United States District Court, W.D. Louisiana, Lafayette Division
JEFFREY P. LOUVIERE
W&T OFFSHORE, INC., ET AL.
PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE.
pending is a Motion to Compel Compliance with Subpoenas to
Produce Documents and for Attorney's Fees filed by
Helmerich & Payne International Drilling Co. (H&P).
[Rec. Doc. 51]. H&P seeks to compel the employer of the
plaintiff and/or its worker's compensation insurer, LQT
Industries, Inc. and Zurich American Insurance Company
respectively, (collectively Zurich) to produce surveillance
taken of the plaintiff in conjunction with the defense of a
worker's compensation claim. The motion is opposed by
Zurich [Rec. Doc. 63] and supported by H&P's
co-defendant W& T Offshore (W&T). [Rec. Doc.
Court held a telephone conference to discuss the motion and
subsequently ordered Zurich to identify the dates and times
of the surveillance as well as the identity of the
surveillance operative as part of a privilege log which had
not been prepared by Zurich. [Rec. Doc. 75]. Zurich complied.
[ Rec. Doc. 77]. Another telephone conference was held and
the Court ordered that Zurich would not be required to
produce its surveillance at the time, however, the defendants
could depose the plaintiff “regarding what he was doing
on the dates and times” of the surveillance, and
afterwards they could ask the Court to re-visit the issue of
whether the surveillance should be produced. [Rec. Doc. 88].
The plaintiff's deposition was taken and both H&P and
W&T have now filed briefs seeking production of the
surveillance [Rec. Docs. 97, 99] which Zurich continues to
oppose. [Rec. Doc. 98]. The plaintiff has filed no briefs one
way or the other.
resists the production on the basis that the surveillance is
work product that it obtained in anticipation of defending
the trial of the worker's compensation claim. However,
the case was voluntarily remanded to the Office of
Worker's Compensation in the U.S. Department of Labor and
no “trial” or “pretrial” proceedings
are ongoing in that litigation. Further, none are
contemplated until after the completion of this litigation.
Zurich's position is that it would not be required to
produce the surveillance in the worker's compensation
litigation until after the claimant was deposed, and since it
has not deposed the claimant, its work product should not be
required to be disclosed to any of the parties in the third
party tort suit.
the defendants in this litigation raised Fed.R.Civ.P. 26 in
support of their position that Zurich was not entitled to
claim a work product privilege because that protection
extends only to a “party”. At this juncture,
however, the defendants direct this Court to a decision in
which Rule 26(b)(3) was utilized to require the production of
surveillance tapes obtained by a worker's compensation
insurer because the defendants (with no opposition from the
plaintiff) showed they were in “substantial need”
of the tapes and were not able to obtain the
“substantial equivalent” by other
means. The court in that case found the
surveillance tapes, obtained by a non-party as indicated in
the appearances section of the opinion, was nonetheless
considered trial preparation materials “prepared in
anticipation of Workers' Compensation litigation”
which were discoverable under Rule 26(b)(3) based on the
showing of substantial need and inability to obtain the
substantial equivalent by other means. With all due
respect to the Oklahoma court, this Court agrees with the
result but disagrees with the analysis used to reach that
26(b)(3) applies, by its terms, to parties. Neither Zurich
nor LQT are parties to this litigation. Had they formally
intervened, which they have not, the rule might apply. They
are somewhat aligned with the plaintiff in this litigation
inasmuch as they would, at a minimum, receive an offset
against any future worker's compensation if the plaintiff
receives a favorable verdict in a sufficient amount.
Therefore, they are in an adversarial position with the
defendants. However, in the worker's compensation arena,
they are clearly adversaries with the plaintiff. The
alignment of the plaintiff and Zurich is only of a temporary
nature in this lawsuit and this rule does not address that
type of situation. Therefore, the surveillance tapes are not
“prepared in anticipation of litigation or for trial by
or for another party or its representative” as
required by the rule. The Court notes in passing that nearly
identical language is contained in 29 C.F.R.
§(c)(i)and(ii) made applicable to parties appearing in
hearings before the Office of Administrative Law Judges. This
Court has it doubts that the defendants would agree those
regulations apply to either of them in this litigation or in
other hand, Rule 45 does apply to a person served with a
subpoena. That rule does not have a Rule 26(b)(3) counterpart
that would apply in this context. Subparagraph (d)(3)(A)(iii)
requires a subpoena be quashed or modified if it
“requires disclosure of privileged or other protected
matter, if no exception or waiver applies...” The
ability to obtain disclosure by showing “substantial
need for . . . the material that cannot otherwise be met
without undue hardship” only applies to the
circumstances described in Rule 45(d)(3)(B) and is not
applicable here. Again, under the comparable regulations
dealing with persons issued a subpoena in matters pending
before the OALJ, 29 C.F.R. § 18.56(c)(3) mirrors this
language. Thus it might seem the analysis comes to an end.
However, that is not the case.
did not file a motion to quash or modify. They did send a
letter setting forth objections to H&P but did not
prepare a privilege log as required by Rule 45 (or the
regulations which are again identical). That privilege log
was prepared after being ordered by the Court which
identified the dates/time of surveillance. Consistent with
long standing precedent, this Court's standing orders and
conceded by Zurich, surveillance becomes discoverable once
the plaintiff is deposed on the topics contained in the
surveillance. Zurich did not participate in the initial
deposition of the plaintiff, however, Zurich was fully on
notice that the plaintiff was going to be deposed on what his
activities were on the dates/times of the surveillance.
Whether it chose to participate or not was a litigation
strategy decision made with full knowledge of what was at
plaintiff, based on the testimony submitted, essentially
denied any recollection of his activities on the specific
dates/times. The Court has not been apprised whether Zurich
participated, or not, in any direct or indirect way in the
deposition, but once the deposition was taken specific to the
surveillance, any claim of privilege no longer exists.
Moreover, even if Zurich did not participate, its interests
are still protected because the deposition taken by the
defendants may be used in the OALJ if it has impeachment
value. Indeed, even by the regulations, with the plaintiff
claiming no recollection of his activities on these
dates/times, this Court cannot fathom any scenario where the
tapes would be “solely for impeachment” as
required by the regulations to withhold information that
would support a claim or defense.
Zurich's supplemental briefing they contend that the
defendants did not ask what the plaintiff was capable of on
those dates/times. Absent complete and intentional
misrepresentations, the responses to those types of questions
would primarily have substantive, as opposed to “solely
impeachment” relevance. Therefore, the Court will grant
the motion to compel the production of the surveillance
tapes. Zurich will also be required to produce the reports of
the operative but may redact any information that is
attorney-client privilege or specific work product, i.e.
mental impressions of counsel, etc.
Zurich makes a very valid point as to the costs it incurred
in obtaining this evidence. Rule 45(d) requires the court to
enforce the duty to protect a person subject to a subpoena
from undue burden or expense. This Court is keenly aware that
many hours of surveillance may have been undertaken that are
not deemed worthy of putting on tape by the operative.
Therefore, Zurich will be entitled to a pro-rata
reimbursement of 1/3rd each from H&P and W&T for the
total cost of the surveillance tapes and reports.
H&P and W&T will share equally in the cost of
reproduction of the tapes and reports.
for the forgoing reasons:
ORDERED that within SEVEN days of this
order, Zurich will produce to H&P and W&T the
surveillance tapes and reports identified in its privilege
log (subject to redaction ONLY for matters that may be
attorney client or specific work product privileged).
FURTHER ORDERED that H&P and W&T will each reimburse
Zurich 1/3rd of the total cost for the
surveillance and reports and ½ each of the cost ...