In re: The Matter of TK Boat Rentals, L.L.C.
2:17-cv-01545
| E.D. La. | Nov 14, 2017Background
- Collision between M/V MISS IDA (owned/operator Shane LeBlanc) and M/V SUPER STRIKE (owned/operators Chase St. Clair and Andre Boudreau) gave rise to personal-injury claims by Super Strike passengers and a limitation action by TK Boat Rentals, LLC (TK).
- TK has an Accident Reporting and Investigation (ARI) policy requiring a Supervisor’s Incident Report (SIR) within 24 hours, including witness statements and a later Root Cause Analysis with corrective actions.
- TK produced the SIR (which included the captain’s statement) but withheld two witness statements (Joey Davis and Larry Alleman) taken by counsel for TK’s excess insurer, citing the work-product doctrine and a privilege log.
- Claimants moved to compel production of those two statements, arguing they were collected as part of TK’s routine ARI investigation (ordinary-business purpose) and thus not protected.
- Excess-insurer counsel (Jason Kenney) took the statements after litigation began; he submitted an affidavit saying the statements were taken to defend the excess claim and that he did not know TK’s policies or root-cause analysis.
- The Court found the ARI policy made such witness statements a routine business requirement, concluded the statements were taken for ordinary-business safety/investigation purposes rather than primarily in anticipation of litigation, and ordered TK to produce the statements within seven days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether witness statements taken by excess-carrier counsel are protected work product and need not be produced | Statements were taken as part of TK’s routine ARI investigation to identify root causes and corrective actions, so they are ordinary-business records not created primarily in anticipation of litigation | Statements were taken after litigation began by excess-carrier counsel for TK’s benefit and therefore are work product privileged from discovery | Court held statements are ordinary-business investigatory materials, not work product; ordered production of the two statements |
Key Cases Cited
- United States v. Nobles, 422 U.S. 225 (work-product doctrine is distinct from attorney-client privilege and protects materials prepared in anticipation of litigation)
- Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109 (investigative reports prepared in the ordinary course of business are not work product)
- Hodges, Grant & Kaufmann v. U.S. Gov't, I.R.S., 768 F.2d 719 (burden rests on party invoking work-product protection)
- Janicker v. George Washington Univ., 94 F.R.D. 648 (anticipation of litigation alone does not automatically render routine investigatory reports privileged)