Chapman et al v. Hiland Partners, LLC

Filing 104

Supplemental Order re Motion to Compel Discovery by Magistrate Judge Charles S. Miller, Jr.(CSM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Lenny M. Chapman and
Tracy M. Chapman,

Plaintiffs,
vs.
Hiland Operating, LLC, a Foreign
Company, Hiland Partners GP Holdings,
LLC, a Foreign Company, and Hiland
Partners LP, a Foreign Partnership,

Defendants and
Third-Party Plaintiff
(Hiland Operating, LLC)
vs.
Missouri Basin Well Service, Inc., and
B&B Heavy Haul, LLC,
Third-Party Defendants.

I.

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SUPPLEMENTAL ORDER RE
MOTION TO COMPEL DISCOVERY

Case No. 1:13-cv-052

BACKGROUND
Plaintiff Lenny Chapman (“Chapman”) was an employee of third-party defendant B&B

Heavy Haul, LLC (“B&B”) on October 19, 2011, when he was severely burned in a flash fire
resulting from an explosion at a natural gas processing facility in McKenzie County, North Dakota,
known as the Watford City Gas Plant, owned and operated by one or more of the related defendants
(collectively “Hiland”).
On October 18, 2011, Hiland contacted third-party defendant Missouri Basin Well Service
to have water removed from two condensate tanks at the Watford City Gas Plant. B&B was

dispatched for that purpose and Chapman, the driver if one its tanker trucks, traveled to the Watford
City Gas Plant arriving shortly after midnight during the early morning hours of October 19, 2011.
Upon his arrival, James Olson, one of Hiland’s plant operators, directed Chapman to the condensate
tanks and assisted in the positioning of his truck near the east condensate tank.
After Chapman’s truck was connected to the loading facility but before any water was
unloaded, condensate containing petroleum overflowed from the top of the condensate tank. Upon
observing this, Olson notified the control room, told Chapman he better shut off his truck, and took
off running. At that point, there was an explosion and flash fire that engulfed Chapman. Chapman
survived but, according to the complaint:
Mr. Chapman was horribly burned, including burning to his face, head, hands, chest,
back, and legs. Since that time, he has had more than ten surgical procedures that
included debridement, skin grafts, the use of artificial skin, the use of cadaver skin,
surgeries to extend the opening of his mouth, surgeries to his eyes, surgeries to
remove webbing from his hands, and other surgeries and medical procedures. He is
permanently disfigured and permanently disabled.
At the time of the accident, the only persons at the gas plant were Chapman, Olson, and two
other Hiland plant operators. There is no indication that Chapman exerted any control over the
operation of Hiland’s condensate tanks or other processes such as that he would have caused the
condensate tank to overflow.
In their answers, the Hiland defendants have denied any negligence, fault, and liability.
Rather, they contend it was Chapman who was negligent and that he assumed the risk of what
happened to him as result of his operating his tanker truck. In addition, defendants also contend that
unnamed persons or entities over whom Hiland had no control caused Chapman’s injuries.

2

The net result of the Hiland’s denials of negligence and other fault, as well as its own
allegations of fault on the part of Chapman and unknown persons or entities, is to put Chapman in
the position of attempting to prove what happened with respect to Hiland’s complex processes and
equipment that caused the condensate tank to overflow. As discussed later, this factors into the
court’s decision with respect to the discovery requests that are now at issue.
On December, 17, 2013, the court held a hearing to decide a number of discovery disputes.
On December 26, 2013, the court issued an order summarizing the rulings. In the order, the court
stated it was reserving ruling on plaintiffs’ document requests nos 44-45 requesting the production
of witness statements taken by defendants or their agents as well as any incident or investigation
reports. Defendants had objected to these requests claiming work product and attorney-client
privileges. The court directed that the disputed material be submitted to the court in camera for
review and permitted the parties to submit additional information with the respect to the
circumstances surrounding the generation of the disputed material as well as supplemental briefs.
II.

GOVERNING LAW
Hiland’s claims of attorney-client privilege are governed by state law, which in this case is

N.D. R. Evid. 502, and its claims of work product are governed by federal law. E.g., Baker v.
General Motors Corp., 209 F.3d 1051, 1053 (8th Cir. 2000) (“In this diversity case, we apply federal
law to resolve work product claims and state law to resolve attorney-client privilege claims.”). The
party asserting the attorney-client privilege or work product doctrine bears the burden of
demonstrating its applicability. See, e.g., PepsiCo, Inc. v. Baird, Kurtz & Dobson, LLP, 305 F.3d
813, 817 (8th Cir .2002) (work product); State v. Copeland, 448 N.W.2d 611, 615 (N.D. 1989)
(attorney-client privilege).
3

The sine qua non of a claim of attorney-client privilege under N.D. R. Evid. 502 is a
confidential “communication” that is usually (but not always) between the attorney and client and
that is made for the purpose of facilitating the giving of legal advice. Since, for the most part, Hiland
has not demonstrated that the investigation material in question involves a confidential
“communication,” most of the court’s focus will be upon Hiland’s claim of work product.
The scope of the work-product doctrine for civil cases is governed largely by Fed. R. Civ.
P. 26(b)(3), which reads as follows:
(3) Trial Preparation: Materials.
(A) Documents and Tangible Things. Ordinarily, a party may not discover
documents and tangible things that are prepared in anticipation of litigation
or for trial by or for another party or its representative (including the other
party’s attorney, consultant, surety, indemnitor, insurer, or agent). But,
subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) 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.
(B) Protection Against Disclosure. If the court orders discovery of those
materials, it must protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of a party’s attorney or other
representative concerning the litigation.
(C) Previous Statement. Any party or other person may, on request and
without the required showing, obtain the person’s own previous statement
about the action or its subject matter. If the request is refused, the person may
move for a court order, and Rule 37(a)(5) applies to the award of expenses.
A previous statement is either:
(i) a written statement that the person has signed or otherwise adopted
or approved; or
(ii) a contemporaneous stenographic, mechanical, electrical, or other
recording--or a transcription of it--that recites substantially verbatim
the person’s oral statement.
These provisions are slightly more expansive than the initial formulation of the work-product
doctrine in Hickman v. Taylor, 329 U.S. 495 (1947), which focused upon protecting the thought-

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processes and theories of a party’s attorney from discovery directed to the “work product of the
lawyer,” including “interviews, statements, memoranda, correspondence, briefs, mental impressions,
personal beliefs,” id. at 511, in that the protections against disclosure under Rule 26(b)(3) extend
also to material prepared by the party as well as the party’s other representatives. See generally Edna
Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine pp. 793-97 (5th ed.
2007) (“Epstein”).
Nevertheless, what remains of core concern is the protection of the mental impressions,
conclusions, opinions, or legal theories of a party’s attorney. Under subparagraph (B) of Rule
26(b)(3) and the cases applying the work-product doctrine, the mental thought-processes, opinions,
and theories of counsel are entitled to greater protection and remain virtually inviolate. See generally
Epstein, supra. In fact, the Eighth Circuit expressly distinguishes between “ordinary work product”
and “opinion work product.” E.g., Baker v. General Motors Corp., 209 F.3d 1051, 1054 (8th Cir.
2000). The former includes raw factual information, and the latter is that which reflects “counsel's
mental impressions, conclusions, opinions or legal theories.” Id. “Ordinary work product is not
discoverable unless the party seeking discovery has a substantial need for the materials and the party
cannot obtain the substantial equivalent of the materials by other means. See Fed.R.Civ.P. 26(b)(3).
In contrast, opinion work product enjoys almost absolute immunity and can be discovered only in
very rare and extraordinary circumstances, such as when the material demonstrates that an attorney
engaged in illegal conduct or fraud.” Id.; see generally Epstein, supra.
To qualify for work-product protection, the material must have been prepared in anticipation
of litigation. The test, at least in the Eighth Circuit, was expressed in Simon v. G.D. Searle & Co.,
816 F.2d 397 (8th Cir. 1987) (“Simon”) where the court stated:
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Our determination of whether the documents were prepared in anticipation of
litigation is clearly a factual determination:
[T]he test should be 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. But the
converse of this is that even though litigation is already in prospect, there is
no work product immunity for documents prepared in the regular course of
business rather than for purposes of litigation.
8 C. Wright & A. Miller, Federal Practice and Procedure § 2024, at 198-99 (1970)
(footnotes omitted); see Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 604 (8th
Cir.1977), on rehearing, 572 F.2d 606 (8th Cir. 1978) (en banc); The Work Product
Doctrine, 68 Cornell L.Rev. 760, 844-48 (1983). The advisory committee's notes to
Rule 26(b)(3) affirm the validity of the Wright and Miller test: “Materials assembled
in the ordinary course of business * * * * or for other nonlitigation purposes are not
under the qualified immunity provided by this subdivision.” Fed.R.Civ.P. 26(b)(3)
advisory committee notes.
Id. at 401.
With these general principles in mind, the court turns to the document requests that are the
subject to the motion to compel.
III.

DISCUSSION
A.

Document Request No. 45
1.

Introduction

Plaintiffs’ Request for Production of Documents No. 45 read as follows:
REQUEST NO. 45 Please produce all reports, incident reports, letters,
emails, notes, memoranda, or other documents:
(a) That mention, relate to, or discuss any investigation undertaken of the
explosion;
(b) That mention, relate to, or discuss any examination, inspection, or
assessment of the B & B truck or in the B & B trailer;
(c) That mention, relate to, or discuss any examination, inspection, or
assessment of the west tank, the east tank, or any of their hatches, valves, or
appurtenances;
(d) That mention, relate to, or discuss any examination, inspection, or
assessment of any switches, monitors, or valves to be used to control or

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monitor any gas or liquid products that could be allowed to enter either of the
tanks;
(e) That contain - in whole or in part - any discussion regarding any cause or
potential cause of the explosion;
(f) That contain any discussion of the events before or after the explosion; or,
(g) That contain any discussion of Lenny M. Chapman or any injuries
suffered by Lenny M. Chapman as a consequence of the explosion.
Hiland responded to this request stating the following:
RESPONSE TO REQUEST NO. 45: This Defendant objects to Request No. 45
as it is overly broad, unduly burdensome, vague, ambiguous, seeks irrelevant
information and is not reasonably calculated to lead to the discovery of admissible
evidence. Further, this Request is not properly limited in time or scope.
Additionally, this Request seeks information protected by the attorney client
privilege, the attorney work product doctrine, as well as information prepared in
anticipation of litigation and seeks confidential and proprietary information. Without
waiving any objection and in a good faith effort to cooperate with discovery,
Plaintiffs are referred to Defendant’s privilege log.
Plaintiffs seek to compel full compliance with the document request, but focus their present
arguments upon the following two items identified in Hiland’s privilege log:
C

An incident report marked HILAND.002995-002996 (hereinafter “Hiland Incident
Investigation Report”) for which Hiland claims attorney-client privilege and the
work-product doctrine.

C

M. Howerton Investigation File and notes marked HILAND.001188-001200 and
HILAND.002800-002919 (collectively “Howerton investigation notes and file”) for
which Hiland claims attorney-client privilege and the work-product doctrine.
2.

Hiland Incident Investigation Report
a.

Hiland has failed to demonstrate the report is work product

The document numbered HILAND.002995-002996 is a two-page form report entitled
“Incident Investigation Report” and bears the “Hiland Partners” logo. The form is broken down into
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twelve sections (I through XII) that, in part, requires information regarding: (I) the date and location
of the incident; (II) the impact and character of the incident; (III) the investigation team members:
(IV) the weather conditions; (V) the names of individuals involved and their employers; (VI) the
conditions of the work area; (VII) what each employee was doing at the time of the incident; (VIII)
details of the incident; (IX) factors contributing to the incident; (X) recommendations for remedial
action; (XI) details regarding any corrective action taken; and (XII) comments. Notably, there is
nothing in the pre-printed form that makes reference to litigation or attorney review or consultation.
In fact, the information requested by the form suggests that it is primarily for business purposes,
particularly given the fields in the report requesting recommendations for corrective action and
requiring details as to any followup corrective action taken.
The report as submitted to the court for in camera review indicates that the investigation took
place on October 19, 2011 and that the lead investigator was Mike Howerton (Hiland’s Director of
Safety, Health and Environmental Compliance) with several other persons identified as having
assisted in the investigation. The form was completed up through and including Section X, where
recommendations were made for avoiding similar incidents. The only portions of the form not
completed were Section XI’s request for details on any followup corrective action taken and Section
XII’s allowance for comments. With respect to the information typed into the form, there is likewise
no mention of litigation or attorney involvement, much less anything that would reflect the mental
thought processes or theories of any attorney related to possible litigation. In short, there is nothing
in the information included in the form that suggests it was gathered for litigation purposes. In fact,

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it appears clear the information would have been gathered irrespective of whether litigation was
contemplated.1
Hiland claims that its counsel (primarily Ms. Clarke) directed Hiland’s investigation into the
incident. While that may be true after a certain point in time, Hiland has not presented any evidence
(such as affidavits sworn to under oath) that there was any attorney involvement in the October 19
investigation that is subject of the Hiland Incident Investigation Report. In fact, from the evidence
that has been presented, it appears: (1) the investigation that is the subject of the Hiland Incident
Investigation Report took place on October 19, 2011; (2) it was completed by Hiland personnel; and
(3) that counsel for Hiland did not become involved in this matter until the next day at the earliest.2
Aside from contending that counsel was involved in directing the investigation, which is not
accurate for the investigation that took place on October 19, 2011, Hiland argues that the Incident
Investigation Report must be work product because it was prepared immediately following the
accident and that litigation was likely to follow given its nature. However, as indicated by the
authority cited above, the mere fact that litigation may possibly follow is not enough. Based on the
findings made above regarding the purpose of the October 19, 2011 investigation and the Hiland
Incident Investigation Report, the court concludes that defendants have failed to demonstrate that
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Hiland obviously had strong business reasons to conduct such an investigation given what undoubtedly is its
sizeable investment in this and other like facilities and the potentially large costs that could be incurred (not only for
repair and replacement, but also loss of business and profits) in the event of a catastrophic explosion, not to mention the
potential for injury to its employees.
2

Hiland appears to acknowledge as much in a footnote in its brief where it explains that it decided to produce
certain witness statements given on October 19, 2011, because they were obtained prior to Hiland consulting with
counsel. Moreover, Hiland was given the opportunity of providing more detailed information regarding the
circumstances surrounding the creation of the material at issue in this order, but did not avail itself of that opportunity probably because there was nothing to provide the court that would have advanced its position. However, the court can
only make a decision based on the information that has been presented and, as noted earlier, the burden rests upon Hiland
to demonstrate in the first instance that the material is subject to protection under the work-product doctrine or because
it is attorney-client privileged.

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the report marked HILAND.002995-002996 is work product.3 See, e.g., Simon, 816 F.2d at 401;
Binks Mfg. Co. v. Nat’l Presto Indus., Inc., 709 F.2d 1109, 1119 (7th Cir. 1983) (citations omitted)
(“If in connection with an accident or an event, a business entity in the ordinary course of business
conducts an investigation for its own purposes, the resulting investigative report is produceable in
civil pre-trial discovery.... [T]he distinction between whether defendant's ‘in house’ report was
prepared in the ordinary course of business or was ‘work product’ in anticipation of litigation is an
important one. The fact that a defendant anticipates the contingency of litigation resulting from an
accident or event does not automatically qualify an ‘in house’ report as work product.... A more or
less routine investigation of a possibly resistible claim is not sufficient to immunize an investigative
report developed in the ordinary course of business.”); Electronic Data Systems Corp. v. Steingraber,
2003 WL 21653414, at *5 (E.D. Tex. July 9, 2003) (quoting Caremark, Inc. v. Affiliated Computer
Serve., Inc., 195 F.R.D. 610, 614 (N.D. Ill. 2000). Also, the court concludes that Hiland’s claim of
attorney-client privilege with respect that material is specious.
b.

Plaintiffs have demonstrated a need for the report even if it is
work product

Even if the Hiland Incident Investigation Report is work product, the court concludes that
plaintiffs have met their burden of establishing sufficient need for the information contained in the
report. As noted earlier, plaintiffs face a daunting task in determining why the condensate tank
overflowed and any investigation on their part will likely required hundreds of hours of time by
multiple experts (likely both mechanical and chemical engineers) who are disadvantaged from the

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Also, when the investigation was commenced, Hiland did not know exactly what the outcome would be.
Further, even if the investigation revealed Hiland to have been at fault, Hiland could have used the information for the
purpose of deciding whether to reach an accommodation with Chapman short of litigation. The court does not agree that
litigation was necessarily imminent, much less that Hiland had reached that determination as of October 19, 2011.

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outset by not having firsthand knowledge of all of the piping, valves, metering, and other equipment
and processes at Hiland’s plant as well as firsthand knowledge of the nature and chemical
composition of the material that possibly could have found its way into the condensate tanks. Not
only will this be a significant burden upon plaintiffs in the short term, it is not alleviated if they
prevail. This is because expert costs are not taxable in federal court in diversity actions - at least
absent the right to recover such costs being part of the substantive relief allowed as a matter of state
law - which does not appear to be the case here. In reviewing the Hiland Investigation Report, there
does appear to be information that would assist plaintiffs. For example, the report suggests four
possible inputs that could have been the source of liquid or gases that may have caused the tanks to
overflow. This would at least provide plaintiffs’ experts a place to start.
In addition, the Hiland Incident Investigation Report provides information regarding the
status of certain of the equipment at the time of the accident, e.g., whether particular valves were
open or shut and whether a particular line could have contained hydrocarbon condensate that could
have pressured up upon the opening of a controlling valve and caused the tank to overflow.
Obviously, plaintiffs do not have access to comparable information since they did not have the
opportunity to conduct a similar investigation immediately following the accident. See, e.g.,
National Union Fire Ins. Co. of Pittsburgh, Pa. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 985
(4th Cir. 1992) (quoting McDougall v. Dunn, 468 F.2d 468, 474 (4th Cir.1972) (“Statements of
either the parties or witnesses taken immediately after the accident and involving a material issue
in an action arising out of that accident, constitute ‘unique catalysts in the search for truth’ in the
judicial process; and where the parties seeking their discovery was disabled from making his own
investigation at the time, there is sufficient showing under the amended Rule to warrant discovery.”);
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Coogan v. Cornet Transp. Co., Inc., 199 F.R.D. 166, 167-68 (D.Md. 2001). Further, the gas plant
and its processes are within Hiland’s exclusive control and possession. Cf. Loctite Corp. v. Fel-Pro,
Inc., 667 F.2d 577, 582 (7th Cir. 1981) (requiring production of test results when to duplicate the
tests would require highly technical tests by experts utilizing information in the possession of the
other party); Xerox Corp. v. International Business Machines Corp., 64 F.R.D. 367, 381-82
(S.D.N.Y. 1974).
In addition, one of the issues in the case may be the positioning of Chapman’s truck and the
report contains material that may be useful if Hiland claims the positioning of the truck was not a
material consideration. Also, there is other information in the report that may be useful for
impeachment purposes. See, e.g., Hickman, 329 U.S. at 512 (work-product may be discoverable
where it useful for impeachment).
Finally, as noted earlier, there is nothing in the report that reflects the mental thought
processes or theories of any of defendants’ attorneys. In other words, the report is ordinary work
product and not opinion work product of counsel.
3.

Howerton investigation notes and file
a.

Notes from the October 19, 2011, investigation

Defendants treat the Howerton investigation notes and file as one item in their privilege log.
While it does appear that Howerton has kept and maintained a file with respect to the accident that
is the subject of the litigation, it appears the material in the file was inserted a different points in time
given the dates of the material. And, while the file does include some investigation material
generated as a result of further investigation after counsel became involved (and in a couple of
instances contains confidential communications with counsel that would fall within the attorney12

client privilege), the investigation file also includes Howerton’s written notes from the October 19,
2011, investigation, which the court has concluded is not work product. Consequently, for the same
reasons expressed above with respect to the Hiland Incident Investigation Report, the court
concludes that Howerton’s notes dated October 19, 2011, are not work product and that any claim
the notes are attorney-client privileged is without merit. Further, even if the notes of the October 19
investigation constituted work product, the court concludes that plaintiffs have established a need
for the material for the same reasons articulated above with respect to the Hiland Incident
Investigation Report.4 The notes from the October 19, 2011, investigation that Hiland shall produce
are Hiland.001188-1199 and Hiland.002914.
b.

Photographs

The Howerton investigation file contains a number of post-accident photographs. Those that
are marked Hiland.002872-2880 appear to have taken on November 10, 2011,as part of further
investigation after counsel became involved and the court will presume from the circumstances that
these are work product. There are four other photographs where the circumstances surrounding the
taking are unclear and least two may have been taken as part of the October 19, 2011, investigation.
These are marked Hiland.002882, 002884, & 002886-2887. Finally, there is an overhead aerial shot
that is undated, which is marked Hiland.002919. Even if all of the photographs are work product,
the court concludes for the same reasons expressed above with respect to the Hiland Incident
Investigation Report and the notes from the October 19, 2011, that plaintiffs have demonstrated a
4

In fact, the notes appear to include additional information documenting existing conditions. Further, James
Olson (who, as already noted, was the plant operator who accompanied Chapman to the condensate tank and started
opening one or more valves required to empty the east condensate tank prior to the explosion and flash) in response to
questions from plaintiffs’ counsel during his deposition professed to have no memory of the plant having to handle a
large amount of water prior to the accident. Notably, there does appear to be a reference in the notes to Olson having
possibly said something about this subject matter to Howerton on October 19, 2011.

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sufficient need for the photographs. Consequently, the photographs identified above will be
produced if Hiland has not already produced them.
c.

Witness statements

The Howerton investigation file contains signed statements from (1) Michael Spradley dated
October 26, 2001 (Hiland.002906 & Hiland.002918);5 Chet Christensen dated October 19, 2011
(Hiland.002907), James Olson dated October 19, 2011 (Hiland.002908), and Josh Herman dated
October 19, 2011 (Hiland.002909). After plaintiffs filed their motion to compel and just prior to the
deadline for submitting supplemental information for purposes of the court’s present determination,
defendants provided to plaintiffs’ counsel the Christensen, Olson, and Herman statements. In their
brief, defendants indicated that they did so because the statements were obtained prior to
involvement of counsel.
As for the Spradley statement, it does appear it was obtained after counsel became involved
in the case. However, it also appears the decision to obtain a statement from him was made prior
to the involvement of counsel and Hiland has provided little information about the circumstances
of this particular statement in terms of how it was obtained and who obtained it. Consequently,
Hiland has failed to meet its burden of demonstrating that the statement is attorney-client privileged.
Further, even assuming it is work product, the court concludes that defendants have demonstrated
a need for the statement for the reasons expressed above with respect to the other material ordered
to be produced.6 Consequently, it shall be produced.

5

Hiland.002918 is identical to Hiland.002906, except that the latter is signed and dated.

6

The courts are divided over whether signed or other verbatim witness statements are work product. Compare
Basaldu v. Goodrich Corp., No. 4:06-cv-23, 2009 WL 1160915, **1-2 (E.D. Tenn. 2009) (concluding that witness
affidavits are not work product and noting the split of authority on the issue); Murphy v. K-Mart, Corp., 259 F.R.D. 421,

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d.

Remaining portions of the Howerton investigation file

The remainder of the Howerton investigation file contains some material that on its face is
attorney-client privileged and/or protected by the work product doctrine because it involves
communications that included counsel and/or representatives of counsel. This includes letters and
emails marked Hiland.002870-2871, 002892-002902. In addition, there appears to be miscellaneous
notes of matters in which counsel was involved, specifically Hiland.001200 and Hiland.002917.
These documents do not need not to be produced.
As for the rest of the Howerton investigation file, there appears to be nothing that is attorneyclient privileged and the remaining documents would appear to be subject to disclosure upon a
request directed toward the subject of the documents, including some that are subject to Doc.
Request No. 45 itself. Defense counsel stated in their brief that they have disclosed the documents
when their subject matter has been requested, but not as marked as having come from the Howerton
investigation file, claiming that the mere assemblage of these documents by Howerton reflects upon
what Hiland deemed to be significant (and, apparently, inferentially from that what is deemed
significant by counsel). Defense counsel are directed to review the remaining documents in the
Howerton investigation file and disclose them if they are covered by a relevant document request
(including Document Request No. 45 since it goes beyond investigation reports) and have not been

428-432 (D.S.D. 2009) (same) with Bell v. Lackawanna County, 892 F. Supp. 2d 647, 660 (M.D. Pa. 2012) (noting the
split of authority and concluding that at least the declarations drafted by attorneys for parties are work product up to the
time they are used); Robinson v. City of Arkansas City, Kansas, No. 10-1431, 2012 WL 603576, *13 n. 133 (D. Kan.
Feb. 24, 2012) (disagreeing with Murphy and concluding that witness statements may constitute “ordinary work
product”); Intel Corp. v. VIA Technologies, Inc., 204 F.R.D. 450, 452 (N.D. Cal. 2001) (concluding that “witness
statement” was work product); see also Mosley v. Alpha Oil and Gas Services, Inc., __ F. Supp. 2d __, 2013 WL
3989576, *5 n.3 (D.N.D. Aug. 2, 2013) (observing that a witness declaration in that case appeared to be work product).
While the court does not have to decide this issue now, Hickman itself indicates that “interviews” and “statements” can
be work product. Hickman, 329 U.S. at 497-500, 508-512. Further, the court suspects that Rule 26(b)(3) would read
differently (particularly subparagraph (C)) if the Rule contemplated that witness statements are not work product.

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disclosed. Further, if defendants do not want to produce them from the Howerton investigation file,
they must be produced as the documents otherwise exist.
B.

Document Request No. 44
1.

Introduction

Plaintiffs’ Request for Production of Documents No. 44 reads as follows:
REQUEST NO. 44 Please produce all statements (whether in handwriting,
printed or transcribed, or recorded by audio or electronic or video means) of any
individual taken on or after October 18, 2011 that purported - in whole or in part:
(a) To discuss any events that occurred at the Hiland Gas Plant on October
18, 2011 or October 19, 2011;
(b) That mentioned or discussed any events leading up to the explosion of
October 18, 2011; or
( c) That mentioned or discussed any causes or potential causes of the
explosion of October 18, 2011. Please produce a copy of all such statements
as well as all audio, electronic, or video recordings of such statements.
Hiland’s response was as follows:
RESPONSE TO REQUEST NO. 44: Defendant objects to this Request to
the extent it seeks information protected by the attorney client privilege, the attorney
work product doctrine, and prepared in anticipation of litigation. Further, this
Request is overly broad, vague, ambiguous, seeks irrelevant information, and is not
reasonably calculated to lead to the discovery of admissible evidence. Without
waiving any objection and in a good faith effort to cooperate with discovery,
Plaintiffs are referred to Defendant’s privilege log.7
Plaintiff’s seek full compliance with this discovery request including the production of
statements identified in defendants’ privilege log as follows:
1.

J. Olson dated 10/19/11 and marked Hiland.000155.

2.

J. Herman written statement dated 10/19/11and marked Hiland.000156.

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It is difficult to believe that defense counsel actually read Request No. 44 before mindlessly interjecting the
objections that the request was overbroad, vague, and ambiguous. It is hard to envision a more specific and directed
document request. Further, even the objections of lack of relevancy or unlikelihood to lead to discoverable evidence
are not a close call and are frivolous.

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3.

C. Christensen written statement dated 10/19/11 and marked Hiland.000157.

4.

M. Spradley written statement dated 10/26/13 and marked Hiland.001318.8

5.

S. Walch written statement undated and marked Hiland.001274.
2.

Discussion

As discussed earlier, the statements of Olson, Herman, and Christensen are no longer at issue
since they have been produced by Hiland. In addition, the court has ordered the production of the
Spradley written statement as set forth above.
The document that defendants claim is a written statement of S Walch is undated and Hiland
has failed to provide information regarding who took the statement, when it was taken, and the
circumstance under which it was obtained. In fact, the written document does not even indicate it
is from S. Walch. Based on its contents, it relates entirely to what took place on October 19, 2011.
Hiland failed to carry its burden of demonstrating that the Walch statement marked
Hiland.001274 is attorney-client privileged or work product. Further, even if it was work product,
plaintiffs have met their burden of demonstrating a need for the production of the statement for the
same reasons articulated earlier. Consequently, it shall be produced.
IV.

ORDER
Hiland shall forthwith make the disclosure of documents as directed above.
IT IS SO ORDERED.

8

It appears that defendants’ privilege log has erroneously indicated that Spradley’s statement is dated 10/26/13.
While the court has not reviewed Hiland.001318, it has reviewed a dated version of Spradley’s statement provided by
defendants that is dated 10/26/11.

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Dated this 6th day of January, 2014.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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