MICHAEL B. MEANY Plaintiff,
AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA as subrogee of the Fishel Company Intervenor Plaintiff.
ALTEC INDUSTRIES, INC. Defendant.
JAMES D. MOYER, Magistrate Judge.
The plaintiff, Michael Meany, has filed a motion to compel (docket no. 50). On Monday, May 13, 2013, counsel for Mr. Meany and Altec Industries, Inc., appeared before the court for oral argument of the motion and they subsequently filed post-hearing memoranda at the court's request. Altec also filed, at the court's request and for in camera review, the document that is the principal focus of Mr. Meany's motion to compel: the text of a post-accident report prepared by Dr. Joshua Chard, who is Altec's Director of Product and Corporate Safety and also, significantly, a designated testifying expert in this matter. Altec asserts that Dr. Chard's post-accident report is protected from discovery because of the attorney-client privilege and the work product doctrine. Mr. Meany disagrees.
The court has reviewed the motions, the hearing transcript, and the post-hearing submissions. For the reasons stated below, the court will grant Mr. Meany's motion to compel and require disclosure of the report. The court will defer its ruling on the spoliation motion for at least thirty days following Mr. Meany's receipt of the report and will, during that time, accept supplemental memorandum from either party regarding the spoliation issue.
This is a product liability action. Mr. Meany was severely burned as a result of electrocution while he was operating a digger derrick manufactured by Altec. Mr. Meany asserts that Altec is at fault, under theories of negligence, negligence per se , strict product liability, and failure to warn, whereas Altec maintains that operator error was at fault.
Approximately three weeks after the accident, Altec's Director of Product and Corporate Safety inspected the derrick and prepared a report, which he then attached to a memorandum that he sent to Mr. Robert D. Hunter, Altec's legal counsel on September 7, 2010 (the "Initial Report"). The body of the memorandum states, in its entirety:
At your request as Altec® Industries, Inc. legal counsel, and in anticipation of litigation, I performed a limited investigation of the above incident. My investigation report is enclosed.
Please call if you have any questions.
The text of the investigation report consists of only two, single-spaced pages. Appended to those pages were photographs, which Altec represents have already been provided to Mr. Meany's counsel.
After this litigation was filed, Altec designated Dr. Chard as a testifying expert and appears to have fully complied with the requirements of Federal Rule of Civil Procedure 26(a), including preparing and serving a detailed expert report from Dr. Chard, with one known exception. Altec did not disclose the text of Dr. Chard's Initial Report because Altec claimed it was shielded from discovery pursuant to both the attorney-client privilege and the work product doctrine. Altec also asserted that Dr. Chard did not rely on the text of the Initial Report when he formulated the opinions contained in his subsequent expert report and, accordingly, the Initial Report was also irrelevant.
Because this is a diversity case, the court must consult state law to resolve claims of privilege and federal law to resolve contested assertions of attorney work product claims. See Fed.R.Evid. 501; In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir. 2006). The party requesting the exclusion of evidence based on privilege bears the burden of establishing the applicability of ...