United States District Court, W.D. Pennsylvania, Pittsburgh.
MEMORANDUM OPINION AND ORDER
Marilyn J. Horan United States District Judge
Mark George Hendrych (“Hendrych”), brings the
within Motion to Compel (ECF No. 89) requesting that the
Court Order Defendant, Sheltair Aviation LGA, LLC to produce
certain documents, answer interrogatories, and permit the
service of certain subpoenas to move forward beyond the fact
discovery deadline of June 3, 2019.
regards document production, Hendrych seeks to compel
Sheltair to produce all documents related to the damage
sustained by the subject aircraft, including a report by
Kevin Olsen and a repair estimate prepared by Ocean Aire.
Sheltair argues that it has produced the non-privileged
portions of the Olsen report. Hendrych contends that the
Olsen report is not protected by Work Product because it was
prepared in the ordinary course of business and should be
produced pursuant to Am. Home Assurance Co. v. United
States, Civil Action No. 09-cv-258 (DMC), 2009 U.S.
Dist. LEXIS 93597, at *7 (D.N.J. Oct. 7, 2009).
work-product doctrine is embodied in Federal Rule of Civil
Procedure 26(b)(3), which provides, in part:
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).
Civ. P. 26(b)(3)(A). The rule further provides:
If the court orders discovery of those materials, it must
protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of a party's
attorney or other representative concerning the litigation.
Civ. P. 26(b)(3)(B).
work-product doctrine “is designed to protect material
prepared by an attorney acting for his client in anticipation
of litigation.” United States v. Rockwell
Intern., 897 F.2d 1255, 1265 (3d Cir.1990). In contrast,
the doctrine does not protect documents prepared “in
the ordinary course of business, or pursuant to public
requirements unrelated to litigation, or for other
non-litigation purposes.” Martin v. Bally's
Park Place Hotel & Casino, 983 F.2d 1252, 1260 (3d
document is considered to be prepared “in anticipation
of litigation [when] in light of the nature of the document
and the factual situation in the particular case, the
document can be fairly said to have been prepared or obtained
because of the prospect of litigation.” In re Grand
Jury Proceedings, 604 F.2d 798, 803 (3d Cir.1979).
“The work-product immunity is not lost, however, if the
document was not prepared in anticipation of the present
litigation so long as it was prepared in anticipation of some
litigation by a party to the present litigation.”
Lumber v. PPG Indus., Inc., 168 F.R.D. 641, 645 (D.
Minn. 1996). Moreover, even if documents were prepared for a
different case, work product protection may apply as long as
the cases “are closely related in parties or subject
matter.” Louisiana Mun. Police Employees Ret. Sys.
V. Sealed Air Corp., 253 F.R.D. 300, 309 (D.N.J. 2008).
reliance on Am. Home Assurance Co. is
distinguishable from the above matter. In Am. Home
Assurance Co., the court held that there was no evidence
that the “Olsen report was prepared primarily - or even
tangentially - for the purpose of litigation. Rather, it is a
general investigation report prepared by an insurer's
representative in the normal course of business.” 2009
U.S. Dist. LEXIS 93597, at *7. There, the suit was not
commenced until well after the accident, and the court viewed
it as a routine investigation that occurred just after the
accident. However, in this case, the timeline of events
regarding the accident and filing of this lawsuit suggests
that Mr. Olsen was preparing his report anticipating that
Hendrych would be filing suit against Sheltair. The accident
at issue occurred on April 28, 2018, Hendrych provided a
notice of claim to Sheltair's insurer on April 30, 2019,
and Hendrych commenced the action on May 2, 2018 in the
Allegheny Court of Common Pleas. Therefore, Mr. Olsen, as a
representative of Sheltair's insurer, had reason to
believe that any report he prepared was in anticipation of
litigation. Accordingly, Hendrych's Motion to Compel with
regard to the unredacted version of Mr. Olsen's report is
regard the Ocean Aire report produced by Leonard Boyd,
Sheltair contends that this request is premature expert
discovery. Specifically, Sheltair states that Leonard Boyd is
a consulting expert to it and its counsel. The Federal Rules
of Civil Procedure provide in relevant part:
(D) Expert Employed Only for Trial Preparation. Ordinarily, a
party may not, by interrogatories or deposition, discover
facts known or opinions held by an expert who has been
retained or specially employed by another party in
anticipation of litigation or to prepare for trial and who is
not expected to be called as a witness at trial.
Fed R. Civ. P. 26(b)(4)(D). Pursuant to this rule, Sheltair
is not obligated to produce Mr. Boyd's report at this
stage, and it will only be obligated to produce Mr.
Boyd's report should he be so designated by counsel in
expert discovery. Accordingly, ...