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Almaguer v. Chicago, Rock Island & Pacific Railroad Co.

United States District Court for the District of Nebraska · Civil Procedure

Civil ProcedureDiscoveryWork productRule 34Rule 26(b)(1)Rule 26(b)(3)witness statementclaim agent

Facts

The plaintiff was injured while working for the defendant railroad on April 29, 1969. The only witness other than the plaintiff was the plaintiff's immediate superior, Henry Schipper, whose written statement was taken by the defendant's nonlawyer claim agent on May 31, 1969 as part of a routine investigation and in anticipation of a possible claim. The plaintiff retained counsel two months after the statement was taken, and plaintiff's counsel later deposed Schipper on August 11, 1971. The record indicated that Schipper was available to be called as a witness by either party.

Issue

Whether a written statement of a nonparty witness taken by the defendant's claim agent shortly after the accident should be produced under Rules 34 and 26(b)(3). More specifically, the question was whether the statement was prepared in anticipation of litigation and, if so, whether the plaintiff showed substantial need and inability without undue hardship to obtain its substantial equivalent by other means.

Rule

A nonparty witness statement is discoverable if it is relevant and not privileged, unless it was taken in anticipation of litigation or for trial. If it was so prepared, the requesting party must show substantial need for the material in preparing the case and inability without undue hardship to obtain the substantial equivalent by other means. Statements taken by a railroad claim agent immediately after an on-the-job injury may be treated as taken in anticipation of litigation.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Rosa Mendez was injured while working for Great Plains Freight Lines near Omaha, Nebraska. Three days later, a nonlawyer claims representative for the company took a written statement from Leo Barron, a coworker who saw the incident, as part of the company’s routine accident investigation because management expected a claim might follow.

In Rosa’s federal negligence suit, she moves under Rule 34 to compel production of Leo’s statement solely because it is relevant and Leo is not a party. How should the court rule first on the statement’s status?

Explanation. Under the majority opinion, a nonparty witness statement may be discovered if relevant and not privileged unless it was prepared in anticipation of litigation or for trial. The court specifically reasoned that statements taken by a claim agent shortly after an on-the-job injury may properly be treated as trial-preparation material, even when taken by a nonlawyer and as part of a routine investigation, because anticipation of a claim and litigation is a reasonable assumption. Once that threshold is met, the requesting party must make the special showing required by Rule 26(b)(3).