Ewing v. Colonel Biggs Water Ski Show Team (In re U.S. Water Ski, Inc.)

• Decision Date: 21 June 2013
• Docket Number: 1120744.
• Citation: 135 So.3d 247
• Parties: Ex parte USA WATER SKI, INC. (In re Joy King Ewing f/k/a Joy King, as personal representative of the estate of Stewart Arthur Bieber, and Rachel K. Bieber v. Colonel Biggs Water Ski Show Team et al.).
• Court: Alabama Supreme Court

135 So.3d 247

Ex parte USA WATER SKI, INC.(In re Joy King Ewing f/k/a Joy King, as personal representative of the estate of Stewart Arthur Bieber, and Rachel K. Bieber

v.Colonel Biggs Water Ski Show Team et al.).

1120744.

Supreme Court of Alabama.

June 21, 2013.

William A. Scott, Jr., and M. Jansen Voss of Scott, Sullivan, Streetman & Fox, P.C., Birmingham, for petitioner.

Clark R. Hammond, Daniel J. Martin, Don B. Long III, and Zachary D. Trotter of Johnston Barton Proctor & Rose LLP, Birmingham, for respondents.

STUART, Justice.

USA Water Ski, Inc.,¹ petitions this Court for a writ of mandamus directing the trial court to vacate its discovery order compelling the production of a report that it says is privileged under the work-product doctrine.We grant the petition and issue the writ.

Facts

Colonel Biggs Water Ski Show Team (“Colonel Biggs”) is a member of USA Water Ski, the national governing body for organized competitive water skiing in the United States.Stewart Arthur Bieber was a skier for Colonel Biggs.On April 17, 2010, while skiing backwards and barefoot at a Colonel Biggs practice at Gateway Park Lake in Montgomery, Bieber collided with a stationary dock and suffered injuries that caused his death.

On February 29, 2012, Joy King Ewing f/k/a Joy King, as personal representative of Bieber's estate, and Rachel K. Bieber(hereinafter referred to collectively as “Ewing”), filed a wrongful-death action against Colonel Biggs, USA Water Ski, and the following individual members of Colonel Biggs: Michael Robinson, the driver of the boat Bieber was skiing behind at the time of the accident, and Joel Langer, the safety observer in the boat.The complaint alleged negligence and wantonness in operating the boat, failure to provide adequate protection to Bieber, and failure to notify the Marine Police of the ski practice, as required by law.

During discovery, USA Water Ski produced to Ewing a 24–page privilege log, the last item on which is described as

“correspondence from Mark Neuberger to J.R. Wilson regarding Stewart Bieber's incident.Jerry Leiting was carbon-copied on the communication.Neuberger, Wilson, and Leiting are all members of USA Water Ski.Mr. Wilson asked Mr. Neuberger to prepare the correspondence due, in part, to his (Mr. Wilson's) belief that there was a significant likelihood a lawsuit would be filed following Stewart's death.Thus, we have withheld this correspondence.Please see affidavit from Mr. Wilson (attached).”

In the affidavit Wilson averred:

“1.My name is John Robert(J.R.) Wilson.I am over the age of nineteen years, and I have personal knowledge of the facts asserted herein.

“2.I am a U.S.A. Water Ski Life Member and was in April 2010.

“3.In April 2010, I was Chairman of U.S.A. Water Ski, Inc.'s National Ski Show Association(NSSA)Drivers' Committee.

“4.By Monday, April 19, 2010, I had been informed of the April 17, 2010, incident involving Stewart Bieber.My understanding as of April 19th was Stewart Bieber struck a dock while water skiing backwards.My understanding was he was practicing his show run at the time of the incident.

“5.I asked Mark Neuberger to prepare a report concerning Stewart Bieber's incident.Mr. Neuberger's report, dated April 19, 2010, was forwarded to me.Jerry Leiting was copied on the report.

“6.In April 2010, Mr. Neuberger was Chief Driver Examiner for U.S.A. Water Ski's National Show Ski Association's Southern Region.In April 2010, Mr. Leiting was President of U.S.A. Water Ski's National Show Ski Association.

“7.In light of the serious nature of the incident as reported to me, I expected Mr. Bieber's family to file a lawsuit even though I did not believe U.S.A. Water Ski, the National Show Ski Association or Colonel Bigg's [sic] Water Ski Show Team had done anything improper.Furthermore, my former wife is an attorney.Based on my familiarity with the legal system (through conversations with her over the years), I believed it was likely that Mr. Bieber's family would file a lawsuit.

“8.I asked Mr. Neuberger to prepare the report in an effort to assist in the defense of an expected lawsuit.Neither I nor anyone at U.S.A. Water Ski routinely perform investigations, prepare incident reports nor interview witnesses in the normal course of business.

“9.I requested the report with the expectation that it would be confidential and shared only with attorneys in the court of defending an expected lawsuit.In fact, the report itself indicates that it should be kept confidential between Mr. Neuberger, Mr. Wilson and Mr. Leiting, all of which are U.S.A. Water Ski members.”

Ewing moved to compel production of Neuberger's post-incident report, referred to in the privilege log as “correspondence.”In her motion, Ewing argued that USA Water Ski failed to carry its burden of establishing that the report met the elements of the work-product privilege.USA Water Ski responded, maintaining that Wilson's affidavit provided sufficient evidence that Neuberger's post-incident report was created in anticipation of litigation and, consequently, that it was privileged under the work-product doctrine.After conducting a hearing and reviewing the briefs filed by the parties, the trial court granted Ewing's motion and ordered production of the report.USA Water Ski petitions this Court for a writ of mandamus directing the trial court to vacate its order.

Standard of Review

“ ‘Mandamus is an extraordinary remedy and will be granted only when there is “(1) a clear legal right in the petitioner to the order sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court.”Ex parte Alfab, Inc.,586 So.2d 889, 891(Ala.1991).In Ex parte Ocwen Federal Bank, FSB,872 So.2d 810(Ala.2003), this Court announced that it would no longer review discovery orderspursuant to extraordinary writs.However, we did identify four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus.Such circumstances arise (a) when a privilege is disregarded, seeEx parte Miltope Corp.,823 So.2d 640, 644–45(Ala.2001);(b) when a discovery order compels the production of patently irrelevant or duplicative documents the production of which clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit received by the requesting party, see, e.g., Ex parte Compass Bank,686 So.2d 1135, 1138(Ala.1996);(c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party's entire action or defense so that, in either event, the outcome of the case has been all but determined and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that an appellate court cannot review the effect of the trial court's alleged error.The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case—that is, one in which an appeal is not an adequate remedy.SeeEx parte Consolidated Publ'g Co.,601 So.2d 423, 426(Ala.1992).’

“Ex parte Dillard Dep't Stores, Inc.,879 So.2d 1134, 1136–37(Ala.2003).”

Ex parte Zoghby,958 So.2d 314, 319–20(Ala.2006).

“Discovery matters are within the trial court's sound discretion, and this Court will not reverse a trial court's ruling on a discovery issue unless the trial court has clearly exceeded its discretion.”Ex parte Ocwen Fed. Bank, FSB,872 So.2d 810, 813(Ala.2003).

Discussion

USA Water Ski contends that the trial court clearly exceeded its discretion in ordering production of Neuberger's post-incident report because, it says, the report is privileged under the work-product doctrine.USA Water Ski maintains, and Ewing does not deny, that the element at issue in this case is whether the post-incident report was “prepared in anticipation of litigation.”

“ ‘ “Under Rule 26(b)(3), [Ala. R. Civ. P.,]the party objecting to discovery bears the burden of establishing the elements of the work-product exception.” ’Ex parte Cummings,776 So.2d 771, 774(Ala.2000)(quotingEx parte Garrick,642 So.2d 951, 952–53(Ala.1994)).Those elements are ‘that (1) the materials sought to be protected are documents or tangible things; (2)they were prepared in anticipation of litigation or for trial; and (3)they were prepared by or for a party or a representative of that party.’Johnson v. Gmeinder,191 F.R.D. 638, 643(D.Kan.2000);see also8 C. Wright, A. Miller & R. Marcus, Federal Practice and Procedure§ 2024, at 336(1994).

“Once ‘ “the parties are ‘ at issue as to whether the document[s] sought [were], in fact, prepared in anticipation of litigation,’ ” ' the objecting party must make ‘ “[a]n evidentiary showing.” ’Ex parte Cummings,776 So.2d at 774(quotingEx parte State Farm [ Mut.]Auto. Ins. Co., 761 So.2d 1000, 1002–03(Ala.2000), quoting in turnEx parte Garrick,642 So.2d at 953(emphasis added))....

“[When the determinative issue is whether the discovery to be produced was prepared in anticipation of litigation]‘[a]“blanket claim” as to the applicability of the work product doctrine does not satisfy the [objecting parties'] burden of proof.’Disidore v. Mail Contractors of America, Inc.,196 F.R.D. 410, 413(D.Kan.2000).‘ “That burden cannot be discharged by mere conclusory or ipse dixit assertions.” ’Id.(quotingMcCoo v. Denny's, Inc.,192 F.R.D. 675, 680(D.Kan.2000)).Where the record contains ‘no affidavits, memorandums, or reports to support the [objecting parties' contentions],’the court can only ‘speculate’ as to whether the materials ‘fall under the work-product exception.’Ex parte Fuller,600 So.2d 214, 216(Ala.1992).See alsoNutmeg Ins. Co. v. Atwell, Vogel & Sterling, A Div. of Equifax...