James Bonneau v. F & S Marine, Inc.
The underlying suit involves a Jones Act suit brought by plaintiff James Bonneau against his employer and defendant, F & S Marine Inc.
Immediately following the accident, F & S contended that it was rumored that Bonneau had hired an attorney. The rumor proved true, when F & S received a letter from a firm that informed it that the firm no longer represented Bonneau.
Immediately following suspicion that Bonneau had hired counsel, F & S notified Optimum Claim Services that an investigation should occur. Optimum retained Robert Judge to investigate the accident.
Bonneau then sought Judge’s deposition and propounded a subpoena for documents on him. F & S objected to the production of (1) A complete copy of the entire file regarding plaintiff (2) all documents and information provided by Judge to F & S and (3) all documents gathered by Judge relating to Bonneau.
F & S did not object to the production of surveillance records, reports, photographs and videotapes of Bonneau or documents related to the payment of maintenance and cure or records from healthcare providers, most of which have been produced.
Will F & S Marine be required to produce the above documents?
F & S argued that many of the documents sought are protected by the work-product document. F & S contended that it did not matter whether Judge was an attorney because the doctrine protects those documents prepared by a party’s agent.
F & S further contended that the documents were prepared in anticipation of litigation, Judge was hired within a few days following the incident and after F & S believed Bonneau had retained counsel.
Bonneau argued he was entitled to the documents to determine the basis for F & S’s refusal to pay maintenance and cure. Bonneau noted he believed Judge is the person responsible for the devcision not to pay such benefits. Bonneau also argued that Judge’s work constituted a routine investigation of a claim and is not protected by the work-product doctrine.
Bonneau further maintained that the privilege log is inadequate and that at a minimum, F & S should be required to produce an adequate log. Bonneau asserted that the materials prepared in the ordinary course of business are excluded from protection under the doctrine and that an insurer’s evaluation of a routine claim is not necessarily taken in anticipation of litigation.
This Court found that a majority of the documents sought here were created in anticipation of litigation. F & S believed the rumor that Bonneau had retained counsel shortly after the accident which was confirmed when F & S received a letter from a law firm stating that the firm no longer represented Bonneau.
This Court stated that Bonneau must demonstrate the substantial need and undue hardship necessary for discovery of work product. Bonneau did not meet this burden according to this Court.
The work-product doctrine shields from discovery the material prepared by or for an attorney in preparation of litigation. It protects two categories of materials: ordinary work-product and opinion work product.
Work-product protection does not, however, extend to materials assembled in the ordinary course of business or to the underlying facts relevant to the litigation. The primary focus will be the reason or purpose for creating the document.
Steve Gordon
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