DeGiacomo v . Morrison CV-02-310-M 12/04/03
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
James R. DeGiacomo, Esq., as the
Administrator of the Estate of
Antoine M . Beyrouti
v. Civil N o . 02-310-M
Opinion N o . 2003 DNH 211
Gary Morrison, Neil E . Emerson and
Ne-San, Inc.
O R D E R
Plaintiff moves to compel production of recorded statements
of Gary Morrison and of Neil E . Emerson taken on July 7 , 1999 by
an adjustor for Acadia Insurance C o . Defendant Morrison objected
timely to the requests on the basis of attorney-client privilege
and/or work product protection. Defendants Emerson and Ne-San,
Inc. objected on the basis of work product protection.1
Background
On July 3 , 1999, defendant Morrison was operating a
commercial dump truck hauling a trailer carrying a backhoe which
was in a collision with a vehicle operated by Louise Griffin.
After that collision, the truck crossed the solid-yellow line and
1
The objection is not timely as it was due on November 10th
but not filed until November 2 4 , 2003. No leave for a late
filing was requested of the court. The court has considered it
nevertheless.
collided with the plaintiff decedent’s stopped vehicle, crushing
decedent and causing his death. Neil Emerson, President of Ne-
San, Inc. allegedly did the pre-inspection and entrusted the
truck to Morrison, allegedly without determining that Morrison
was not licensed to operate a Class A commercial vehicle. Acadia
Insurance Co., insured Emerson’s Mobil Home Park and
Campgrounds.2 It retained Attorney Ciotti to represent Morrison
and Emerson. By letter dated July 7 , 1999, Ciotti suggested it
would “be helpful to take the statements” of Sandra Emerson and
Gary Morrison. In fact, on July 7 , 1999, the adjustor took
statements from Gary Morrison and Neil Emerson, not Sandra
Emerson. The letter filed in camera states that it was sent via
telecopier. It is simply not clear whether the letter was
received by the Acadia adjustor before or after the statements
were taken.3
Discussion
Defendants quite rightly have abandoned any claim that the
statements taken by the adjustor are subject to attorney-client
2
It is not clear but apparently the corporate owner and
insured was Ne-San, Inc.
3
The filings contain no suggestion of any conversation
directing the taking of statements.
2
privilege. Clearly, counsel gave no advice nor was any sought by
any of the defendants from Attorney Ciotti on July 7 , 1999 in
connection with the statements.
It is clear from the in camera letter of July 7th and from
the fact that the questions asked were the adjustor’s without
input from counsel that the work product privilege asserted is
ordinary work product, not opinion work product which “ . . .
encompass(es) materials that contain the mental impressions,
conclusions, opinions or legal theories of an attorney . . . .”
In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007,
1014 (1st Cir. 1988). Ciotti did nothing more than suggest the
statements of Sandra Emerson and Morrison be taken. All parties
have briefed the issue as one of ordinary work product and that
is the appropriate description based upon the filings.
Fed. R. Civ. P. 26(b)(3) provides that:
. . . a party may obtain discovery of
documents and tangible things otherwise
discoverable under subdivision (b)(1) of this
rule and prepared in anticipation of
litigation . . . by or for another party or
by or for that other party’s representative
(including the other party’s . . . insurer
. . . ) only upon a showing that the party
seeking discovery has substantial need of the
materials in the preparation of the party’s
case and that the party is unable without
undue hardship to obtain the substantial
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equivalent of the materials by other means.
The party asserting work product protection bears the burden of
establishing that what is sought are “(1) documents or tangible
things (2) which were prepared in anticipation of litigation or
trial (3) by or for a party or by or for that party’s
representative.” Pacamor Bearings, Inc. v . Minebea Co., Ltd.,
918 F. Supp. 4 9 1 , 512 (D.N.H. 1996).
(1) Documents and Other Tangible Things
The items defendants claim are protected under the work
product doctrine are two tape recordings. Fed. C . Civ. P.
26(b)(3) does not define either “documents” or “other tangible
things.” However, Fed. R. Civ. P. 3 4 , the rule under which the
plaintiff sought the recordings, does provide that “documents
(include writings . . . phonorecords, and other data compilations
. . .).” “A number of courts have ruled that tape recorded
conversations may constitute work product material.” 6 James Wm.
Moore, et a l . , Moore’s Federal Practice § 26.70[2][d]. The tape
recordings are encompassed by the word “document” in Rule
26(b)(3).
(2) Prepared in Anticipation of Litigation or Trial
The letter filed in camera makes it clear that the
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statements were taken at a point in time when initial defense
counsel and the insurer anticipated litigation. The lawyer was
hired because of anticipated litigation. In a factual setting
where a death occurred to a motor vehicle operator on his own
side of the road by a commercial truck operated by an under
licensed operator crossing over a yellow line to strike
decedent’s vehicle, it would have been foolhardy for an insurer
not to anticipate litigation. Defendants have satisfied this
prong of the work product requirements.
(3) Prepared by a Party or its Representative
The tape recorded statements were taken by an adjustor for
the insurer providing coverage to all three defendants at the
suggestion of counsel hired by that insurer to represent them.
The language of Rule 26(b)(3) specifically includes “insurers”
within the examples of a “partys’ representative”. Again,
defendants have met their burden.
The two tape recorded statements are work product of the
ordinary, as opposed to opinion, variety. The questions shift to
whether the work product protection has been waived and/or
whether plaintiff (a) has shown a substantial need of the
materials and (b) is unable without undue hardship to obtain the
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substantial equivalent.
(4) Waiver
Initially, Morrison and Emerson were represented by the same
attorney hired by the same insurer who took both their
statements. At some point the conflict of interest became clear
to the attorney and he withdrew. The insurer’s conflict should
also have been clear to it. 4 The insurer subsequently retained
separate counsel for Emerson and Morrison and since each of these
parties asserted work product protection as to both statements
they each presumably were provided a copy. “(T)he prevailing
rule (is) that disclosure to an adversary, real or potential,
forfeits work product protection.” United States v .
Massachusetts Institute of Technology, 129 F.3d 6 8 1 , 687 (1st
Cir. 1997). The parties have not briefed this point and, without
more evidence that each party in fact has both statements, the
court will not decide i t . Plaintiff is free to inquire of
defense counsel as to which statement(s) each has and to file an
expedited motion on the basis of waiver.
4
On the motion papers alone the conflict is clear from
Morrison’s statement that the status of his license was not
discussed during the entrustment while Emerson says he was
assured by Morrison of proper licensing.
6
(5) Substantial Need
Professor Moore states that “substantial need for material
otherwise protected by the work product doctrine is demonstrated
by establishing that the facts contained in the requested
documents are essential elements of the requesting party’s prima
facie case . . . (and that an example of such materials). . . are
contemporaneous statements taken from, or made by, parties or
witnesses.” Moore, supra, § 26.70[5][a]. In fact “(t)here is
now a substantial body of authority that goes beyond this and
suggests that statements taken from witnesses at about the time
of the occurrence described in them are unique, in that they
provide an immediate impression of the facts.” Wright, Miller
and Marcus, Federal Practice and Procedure, § 2025, p.385. The
“mere lapse of time is in itself enough to justify production
. . . .” Id. Both treatises and the cases they rely upon are
consistent with the Advisory Committee’s notes to the 1970
Amendment to Rule 26(b)(3).
Consistent with these authorities plaintiff asserts that
memories of the witnesses were better at the time of the
statements, their depositions were three years later and there
are inconsistencies between deposition testimony and reports
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contemporaneous with the accident. The statements may not be res
gestae but they are uniquely contemporaneous in comparison to
depositions years after the event. Substantial need is found.
(6) Substantial Equivalent
A deposition years after the accident is not the substantial
equivalent of a contemporaneous statement since, among other
things, memories fade and the pre-trip inspection report file has
not been produced as requested and may no longer be available.
See Savoy v . Richard A . Carrier Trucking, Inc., 176 F.R.D. 1 0 , 14
(D. Mass. 1997). The substantial equivalent to the
contemporaneous factual statement as to both is not a deposition
three years later.
The motion (document n o . 21) is granted. The original tapes
and any transcriptions are to be made available within five days
so that plaintiff may use the material in his summary judgment
response.
SO ORDERED.
James R. Muirhead
United States Magistrate Judge
Date: December 4 , 2003
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cc: Wilfred J. Desmarais, Jr., Esq.
Robert G. Eaton, Esq.
John P. Fagan, Esq.
Brian A . Gillis, Esq.
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