Bowling et al v. Appalachian Electrical Supply, Inc. et al
MEMORANDUM OPINION AND ORDER granting Plaintiff's 23 MOTION to Compel Production of Statement of Brad Prince; directing Defendants to produce a copy of Mr. Prince's statement within 10 days of the date of this Order. Signed by Magistrate Judge Cheryl A. Eifert on 4/10/2014. (cc: attys; any unrepresented party) (mkw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
MEGAN D. BOWLING, as mother and
Next friend of JACOB ALLEN WOYAN,
Case No.: 3:13-cv-27347
APPALACHIAN ELECTRICAL SUPPLY, INC.,
A Kentucky Corporation,
CORKY WELLS ELECTRIC, INC.,
D/B/A C.W. ELECTRIC SERVICES, LLC,
a Kentucky limited liability company,
AMERICAN STAFFING, INC.,
a West Virginia corporation, and
MEMORADUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion to Compel Production of
Statement of Brad Prince. (ECF No. 23). Defendants Appalachian Electrical Supply,
Inc. and Brad Prince filed a response in opposition to the motion, (ECF No. 38), and
Plaintiff has replied. (ECF No. 39). On April 2, 2014, the undersigned conducted a
hearing on the motion, at which the parties were represented by counsel. Having fully
considered the arguments of counsel, the Court GRANTS Plaintiff’s motion to compel.
Accordingly, for the reasons that follow, the Court ORDERS Defendants to produce a
copy of Mr. Prince’s statement within ten (10) days of the date of this Order.
On a rainy day in September 2006, Brad Prince was operating a vehicle owned
by his employer, Appalachian Electrical Supply, Inc., when he was involved in a rearend collision with a vehicle driven by Marleena Bowling. By all accounts, Ms. Bowling
was traveling south on Route 2 in Galipolis Ferry, West Virginia, followed some
distance behind by Mr. Prince. Ms. Bowling stopped in the roadway to make a lefthand turn, and while she waited for oncoming traffic to pass, her vehicle was struck by
Mr. Prince’s vehicle. Accompanying Ms. Bowling were her sister, Megan Bowling, and
Megan’s 22-month old son, Jacob Allen Woyan, who was in a child safety seat in the
rear of the vehicle. Jacob suffered a head injury in the collision and was transported to
a local hospital by ambulance. The West Virginia State Police arrived at the scene and
conducted an investigation of the accident, which included taking a statement from
Five days later, Appalachian’s automobile insurance carrier, Travelers
Insurance Company (“Travelers”), was notified of the accident. When Travelers
learned that the accident involved a rear-end collision, and a toddler had been injured,
Travelers assigned the case to its “major claims” division. That same day, an adjuster
from the major claims division contacted Marleena Bowling and Brad Prince and
obtained recorded statements regarding their recollections surrounding the accident.
Approximately two months later, Travelers received a letter from counsel for
Plaintiff, advising that he represented Megan Bowling as Jacob’s mother. Over the next
six years, Travelers communicated with counsel, collecting medical records and bills
related to Jacob’s injuries. However, Jacob’s claim for damages arising from the
automobile accident was not resolved.
On October 7, 2013, Plaintiff filed the complaint herein. In her first set of
discovery requests, Plaintiff requested copies of any recorded statements obtained by
the Defendants concerning the matters at issue. Defendants provided Plaintiff with a
copy of the statement given to Travelers by Marleena Bowling, but refused to produce
Mr. Prince’s statement to Travelers on the ground that it constituted protected work
product. Plaintiff argued that the statement was not work product because it was not
prepared in anticipation of litigation; rather, it was obtained as part of Travelers’
ordinary investigation of claims. The parties were unable to resolve their disagreement.
Therefore, Plaintiff filed the instant motion to compel.
Plaintiff moves to compel Mr. Prince’s statement, arguing that it is clearly
relevant to the issues in dispute in this litigation. Defendants concede that the
statement is relevant, but contend that it is not subject to disclosure under Fed. R. Civ.
P. 26(b)(3) because the statement constitutes Defendants’ work product.
Federal Rule of Civil Procedure 26(b)(3) ordinarily protects from discovery
“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).” Work product is divided into two
categories: fact work product and opinion work product. Opinion work product
includes the mental impressions, conclusions, opinions, and legal theories of a party’s
attorney and is scrupulously shielded from disclosure. In re Grand Jury Proceedings,
33 F.3d 342, 348 (4th Cir. 1994). Fact work product encompasses such things as
statements, interviews, chronologies, and correspondence, and may be subject to
production if it is otherwise discoverable under Rule 26(b)(1), and the party seeking
the fact work product shows both a substantial need and an inability to secure the
substantial equivalent of the material by alternate means without undue hardship. Fed.
R. Civ. P. 26(b)(3)(i)-(ii). In diversity cases, such as this one, “federal common law and
the federal rules govern the application of the work product doctrine.” Bradley v.
Sunbeam Corp., No. 5:99-CV-144, 2003 WL 21982038, *6 (N.D.W.Va. Aug. 4, 2003).
The burden is on the party asserting work product protection to demonstrate its
applicability. Ennis v. Anderson Trucking Service, Inc., 141 F.R.D. 258, 259 (E.D.N.C.
1991). “In meeting this burden, such party may not rely on conclusory allegations or
mere statements in briefs.” Suggs v. Whitaker, 152 F.R.D. 501, 505 (M.D.N.C. 1993).
Rather, the burden is met with a “specific demonstration of facts supporting the
requested protection;” preferably, provided “through affidavits from knowledgeable
persons.” Id. A failure to meet the burden will lead to a denial of work product
Obviously, establishing that Mr. Prince’s recorded statement is indeed work
product is the first step in deciding whether the statement is entitled to protection
from discovery. To constitute work product, Mr. Prince’s statement must have been
prepared “because of the prospect of litigation when the preparer face[d] an actual
claim or a potential claim following an actual event or series of events that reasonably
could result in litigation.” Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Murray Sheet
Metal Co., 967 F.2d 980, 984 (4th Cir. 1992). Simply put, when pending or impending
litigation is the compelling reason for creating a document, that document is work
product. On the other hand, when a document is prepared in the ordinary course of
business, or for reasons other than specifically for litigation, the document is not work
product, even though the preparer may ultimately resort to litigation and use the
document. Id.; see, also Adair v. EQT Production Co., 294 F.R.D. 1, 4 (W.D.Va. 2013).
“The application of the work product doctrine is particularly difficult in the
context of insurance claims,” Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D.
536, 541-42 (N.D.W.Va. 2000), because insurance companies are obligated as part of
their everyday business operations to investigate, evaluate, and resolve claims made by
or against their insureds. Thus, “[t]he creation of documents during this process is part
of the ordinary course of business of insurance companies, and the fact that litigation
is pending or may eventually ensue does not [necessarily] cloak such documents with
work-product protection.” HSS Enters., LLC v. Amco Ins. Co., No. C06-1485-JPD,
2008 WL 163669, *4 (W.D.Wash. Jan. 14, 2008) (citation omitted). At some point, “an
insurance company shifts its activity from the ordinary course of business to
anticipation of litigation, and no hard and fast rule governs when this change occurs.”
State Farm Fire & Cas. Co. v. Perrigan, 102 F.R.D. 235, 238 (W.D.Va. 1984).
“Determining the driving force behind the preparation of each requested document is
therefore required in resolving a work product immunity question” in this context.
Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 967 F.2d at 984. This analysis must be
made on a “case-by-case” basis, considering the following relevant factors: “the nature
of the documents, the nature of the litigation, the relationship between the parties, and
any other fact peculiar to the case,” the involvement of counsel, and the time at which
the document is created. Kidwiler, 192 F.R.D. at 542.
Here, the first factor weighs against a finding of work product. The statement at
issue is nothing more than a verbatim transcript of Mr. Prince’s interview taken by an
insurance adjuster collecting basic information regarding the accident. As Defendants
concede, insurance adjusters frequently take statements from parties involved in
automobile accidents as part of routine claims investigations. Defendants attempt to
differentiate Mr. Prince’s statement from other routine statements by arguing that
when his statement was taken, Travelers knew that the insured had been involved in a
rear-end collision and a child had been injured. Consequently, the possibility of
litigation was immediately considered, and an adjuster in the major claims department
was assigned to the investigation. However, this argument is not persuasive. First of
all, very little additional information was known at that time. The official accident
report had not yet been filed, and the extent of the child’s injuries was unknown. As
such, there simply was not enough information available upon which to form a
reasonable expectation of litigation. Therefore, it is much more plausible that the
statement was taken as part of the initial fact-gathering, rather than because of
anticipated litigation. Moreover, the “possibility” of litigation for an automobile
liability insurance carrier arises every time one of its insureds has an accident
involving injuries. In the insurance business, appreciating the possibility of litigation
simply is not the same as expecting litigation. Unless the driving force behind the
creation of Mr. Prince’s recorded statement was the expectation of litigation, the
statement is not work product. Defendants offer no evidence by way of affidavit or
otherwise to demonstrate that Travelers actually anticipated litigation over Jacob
Woyan’s injuries when the adjuster took Mr. Prince’s statement, or that the adjuster
conducted her investigation in a manner that varied from Travelers’ ordinary claims
development protocol. Certainly, there is nothing in the record to indicate that at this
point in time, the driving force behind any investigative document was impending
The next two factors weigh slightly in favor of a finding of work product. The
statement was provided by one of the Defendants in the litigation and is imputed to
another Defendant. It was obtained by the Defendants’ insurance representative, and
likely touched on issues of fault and injury. From that standpoint, Defendants probably
intended the statement to be for their own use. Nevertheless, collecting this type of
information from individuals with personal knowledge of the facts is both common
and necessary for routine claims management regardless of whether the matter ever
progresses to litigation.
Regarding the next factor, the circumstances of this case do not favor a finding
of work product. First, there was nothing extraordinary about the accident itself. The
parties agree that the accident was a rear-end collision that occurred on a rainy day
when the pavement was wet. Fortunately, there were no mortalities, and the accident
was promptly investigated by the State Police and witnessed by at least two
independent witnesses. None of the adults involved in the accident was seriously
injured. While a child was hurt, the extent of his injuries was not initially known. No
one apparently rushed out and hired an attorney, and the drivers of both vehicles
cooperated with the police and the insurance company’s adjuster. No one was arrested,
charged with a crime, or put in jail. In fact, Travelers was not even notified of the
accident until five days after it occurred. Certainly these facts do not raise any red
flags, or immediately signify impending litigation. There are no particular facts or
nuances, such as those found in Brown v. Nicholson, which might suggest that Mr.
Prince’s statement was obtained because of the prospect of litigation. Id., Civ. No. 065149, 2007 WL 1237931, *3 (E.D.Pa. Apr. 25, 2007). For example, in Brown, the
defendant provided two statements, both of which the plaintiff sought to obtain. The
first statement was given to the defendant’s insurance carrier three and half months
after the accident, and the second statement was provided to an independent
investigation agency hired by the defendant’s insurance company. The defendant was
represented by his personal attorney at both statements. The court concluded that
these statements were protected from discovery as work product because they were
prepared in anticipation of litigation. The factors most convincing to the court in
reaching this conclusion were (1) the severity of the accident—it was a fatal collision;
(2) the presence of personal counsel at the statements; and (3) the retention of an
outside investigator by the insurance company, which suggested that the parties
believed litigation was imminent. Id. No similar circumstances are present in this case.
The final two factors also weigh against a finding that Mr. Prince’s statement
constitutes work product. Neither Travelers, nor Defendants, contacted an attorney or
arranged for representation before Mr. Prince’s statement was taken. Similarly,
Plaintiff had not yet hired an attorney, and no claim, either formal or informal, had
been made. Although Plaintiff’s young son was in the hospital, the seriousness of the
injuries was unknown. As is clear from the exchange in Ms. Bowling’s statement,
Travelers had little information regarding the extent of Jacob’s treatment or
knowledge of his prognosis.
Regarding the timing of the statement, the adjuster contacted Mr. Prince within
hours after Travelers received notice of the claim. Accordingly, the investigation was in
its very early stages when Mr. Prince was interviewed. On the same day that Mr. Prince
was questioned by the adjuster, she took the statement of Marleena Bowling. The
official West Virginia Uniform Crash Report form prepared by the State Police was not
completed until September 11, 2006, five days after the Prince and Bowling statements
were taken. Consequently, the statements were among the first substantive pieces of
information collected by the adjuster. Therefore, the timing of the statements suggests
that they were obtained as part of the insurance company’s initial fact-finding, rather
than in anticipation of litigation. Moreover, Defendants have failed to offer any specific
facts demonstrating that the adjuster took Mr. Prince’s statement on September 6 for a
purpose other than ordinary claim development. Suggs v. Whitaker, 152 F.R.D. 501,
505 (M.D.N.C. 1993) Therefore, Defendants have not made the specific showing
required for entitlement to work product protection.
Even if Defendants can establish that Mr. Prince’s statement is work product,
Plaintiff argues that she is still entitled to discover it because she has a significant need
for the statement and is unable to secure a substantial equivalent by alternate means.
(ECF No. 39). In response, Defendants argue that the information contained in Mr.
Prince’s statement is easily obtainable through other means. Not only does Plaintiff
have the opportunity to depose Mr. Prince, but Plaintiff has Mr. Prince’s statement as
recorded in the Uniform Traffic Crash Report. Plaintiff has not shown, or even argued,
that Mr. Prince has a faulty memory regarding the accident, nor has there been a claim
that Mr. Prince has provided conflicting statements. Finally, Defendants argue that
Plaintiff made no effort to obtain Mr. Prince’s statement at any point during the past
seven years, even though Plaintiff was represented by counsel and was in contact with
Defendants’ insurance carrier during most of that time. Consequently, Plaintiff should
not benefit from the Defendants’ efforts.
Plaintiff acknowledges that Mr. Prince is currently available for deposition. She
makes no allegation that Mr. Prince has lost all memory of the accident, and she
admits that the other witnesses can testify regarding their recollections. Nevertheless,
Plaintiff contends that none of these sources can provide a substantial equivalent to
Mr. Prince’s statement because the statement is contemporaneous evidence of an event
that occurred over seven years ago. Plaintiff emphasizes that the statement was made
when the accident was fresh in Mr. Prince’s mind while his deposition testimony, and
that of the witnesses, will be based on their faded recollections. Thus, the deposition
testimony can never amount to a substantial equivalent of Mr. Prince’s statement.
As the Court underscores in Suggs, “contemporaneous witness statements have
been touted as a unique catalyst in the search for truth in our judicial process.” 152
F.R.D. at 508 (citing National Union Fire Ins., 967 F.2d at 985). An account of an
event given when fresh in the mind of the speaker is universally held to be more
reliable than an account provided after the passage of time. For that reason, courts
have widely found good cause to compel the disclosure of a witness statement made at
the time of the accident; particularly, if the party seeking the statement did not have an
opportunity to question the witness until weeks or months later. McDougall v. Dunn,
468 F.2d 468, 474 (4th Cir. 1972); Coogan v. Cornet Transp. Co., Inc., 199 F.R.D. 166,
167 (D.Md. 2001); See, also, 6 Moore’s Federal Practice § 26.70[c] (Matthew Bender
3d ed.) (Contemporaneous statements “are unique in that they provide an immediate
impression of the facts. A lapse of time itself may make it impossible to obtain a
substantial equivalent of the material”). Statements taken within one week of an
accident have generally been considered sufficiently close in time to qualify as
“contemporaneous.” Bryant v. Trucking, Case No. 4:11-cv-2254-RBH, 2012 WL
162409, *4 (D.S.C. Jan. 18, 2012); Suggs, 152 F.R.D. 509 (“[S]tatements qualify as
being contemporaneous [when] they were made within a week or so of the accident.
Guilford National Bank of Greensboro v. Southern Ry. Co., 297 F.2d 921 (6–9 days).
Statements made several weeks or a month after the event may not so qualify.
Basinger v. Glacier Carriers, Inc., 107 F.R.D. 771, 774–75 (M.D.Pa.1985), and cases
Although the passage of time, standing alone, may not always be sufficient to
establish substantial need under Rule 26(b)(3)(A)(ii), in this case it does suffice. In the
more than seven years that have elapsed since the accident, Mr. Prince’s memory of the
finer details surrounding the collision undoubtedly will have faded. The only other
contemporaneous statement regarding the accident that can be attributed to Mr.
Prince is a two-line summary contained in the Uniform Crash Report. Certainly, Mr.
Prince’s recorded interview is longer and more detailed than what appears in the
accident report. The importance of Mr. Prince’s account of the accident is obvious, and
while it is true that Plaintiff made no effort to obtain contemporaneous statements, she
really was not in a position to do so at the time. Plaintiff was a passenger in her sister’s
vehicle when the accident happened, and her son was injured. She naturally devoted
her time and attention to her child’s care. Plaintiff had no representative involved in
the matter early on because her vehicle was not one of the two that collided. She did
not retain counsel until two months after the accident, and a statement taken two
months later would not have been “contemporaneous.”
Therefore, the undersigned finds that Defendants have not met their burden to
show that the statement of Mr. Prince was taken in anticipation of litigation and
therefore it is not entitled to protection from discovery as work product. In addition,
the undersigned finds that even if the statement could be considered work product,
Plaintiff has established a substantial need for the statement and has demonstrated her
inability to obtain a substantial equivalent by other means. Thus, Defendants are
hereby ORDERED to produce the statement of Mr. Prince within ten (10) days of
the date of this Order.
The Clerk is instructed to provide a copy of this Order to counsel of record and
any unrepresented party.
ENTERED: April 10, 2014
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