Evert v. Pettinichio

• Decision Date: 03 April 2018
• Docket Number: CIVIL ACTION No. 17–04478
• Citation: 307 F.Supp.3d 398
• Parties: Carl EVERT, et al., Plaintiffs, v. Francis PETTINICHIO, III, and Clean Harbors Environmental Services, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

307 F.Supp.3d 398

Carl EVERT, et al., Plaintiffs,

v.Francis PETTINICHIO, III, and Clean Harbors Environmental Services, Inc., Defendants.

CIVIL ACTION No. 17–04478

United States District Court, E.D. Pennsylvania.

Signed April 03, 2018

Joseph J. Baldassari, Furney & Baldassari, P.C., Audubon, PA, for Plaintiffs.

Stephen M. Houghton, Dickie, McCamey & Chilcote, PC, Pittsburgh, PA, for Defendants.

MEMORANDUM

McHUGH, United States District Judge

This is a straightforward negligence action in which Plaintiff Carl Evert alleges he suffered injury after his car was struck by a toolbox that flew off the side of a box truck being operated by Defendant Clean Harbors Environmental Services, Inc., on Route 73 in Pennsylvania. Clean Harbors produced its Incident Report concerning the accident, but redacted multiple entries on grounds of privilege. In response to those redactions, Plaintiffs have filed a Motion to Strike Objections and Compel Production of Documents. Plaintiffs' Motion will be granted, but the issues raised warrant discussion because Defendants' aggressive and unjustified assertion of privilege is troubling.

In objecting to production of the full Report, the defense invoked Rule 26's protection for trial preparation materials, and communications between an attorney and an expert witness. See Pls.' Ex. B, at 1–2, ECF No. 11 (Defendants' Response and Objection to Plaintiffs' Initial Request for Production). Rule 26(b)(3)(A) provides that "[o]rdinarily, 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 ...." In addition, on the face of the Objection itself, counsel specifically cited In re Cendant Corporation Securities Litigation , 343 F.3d 658 (3d Cir. 2003), and an order entered in a Western District Case, Hooper v. Safety–Kleen Sys., Inc. , 16–cv–00123 (W.D. Pa. Apr. 18, 2016), ECF No. 37. As discussed below, because no attorney was involved in any respect, neither Rule 26(b)(4)(C), nor Cendant , nor the docketed order in Hooper justifies Defendants' objection in any respect.¹ Furthermore, the redacted information does not qualify as trial preparation material.

With respect to the privilege for trial preparation material, Defendants weakly assert that "it was readily apparent Mr. Evert had an identifiable claim for property damage" and that "litigation was more than an abstract possibility or an unwanted fear." Defs.' Br. 3, ECF No. 13. By that definition, virtually every accident investigation would become privileged as trial preparation material. There is no support for such an expansive view. The commentary to Rule 26 specifically states that "[m]aterials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other non-litigation purposes are not under the qualified immunity provided by this subdivision." Martin v. Bally's Park Place Hotel & Casino , 983 F.2d 1252, 1260 (3d Cir. 1993). Moore's Federal Practice cites Soeder v. General Dynamics Corporation , 90 F.R.D. 253, 255 (D. Nev. 1980), as an exemplary summary of this principle. 6 James Wm. Moore et al., Moore's Federal Practice § 26.70[3][c][ii] (3d ed. 2017). In Soeder , the defendant manufacturer of an aircraft, like Clean Harbors here, also performed investigations as a matter of routine. As the court explained:

The fact that Defendant anticipates the contingency of litigation following a crash of one of its aircraft does not automatically qualify Defendant's ‘in-house’ report as work product. Certainly litigation is a contingency to be recognized by any aircraft accident. However, given the equally reasonable desire of Defendant to improve its aircraft products, to protect future pilots and passengers of its aircraft, to guard against adverse publicity in connection with such aircraft crashes, and to promote its own economic interests by improving its prospect for future contracts for the production of said aircraft, it can hardly be said that Defendant's ‘in-house’ report is not prepared in the ordinary course of business.

Id. (citations omitted); see also United States v. Ernstoff , 183 F.R.D. 148, 156 (D.N.J. 1998) ("Even if litigation was reasonably anticipated under the ‘reasonable anticipation’ test, routine or ordinary investigations or reports are not work product and can be obtained through normal discovery procedures without a special showing of need."); accord Harper v. Auto–Owners Ins. Co. , 138 F.R.D. 655, 661 (S.D. Ind. 1991) ; Pete Rinaldi's Fast Foods, Inc. v. Great Am. Ins. Cos. , 123 F.R.D. 198, 202 n.4 (M.D.N.C. 1988) ; Mission Nat. Ins. Co. v. Lilly , 112 F.R.D. 160, 163 (D. Minn. 1986). None of these are recent decisions, but that is because the issue is well-settled.

The format of the Incident Report, and the circumstances under which Defendants conducted the investigation, make clear that it was not undertaken in anticipation of litigation. The document in question consists of a preprinted form with a series of subject headings, and blank spaces to record information. The various categories covered by the form include basic identifying information, vehicle information, damage assessments, the circumstances surrounding the accident, cause analysis, and proposed corrective actions. It identifies those who participated as engaging in a "Management Team Investigation." In simple terms, it is an accident investigation report, albeit one organized in a systemic way.

Defendants have not identified any participant in the investigation as an attorney, nor is any attorney listed as having ordered the investigation and report, or even having received a copy. The Report makes no reference to any claim or litigation, current or anticipated. Consequently, the principal basis upon which Defendants asserted a privilege does not exist.

Moreover, the authority cited within Defendants' Objection to Plaintiffs' Initial Request for Production itself is in practical terms misleading, because it implies attorney participation when in fact there was none. Defendants' Objection cites Cendant , a case that involved discovery relating to a meeting between a defendant's former auditor and a consultant retained for purposes of trial, with counsel present at the meeting; it has no possible relevance here. As to Hooper , if one takes the time to extract the facts from the docketed filings, there was both a representation in the briefing that defendant's counsel ordered managers to produce an investigative report on the incident, Defs.' Sur–Reply 2–3, Hooper , 16–cv–00123 (W.D. Pa. Mar. 10, 2016), ECF No. 36, and an affidavit filed by the defendant's Area General Manager stating that the "draft report was prepared by the SK Management Team in anticipation of the filing of [plaintiff's] worker's compensation claim ...." Aff. of Thomas Rentz, Hooper , 16–cv–00123 (W.D. Pa. Mar. 16, 2016), ECF No. 29–1.

Defendants' reference in its Objection to Rule 26(b)(4)(C) is even harder...