris Powers, the Court finds it unlikely that Evans would have been directed to interview the witnesses in anticipation of litigation without being informed that litigation was imminent. Additionally, Avondale has not provided any evidence to support its contention that Chris Powers believed that litigation was a possibility at the time he directed Evans to interview the witnesses. As the party withholding documents from discovery, the burden is on Avondale to establish that the statements were taken in anticipation of litigation. Piatkowski, 2000 WL 1145825, at *3 (citing St. James Stevedoring Co., Inc. v. Femco Machine Co., 173 F.R.D. 431, 432 (E.D. La. 1997)).
The information provided to the Court does not satisfy Avondale's burden of demonstrating that the primary motivating purpose in securing the statements at issue was in furtherance of a sufficiently identifiable resolve to litigate, rather than a more or less routine investigation of a possibly resolvable claim. Plaintiffs request to compel the defendant to produce the statements taken by Eric Evans and Chris Powers is, therefore, granted.
B. Timing of Production
The plaintiff also requests that the documents at issue be provided prior to her deposing the witnesses. Avondale, however, argues that it should not be required to produce the interview notes until after the witnesses have been deposed. The Court notes that at the time the instant motion was filed, the parties had deposed the plaintiff, James Hooker and Eric Evans. However, the parties had not deposed the plaintiff's sister, Willie Ray, and the plaintiff's co-worker, Steve Augustus.
Pursuant to the Federal Rules of Civil Procedure, "[u]nless the court upon motion, for the convenience of parties and witnesses and in the interest of justice, orders otherwise, methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery." FED. R. Civ. P. 26(d). Also, the Rules make it clear that both parties and non-parties are entitled to secure production of any statements they have given without any special showing. Sims v. Lafayette Parish School Board, 140 F.R.D. 338 (W.D. La. 1992). In fact, Rule 26(b)(3) of the Federal Rules of Civil Procedure provides that "[a] party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person . . ." FED. R. Civ. P. 26(b)(3).
The Court recognizes that there are cases where courts have held that production of a statement may be delayed until after a deposition has been taken. Sims, 140 F.R.D. at 339. However, such a procedure should only be followed "in appropriate cases." Id. Specifically, the Advisory Committee Note to Rule 26(b)(3) provides, in pertinent part, as follows: "[i]n appropriate cases, the court may order a party to be deposed before his statement is produced." Baggs v. Highland Towing, L.L.C., 1999 WL 539459, at *2 (E.D. La. July 22, 1999) (citing Miles v. M/V Mississippi Queen, 753 F.2d 1349, 1351-52 (5th Cir. 1985). Such orders may be issued only when the moving party makes "a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements." Id. (citing In re Terra Int'l, 134 F.3d 302, 306 (5th Cir. 1998)). Thus, both the Advisory Committee Notes and the Fifth Circuit anticipate a showing of cause before a court may delay production of a statement. Sims, 140 F.R.D. at 339.
Avondale contends that the production of the witnesses' statements should be delayed for impeachment purposes. However, Avondale has failed to provide sufficient evidence to justify a delay in the production of the requested statements. If preservation of impeachment value were a valid reason for delaying production of statements, then production would be delayed to a post-deposition point in every case. Id. The adoption of such a rule would violate the rationale underlying the amendments to rule 26(b)(3). Id.
The amendments to the rule seem to have been based on a general feeling that it is not fair to a witness to require him to testify without being allowed to see what he has said in a statement previously given. Sims, 140 F.R.D. at 339. The Notes of Advisory Committee to Rule 26(b)(3) explain, in pertinent part:
Ordinarily, a party gives a statement without insisting on a copy because he does not yet have a lawyer and does not understand the legal consequences of his actions. Thus, the statement is given at a time when he functions at a disadvantage. Discrepancies between his trial testimony and earlier statement may result from lapse of memory or ordinary inaccuracy; a written statement produced for the first time at trial may give such discrepancies a prominence which they do not deserve.
Although the Notes make particular reference to the right to review a statement before trial, the same adverse result may obtain if a person is compelled to give sworn deposition testimony without reviewing a prior statement. Thus, Avondale shall produce the statements of the plaintiff, James Hooker and Eric Evans to the plaintiff within 10 days of this order. However, as the nonparty witnesses have not requested their statements, Avondale is not required to produce the statements of Willie Ray and Steve Augustus. See generally Sims, 140 F.R.D. at 339 (holding that statements of non-party witnesses need not be produced to defense counsel but should be produced to non-party witnesses upon their personal request for same).
The Court again notes that each of these witnesses were deposed prior to the filing of the instant motion.
Accordingly,
IT IS ORDERED that the Motion to Compel Production of Investigative File (doc. #25) is GRANTED IN PART and DENIED IN PART as follows:
1. GRANTED to the extent the plaintiff seeks to obtain the statements of the plaintiff, Eric Evans and James Hooker. Avondale shall provide these statements to the plaintiff within 10 days of this order.
2. DENIED to the extent the plaintiff seeks to obtain the statements of Willie Ray and Steve Augustus.IT IS FURTHER ORDERED that Avondale shall retrieve the documents submitted for in camera review from the chambers of the undersigned within 5 days of this order.