L.F. FINGERHUT, an infant, by Emily Fingerhut, her mother, and EMILY FINGERHUT, Individually, Plaintiffs,
CHAUTAUQUA INSTITUTE CORPORATION, INC., and THE CHAUTAUQUA BIRD, TREE AND GARDEN CLUB, INC., Defendants.
JOHN T. CURTIN, District Judge.
In this action, plaintiffs seek to recover damages to compensate for personal injuries suffered by plaintiff Lori Fingerhut when she was struck by a falling tree while on property owned by defendant Chautauqua Institution Corporation, Inc. ("defendant"). Plaintiffs have now moved pursuant to Rule 37(a) of the Federal Rules of Civil Procedure to compel the production of photographs of the fallen tree, taken by defendant's liability insurance carrier soon after the occurrence, as to which defendant has asserted protection from disclosure under the work product doctrine. Item 65. The motion also seeks to compel production of "other factual information obtained by defendant and its insurer" as the result of "other unspecified investigation in the aftermath of the accident, " along with "all written information concerning instances of property damage caused by trees falling on its premises prior to the date of the accident herein..." Item 65, p. 1. Plaintiffs also seek an extension of the dates in the current case management order to accommodate two additional non-party depositions. Id.
In December 2010, plaintiffs served on defendant a Rule 34 Notice of Discovery and Inspection, seeking in "Demand No. 8" production of "all photographs, video, DOCUMENTS, reports, inspection notes, witness statements, physical evidence created or obtained by [defendant] or by any insurer following the occurrence of the subject accident." Item 65, Exh. E, p. 5. In response, defendant stated its objection to Demand No. 8 "to the extent that it seeks disclosure of information protected by the attorney-client privilege, as attorney work-product and/or as material prepared in anticipation of litigation." Id., Exh. F, p. 13.
Upon receipt and review of the responses, plaintiffs' counsel sent defense counsel a letter dated June 27, 2011, requesting a more detailed description of the materials being withheld from disclosure under a claim of privilege, as required by Rule 26(b)(5). Id., Exh. A, p. 4. Defense counsel then submitted a supplemental response by letter dated August 12, 2011, identifying the materials sought in Demand No. 8 as "Photographs taken by Sloane-Melhuish Insurance in anticipation of litigation." Item 65, Exh. B, ¶ B(3)(a). Defendant maintains that these photographs were taken by Chautauqua Institution's liability insurer for the sole purpose of preparing for this current litigation, and are therefore protected from disclosure as attorney work product. Plaintiffs contend that these photographs should be produced as material and necessary evidence of the condition of the tree at the time of the occurrence which cannot be reproduced, since defendant disposed of the tree immediately after the insurer took the photographs, leaving only the rotten stump and four poor resolution photographs taken by Chautauqua Institution's Police Chief, Al Akin. See id., Exh. I.
The work product doctrine has been codified in the Federal Rules of Civil Procedure as follows:
Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
(I) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the 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.
Fed. R.Civ. P. 26(b)(3)(A). As the party asserting work product protection here, defendant "bears the burden of establishing its applicability to the case at hand." In re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d 379, 384 (2d Cir. 2003) (citing cases).
The protection offered by the work product doctrine "is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy with an eye toward litigation, ' free from unnecessary intrusion by his adversaries." United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) (quoting Hickman v. Taylor, 329 U.S. 495, 510-11 (1947)). "Analysis of one's case in anticipation of litigation' is a classic example of work product and receives heightened protection under Fed.R.Civ.P. 26(b)(3)." Id. at 1196-97 (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154 (1975)); see also Marciano v. Atlantic Medical Specialities, Inc., 2011 WL 294487, at *2 (W.D.N.Y. Jan. 27, 2011).
As explained by the Second Circuit in Adlman, in determining whether material withheld from disclosure was prepared "in anticipation of litigation, " the proper inquiry for the court is "whether the documents were prepared because of' existing or expected litigation." Adlman, 134 F.3d at 1198. Under this approach, documents may be found to have been prepared in anticipation of litigation if, "in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'" Id. at 1202 (quoting CHARLES ALAN WRIGHT, ARTHUR R. MILLER, AND RICHARD L. MARCUS, 8 FEDERAL PRACTICE AND PROCEDURE § 2024, at 343)).
"The determination as to whether materials are protected under this definition is necessarily fact-specific. This is even more true where, as here, the documents in question were created by or for an insurance company in the course of its investigation, since the very business of the producing party is to evaluate claims that may ultimately ripen into litigation.'" Weber v. Paduano, 2003 WL 161340, at *4 (S.D.N.Y. Jan. 22, 2003) (quoting Arkwright Mutual Ins. Co. v. National Union Fire Ins. Co., 1994 WL 698298, at *2 (S.D.N.Y. Dec. 13, 1994)). "Thus, given the ever present potential for (or anticipation of) litigation, without some limiting principle virtually the entirety of an insurance company's files would be exempt from discovery." American Ins. Co. v. Elgot Sales Corp., 1998 WL 647206, at *1 (S.D.N.Y. Sept. 21, 1998); see also Insurance Co. of North America v. M/V SAVANNAH, 1995 WL 608295, at*1 (S.D.N.Y. Oct. 17, 1995) ("Were the rule otherwise, ... documents prepared by or at the request of an insurance company during the course of the insurance company's ordinary business of claim handling would shield from discovery all documents falling within that category by a ritualistic incantation of anticipation of litigation.'").
In this circuit, the "limiting principle" has taken the form of a fact-specific inquiry to determine the point at which the insurance company's activity has shifted "from the ordinary course of business to anticipation of litigation." Selective Ins. Co. of America v. Swarey, 2011 WL 240750, ...