Glover v. Kansas City Southern Railway Company

Filing 121

ORDER AND REASONS granting in part, denying in part 53 MOTION to Compel Supplemental Responses to Written Discovery Requests. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 8/2/2013.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WESLEY SHANE GLOVER

CIVIL ACTION

VERSUS

NO. 11-2808

KANSAS CITY SOUTHERN
RAILWAY COMPANY

SECTION “H” (2)

ORDER AND REASONS ON MOTION

This is a personal injury claim for damages brought in this court under the Federal
Employers Liability Act (“FELA”). Plaintiff Wesley Shane Glover is a railroad worker
who sues his employer, Kansas City Southern Railway Company (“KC Southern”),
asserting claims arising from an on-the-job accident and alleged resulting injuries.
Glover filed a Motion to Compel Supplemental Responses to Written Discovery
Requests. Record Doc. No. 53. This motion was deferred in part as to his Requests for
Production Nos. 2, 5, and 6, seeking (1) statements taken by claim agent, Randy Vanicor,
on August 27,1 2011 of Lenny Conzonere, Lester Thomas and Matthew Gauthier;
(2) Vanicor’s “Incident Investigative Summary” dated September 12, 2011; (3) Vanicor’s
“interview briefs” concerning Thomas and Conzonere, and (4) a diagram of the subject
railcar by Vanicor. Pursuant to my order, Record Doc. No. 83, defendant has submitted
these documents for in camera review, along with Vanicor’s affidavit in support of
defendant’s assertion that they are protected by the attorney-client privilege and/or work
product protection.

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Although Conzonere’s statement is dated August 24, 2011, Vanicor has submitted an affidavit
stating that the actual date of the statement is August 27, 2011. Record Doc. No. 111 at ¶ 14.

In opposition, plaintiff has submitted excerpts of depositions of Vanicor from
previous cases to support his assertion that the documents are not protected by attorneyclient privilege or work product protection. Record Doc. No. 110. Pursuant to my order,
Record Doc. No. 108, plaintiff’s counsel also filed a supplemental memorandum
addressing defense counsel’s letter transmitting the in camera documents,2 and defendant
was granted leave to file a response. Record Doc. Nos. 115-118.
Having considered the record, the applicable law and the written submissions of
counsel, the deferred portion of the motion is GRANTED IN PART AND DENIED IN
PART as follows.
Defendant, as the party resisting discovery, bears the burden of proof to demonstrate
the existence of any privilege in the materials, including the attorney-client privilege and
work product doctrine. United States v. Newell, 315 F.3d 510, 525 (5th Cir. 2002); In re
Santa Fe Int’l Corp., 272 F.3d 705, 710 (5th Cir. 2001); Hodges, Grant & Kaufman v.
United States, 768 F.2d 719, 721 (5th Cir. 1985); Ingraham v. Planet Beach Franchising
Corp., No. 07-3555, 2009 WL 1076717, at *1 (E.D. La. Apr. 17, 2009); Kiln Underwriting
Ltd. v. Jesuit High Sch., No. 06-04350, 2008 WL 108787, at *4-5 (E.D. La. Jan. 9, 2008)
(citing Hodges, 768 F.2d at 721); United States v. Impastato, No. 05-325, 2007 WL
2463310, at *2 (E.D. La. Aug. 28, 2007) (citing United States v. Harrelson, 754 F.2d 1153,

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Defendant’s May 17, 2013 letter, transmitting the in camera documents to me, and its attached
additional evidence consisting of the affidavit of Randy Vanicor and exhibits has been filed in the record.
Record Doc. No. 111.

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1167 (5th Cir. 1985); United States v. Kelly, 569 F.2d 928, 938 (5th Cir. 1978)). This is
an evidentiary burden, which defendant has tried to meet with the affidavit of Vanicor and
from the content of the in camera documents themselves.
Work product protection from discovery extends to “documents and tangible things
that are prepared in anticipation of litigation or for trial by or for [a] party or its
representative (including the . . . party’s attorney . . . or agent),” Fed. R. Civ. P. 26(b)(3)(A),
but does not extend to the “underlying relevant facts.” Blockbuster Entm’t Corp. v.
McComb Video, Inc., 145 F.R.D. 402, 403 (M.D. La. 1992) (citing United States v. El Paso
Co., 682 F.2d 530, 542 (5th Cir. 1982); Hill Tower, Inc. v. Dep’t of Navy, 718 F. Supp.
562, 566 (N.D. Tex. 1988)); accord 8 C.A. Wright, A.R. Miller & R.L. Marcus, Federal
Practice and Procedure § 2024, at 494 (3d ed. 2010).
The work product “privilege can apply where litigation is not imminent, as long as
the primary motivating purpose behind the creation of the document was to aid in possible
future litigation.” Udoewa v. Plus4 Credit Union, 457 F. App’x 391, 393 (5th Cir. 2012)
(quoting In re Kaiser Alum. & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000)) (internal
quotation omitted) (emphasis added).
“The mere fact that a document is prepared when litigation is foreseeable does not
mean the document was prepared in anticipation of litigation . . . .” Arkwright Mut. Ins. Co.
v. Nat’l Union Fire Ins. Co., 19 F.3d 1432, 1994 WL 58999, at *3 (6th Cir. 1994) (citing
Nat’l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992)).

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Even “[e]stablishing that a document was prepared after litigation was commenced is
insufficient to prove that the document was prepared in anticipation of litigation. . . . What
is crucial is that ‘the primary motivating purpose behind the creation of the document was
to aid in possible future litigation.’” Robinson v. Tex. Auto. Dealers Ass’n, 214 F.R.D.
432, 449 (E.D. Tex. 2003) (quoting In re Kaiser Alum., 214 F.3d at 593) (emphasis added),
rev’d on other grounds, 2003 WL 21911333 (5th Cir. July 25, 2003); accord Global Oil
Tools, Inc. v. Barnhill, No. 12-1507, 2013 WL 1344622, at *6 (E.D. La. Apr. 3, 2013);
Guzzino v. Felterman, 174 F.R.D. 59, 63 (W.D. La. 1997); Blockbuster, 145 F.R.D. at 404.
In addition, “[t]he law is settled that ‘excluded from the work product doctrine are
materials assembled in the ordinary course of business, or pursuant to public requirements
unrelated to litigation.’” Guzzino, 174 F.R.D. at 62 (quoting United States v. El Paso Co.,
682 F.3d 530, 542 (5th Cir. 1982) (citing Fed. R. Civ. P. 26(b)(3) advisory committee
notes)); accord 8 C.A. Wright, A.R. Miller & R.L. Marcus, Federal Practice and Procedure
§ 2024, at 503 (3d ed. 2010); see also Hill Tower, Inc., 718 F. Supp. at 565 (“The mere fact
this report deals with facts, opinions, and recommendations that later may be the focus of
litigation does not establish that there was the expectation of litigation when this document
was drafted.”) (citing Senate of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 586 (D.C. Cir.
1987); Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 865 (D.C. Cir. 1980)).
Thus, “[i]f the document would have been created regardless of whether the litigation
was also expected to ensue, the document is deemed to be created in the ordinary course of

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business and not in anticipation of litigation.” Global Oil Tools, 2013 WL 1344622, at *6
(citing S. Scrap Mat’l Co. v. Fleming, 2003 WL 21474516, at *6 (E.D. La. June 18, 2003);
Piatkowski v. Abdon Callais Offshore, L.L.C., No. 99-3759, 2000 WL 1145825, at *1 (E.D.
La. Aug, 11, 2000)).
Opinion or core work product merits special protection from discovery pursuant to
Rule 26(b)(3)(B). “At its core, the work-product doctrine shelters the mental processes of
the attorney [or others named in the Rule], providing a privileged area within which he can
analyze and prepare his client’s case.” United States v. Nobles, 422 U.S. 225, 238-39
(1975).
Nonetheless, when a party is ordered to produce its work product
because the discovering party has made the showing mandated by Rule
26(b)(3)(A)(i) and (ii), Rule 26(b)(3)(B) requires the court to “protect against
disclosure of the mental impressions, conclusions, opinions, or legal theories
of a party’s attorney or other representative concerning the litigation.” Thus,
tangible materials that contain the mental impressions, conclusions, opinions
or legal theories of a party’s attorney or representative, otherwise known as
“opinion work product,” are afforded a high degree of protection.
In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2010 WL 2522968, at *1 (E.D.
La. June 14, 2010) (additional quotation omitted) (citing Upjohn Co. v. United States, 449
U.S. 383, 395-96 (1981); Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir.
1991); Int’l Sys. & Controls Corp. Sec. Litig., 693 F.2d at 1240; Bonneau v. F & S Marine,
Inc., No. 09-3336, 2010 WL 1254552, at *2 (E.D. La. Mar. 25, 2010); Bross v. Chevron
U.S.A. Inc., No. 06-1523, 2009 WL 854446, at *5 (W.D. La. Mar. 25, 2009); Blockbuster,
145 F.R.D. at 403-04) (additional citations omitted).
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Federal common law applies to assertions of privilege in this federal question case
under FELA. Fed. R. Evid. 501. The federal “attorney-client privilege protects
communications made in confidence by a client to his lawyer for the purpose of obtaining
legal advice. The party invoking attorney-client privilege has [t]he burden of demonstrating
[its] applicability. The application of the attorney-client privilege is a question of fact, to
be determined in the light of the purpose of the privilege and guided by judicial precedents.”
King v. Univ. Healthcare Sys., L.C., 645 F.3d 713, 720-21 (5th Cir. 2011) (quotations and
citations omitted) (emphasis added).
It is axiomatic that the attorney-client privilege “only protects disclosure of
confidential communications between the client and attorney; it does not protect disclosure
of underlying facts.” United States v. Edwards, 39 F. Supp. 2d 716, 723 (M.D. La. 1999)
(Polozola, C.J.) (citing Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981); In re Six
Grand Jury Witnesses, 979 F.2d 939 (2d Cir. 1992); United States v. Freeman, 619 F.2d
1112 (5th Cir. 1980); Computer Network Corp. v. Spohler, 95 F.R.D. 500 (D.D.C. 1982))
(emphasis added). “‘Pre-existing facts that underlie the client’s confidential
communications, whether oral or written, are not privileged simply because the client
disclosed them to an attorney for the purpose of obtaining legal services.’” Id. at 736
(quoting Weinstein’s Federal Evidence, § 503.14[4][a] (2d ed. 1998), citing Upjohn, 449
U.S. at 395) (emphasis added).

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In its written responses to the subject Requests for Production Nos. 2, 5 and 6, KC
Southern asserted that the documents in question are protected from discovery by both the
attorney-client privilege and the work product doctrine. Record Doc. No. 53-5 at pp. 13-15.
No evidence has been submitted that supports assertion of the attorney-client privilege. The
only reference to counsel in Vanicor’s affidavit is that on August 26, 2011, he “contacted
. . . outside counsel for KCS[outhern] to discuss this matter,” and then took the three
witness statements “following communication with” defendant’s counsel. Nothing in
Vanicor’s affidavit or on the face of the documents themselves establishes that the
documents were communications between lawyer and client made to give or obtain legal
advice. Thus, KC Southern has failed to meet its burden to prove that these documents fall
within the scope of confidential communications that are protected under the attorney-client
privilege.
Instead, Vanicor’s affidavit focuses on his attempt to establish that the materials are
work product.
According to his affidavit, Vanicor is a General Claims Agent for KC Southern.
Record Doc. No. 111 at ¶ 2. Vanicor’s deposition testimony submitted by plaintiff
establishes that in the ordinary course of his employment as a claims agent, Vanicor is
“responsible for the investigation response to accidents that occur on the railroad within my
certain territory.” Record Doc. No. 110. (Vanicor Deposition, January 18, 2012, at p. 4 ln.
22-25). His investigations typically consist of surveying the area, taking measurements,

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photographs, interviewing the crew and any witnesses to the incident, and taking notes.
Record Doc. No. 110. (Vanicor Deposition, April 16, 2003, at p. 10 ln. 19-23). The thrust
of Vanicor’s deposition testimony submitted by plaintiff is that it is part and parcel of
Vanicor’s ordinary “job duties” for KC Southern and a normal response to any accident for
him to investigate and obtain statements from the crew involved, regardless whether
litigation was anticipated. Record Doc. No. 110. (Depositions of Vanicor, May 7, 2009,
p. 21 ln. 9-17; June 28, 2007, p. 7 ln. 21-23; April 16, 2003, p. 4, ln. 12-17 and p. 5.).
Vanicor’s affidavit and the content of the in camera documents establish that the
incident giving rise to this claim occurred on August 24, 2011, at about 6:00 p.m. (Incident
Investigative Summary). Glover was injured in Reserve, LA while performing his duties
as a KC Southern brakeman. (Incident Investigative Summary). Vanicor learned of the
incident at 9:10 p.m. and immediately commenced his ordinary investigation by obtaining
information about the incident and requesting that the train car involved be secured for his
inspection. (Incident Investigative Summary). Vanicor decided to travel to the accident
scene the next morning, August 25, 2011, to obtain photos and statements from the train
crew. (Incident Investigative Summary). He obtained the photos, but subsequently learned
that Glover had sought medical attention for his injuries and instructed the hospital not to
share his medical information with KC Southern. (Incident Investigative Summary).
Vanicor’s affidavit states that it was at that point in time, on August 25, 2011, when
he learned that Glover had directed the hospital not to release his medical records, that he

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anticipated litigation would ensue. (Vanicor’s Affidavit at ¶ 5). His conclusion that
litigation would occur was confirmed in his mind on the next morning, August 26, 2011,
when he received a letter via e-mail from plaintiff’s counsel notifying KC Southern that his
firm was representing Glover with regard to the injuries sustained on August 24, 2011.
(Vanicor’s Affidavit at ¶ 8).
As to the work product doctrine’s application to the three witness statements,
Vanicor’s affidavit is telling more for what it does not say than for what it says.
Specifically, nothing in Vanicor’s affidavit or in the content of the in camera materials
themselves establishes that Vanicor’s primary motivating purpose in creating the witness
statements was in anticipation of litigation or for trial preparation. His affidavit and the in
camera materials establish that on August 25, 2011, the day after the accident occurred, he
learned about it and had already commenced his ordinary investigation, he anticipated that
litigation would ensue. As the case law cited above establishes, the mere fact that a
document is prepared when litigation is foreseen does not mean it was prepared in
anticipation of litigation. Vanicor’s deposition testimony submitted by plaintiff establishes
that the taking of witness statements was done by Vanicor in the ordinary course of his job
function as to every railroad accident in his territory, regardless whether litigation was
anticipated or ever occurred. Moreover, the content of the in camera materials establishes
that Vanicor had determined and already set out to take the witness statements, as part of
the ordinary business of his employer, KC Southern, immediately upon his learning about

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the accident and before he anticipated litigation. The statement in his affidavit at Paragraph
18 that “[a]ll of the investigative work I did in this matter and after August 26, 2011 was
in anticipation of litigation” is a legal conclusion he is not qualified to make and which I
reject. Based on the evidence provided by the parties, I find that the statements taken from
Conzonere, Thomas and Gauthier on August 27, 2011 were conducted in the ordinary
course of KC Southern’s business and Vanicor’s non-litigation related job duties, and are
therefore not protected from discovery by the work product doctrine and/or Rule 26(b)(3)
because the primary motivating purpose of Vanicor’s creation of the witness statements was
not to aid in the litigation or trial of the defense of this claim.
On the other hand, Vanicor’s “Interview Briefs,” diagram, and “Incident
Investigative Summary,” the remaining non-statement in camera materials cannot so clearly
be found to be unprotected. Vanicor’s affidavit clearly states that the “Incident Investigative
Summary,” created on September 12, 2011, contains his own “mental impressions formed
during the course of my investigation.” (Vanicor Affidavit at ¶ 17). My in camera review
of these three interpretive documents corroborates this statement in Vanicor’s affidavit and
convinces me that, unlike the three witness statements, these three documents contain the
kind of core work product containing the mental impressions, conclusions and theories of
an agent of defendant that constitute core work product and that Rule 26(b)(3)(B) directs
be afforded a high degree of protection.

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For the foregoing reasons, the deferred portion of plaintiff’s Motion to Compel
Supplemental Responses to Written Discovery Requests, Record Doc. No. 53, is granted
in part in that the witness statements of Lenny Conzonere, Lester Thomas and Matthew
Gauthier must be produced by defendant to plaintiff no later than August 19, 2013.
However, the motion is denied in part as to the “Interview Briefs,” “Incident Investigative
Summary” and diagram, which are protected from discovery by the work product doctrine.

2nd
New Orleans, Louisiana, this _________ day of August, 2013.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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