Howard v. Fowler Brothers, Inc et al
Filing
22
MEMORANDUM OPINION & ORDER granting 17 Motion to Compel. Signed by Chief Judge Thomas B. Russell on 8/4/2011. cc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CASE NO. 5:10-CV-198
SONIA HOWARD
PLAINTIFF
v.
FOWLER BROTHERS, INC., and
FOWLER FOODS, INC.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Plaintiff’s Motion to Compel Production of Witness
Statements (Docket #17). Defendants have responded (Docket #20). Plaintiff has replied
(Docket #21). For the foregoing reasons, Plaintiff’s motion is GRANTED.
DISCUSSION
On October 7, 2009, Plaintiff was allegedly injured after a toilet fell over at the Kentucky
Fried Chicken store in Lone Oak. Plaintiff now seeks an order compelling Defendants to
produce statements given by KFC employees following the incident. Specifically, Plaintiff seeks
the statements of: (1) Jerry Nance; (2) Bobby Doyle; (3) Terry Adams; (4) Emily Lynn; (5) Lisa
Colston; (6) Letetia Quarles; (7) Megan Rouse; (8) Robert Crutcher; and (9) Doug Ross.
Defendant objects on the basis that these statements are work-product.
“The work-product doctrine is a procedural rule of federal law; thus, Federal Rule of
Civil Procedure 26 governs this diversity case.” In re Professionals Direct Ins. Co., 578 F.3d
432, 438 (6th Cir. 2009). Rule 26(b)(3) protects “documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its representative . . . .”
Fed. R. Civ. P. 26(b)(3)(A). A party may only discover these documents if they are relevant and
“the party shows that it has substantial need for the materials to prepare its case and cannot,
without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P.
26(b)(3)(A)(ii).
Defendants assert that the witness statements were prepared in anticipation of litigation
for their insurer and counsel and, thus, the work-product doctrine applies. Plaintiff does not
challenge Defendants’ assertion, but argues that these statements may still be obtained because
Plaintiff has a substantial need for the statements and a substantial equivalent cannot be obtained
by other means. Plaintiff believes such statements are necessary for preparation of her case
because these statements contain the best and most reliable information concerning the
witnesses’ knowledge at the time of the incident. Plaintiff notes that the witness statements were
written either the day of the accident or the next morning, at a time when the events were still
fresh in the witnesses’ minds. Although Plaintiff has the ability to depose these witnesses,
Plaintiff believes that such depositions, approximately eighteen months after the incident, would
not provide a substantial equivalent.
Various courts have addressed this issue and there is a split of authority as to whether the
passage of time is sufficient to satisfy Rule 23(b)(3).
Although several courts have held that the mere passage of time is enough to meet
the substantial need required to compel production of documents protected as
work product (see [Holton v. S & W Marine, Inc., 2000 WL 1693667, *4 (E.D.
La. 2000)]; see also Tiernan v. Westext Transport, Inc., 46 F.R.D. 3, 5 (D.R.I.
1969) (holding that statements taken shortly after an incident are more acute than
depositions taken later in time, helping to overcome the work product privilege);
Hamilton v. Canal Barge Co., Inc., 395 F. Supp. 975, 977 (E.D. La. 1975) (stating
that the mere lapse of time is enough to justify discovery of documents protected
by the work product rule)); other courts have held that the mere passage of time is
not sufficient to establish substantial need absent some additional factor(s). See
Almaguer v. Chicago R.I. & P.R., 55 F.R.D. 147, 150 (D. Neb. 1972) (stating that
more than the mere passage of time is necessary to establish the need required to
overcome the work product protection); see also Banks v. Wilson, 151 F.R.D.
109, 113 (D. Minn. 1993) (stating that if the mere passage of time was sufficient
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to create the substantial need required, then the express preconditions of Rule
26(b)(3), which requires that a witness be unavailable or that their statement or its
equivalent could not be obtained by an alternative method without undue
hardship, would be meaningless).
Additionally, even those cases which hold that the mere passage of time is
sufficient to establish substantial need, generally require that the protected
statement sought in discovery have been taken shortly after the event took place.
See Hamilton, 395 F. Supp. at 978 (if the closer in time statement is given more
than a few days after the events themselves, then the mere passage of time is not
enough to establish the required need).
Garcia v. City of El Centro, 214 F.R.D. 587 (S.D. Cal. 2003) (footnote omitted) (emphasis in
original). In Garcia, the district court denied the plaintiff’s motion to compel because the
witness statements were taken at least five months after the incident giving rise to the litigation.
Id. at 596-98. Because of this time span, the district court held that the plaintiff failed to show a
substantial need. Id.
In contrast, this case involves statements prepared either the day of the incident or the
following day. The Court agrees with district courts which have recognized that statements
taken shortly after the event in question are more acute and “unique, in that they provide an
immediate impression of the facts.” 8 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, MARY KAY
KANE & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2025 (3d ed. 2011)
(citing, e.g., Johnson v. Ford, 35 F.R.D. 347, 350 (D. Colo. 1964)); accord Southern Ry. Co. v.
Lanham, 403 F.2d 119, 128 (5th Cir. 1968) (statements taken shortly after an accident “provide
an immediate impression of the facts that cannot be recreated or duplicated by a deposition that
relies upon memory”). Defendant was in the unique position of being able to interview key
witnesses within a day of the incident, while the same opportunity was unavailable to Plaintiff.
See Stout v. Norfolk & W. Ry. Co., 90 F.R.D. 160, 162 (S.D. Ohio 1981) (statements’
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“contemporaneity renders them so unique and unduplicable that need and hardship are clearly
established”). Presumably, these statements provide facts essential to Plaintiff’s case. Id. at 161
(noting that the contemporaneous statements are “essential to developing the fact pattern”).
The Court finds that Plaintiff has demonstrated a substantial need for the witness
statements and has made a showing of undue hardship in obtaining substantial equivalents.
Accordingly, the Court holds that the statements must be produced.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel
Production of Witness Statements is GRANTED.
August 4, 2011
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