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Hendrych v. Sheltair Aviation LGA, LLC

United States District Court, W.D. Pennsylvania, Pittsburgh.

July 12, 2019



          Marilyn J. Horan United States District Judge

         Plaintiff, 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.

         As 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).

         The 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).

         Fed. R. 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.

         Fed. R. Civ. P. 26(b)(3)(B).

         The 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 Cir.1993).

         A 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).

         Hendrych's 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 denied.

         As 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, ...

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