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Fint v. Brayman Construction Corp.

United States District Court, S.D. West Virginia, Beckley Division

June 21, 2018

DARRELL FINT, Plaintiff,
BRAYMAN CONSTRUCTION CORPORATION, a foreign corporation, Defendant.



         Pending is Plaintiff's Motion to Compel Discovery Responses from Defendant, Brayman Construction Corporation (“Brayman”). (ECF No. 42). In the Motion, Plaintiff seeks production of an incident report and two sets of photographs that were withheld from discovery by Brayman on the basis of work product protection. On May 23, 2018, the undersigned held a hearing on the motion to compel and ordered Brayman to produce the withheld materials to the undersigned for in camera review. In addition, the parties were given until June 9, 2018 to supply any additional argument or information in support of their respective positions.

         Having reviewed the documents and considered the submissions, the Court DENIES Plaintiff's Motion to Compel for the reasons set forth below.

         I. Relevant History

         On January 31, 2017, Plaintiff Darrell Fint (also sometimes referred to as “Fint”) fell headfirst approximately nine feet into an unprotected hole while working for Brayman at a construction site in Hinton, West Virginia. (ECF No. 1). Fint was extricated from the hole and promptly transferred to a local trauma center. As a result of the fall, Fint suffered a cervical spine fracture and dislocation, with a spinal cord injury, and these conditions required surgical repair, rehabilitation, and physical therapy. (ECF No. 1-17).

         Shortly after Fint's fall, Brayman's Corporate Safety Director, Jody Porterfield, was notified of the accident. Porterfield, who was located at Brayman's home office in Saxonburg, Pennsylvania, contacted Thomas Moore, Brayman's on-site Safety Director in Hinton, and instructed him to begin an investigation and to complete an incident report, which was Brayman's usual protocol after an accident. Moore followed those instructions and generated a nineteen-page document entitled “First Report of Incident.” The First Report of Incident (“First Report”) included a description of the accident; the names of the witnesses; the safety equipment used; the injuries received; witness statements dated February 1, 2017 through February 7, 2017; and five photographs taken of the accident site.

         According to defense counsel, two days after the accident, on February 2, 2017, Brayman's liability insurance carrier contacted counsel “concerning her likely retention for pre-suit investigation of [Fint's accident] in anticipation of litigation.” (ECF No. 51 at 6). Defense counsel was officially retained to represent Brayman on February 8, 2017. (Id.). That same day, Brayman's President, Frank Piedimonte, instructed the corporate safety director, Porterfield, to prepare a second investigative report of Fint's accident, which was entitled “Incident Summary Report.” (See Affidavit of Frank Piedimonte). According to Piedimonte, the Incident Summary Report (“Second Report”) was not an incident report prepared in the ordinary course of business, but was a document created solely at Piedimonte's request, because he believed that Fint would sue Brayman as a result of his fall. (Id.). Piedimonte attributes his belief that a lawsuit or claim was imminent to the severity and nature of Fint's injuries, as well as the unusual circumstances surrounding the fall. (Id.). The Second Report consisted of three pages.

         On February 28, 2017, defense counsel and a representative of Brayman's liability insurance carrier arrived at Brayman's Hinton work site and took photographs of the accident scene and construction site. The first set of photographs consisted of nine pictures taken by defense counsel, and the second set of photographs consisted of twelve pictures taken by the liability insurance carrier's representative.

         On December 18, 2017, in response to discovery requests regarding investigations into Fint's accident, Brayman produced to Plaintiff a complete copy of the First Report, which was Bates-stamped BRAY000188-BRAY000206. (ECF No. 42-2 at 7). Brayman did not produce the two sets of photographs taken on February 28, 2017 or the Second Report, but did attach a privilege log with its discovery responses, asserting that the two sets of photographs and Second Report were being withheld pursuant to the attorney-client privilege. In response to a separate discovery request seeking the personnel file of Thomas Moore, Brayman produced a copy of the Second Report, which was apparently present in Moore's personnel file, but redacted the Second Report in its entirety, except for the title. (ECF No. 42 at 2).

         On April 13, 2018, Plaintiff's counsel wrote to defense counsel, objecting to the assertion of the attorney-client privilege as a basis for withholding the Second Report and two sets of photographs and arguing that Brayman had failed to provide factual grounds for the privilege claim. (ECF No. 42-5 at 1). The parties were unable to resolve their differences; accordingly, Plaintiff filed the instant Motion to Compel on April 27, 2018. On May 10, 2018, Brayman filed an amended response to Plaintiff's discovery requests and provided an amended privilege log. (ECF No. 51-3 at 7-8). In the amended log, Brayman clarified that the photographs were taken by counsel and an insurance adjuster; the Incident Report was completed by Jody Porterfield at the direction of Frank Piedimonte in anticipation of litigation; and the documents were withheld on the basis of work product protection rather than attorney-client privilege. (Id. at 7).

         II. Relevant Law

         Although state law governs the scope of the attorney-client privilege in cases pending in federal court, “[i]n matters involving work product protection … federal courts apply federal law, even in diversity cases.” Mason C. Day Excavating, Inc. v. Lumbermens Mut. Cas. Co., 143 F.R.D. 601, 605 (M.D. N.C. 1992); see, also, Cont'l Cas. Co. v. Under Armour, Inc., 537 F.Supp.2d 761, 769-74 (D. Md. 2008) (collecting cases). Federal Rule of Civil Procedure 26(b)(3) codifies the doctrine of work product protection, stating as follows:

(A) Documents and Tangible Things. Ordinarily, 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 (including the other party's attorney, consultant, surety, indemnitor, insurer, or ...

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