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Thomas Organ Co. v. Jadranska Slobodna Plovidba

United States District Court · Civil Procedure

Civil ProcedureDiscoveryWork ProductRule 26Rule 34Fed. R. Civ. P. 26(b)(1)Fed. R. Civ. P. 26(b)(3)Fed. R. Civ. P. 26(b)(4)

Facts

Plaintiff alleged that defendant ocean carriers received cartons containing 2000 electronic organs in good condition in Italy and delivered them in Chicago in seriously damaged condition. Defendants sought all notes, memoranda, photographs, and correspondence from marine surveyor Frank B. Cartwright, who had been hired by plaintiff's insurer, Fireman's Fund, to survey the damaged goods. Plaintiff produced everything in Cartwright's file except a May 20, 1970 dictated transcription and an October 7, 1970 letter based partly on that dictation and prepared at the request of a Fireman's Fund employee in its subrogation division. Fireman's Fund did not pay plaintiff's claim until December 23, 1970, did not turn the matter over to counsel until December 30, 1970, and suit was not filed until September 16, 1971.

Issue

Whether two surveyor documents created by an insurer's non-attorney agent before any attorney became involved were prepared in anticipation of litigation within the meaning of Rule 26(b)(3) and (b)(4), such that defendants had to show substantial need and undue hardship before obtaining them. If not, whether relevance alone under Rule 26(b)(1) made them discoverable under Rule 34.

Rule

Under the 1970 discovery rules, documents relevant under Rule 26(b)(1) are discoverable unless they were prepared in anticipation of litigation or for trial within Rule 26(b)(3) or fall within Rule 26(b)(4). Any report or statement made by or to a party's agent, other than to an attorney acting as counselor, that was not requested by or prepared for an attorney and does not otherwise reflect the employment of an attorney's legal expertise is conclusively presumed to have been made in the ordinary course of business and not in anticipation of litigation. Mere anticipation of a possible claim or subrogation claim does not itself amount to anticipation of litigation.

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

Prairie Sound Audio sued Great Lakes Freight Lines in federal court in Milwaukee for damage to amplifiers shipped from Spain. Before any lawyer was consulted, Prairie Sound's insurer in Madison asked staff adjuster Nina Velasquez to inspect the goods and write an internal report evaluating likely causes of damage; the carrier now seeks that report, and Prairie Sound concedes it is relevant.

Must the carrier show substantial need and undue hardship before obtaining Nina's report?

Explanation. Under the majority's rule, relevant material is discoverable unless Rule 26(b)(3) or (b)(4) applies. A report made by or to a party's non-attorney agent, not requested by or prepared for an attorney and not reflecting legal expertise, is conclusively presumed to have been prepared in the ordinary course of business rather than in anticipation of litigation. The presence of opinions does not change that result.