In the Matter of the Complaint of Osage Marine Services, Inc.

Filing 52

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that claimants motion to quash the notice of deposition of Richard Fleisher and for a protective order prohibiting plaintiff from deposing Richard Fleisher [#37] is denied. Signed by Honorable Carol E. Jackson on 12/28/2011. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

IN THE MATTER OF THE COMPLAINT
OF OSAGE MARINE SERVICES, INC.,

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) No. 4:10-CV-1674 (CEJ)
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)

MEMORANDUM AND ORDER
This matter is before the Court on the motion of claimant Craig Woodfin to
quash the notice of plaintiff’s intent to take the deposition of Richard Fleisher and for
a protective order prohibiting plaintiff from deposing Fleisher. The plaintiff opposes
the motion and the issues are fully briefed.
I. Background
Plaintiff owns the M/V Carrie Elizabeth, a horsepower towboat that provides
barge switching and towing services on the Mississippi River. Claimant Woodfin was
employed as a mate on the towboat. On July 1, 2010, Woodfin sustained injuries
when his left foot came in contact with a deckfitting on a barge that the towboat was
preparing to switch. On October 29, 2010, he filed a claim against plaintiff, asserting
that his injuries were the result of plaintiff’s negligence.
Prior to filing this lawsuit, plaintiff’s counsel retained Richard Fleisher as a
private investigator. During his investigation, Fleisher contacted Shane Ducote and
Nathan Welch, who were on board the M/V Carrie Elizabeth when the accident
occurred. Ducote and Welch were still employed by plaintiff at the time Fleisher
contacted them. Fleisher discussed the accident with Ducote and Welch and recorded
the conversations.

Fleisher had not been authorized by plaintiff or by claimant’s

counsel to contact Ducote and Welch.

After learning of Fleisher’s contact with

plaintiff’s employees, claimant’s counsel instructed him to cease all communications
with anyone connected to the case and later terminated his services.
In response to a request for production of documents, claimant produced
transcripts of Fleisher’s recorded conversations with Ducote and Welch. Although the
materials were produced, claimant asserted that they were covered by the attorney
work product privilege. Claimant asserts the work product privilege as grounds for
his motion to quash the plaintiff’s notice to take Fleisher’s deposition.
II. Discussion
The work product privilege is designed to promote the adversary system by
ensuring that a party cannot obtain materials that his opponent has prepared in
anticipation of litigation. Pittman v. Frazer, 129 F.3d 983, 988 (8th Cir. 1997)
;Westinghouse Ele. Corp. v. Republic of the Philippines, 951 F2d 1414, 1428 (3rd Cir.
1991). The party asserting work product protection bears the burden of demonstrating that the doctrine applies and that it has not been waived. See In re Grand Jury
Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir.2007); Allied Irish Banks,
p.l.c. v. Bank of Am., N.A., 252 F.R.D. 163, 173 (S.D.N.Y.2008). In order to meet this
burden, the moving party must show that the material is (1) a document or a tangible
thing, (2) that was prepared in anticipation of litigation, and (3) was prepared by or
for a party, or by his representative.” Allied Irish Banks, p.l.c, 252 F.R.D. at 173. The
work product doctrine protects not only materials which are prepared by attorneys
themselves, but also by their agents. See Spanierman Gallery v. Merritt, 2003 WL
22909160, at *2-3, 2003 U.S. Dist. LEXIS 22141, at *6 (S.D.N.Y. Dec. 9, 2003)
(citing United States v. Nobles, 422 U.S. 225, 238-39, 95 S.Ct. 2160, 45 L.Ed.2d 141
(1975)). “[A]gents include those who are enlisted by legal counsel to perform
investigative or analytical tasks to aid counsel in preparing for litigation.” Costabile
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v. Westchester, 254 F.R.D. 160,164 (S.D.N.Y. June 18, 2008);Kayata v. Foote, Cone
& Belding Worldwide, L.L.C., 2000 WL 502859, at *2 (S.D.N.Y. Apr. 26, 2000).
The non-moving party can discover materials protected by the work product
doctrine only upon a showing of substantial need for the materials in preparation of
case and the inability, without undue hardship, to obtain the substantial equivalent of
the materials by other means. Pittman, 129 F.3d 983 at 988. If, after the required
showing has been made, the court orders disclosure of the materials, the court must
protect against disclosure of mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party concerning the litigation.
Fed. R. Civ. P. 26(b)(3)(B).
The Court finds that the claimant has not met its burden of proving that the
elements of the work product privilege are satisfied. Rule 26(b)(5) of the Federal
Rules of Civil Procedure provides that “a person withholding subpoenaed information
under a claim that it is privileged or subject to protection as trial-preparation material
must: (i) expressly make the claim; and (ii) describe the nature of the withheld
documents . . . in a manner that, without revealing information itself privileged or
protected, will enable the parties to assess the claim." The claimant has not provided
the Court with a privilege log or any information describing the nature of the material
subject to protection. Claimant merely states that the results of Fleisher’s investigation are protected under the work product doctrine because Fleisher was hired in
anticipation of litigation. A blanket claim, such as this, does not satisfy claimant’s
burden of proof. Kelling v. Bridgestone/Firestone, Inc., 157 F.R.D. 496, 497 (D.Kan.
July 14, 1994).
Furthermore, even if claimant had provided sufficient information to meet its
burden, the Court finds that the statements made by Ducote and Welch are
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discoverable. A statement of an employee is discoverable as a matter of right, if the
statement would be admissible in evidence against the employer corporation as a
vicarious admission. Fed. R. Civ. P. 26(b)(3); Pfeifer v. State Farm Insurance Co.,
1997 WL 276085 at *2 (E.D.La. May 22, 1997). A statement may be deemed an
admission of the employer if it was made by the employer’s agent or servant
concerning a matter within the scope of his agency or employment, and if it was made
during the existence of the employee-employer relationship.

Fed. R. Evid.

801(d)(2)(D). The statements at issue here were made by plaintiff’s employees
during the course of their employment and concerned the circumstances surrounding
an accident that occurred while they were at work. Therefore, statements made by
Ducote and Welch may constitute an admission of the plaintiff, and are discoverable
as a matter of right. See Thorton v. Continental Grain Co., 103 F.R.D. 605, 606
(S.D.Ill. December 5, 1984).
Further, claimant has not shown that he is entitled to a protective order.
Protective orders prohibiting depositions are rarely granted. Frideres v. Schlitz, 150
F.R.D. 153, 156 (S.D. Iowa 1993)(citing Medlin v. Andrew, 113 F.R.D. 650, 653
(M.D.N.C. 1987). “It is very unusual for a court to prohibit the taking of a deposition
altogether and absent extraordinary circumstances, such an order would likely be in
error.”

Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979).

To obtain a

protective order, the movant “must make a specific demonstration of facts in support
of the request as opposed to conclusory or speculative statements about the need for
a protective order and the harm which will be suffered without one.” Frideres, 150
F.R.D. at 156. “[T]he moving party must demonstrate that ‘disclosure will work a
clearly defined and very serious injury.’” Uniroyal Chem Co., 224 F.R.D. at 56. The

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claimant has not shown that taking Fleisher’s deposition will result in a clearly defined
and very serious injury.
Accordingly,
IT IS HEREBY ORDERED that claimant’s motion to quash the notice of
deposition of Richard Fleisher and for a protective order prohibiting plaintiff from
deposing Richard Fleisher [#37] is denied.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

Dated this 28th day of December, 2011.

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