Williams et al v. Feeney et al

Filing 71

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.,

)
)
)
)
)
Plaintiff,
)
)
v.
)
)
MARTIN FEENEY, Individually
)
and FEENEY XPRESS TRANSPORT; )
BARY FRANKLIN, individually, )
and RANCHERO, LLC,
)
)
Defendants.
)
______________________________)

8:13CV287

MEMORANDUM AND ORDER

This matter is before the Court on two motions:

a

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.

After

reviewing the motions, briefs, and indices of evidence, the Court
will deny Filing No. 59 and will grant Filing No. 62.
I.

BACKGROUND
This case centers around a fatal car accident.

The

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,

¶ 3.1).

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.

Feeney struck

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
car.

Kicklighter died as a result of one or both of these

collisions.

Williams brings the following actions on behalf of

her father’s estate:

negligence, negligence per se, and gross

negligence.
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
Ranchero.

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).

Ranchero claimed

the document was privileged under the work product doctrine and
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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).
II.

WORK PRODUCT DOCTRINE
The Work Product Doctrine is a Federal Rule of Civil

Procedure.

Fed. R. Civ. P. 26(b)(3)(A).

The burden to establish

the Work Product privilege is on the party who asserts it.

See

Thiele Dairy, L.L.C. v. Earthsoils, Inc., 4:8CV3015, 2008 WL
1995306, at * 1 (D. Neb. 2008) (citations omitted).

Under this

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).

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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).

At

this time, the Court finds that the mere possibility that
Feeney’s memory has dulled is insufficient to constitute a
substantial need.

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.

Therefore,

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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