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Beasley v. Rowan Companies, Inc.

United States District Court, E.D. Louisiana

April 17, 2019


          JAY C. ZAINEY JUDGE.


          Janis van Meerveld United States Magistrate Judge.

         Before the Court is the Second Motion to Compel filed by the plaintiff. (Rec. Doc. 24). Oral argument was held on April 3, 2019. As to Interrogatory 13, the court ordered Mr. Beasley to serve a new interrogatory to clarify what information he still sought. With regard to the purportedly privileged investigation materials the court took the motion under submission and ordered defendant Rowan Companies, Inc. (“Rowan”) to produce the documents for in camera review. For the following reasons, the Motion to Compel is GRANTED.


         This is a Jones Act and General Maritime Law case. Plaintiff Dustin Beasley alleges that on January 13, 2015, he was employed as a seaman by defendant Rowan Companies, Inc. (“Rowan”) and working on the EXL III, a drilling vessel owned, operated and/or controlled by Rowan. Beasley alleges that defendant McMoRan Oil & Gas, LLC (hereinafter “McMoRan”) had contracted with Rowan to operate the EXL III rig and conduct mineral exploration activities. He alleges that on January 13, 2015, the drilling crew was using Frank's Power Tongs to break pipe. When the Power Tongs could not break apart a section of pipe, Beasley alleges that the lead driller decided to use the iron roughneck system aboard the EXL III without stopping to perform the required job safety analysis. Beasley alleges that he was instructed to put his hand and foot on the drill pipe to move it in place, and when the order was given to close the bottom jaws, the spinner hawk of the iron roughneck system above it activated, causing the dies to close suddenly, crushing Beasley's hand against the pipe. Beasley has filed this lawsuit alleging that Rowan's negligence, the unseaworthiness of the EXL III, and the negligence of McMoRan are responsible for his injuries.

         Trial in this matter is set to begin on June 10, 2019. The deadline to complete discovery is April 23, 2019. The issue before the court at this time is whether Rowan is properly withholding as privileged two internal investigation documents. One is described as “Draft of Internal Incident Investigation Report.” Beasley has actually obtained a copy of this document through a third-party subpoena. Rowan thus insists the issue is moot as to this document, but Beasley maintains that he is entitled to any attachments to the report. At oral argument, Rowan confirmed that all referenced attachments have already been produced to Beasley, except for the interview notes. The second document is described as “Internal Investigation (IRA)-IRA- 082-150001.” Rowan insists both documents were prepared in anticipation of litigation and that they are protected by the work-product doctrine. Beasley argues that the documents were prepared in the ordinary course of business for the primary purpose of safety and regulatory compliance purposes.

         Law and Analysis

         1. Work Product Doctrine

         The work-product doctrine protects from discovery documents and tangible things “prepared by an attorney ‘acting for his client in anticipation of litigation.'” United States v. Nobles, 422 U.S. 225, 238 (1975) (quoting Hickman v. Taylor, 329 U.S. 495, 508 (1947)). Codified at Federal Rule of Civil Procedure 26(b)(3), the work-product protection extends to materials prepared by the party itself and representatives other than attorneys. “At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.” United States v. Campos, 20 F.3d 1171 (5th Cir. 1994) (quoting Nobles, 422 U.S. at 238) (alteration omitted). Thus, although a party may be ordered to produce work-product if the seeking party “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, ” the court “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” Fed. R. Civ. Proc. 26(b)(3)(A)-(B). Such materials are known as “opinion work product.”

         The work product “privilege can apply where litigation is not imminent, ‘as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.'” In re Kaiser Aluminum & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000) (quoting United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982)). “[M]aterials assembled in the ordinary course of business, ” are excluded from work-product materials. El Paso, 682 F.2d at 542.

Factors that courts rely on to determine the primary motivation for the creation of a document include the retention of counsel and his involvement in the generation of the document and whether it was a routine practice to prepare that type of document or whether the document was instead prepared in response to a particular circumstance. If the document would have been created regardless of whether litigation was also expected to ensue, the document is deemed to be created in the ordinary course of business and not in anticipation of litigation.

Piatkowski v. Abdon Callais Offshore, L.L.C., No. CIV.A.99-3759, 2000 WL 1145825, at *2 (E.D. La. Aug. 11, 2000) (footnotes omitted). “[T]he burden of showing that documents were prepared in anticipation of litigation, and therefore, constitute work product, falls on the party seeking to protect the documents from discovery.” Id.

         For example, in Transocean Deepwater, Inc. v. Ingersoll-Rand Co., the plaintiff sought to discover a draft root cause analysis report prepared following an accident aboard a vessel resulting in injury to the plaintiff's foot with the amputation of three toes. No. CIV.A. 08-4448, 2010 WL 5374744, at *1 (E.D. La. Dec. 21, 2010). The company's outside counsel and an outside claims manager accompanied company representatives during the post-accident investigation, and the company contended that counsel and the claims manager only attend investigations when litigation is anticipated. Id. The court found that counsel had participated in and guided all activities of the company representatives, had expressed opinions as to the content of the report, and had reviewed the draft report and made hand written revisions to it. Id. The court held that the work product doctrine protected the report. Id. at *3. The court recognized that “the work-product doctrine does not protect all Root Cause Analysis Reports as many are created in the ordinary course of business, ” but found that because the report at issue was created following a severe injury that rendered litigation imminent and because counsel had participated in the investigation and the drafting of the report, the report was not discoverable. Id.

         In contrast, in Piatkowski, the defendant sought to protect from disclosure certain witness statements taken after the accident and after the lawsuit was filed. 2000 WL 1145825, at *2. The statements had been taken by a company retained by the defendant to investigate the plaintiff's accident. Id. at *3. There was no evidence showing whether the claims investigator was routinely hired to investigate on scene accidents. Id. The court deduced that the investigating company “provides services similar to that of an insurance company; it adjusts claims and resolves disputes short of litigation.” Id. The court explained that “courts have routinely recognized that the investigation and evaluation of claims is part of the regular, ordinary, and principal business of insurance companies.” Id. at *2. The court concluded that the defendant had failed to demonstrate that “the primary motivating purpose in securing the witness statements was in furtherance of a sufficiently identifiable resolve to litigate, rather than a more or less routine investigation of a possibly resolvable claim.” Id.; see Nolan v. Omega Protein, Inc., No. CV 17-2835, 2017 WL 4960272, at *4 (E.D. La. Nov. 1, 2017) (ordering production of statements of two employee witnesses to the incident where the adjuster was typically retained at the end ...

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