Williams et al v. Feeney et al
MEMORANDUM AND ORDER - Filing No. 59 is denied without prejudice. Filing No. 62 is granted. The statement of Feeney and the notes of Jeff White need not be furnished to plaintiff. Ordered by Senior Judge Lyle E. Strom. (AOA)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
HOPE K. WILLIAMS as
Independent Administrator of
the Estate of her Father,
OLIN B. KICKLIGHTER, JR.,
MARTIN FEENEY, Individually
and FEENEY XPRESS TRANSPORT; )
BARY FRANKLIN, individually, )
and RANCHERO, LLC,
MEMORANDUM AND ORDER
This matter is before the Court on two motions:
motion from the plaintiff seeking to compel discovery from
defendant Ranchero (Filing No. 59) and a motion from defendants
Feeney and Feeney Xpress Transport seeking a protective order
(Filing No. 62) from producing certain communications.
reviewing the motions, briefs, and indices of evidence, the Court
will deny Filing No. 59 and will grant Filing No. 62.
This case centers around a fatal car accident.
plaintiff is Hope Williams (“Williams”), the administrator of the
estate of her father, Olin B. Kicklighter, Jr. (“Kicklighter”).
On December 8, 2001, Kicklighter was traveling eastbound through
Nebraska on Interstate 80 on his way to Georgia (Filing No. 43,
The roads were icy due to a recent storm.
One of the
defendants, Martin Feeney (“Feeney”) of Feeney Xpress Transport,
Inc., was driving his truck behind Kicklighter.
Kicklighter’s car from behind.
to lose control of his car.
The collision caused Kicklighter
A second truck driver, Bary Franklin
(“Franklin”) of Ranchero L.L.C., also driving eastbound on
Interstate 80, then struck the driver’s side of Kicklighter’s
Kicklighter died as a result of one or both of these
Williams brings the following actions on behalf of
her father’s estate:
negligence, negligence per se, and gross
The day after the accident, Feeney provided a verbal
record to a representative of Great West Casualty Company
(“GWC”), Ranchero’s insurance carrier, regarding the accident
(Filing No. 63, ¶ 2).
The representative of GWC was Jeff White
(“White”) who took Feeney’s statement on behalf of defendant
According to Feeney, White did not disclose his
association with Ranchero, Feeney believed his statement was
being taken for rendering legal services, and Feeney believed his
statement would aid him in defending any impending lawsuit.
Williams requested that Ranchero produce Mr. Feeney’s
statement (Filing No. 60 and Filing No. 63).
the document was privileged under the work product doctrine and
the attorney-client privilege.
Williams denies that the
statement was work product and argues in the alternative that she
needs the statement and cannot obtain the substantial equivalent
(Filing No. 63).
WORK PRODUCT DOCTRINE
The Work Product Doctrine is a Federal Rule of Civil
Fed. R. Civ. P. 26(b)(3)(A).
The burden to establish
the Work Product privilege is on the party who asserts it.
Thiele Dairy, L.L.C. v. Earthsoils, Inc., 4:8CV3015, 2008 WL
1995306, at * 1 (D. Neb. 2008) (citations omitted).
rule, federal courts make a factual determination whether “in
light of the nature of the document and the factual situation in
the particular case, the document can fairly be said to have been
prepared or obtained because of the prospect of litigation.”
Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987)
(citing 8 C. Wright & A. Miller, Federal Practice and Procedure
§ 2024, at 198–99 (1970)).
In light of the facts in this case,
and the timing of the investigation, the Court finds that the
statement of Feeney was taken in anticipation of litigation and
constitutes work product.
See Almaguer v. Chicago, Rock Island &
Pac. R.R. Co., 55 F.R.D. 147, 149 (D. Neb. 1972).
III. SUBSTANTIAL NEED
An exception to the Work Product Doctrine states such
protected documents remain discoverable if “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).
this time, the Court finds that the mere possibility that
Feeney’s memory has dulled is insufficient to constitute a
Williams has not yet deposed Feeney to
determine if his memory has deteriorated.
Deposing Feeney is not
an undue hardship and may lead to the substantial equivalent to
the work product in question.
IT IS ORDERED:
1) Filing No. 59 is denied without prejudice.
2) Filing No. 62 is granted.
The statement of Feeney
and the notes of Jeff White need not be furnished to plaintiff.
DATED this 17th day of April, 2014.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
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