Laws, Jr. et al v. Stevens Transport, Inc. et al
Filing
49
OPINION AND ORDER denying 37 Motion to Compel. Signed by Magistrate Judge Terence P Kemp on 2/19/2013. (kk2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Benjamin Laws, Jr., et al.,
Plaintiffs,
:
:
v.
:
:
Stevens Transport, Inc.,
et al.,
Defendants.
Case No. 2:12-cv-544
JUDGE GREGORY L. FROST
Magistrate Judge Kemp
:
OPINION AND ORDER
This is a personal injury case arising out of a motor
vehicle accident.
According to the parties, the accident
occurred in Lima, Ohio when plaintiff Benjamin Laws’ rental car
and a truck owned by defendant Stevens Transport and driven by
defendant Charles G. Dunn, III collided.
The parties have reached an impasse over this issue: must
certain photographs taken on the day of the accident be turned
over to the plaintiffs?
There is no question that plaintiffs
have asked for all such photographs, nor any question that
defendants have not produced all the ones in their possession.
The legal impediment to producing the withheld photographs is,
according to defendants, the work product doctrine.
For the
following reasons, the Court agrees and will deny plaintiffs’
motion to compel production of the photos in question.
I.
The Facts
The parties do not appear to dispute the relevant facts.
The accident happened on June 4, 2010.
The only evidence about
the photographs which defendants have withheld is found in an
affidavit from defendants’ counsel, Robert C. Buchbinder, which
was filed as a supplemental exhibit (Doc. 40).
According to that
affidavit, Mr. Buchbinder was contacted in some way (his
affidavit does not say how) by “[r]epresentatives of the
Defendants” that same day and asked to begin an investigation of
the accident.
Mr. Buchbinder then hired Dave Helm, an
investigator who works for Custard Insurance Adjusters.
Mr. Helm
went out to the scene of the accident and took the photographs
which plaintiffs want to see.
Several reports, with exhibits,
prepared by Mr. Helm on the date of the accident are listed on
defendants’ privilege log.
The Court infers from defendants’
memorandum in opposition (Doc. 38) that the photographs show the
truck at the accident scene and the condition of the rental car
“at a nearby lot ....”
See Doc. 38 at 6 (“Defendants further
submit that if Plaintiffs are entitled to impose upon Defendants’
work product, then the following limited photographs, if any,
should be produced at Plaintiffs’ reasonable expense:
1. Photographs taken of the Defendants’ tractor trailer at the
scene on June 4, 2010;
2. Photographs taken of Mr. Laws’ rental
car at a nearby lot on June 4, 2010").
The Court notes that
there appear to be photos of the truck taken on the day of the
accident which may have been produced, since in an email dated
December 21, 2012, Mr. Buchbinder told plaintiffs’ counsel that
he would produce pictures taken by the adjuster of the “point of
impact” area of the truck after it was moved.
See Doc. 37,
Exhibit G.
There are other photographs of the accident.
photos with his cell phone.
Mr. Dunn took
Those have been produced.
They all
appear to show the accident scene prior to any vehicles being
moved.
It also appears to be a fact (although the Court is
unsure of the evidentiary basis for it, other than the fact that
defendants have said it and plaintiffs have not refuted it) that
the rental car was both unrepaired and available for some months
after the accident, and at a time when plaintiffs were
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represented by counsel.
II.
Work Product
The doctrine on which defendants rely was recognized by the
Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947). The
general contours of the work product doctrine have been
incorporated into Fed. R. Civ. P. 26(b)(3), and is applicable
when the prerequisites of that rule have been satisfied. The
rule exempts from discovery information which is otherwise
discoverable if it has been "prepared in anticipation of
litigation or for trial by or for another party or by or for
that other party's representative (including the other
party's attorney, consultant, surety, indemnitor, insurer, or
agent)...." The privilege can be overcome, however, if a party
“shows that it has substantial need for the materials to prepare
the case and cannot, without undue hardship, obtain their
substantial equivalent by other means." Id. If the Court does
direct that trial preparation materials be disclosed, the Court
is required to guard against "disclosure of the mental
impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the
litigation."
In determining whether the privilege is applicable
either to documents or other protected information, the
burden is placed initially upon the party seeking discovery
to show that the information is "otherwise discoverable,"
which means simply that it is both relevant to the action and
not subject to any other claim of privilege. Once that
burden has been met, the party opposing discovery must then
demonstrate that the document or information was "prepared in
anticipation of litigation or for trial...." Nothing else is
necessary in order to support a claim that Rule 26(b)(3) is
applicable. Once that showing has been made, the burden
shifts again to the party seeking discovery to demonstrate
both substantial need for the information and undue hardship
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in duplicating it elsewhere.
In the memorandum supporting the motion to compel,
plaintiffs argue that the photographs are relevant - something
defendants do not dispute - and that it was incumbent on
defendants to come forward with evidence to show that they had
been prepared in anticipation of litigation. Their reply brief
focuses on the fact that defendants, in their memorandum in
opposition, did not produce any evidence showing that the photos
were taken at the direction of any defendant and in anticipation
of litigation.
They were correct in that assertion when it was
made, but the subsequently-filed affidavit from Mr. Buchbinder
cured that defect, and plaintiffs have not questioned its
truthfulness.
Accepting what Mr. Buchbinder has said, it is
fairly clear that these photographs are work product.
He has
sworn that litigation was anticipated almost immediately after
the accident - a not unreasonable assumption to make - and that
he personally directed the investigation of the accident scene to
be done with the expectation that he would some day be defending
a lawsuit.
Other courts have held that work product protection
applies to photos taken under similar circumstances.
While it
may be true that “reports generated in the course of general
investigations, even if litigation is arguably anticipated, are
not entitled to work-product protection,” see American Home
Assur. Co. v. United States, 2009 WL 3245445, *2 (D.N.J. Oct. 7,
2009), “photographs of [an] accident scene ... which were taken
... on or shortly after the date of the accident [can] meet the
elements of work product [if] they were prepared (1) in
anticipation of litigation resulting from the accident and (2) by
or for [the defendant].”
Carnes v. Crete Carrier Corp., 244
F.R.D. 694, 699 (N.D. Ga. 2007).
These photographs are just
that.
III.
Substantial Need and Undue Hardship
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Recognizing that the photographs might well have been taken
at an attorney’s direction and in anticipation of litigation,
plaintiffs argue, in the alternative, that they can satisfy Rule
26(b)(3)(A)(ii), which, as quoted above, allow a party to obtain
trial preparation materials through discovery by making a showing
of substantial need for those materials and by showing that undue
hardship would ensue if the party were to attempt to get them
elsewhere.
Plaintiffs’ argument on this point goes like this.
Neither plaintiff Benjamin Laws nor the investigating police
officers took any photographs at the accident scene.
The cell
phone pictures taken by Mr. Dunn are of “limited quality.”
37, at 5).
(Doc.
All of the vehicles, including the rental car, have
now been repaired.
Defendants have raised, among others, the
defense of failure to use a seat belt, and the pictures of the
rental car may be pertinent to that defense.
Given that it is
now impossible to obtain equivalent pictures by other means, and
that it will impose a substantial hardship on plaintiffs not to
be able to see or use these photos, the Court should order them
to be produced.
Defendants do not argue that similar photographs can still
be taken.
They do, however, argue that plaintiffs should not get
the photographs now because they could have taken similar
pictures in the month or two following the accident, and at a
time when plaintiffs had retained counsel.
They assert this is
so because the pictures they are withholding show damage to the
rental car, which remained available for photographing for
several months, and show the accident scene, which still exists
(albeit without the vehicles present).
They also argue that the
claim file and damage repair bills from Enterprise will reflect
the extent and nature of the damage to the rental car.
Finally,
they have invited the Court to view the pictures taken by Mr.
Dunn, which, they say, rather than being of “limited quality,”
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accurately show both where the vehicles were positioned and how
each was damaged.
Should the Court not accept this argument,
however, they ask to be reimbursed for their costs in having had
these photographs taken.
The plaintiffs must shoulder the burden of showing that they
have substantial need of these photographs and that they are
essentially unable to obtain their equivalent.
Toledo Edison Co.
v. G.A. Technologies, 847 F.2d 335 (6th Cir. 1988).
In order to
demonstrate substantial need for them, it is not enough just to
say that they contain relevant information.
Rather,
“[s]ubstantial need is clearly shown when the materials sought
are essential to prove the discovering party's case, or where
without the information a distinct advantage would accrue to the
party having it.”
Georgine v. Amchem Products, Inc., 1994 WL
502475, *2 (E.D. Pa. Sept. 2, 1994).
Many courts, when analyzing
this question, look to Moore’s Federal Practice for the
applicable standard; for example, in Fletcher v. Union Pacific
R.R. Co., 194 F.R.D. 666, 671 (S.D. Ca. 2000), the court, quoting
6 James Wm. Moore et al., Moore’s Federal Practice §26.70[5][c],
at 26-221 to 26-222 (3d Ed. 1999), held that “[t]he substantial
need prong examines: 1) whether the information is an essential
element in the requesting party's case and 2) whether the party
requesting discovery can obtain the facts from an alternate
source,” and observed that “a party's desire to find
corroborating evidence is insufficient to establish substantial
need.”
Using this type of standard, courts have denied a request
to produce information protected by the work product doctrine if
the requesting party “has not demonstrated that the information
is integral to the preparation of its case.”
Baltimore Scrap
Corp. v. David J. Joseph Co., 1996 WL 720785, *28 (D. Md. Nov.
20, 1996).
Plaintiffs have not met this burden.
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They have not argued
that without the pictures, they are unable to present a case of
either liability or damages.
Presumably, if no one had taken any
pictures at the scene, plaintiffs would still be able to put on
proof that the accident was defendants’ fault, and evidence
concerning the extent of Mr. Laws’ injuries.
Or, put another
way, plaintiffs have not proved, or even suggested, that they
cannot.
The pictures of the rental car might be helpful to their
case, but they have not shown that they are “essential” or
“integral.”
This is not a case, for example, where plaintiffs
have an expert telling them that “the ... police investigation is
inadequate to support a reasoned opinion on significant aspects
of the crash” and that only the photos would supply the necessary
missing information.
See, e.g., Jensen ex rel. Jensen v. Cashin,
2008 WL 1439899, *2 (D. Vt. April 10, 2008).
Therefore, on the
basis of the current record, the Court cannot find that
plaintiffs have a substantial need for these photographs.
The Court also questions (but need not decide) whether
plaintiffs have met the other prong of the test for obtaining
work product, which is the inability to obtain equivalent
information without undergoing undue hardship.
Certainly, no one
can disagree that “[a] verbal description of a given area cannot
substitute for photographs of the location.”
Inc., 137 F.R.D. 9, 10 (W.D. La. 1991).
Zoller v. Conoco,
But here, plaintiffs can
still take pictures of the accident location, so they do not have
to rely solely on verbal descriptions of it which might “omit
relevant information ....”
Id.
Additionally, they have pictures
of the vehicles taken at the scene.
Again, they have offered no
proof in support of the statement that these pictures are of
“limited quality” - and they have the burden of proof on each
element of the “substantial need” test.
Further, nothing
suggests that the withheld photographs contain vital information
which can be obtained only by viewing them, and not from the
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other pictures or the accident report.
And there is no
allegation or proof that Mr. Laws has no recollection, or only a
vague one, of the accident.
Cf. Phillips v. Dallas Carriers
Corp., 133 F.R.D. 475 (M.D. N.C. 1990)(court ordered work product
related to accident produced where plaintiff suffered serious
head injury and had no recollection of details of the crash).
Plaintiffs have also not responded to defendants’ argument (which
seems reasonable) that the nature and extent of damage to the
rental car is shown in the paperwork relating to its repair.
All
of this strongly suggests that, in fact, plaintiffs already
possess the substantial equivalent of these photographs or can
obtain that information readily and without undue hardship.
This
conclusion makes it unnecessary to address defendants’ further
argument that plaintiff could also, through the exercise of
diligence, have photographed the rental car at exactly the same
location, and with the same damage, as Mr. Helm did, because it
sat on Enterprise’s lot for a significant period of time after
being towed there, and even after plaintiffs retained counsel.
IV.
Waiver by Mr. Dunn
Plaintiffs’ final argument is that they sent the identical
document request to both defendants, and only defendant Stevens
Transport responded with an objection.
Mr. Dunn, who is
represented by the same counsel, apparently retained by the
insurer which covers both Stevens and himself, did not object.
Plaintiffs argue that he has as much right to control the
photographs as does Stevens, since they were taken by an
investigator hired by his insurance company, and his silence in
the face of the document request constitutes a waiver of the work
product claim.
Defendants’ memorandum does not appear to address
this argument directly, noting only that Mr. Dunn did not object
because he produced the only photos he had, those taken with his
cell phone.
There is no dispute that Stevens Transport objected
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and listed these photos on its privilege log.
Plaintiff’s argument strikes the Court as hypertechnical at
best.
While it may be true that "[b]y definition all rules of
procedure are technicalities," see Torres v. Oakland Scavenger
Co., 487 U.S. 312, 319 (1988)(Scalia, J., concurring), at the
same time, the Rules of Civil Procedure are not generally
designed “to create traps for the unwary,” Ellison v. Conoco,
Inc., 950 F.2d 1196, 1201 (5th Cir. 1992), but are to be
interpreted in such a manner as to achieve “the just, speedy, and
inexpensive determination of every action and proceeding.”
Fed.R.Civ.P. 1.
From the procedural history recited above, it is
clear that plaintiffs were not misled into believing that the
defendants were waiving work product protection for these
photographs, nor was it unreasonable for Mr. Dunn to believe that
his and Stevens’ counsel had adequately protected them by
claiming, as part of Stevens’ response to the document request,
that they were work product and by listing them on a privilege
log.
This is especially so where plaintiffs appear to concede
that Mr. Dunn did not physically possess the photographs and has,
at most, some right to demand them from Stevens.
Absent any case
law suggesting that the Court should resolve this type of issue
on the basis of this type of argument - the Court’ research, by
the way, has disclosed none, nor have plaintiffs cited to any the Court prefers to take the issue head-on, and to decide its
merits.
It has done so here, and has resolved the question in
favor of the defendants.
V.
Order
For the reasons set forth above, the Court denies
plaintiffs’ motion to compel discovery (Doc. 37).
VI.
Procedure for Reconsideration
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
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reconsideration by a District Judge.
28 U.S.C. §636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.
The motion must specifically designate the order or
part in question and the basis for any objection.
Responses to
objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.
S.D. Ohio L.R. 72.4.
/s/ Terence P. Kemp
United States Magistrate Judge
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