Fish, LLC v. Harbor Marine Maintenance & Supply, Inc.

Filing 26

MINUTE ORDER. Defendant is DIRECTED to provide the Court no later than Monday, November 27, 2017 an unredacted copy of LodeStar Marine's May 24, 2016 Survey and Consulting Report prepared by Lynne Reister for purposes of in camera review. The Clerk is DIRECTED to renote Plaintiff's motion to compel (Dkt. No. 18 ) to November 27, 2017. Authorized by U.S. District Judge John C Coughenour. (TH)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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FISH LLC, et al.,

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CASE NO. C17-0245-JCC
Plaintiffs,

MINUTE ORDER

v.
HARBOR MARINE MAINTENANCE &
SUPPLY INC,

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Defendant.

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The following Minute Order is made by direction of the Court, the Honorable John C.
Coughenour, United States District Judge:
This matter comes before the Court on Plaintiffs’ motion to compel (Dkt. No. 18).
Plaintiffs seek production of an unredacted version of a vessel survey report prepared by Lynne
Reister on behalf of Defendant’s insurer, SwissRe. (See Dkt. No. 19-13) (redacted version). If
necessary, Plaintiffs request this Court review an unredacted version of the report in camera
before ruling on the motion to compel. (Dkt. No. 18 at 1.) Defendant claims Ms. Reister’s report
is a dual purpose document that would have been prepared differently if not for the threat of
litigation and, as a result, it is privileged work product. (Dkt. No. 21 at 7–9); (see Dkt. No. 19-5)
(Defendant’s privilege log); see also United States v. Richey, 632 F.3d 559, 568 (9th Cir. 2011)
(the Court must ask “whether the document was created because of anticipated litigation, and

MINUTE ORDER C17-0245-JCC
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would not have been created in substantially similar form but for the prospect of litigation.”).

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Defendant further asserts that Plaintiff fails to make the requisite factual showing for in camera

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review. (Dkt. No. 21 at 9–10.)

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According to Cheryl Moore, SwissRe’s claims specialist, she had litigation in mind when

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she engaged Ms. Reister to prepare the survey. (Dkt. No. 22.) She notes that she instructed Ms.

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Reister to “include in her report an analysis of the liability theory advanced by [the vessel’s

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insurer] and the vessel owner(s), as well as an analysis of certain evidentiary issues that could

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arise in litigation.” (Id. at 4.) But the unredacted portions of the report contradict, or at least cast

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doubt on, Ms. Moore’s assertions. For example, according to Ms. Reister, the purpose of the

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report was to confirm “the vessel identity, determin[e] the probable cause of the damage, and

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gather[] information to prepare a report per your assignment . . . .” (Dkt. No. 19-13 at 1.) Had

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Ms. Reister intended to address potential litigation issues, the Court expects she would have

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indicated as much. Furthermore, some of the redactions are in the middle of a list of factual

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observations, which seems like a curious place for protected opinion information. (See Dkt. No.

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19-13 at 3, 4.)

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In order to support a request for in camera review, Plaintiff need “only show a factual

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basis sufficient to support a reasonable, good faith belief that in camera inspection may reveal

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evidence that information in the materials is not privileged.” In re Grand Jury Investigation, 974

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F.2d 1068, 1074 (9th Cir.1992). Given the information contained in the redacted report, Plaintiffs

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meet this burden.

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Defendant is DIRECTED to provide the Court no later than Monday, November 27, 2017

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an unredacted copy of LodeStar Marine’s May 24, 2016 Survey and Consulting Report prepared

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by Lynne Reister for purposes of in camera review. The Clerk is DIRECTED to renote

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Plaintiff’s motion to compel (Dkt. No. 18) to November 27, 2017.

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MINUTE ORDER C17-0245-JCC
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DATED this 20th day of November 2017.

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William M. McCool
Clerk of Court

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s/Tomas Hernandez
Deputy Clerk

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MINUTE ORDER C17-0245-JCC
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