Goff v. United Rentals (North America), Inc. et al

Filing 33

MEMORANDUM OPINION AND ORDER re: 24 Motion to Compel. Consequently, for the foregoing reasons and those stated on the record at the hearing. Plaintiff's Motion to Compel, ECF No. 24, is GRANTED. Defendant United Rentals is ORDERED to produce to Plaintiff the emails identified in its privilege log no later than April 4,2017. It is so ORDERED. Signed by Magistrate Judge Lawrence R. Leonard and filed on 3/28/17. Copies distributed to all parties 3/28/17. (ldab, )

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

JAMES A. GOFF

Plaintiff,
Case No.: 2:16-cv-608

V,

UNITED RENTALS (NORTH
AMERICA), Inc. et al.
Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court is PlaintiflTs Motion to Compel Responses to Plaintiff's First

Interrogatories and First Requests for Production ofDocuments from Defendant United Rentals
("Motion to Compel") and an accompanying memorandum, filed on February 24, 2017. ECF
Nos. 24-25. On March 10, 2017, Defendant United Rentals filed a Response in Opposition.

ECF No. 26. Plaintiff did not file a Reply and the time to do so has expired. Plaintiff requested

a hearing pursuant to Local Rule 7(E). ECF No. 27. A hearing was held inthis matter on March
28,2017, at which Michael Imprevento appeared on behalf of the Plaintiff and Donald Cameron

Beck appeared on behalf ofUnited Rentals. ECF No. 31. For the following reasons. Plaintiffs
Motion to Compel, ECF No. 24, is GRANTED.

This case involves injuries Plaintiff sustained on September 16,2014, at the International
Paper plant in Franklin, Virginia when a commercial rigging tool he was using to remove a
steamair heater coil broke. ECF No. 25 at 1. Plaintiffbroughtsuit againstDefendant Columbus

McKinnon Corp., the manufacturer of the rigging tool, and United Rentals, from whom

Plaintiffs employer, RMR Mechanical, Inc., rented the tool. Id. at 2. On November 17, 2016,
Plaintiff served his first interrogatories and first request for production of documents on United
Rentals. Id. United Rentals served its objections on December 2, 2016, and provided answers

on January 6, 2017. Id United Rentals also served a privilege log which listed fourteen
documents it contended were work product generated in anticipation of litigation. Id. Included

among these documents were a liability claim acknowledgment report and thirteen emails
between United Rentals and Liberty Mutual, the third party administrator responsible for United
Rentals' insurance. ECF No. 24, attach. 2. These emails were exchanged between September
16,2014, the date of the accident, and November 4,2014. Id.

On February 24, 2017, Plaintiff filed a motion to compel United Rentals to produce the
documents identified in the privilege log, arguing that they were not subject to work product

immunity because they were "created in the ordinary course of business by a United Rentals
employee, apparently for United Rentals' insurer, a practice that is regularly carried out
whenever an industrial accident occurs" and were "created in close temporal proximity with the

accident and before any claim was made." ' ECF No. 25 at 5-6. Plaintiff also contended that,
should the documents be considered work product, he nonetheless had a substantial need for

them because they "were prepared onthe same day or within days of the accident, while factual
information was fresh on the minds of their creators" as well as the fact that "[pjreliminary

forensic analysis discloses that a specific chain link on the rented equipment failed" and "[o]nly
United Rentals knows the condition of the equipment and its most recent rental and maintenance

history and it has failed to provide anything thatis truly relevant." Id. at 6.
' Plaintiff also requested the Court compel United Rentals to respond to five interrogatories. However, at the
hearing Plaintiffs counsel advised that the parties had reached an agreement resolving the dispute regarding the
interrogatories, and thus withdrew his motion to compel that they be more fully responded to. Consequently, this
Order is limited to Plaintiff's request that United Rentals be compelled to produce the documents identified in its
privilege log.

United Rentals responded that it provided Plaintiff with the liability claim

acknowledgment report, but the emails were protected from disclosure by the work product
immunity doctrine because they involved "United Rentals's [sic] agents and its insurer
discussing and analyzing an industrial workplace accident involving one of its rented products
that results in a potential claimant being injured and taken to the hospital for treatment, and
which "included assessments of the potential claim, discussion of potentially tendering the

defense, and discussion of potentially hiring experts." ECF No. 26 at 2. After hearing the
argument ofthe parties at the hearing, the undersigned reviewed the emails in camera.

Rule 26(b)(1) ofthe Federal Rules ofCivil Procedure provides that "[p]arties may obtain

discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs ofthe case,..." Pursuant to Fed. R. Civ. P. 26(b)(3)(A): "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)." Commonly referred to as the work
product immunity doctrine, this protection belongs to the attorney and protects from disclosure
documents that are prepared by or at the direction ofan attorney in anticipation of litigation.

Hickman v. Taylor, 329 U.S. 495, 509-14, 67 S. Ct. 385, 91 L. Ed. 451 (1947); In re Grand Jury

Proceedings. Thur. Special Grand Jury Sept. Term, 1991, 33 F.3d 342, 348 (4th Cir. 1994).
Attorney work product inraiunity is generally divided into two types: opinion work product,
which "involves mental impressions, conclusions, opinions or legal theories... which is

absolutely immune from discovery;" and fact work product "prepared in anticipation of litigation

or for trial [which] may be discovered, but only with a showing of substantial need." Nat'I
Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992) (quotation

marks and citations omitted). A party has a "substantial need" for materials prepared in

anticipation of litigation ifhe is unable "without undue hardship [to] obtain their substantial
equivalent by other means." Fed. R. Civ. P. 26(b)(3)(A)(ii). The party claiming the protection
bears the burden of demonstrating the applicability ofthe work product doctrine. In re Grand
Jury, 33 F.3d at 353.

The emails, which concern and discuss events atornear the time ofthe accident atissue,
are relevant to both Plaintiffs claims and United Rentals' defense, and United Rentals does not

claim otherwise. Moreover, production ofthese emails is not burdensome and no contention has
been made that the request for them is not proportional to the needs ofthe case. United Rentals
does not rest its claim of work product on the "opinion work product" prong ofthe immunity.
Instead, itclaims the emails are protected from disclosure because they were exchanged between

themselves and their third party insurance administrator in anticipation oflitigation. "[M]aterials

prepared in the ordinary course of business or pursuant to regulatory requirements or for other
non-litigation purposes" do not constitute "documents prepared in anticipation of litigation"
protected under the work product doctrine. Nat'I Union Fire Ins. Co., 967 F.2d at 984 (finding
that documents related to the insurance company defendant's investigation of a fire were not

protected). District courts within the Fourth Circuit have stated that work done as part of the
"insurer's ordinary course ofbusiness" is not protected work product. Smith v. Scottsdale Ins.

Co., 40 F.Supp.3d 704, 720 (N.D.W. Va. 2014) ("Unlike files generated while investigating

whether to deny a first-party claim, which are generally not considered to have been prepared in

anticipation of litigation, insurance claim files generated in relation to investigating and
defending against third-party claims are generally considered work-product because they were

clearly prepared for the purposes ofthe underlying litigation, rather than in the insurer's ordinary

course of business."); see also, Nicholas v. Bituminous Cas. Corp., 235 F.R.D. 325, 332
(N.D.W.Va. 2006); Ring v. Commercial Union Ins. Co., 159 F.R.D. 653, 660 (M.D.N.C. 1995)

("[T]he general rule is that a reasonable possibility of litigation only arises after an insurance
company has made a decision with respect to the claim of its insured. Therefore, and in general,
only documents accumulated after the claim denial will be done in anticipation of litigation").

Upon in camera review of the emails, the undersigned FINDS that the materials do not
constitute protected work product prepared in anticipation of litigation. The emails between
United Rentals and Liberty Mutual were sent in the ordinary course of business immediately
following an industrial accident, and were ordinary communications between an insured and an

insurer concerning the circumstances of the accident.^ Indeed, "[following any industrial
accident, it can be expected that designated personnel will conduct an investigation, not only out
of concernfor future litigation, but also to preventreocurrences, to improve safety and efficiency
in the facility, and to respond to regulatory obligations." Nat'I Union Fire Ins. Co., 967 F.2d at
984. Although litigation theoretically may be anticipated any time an accident occurs in the
workplace, application of the work product immunity here would protect from disclosure every

document generated by a defendant in these circumstances immediately after an accident. See
E.I. DuPont de Nemours & Co. v. Kolon Indus., 269 F.R.D. 600, 604 (E.D. Va. 2010) (noting

that work product protection "does not cover documents created in the ordinary course of
business that later serve a litigation-related purpose"). The work product immunity is not so

broad, and requires, at the least, a party perceive a realistic prospect of litigation before it can
reasonable be said that litigation was anticipated. RLIIns. Co. v. Conseco, Inc., All F. Supp. 2d

741, 747 (E.D. Va. 2007) (noting National Union's, supra, holding that the doctrine "protects
^ Although Liberty Mutual apparently is United Rentals' third party insurance administrator and not its direct
insurer, this distinction makes no practical diiference to thelegal analysis ofthe work product immunity doctrine.

'work product' that is created because of litigation when that litigation is a real likelihood, but
not 'work product' that is created 'because of litigation when that litigation is merely a

possibility."). Here, after reviewing the emails at issue, the undersigned FINDS that they, at

most, suggest that litigation is only apossibility, and therefore do not constitute work product.^
Consequently, for the foregoing reasons and those stated on the record at the hearing.
Plaintiffs Motion to Compel, ECF No. 24, is GRANTED. Defendant United Rentals is

ORDERED to produce to Plaintiff the emails identified in its privilege log no later than April
4,2017.

The Clerk is DIRECTED to forward a copy of this Order to allcounsel of record.
It is so ORDERED.

- Lawrence R.

United States Magistrate Judge
Norfolk, Virginia
March 28,2017

' United Rentals contended that the fact that an attorney was copied on some ofthe emails supports the notion that
these documents were created in anticipation oflitigation. In the first instance, the attorney neither prepared nor

directed the preparation of any of the emails. Second, even attorney prepared documents can be found to not
constitute work product ifthey were prepared in the ordinary course of business and not in anticipation of litigation.
See. e.g., Hickman. 329 U.S. at 509-14; RLIIns. Co., All F. Supp. 2d at 747; Kolon Indus., 269 F.R.D. at 604.