Raso v. CMC Equipment Rental, Inc.
U.S. District Court, E.D. Pa., 1994
Author: Krista

Facts: Worker who was injured in crane accident (and his wife) brought personal injury action against crane's owner and operator.

After the accident, the insurer of CMC, the company that Defendant Gutierrez (the crane operator) worked for, hired an investigator. Goldstein, an employee of the investigating adjustment company, interviewed witnesses, took photographs, and prepared investigative reports.

Procedure:

The Plaintiffs then served a subpoena duces tecum on Goldstein for the things he had discovered during his investigation.

The defendants then motioned for a protective order regarding the deposition of Goldstein and/or a motion to quash the subpoena duces tecum.

Issues:

(1)Does the work product privilege bar deposition of investigator hired by insurer regarding his investigation of accident?

(2) Were documents that were prepared by the investigator in anticipation of litigation  protected by work product privilege?; and

(3) Did the worker establish substantial need for documents prepared by insurer's investigator during interviews with worker and crane operator, as required to overcome work product privilege?

Rules:

1.) Rule 26(b)(3) pertains to documents and tangible things, therefore, the work product doctrine cannot be applied to restrict the deposition.

2.) Rule 26(b)(3) of the Federal Rules of Civil Procedure -  the work product privilege protects from discovery documents and tangible things which were prepared in anticipation of litigation by an attorney or representative of the other party and mental impressions, conclusions, opinions or legal theories of an attorney or representative of the other party. Therefore, if the documents were prepared in anticipation of litigation, then the work product privilege applies.

3.) In Eoppolo, denying the plaintiff's motion to compel production of prior statements made by defendant's witnesses on grounds that such statements were protected by the work product privilege, the court stated that the plaintiff could satisfy the substantial need and undue hardship requirements of Rule 26(b)(3) if the witnesses were first deposed and were found to be "unable to recollect the events of the accident." Eoppolo, 108 F.R.D. at 295.

Holdings:

(1) No, work product privilege did not bar deposition of investigator hired by insurer regarding his investigation of accident;

(2) Documents prepared by investigator were prepared in anticipation of litigation and were protected by work product privilege; and

(3) Worker established substantial need for documents prepared by insurer's investigator during interviews with worker and crane operator, as required to overcome work product privilege.

Decision: Motion granted in part and denied in part.

Reasoning:

1.)                In the instant case, Defendants' motion for protective order regarding the deposition of Goldstein requests that the deposition be limited to subjects not covered by the work product doctrine. The work product doctrine does not apply to facts within the knowledge of the person who is to be deposed, albeit such facts were obtained from non-discoverable materials. Eoppolo, 108 F.R.D. at 294. Rule 26(b)(3) pertains to documents and tangible things, therefore, the work product doctrine cannot be applied to restrict the deposition of Goldstein to subjects outside his work product. Plaintiffs are entitled to depose Goldstein regarding his investigation into the accident, including his observations made at the accident location, individuals he spoke with while conducting his investigation and the facts he learned during the investigation and from whom such facts were discovered.

2.)                The documents requested from Goldstein involve the investigation of the accident which was conducted at the request of Defendant CMC. Although Plaintiffs had not filed a claim against Defendants when Goldstein conducted his investigation, Defendants contend that there was enough reason for them to foresee litigation in the future. We agree. Defendants were in control and operating the boom crane at the time of the accident which caused Plaintiff's alleged catastrophic and permanent injuries. In addition, there were other investigations allegedly conducted after the accident, those by the police and by other interested parties. Further, Goldstein's investigation has not been alleged to have been conducted in the regular course of CMC's business.

3.)               Gutierrez was unable to answer questions during his deposition because of his inability to recall. Therefore, under Eoppolo, Plaintiffs have established the requisite showing of substantial need and undue hardship with regards to the statement made by Gutierrez to Goldstein. … We find that Plaintiffs have demonstrated that they have a substantial need for the statements made by Raso at a time when the accident was still within his recollection and there is undue hardship because of Raso's memory loss.