United States District Court, D. Maine
ALFRED H. HARRINGTON, Plaintiff,
BLUE WATER FISHERIES, INC., Defendant
ORDER ON DISCOVERY ISSUE
C. NIVISON U.S. MAGISTRATE JUDGE
action commenced under the Jones Act, 46 U.S.C. § 30104,
Plaintiff seeks to recover damages for injuries he sustained
on April 2, 2014, during an incident while he was working as
a member of the crew of F/V MEGAN MARIE, a
commercial fishing vessel owned by Defendant.
August 8, 2018, the Court conducted a telephonic conference
to address a discovery issue regarding Plaintiff's
request that Defendant produce the transcript of the recorded
statement of a witness, Robbie Roberge. Defendant contends
the statement, which was obtained by a representative of
Defendant's liability insurer on May 8, 2014,
protected from discovery by the work product doctrine.
conclusion of the conference, the Court directed the parties
to file certain information, including the relevant portions
of the deposition testimony of Plaintiff, Mr. Roberge, and
Defendant's expert witness. (Report and Order, ECF No.
47.) The Court has reviewed the parties' submissions.
may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense and
proportional to the needs of the case.” Fed.R.Civ.P.
26(b)(1). Additionally, “[i]nformation within the scope
of discovery need not be admissible in evidence to be
party asserting a privilege to withhold documents responsive
to a legitimate discovery request bears the burden of
demonstrating the applicability of the privilege. In re
Grand Jury Subpoena (Mr. S.), 662 F.3d 65, 69 (1st Cir.
2011). The standard requires “sufficient information to
allow the court to rule intelligently on the privilege
claim.” Marx v. Kelly, Hart & Hallman,
P.C., 929 F.2d 8, 12 (1st Cir. 1991).
attorney work-product privilege, codified in Fed.R.Civ.P.
26(b)(3), shields from disclosure materials prepared by
attorneys ‘in anticipation of litigation.'”
Autoridad de Carreteras y Transp. v. Transcore Atl.,
Inc., 319 F.R.D. 422, 435 (D.P.R. 2016) (citing
Maine v. United States Dep't of Interior, 298
F.3d 60, 66 (1st Cir. 2002)). The privilege protects
“the mental impressions, conclusions, opinions, or
legal theories of a party's attorney or other
representative concerning the litigation.” Fed.R.Civ.P.
26(b)(3)(B). The work product doctrine does not extend to
“[m]aterials assembled in the ordinary course of
business, or pursuant to public requirements unrelated to
litigation, or for nonlitigation purposes, ” even if
the materials were prepared by a lawyer and reflect
“legal thinking.” United States v. Textron
Inc., 577 F.3d 21, 30 (1st Cir. 2009) (quoting
Fed.R.Civ.P. 26 advisory comm.'s note (1970)). The issue
is “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.” 8 C. Wright, A. Miller
& M. Kane, Federal Practice and Procedure § 2024 (3d
the withholding party makes an adequate showing that the
documents in question are subject to a privilege, the party
seeking production may assert that an exception to the
privilege applies under the circumstances. Vicor Corp. v.
Vigilant Ins. Co., 674 F.3d 1, 17 (1st Cir. 2012). Under
certain circumstances, “documents and tangible
things” prepared in anticipation of litigation may be
discovered if they are discoverable generally and if the
party seeking production “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.” Fed.R.Civ.P. 26(b)(3)(A).
contends its liability insurance provider obtained the
statement in anticipation of litigation. In this District,
the mere fact that a liability insurance company obtains a
statement does not establish that the statement was prepared
in anticipation of litigation. See S.D. Warren Co. v.
Eastern Elec. Corp., 201 F.R.D. 280 (D. Me. 2001);
Precision Airmotive Corp. v. Ryan Ins. Services,
Inc., No. 2-10-mc-244-JHR, 2011 WL 148818 (D. Me. Jan.
17, 2012). “It is not enough to trigger work product
protection that the subject matter of a document relates to a
subject that might conceivably be litigated.”
Textron, 577 F.3d at 29. “It is only work done
in anticipation of or for trial that is protected.”
Id. at 30.
which has the burden of demonstrating the applicability of
the privilege, has offered no evidence to suggest that the
insurance company's efforts to obtain the statement were
in anticipation of litigation, as distinguished from the
company's regular business practice. To the contrary,
insofar as the parties' submissions reveal the statement
was obtained approximately one month after the incident,
evidently before the involvement of counsel for Plaintiff,
nearly three years before this action was commenced,
record suggests the statement was obtained as part of the
company's ordinary business practice. “Where the
proponent fails to adduce sufficient facts to permit the
court to conclude with reasonable certainty that the
privilege applies, its burden is not met.” In re
Veiga, 746 F.Supp.2d 27, 34 (D.D.C. 2010). Because
Defendant has failed to demonstrate that the statement was
prepared in anticipation of litigation and trial, Defendant
must produce the statement in discovery.
on the foregoing analysis, the Court orders Defendant to
produce in discovery to Plaintiff the ...