93 Va. Cir. 409
Norfolk Cir. Ct.2016Background
- Collision on April 15, 2015: Pruden (driving a Sentara vehicle) merged and was struck from behind by Jonathan Hicks on a motorcycle; Hicks died at the scene.
- Pruden went directly to Sentara Hospitals and met with a Sentara-affiliated claims adjuster, completed an Automobile Loss Notice, and was interviewed; adjuster emailed an outside lawyer ~8:36 a.m. that morning asking to discuss a case.
- Hicks (as estate administrator) moved to compel production of Pruden’s recorded statements to the claims adjuster and portions of Pruden’s Sentara personnel file (hiring, employment, disciplinary actions, statements, promotions/demotions, transfers).
- Defendants claimed the statements and notes were protected work product prepared in anticipation of litigation; also opposed personnel-file disclosure beyond unspecified limits.
- The court conducted an in camera review, applied both the ‘‘bright-line’’ (Thomas Organ) approach and the case-by-case foreseeability test (factors used in Piland/Ring analyses), and considered evidence about ordinary-course practices.
- Court concluded statements were routine post-accident business records (not work product) and granted the limited personnel-file production requested by Hicks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Pruden’s recorded statements to the claims adjuster protected work product? | Statements are discoverable routine business records, not prepared in anticipation of litigation. | Statements were prepared in anticipation of litigation and thus protected because adjuster contacted counsel soon after the accident. | Not protected; statements were routine post-accident materials under both bright-line and case-by-case tests. |
| Does the claims adjuster’s email to outside counsel transform statements into attorney-directed work product? | Email does not show attorney involvement in a way that converts statements to work product. | Email demonstrates early attorney involvement, supporting work-product protection. | Email alone insufficient to show statements were prepared for or at the direction of counsel; no work-product protection. |
| Under the case-by-case foreseeability test, did circumstances show litigation was reasonably foreseeable when statements were taken? | Circumstances (death, serious injury) do not, by themselves, make statements privileged; other factors weigh against foreseeability. | Severity of injury and adjuster’s unusual response support foreseeability. | Court applied factors (severity, notice, routine practices) and found litigation was not reasonably foreseeable such that protection applies. |
| Is limited production of Pruden’s Sentara personnel file appropriate? | The identified categories are relevant and reasonably calculated to lead to admissible evidence; request narrowed and reasonable. | Defendants opposed broad production. | Court granted production limited to hiring, employment, disciplinary actions, statements on file, and promotions/demotions/transfers. |
Key Cases Cited
- Thomas Organ Co. v. Jadranska Slobodna Providba, 54 F.R.D. 367 (N.D. Ill. 1972) (bright-line rule: statements made to non-attorney agents are presumptively ordinary-course business records unless prepared for an attorney)