United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
BRENT BRENNENSTUHL, UNITED STATES MAGISTRATE JUDGE
discovery dispute between Defendants Tennessee Valley
Authority (“TVA”) and Inland Marine Service, Inc.
(“IMS”) concerns recorded crewmember statements
taken by IMS's outside counsel following the accident
that occurred on September 23, 2014. TVA seeks an order
directing IMS to produce the recorded statements. This matter
is ripe for determination. For the reasons set forth below,
the undersigned concludes that the recorded statements are
subject to the attorney-client privilege and, therefore, not
OF THE MOTION
accident at issue occurred on September 23, 2014. (DN 7,
Amended Complaint, ¶8). Plaintiff Timothy McQuay was
working for IMS as a deckhand on the M/V Betty Feagin
(Id.). The M/V Betty Feagin was delivering a loaded
coal barge to the off loader at the TVA Paradise Fossil Plant
on the Green River (Id.). During that process, the
TVA operator lowered the haul wire and McQuay placed the eye
of the haul wire over a timberhead on the starboard stern of
the barge (Id.). McQuay then turned and moved toward
the port side of the barge to remove the port face wire that
connected the barge to the towboat (DN 7, Amended Complaint,
¶8; DN1-1, McQuay depo. at 72-73). Within seconds,
however, the haul wire suddenly became taught and the eye of
the haul wire broke apart in a whipping action, striking
McQuay's left lower leg (Id.). Emergency medical
services took McQuay to a hospital where he underwent surgery
to repair his severely injured left lower leg (Id.).
On the evening of September 24, 2014, Jay D. Patton, an
attorney with the law firm Schroeder Maundrell Barbiere &
Powers (“SMB&P”) boarded the M/V Betty Feagin
after informing the crewmembers that he represented IMS. Mr.
Patton recorded the crewmembers' statements regarding the
incident. TVA sought these recorded statements through
discovery, IMS objected.
request of counsel, the undersigned conducted a telephonic
conference on June 26, 2018, to discuss this discovery
dispute (DN 87). Counsel for Plaintiff, TVA, and IMS
participated (Id.). Prior to the telephonic
conference, counsel for TVA and IMS submitted emails
expressing their positions on whether the work product
doctrine applied to the recorded statements and, if so,
whether the recordings were nevertheless discoverable. See
Fed.R.Civ.P. 26(b)(3)(A). As a result of discussion during
the telephonic conference, the undersigned directed IMS to
submit the recorded statements directly to the undersigned
for an in camera review (Id.). IMS submitted
transcripts of the recorded statements by email
10, 2018, the undersigned conducted an in-person hearing at
the United States Courthouse in Bowling Green, Kentucky (DN
88). Participating in the conference were attorneys Lane E.
McCarty and Jill E. McCook for TVA and attorneys Todd M.
Powers and Jay D. Patton for IMS (Id.). During the
hearing counsel for IMS explained that they are also
asserting the attorney-client privilege applies the recorded
statements (Id.). At the close of the hearing, the
undersigned directed counsel for TVA and IMS to
simultaneously file briefs on July 24th and responses 21 days
later (Id.). A transcript of the hearing is filed in
the record (DN 89). Counsel for TVA and IMS have filed their
briefs and responses (DN 91, 93, 94, 95).
the July 10, 2018 in-person conference, Todd M. Powers, lead
trial counsel for IMS in this case, reported that he has
represented IMS for over 30 years and is the direct contact
between his law firm, SMB&P, and IMS (DN 89 Hearing
Transcript at PageID # 486-88, 493-95, 497, 501). Mr. Powers
advised that shortly after the September 23, 2014 accident,
IMS's President, David Hammond, Jr., called Mr. Powers
and described the location of the vessel and generally what
he understood might have happened (Id.). This
information included the apparent severity of the incident,
including the fact that McQuay had been taken for surgery by
helicopter with a serious leg injury (Id.). The call
included a discussion of whether it would be appropriate for
one of the attorneys in Mr. Powers' firm to travel to the
boat to investigate the incident and take statements from the
crewmembers (Id.). Following that discussion, Mr.
Hammond directed Mr. Powers to send an attorney to the vessel
for those purposes (Id.). Specifically, Mr. Hammond
requested that SMB&P, following the investigation,
provide IMS with direction as to (1) whether a limitation of
liability action pursuant to 46 U.S.C. § 30505 would be
appropriate, (2) whether IMS could recover medical expenses
paid on behalf of Plaintiff from the landing owner (TVA); and
(3) whether IMS would likely be sued in connection with the
incident, and the extent of IMS's liability exposure, if
Mr. Powers' unavailability, he contacted his law partner,
Mr. Patton, and instructed him to proceed to the vessel, on
the Green River in Kentucky, to begin the investigation and
take the statements (DN 89 PageID # 493-495). On the way, Mr.
Patton spoke by phone to IMS vice-president Craig Burrus
(Id.). During that conversation, proposed areas of
questioning of the crew members were developed and refined
(Id.). IMS informed the Captain or Pilot of the M/V
Betty Feagin that a lawyer for IMS would be boarding the
vessel to conduct an investigation and take statements
(Id.). On the evening of September 24, 2014, Mr.
Patton arrived aboard the M/V Betty Feagin (Id.).
Upon meeting each of the crew members aboard the vessel, Mr.
Patton explained that he represented IMS before taking their
statements (Id.). Mr. Patton understood the purpose
of recording the statements was to assess whether someone,
other than IMS, was potentially responsible for McQuay's
Powers advised that the recorded statements were intended to
discover facts necessary to advise IMS as to whether any
entity other than IMS bore any legal liability for
McQuay's injury, whether IMS faced liability for the
incident, and whether a limitation defense may be appropriate
(DN 89 PageID # 493-95, 497, 499, 501). Following the taking
of the statements, the facts were summarized in a letter to
IMS along with an evaluation of potential exposure and
recommendations as to future legal handling (Id.).
As a further result of the investigation, SMB&P had
additional communications with IMS, which included further
legal advice (Id.). The recorded statements were
transcribed by SMB&P support staff (Id.). They
have been stored in SMB&P's legal file at
SMB&P's law office (Id.). The statements
have not been transmitted to IMS or given, in any form, to
the crewmembers themselves or the Coast Guard (Id.
at PageID # 497, 499, 504-05).
Powers advised that IMS does not have a policy of having an
attorney investigate and take crew statements every time
there is a crewmember injury (DN 89 PageID # 488-93, 497-98).
In fact, when McQuay, sustained his second injury on November
20, 2015, no attorneys were involved (Id.). Mr.
Powers indicated that IMS does have a policy that its
employees fill out an incident report for every injury that
occurs on its vessels and complete a CG-2692 Report of Marine
Casualty when required (Id.). In connection with the
September 23, 2014 and November 20, 2015 incidents, IMS
employees, without the participation of attorneys, took a
statement from McQuay and completed the CG-2692 reports
(Id. PageID # 488-89). Copies of both incident
reports and both CG-2692 reports have been produced to McQuay
and TVA in discovery (Id.). Mr. Powers indicated
that IMS's practice is to involve attorneys only in a
very low percentage of cases where IMS decides the incident
is likely to result in litigation or IMS needs legal advice
regarding how best to respond to the incident (Id.).
Mr. Patton completed his investigation, he talked with Mr.
Powers and they talked with IMS (DN 89 PageID # 489). Mr.
Powers sent a letter to TVA on September 25, 2014 (Id.
and DN 93-2 Copy of Letter). The letter put TVA on notice
that IMS was holding it responsible for the September 23,
2014 incident and asked TVA to preserve evidence
September 25, 2014, SMB&P notified the Coast Guard by
email that it would be representing IMS and the crew of the
Betty Feagin (except for McQuay) in connection with the Coast
Guard's investigation (DN 91-1). Additionally, SMB&P
advised the Coast Guard that IMS requested it be designated a
party in interest and that its attorneys be permitted to
attend any interviews conducted and to review any evidence
gathered by the Coast Guard in its investigation
(Id.). Finally, SMB&P acknowledged the Coast
Guard's desire to interview the Captain, the pilot, and
the other deckhand (Id.). SMB&P indicated it
would produce these crewmembers by telephone and insisted
that the Coast Guard not record the interviews
(Id.). The Coast Guard did not record the
crewmembers' statements during those interviews (DN 89
PageID # 491-92).
the July 10, 2018 in-person conference, Mr. Powers pointed
out that TVA elected not to participate, as a party in
interest, in the Coast Guard's investigation (DN 89
PageID # 490). Mr. Powers explained that if TVA had elected
to participate, as a party in interest, it could have been
present for and asked questions during the Coast Guard's
interviews of the crewmembers (Id.).
Powers explained that the focus of a Coast Guard
investigation is whether there has been a violation of any
Coast Guard regulations, whether any procedural
recommendations should be made, and whether to take action
against a vessel company's license (Id. PageID #
492-93). Sometimes IMS attorneys have arrived at a vessel
while the Coast Guard is conducting its investigation
(Id.). When this happens, the attorney might
facilitate the Coast Guard's request for a written