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O'Malley v. Public Belt Railroad Commission for City of New Orleans

United States District Court, E.D. Louisiana

February 9, 2018


         SECTION: “H” (1)




         Before the Court is the Motion to Compel filed by plaintiff Bryan O'Malley. (Rec. Doc. 41). On January 24, 2018, the Court held oral argument and ruled on the majority of issues raised in the motion, but took under submission the issue of whether an unredacted copy of an Executive Summary created by the defendant would be required to be produced and required that an unredacted copy of the Executive Summary be produced to the Court for in camera review. For the following reasons, the Court finds the Executive Summary is not protected by the work product or attorney client privilege. Accordingly, as to the Executive Summary, the Motion to Compel is GRANTED. All issues raised by NOPB's Motion have now been resolved.


         This case arises out of an incident that occurred on March 19, 2017, at approximately 10:30 a.m. when O'Malley says he was struck by a locomotive. At the time of the incident, O'Malley was employed by the Public Belt Railroad Commission for the City of New Orleans (“NOPB”) as a switchman/freight conductor. O'Malley alleges that on the day of the incident, there were two work crews, one working on the interchange lead (Job 100R) and one working on the switching lead (Job 102). O'Malley was working on the Job 100R crew, and says he was struck by the east facing Job 102 locomotive while he was performing his assigned duties. He complains that he did not hear any bell, whistle, or other warning that Job 102 was moving. He says that the two crews should have been using the same radio channel so that he might have received notice that the Job 102 locomotive was moving. O'Malley alleges that he suffered severe and debilitating injuries to his lower back, ribs, and left side of the body as a result of the accident. He filed this lawsuit against NOPB on May 9, 2017, asserting claims under the Federal Employer's Liability Act, 45 U.S.C. 51 (“FELA”).

         Discovery Issue

         Following the deposition of NOPB's Safety Director Carla Gendusa, O'Malley sought production of an “Executive Summary” that had been prepared by NOPB following the incident. According to the testimony of Gendusa, NOPB management conducted a meeting following the incident at issue in this lawsuit, and thereafter the Executive Summary was generated. At her deposition, Gendusa agreed that an Executive Summary is prepared following an executive meeting or meeting of managers about an incident, regardless of whether it's an injury or property damage. (Rec. Doc. 29-6). She agreed the preparation of executive summaries was a general procedure at NOPB and testified that she had reviewed the Executive Summary prior to her deposition.[1] Id.

         In the declaration submitted by NOPB with its opposition memorandum, general counsel Erica Beck explained that she had created the executive summary form. (Rec. Doc. 34-3). She declared that the executive summary “was to be completed at [her] instruction and at [her] direction in the event of an incident to ensure that all facts were immediately documented in preparation for further proceedings, including potential litigation.” It is completed by the department handling the investigation of the incident. According to Beck, the executive summary is circulated to the safety and training manager for purposes of preparing Federal Railroad Administration (“FRA”) reports and to the chief operating officer and chief executive officer “to make those individuals aware of an incident.” It is also provided to Beck to put her “on notice of a potential lawsuit and so that [she] can assess legal liability.” Beck declared that the Executive Summary at issue here was prepared after the management meeting at which she was present and the O'Malley incident (including potential for litigation) was discussed. However, she did not assert that the Executive Summary was prepared at her specific direction as a result of the management meeting discussion. At oral argument, too, NOPB's counsel could only vouch for the chronology involved-there was an accident; later there was an executive or manager's meeting; subsequent to that the Executive Summary was completed. Counsel could not, however, verify that the completion of the Executive Summary was ordered at the manager's meeting.

         Law and Analysis

         1. Attorney-Client Privilege

         “[T]he attorney-client privilege protects communications made in confidence by a client to his lawyer for the purpose of obtaining legal advice.” Hodges, Grant & Kaufmann v. U.S. Gov't, Dep't of the Treasury, I.R.S., 768 F.2d 719, 720 (5th Cir. 1985). The purpose of the privilege:

is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.

Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). For a communication to be protected under the privilege, the proponent “must prove: (1) that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding.” United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997) (emphasis in original). Communications by the lawyer to the client are protected “if they would tend to disclose the client's confidential communications.” Hodges, ...

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