Work Product Protection Does Not Extend To Claims Investigator’s Report In Admiralty Case
Company A chartered a barge to Company B as a platform for A/C generation and refrigeration of fish products. In the summer of 2011, the President of Company A wrote to Company B requesting that it examine the barge for potential electrolysis given fears that the barge had developed a starboard list. Company B responded that it did not have responsibility or the time to inspect “long-term maintenance issues.” After the last charter ended in late 2012, the barge began to take on water while carrying a cargo of scrap metal from Southeast Alaska to Seattle. Company A contacted its maritime insurance broker, Insurer, to arrange an emergency survey. Insurer hired a maritime surveyor to assess the damage and he issued a report finding severe hull damage caused by stray-current corrosion (i.e., electrolysis). On the same day, Insurer hired legal counsel and soon after, Company A hired legal counsel to work with the Insurer‘s counsel to consider possible litigation against Company B. This collaboration ended about a year later, however, when Insurer expressed its refusal to Company A to cover the damage.
In 2014, Company A sued Company B and its underwriters alleging that the damage resulted from one of its charters. Company B served the maritime surveyor with two subpoenas, requesting the files underlying his survey report and requesting a deposition. Company A moved to quash and argued that the surveyor is Company A‘s expert witness because he was hired to prepare a report in anticipation of litigation, and that his files are protected work product because they were prepared in anticipation of litigation. Last week, the U.S. District Court for the Western District of Washington denied Company A‘s motion to quash. The court explained, “Corporate actors will often create documents for routine or investigative purposes even as they are aware that there may eventually be a possibility of litigation. In analyzing such dual-purpose documents, courts must determine ‘whether the document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of litigation.”
Company A argued that it had litigation in mind when the maritime surveyor was retained and pointed to the earlier request to Company B to inspect the barge for electrolysis. The court emphasized that the suggestion of possible fault is distinct from “an identifiable resolve to litigate.” The court concluded that the report would have been prepared regardless of whether Company A was concerned with fault or contemplating litigation. The court also found critical the fact that Insurer, and not Company A, hired the surveyor: “If every drydock survey or claims investigation were deemed completed in anticipation of litigation, then very little in admiralty would escape work product privilege.”
The court also concluded that Company A lacked standing to quash the surveyor’s deposition testimony because the surveyor was a nonparty to the litigation.
