United States District Court, E.D. Arkansas, Jonesboro Division
LORRAINE CHADWELL, Individually and as Personal Representative of the Estate of Thomas J. Dazey, Deceased, and on behalf of the wrongful death beneficiaries of Thomas J. Dazey PLAINTIFF
LONE STAR RAILROAD CONTRACTORS, INC., et al. DEFENDANTS
NUCOR CORPORATION RESPONDENT
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
J. Dazey, a locomotive operator for Nucor Steel Arkansas,
died as a result of a railroad car derailment at the Nucor
manufacturing plant near Armorel, Arkansas, on February 11,
2014. The personal representative of Dazey's estate,
Lorraine Chadwell, sued various entities. At this stage the
only remaining named defendants are Lone Star Railroad
Contractors, Inc., and Phoenix Services, LLC. Nucor has not
been named as a party.
moves to compel production of three categories of
investigative materials from non-party Nucor: photographs of
the derailment; witness statements by the Nucor employees who
first arrived on the scene; and incident reports prepared by
Nucor for its lawyers. Nucor objects on the grounds that the
work product doctrine protects all these materials and
work product doctrine has long ensured that an opponent
cannot secure materials that an adversary has prepared in
anticipation of litigation. Hickman v. Taylor, 329
U.S. 495, 511, 67 S.Ct. 385, 394, 91 L.Ed. 451 (1947);
Gundacker v. Unisys Corp., 151 F.3d 842, 848 (8th
Cir. 1998). Federal Rule of Civil Procedure 26 governs. Under
[o]rdinarily, a party may not discover documents and tangible
things that are prepared in anticipation of litigation or for
trial by or for another party or its representative
(including the other party's attorney, consultant,
surety, indemnitor, insurer, or agent). But . . . those
materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the
materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.
Fed. R. Civ. P. 26(b)(3)(A). If such materials are ordered
disclosed, the Court must nevertheless protect from
disclosure any opinion work product, or the “mental
impressions, conclusions, opinions, or legal theories of a
party's attorney or other representative concerning the
litigation.” Fed.R.Civ.P. 26(b)(3)(B).
first category of materials Chadwell seeks are certain
photographs taken of the scene of the derailment shortly
after it occurred. According to an affidavit filed by
Nucor's lawyer at the Rose Law Firm, Russell Bailey, on
the morning of the incident Mr. Bailey went to the incident
site. He took photographs of the scene and equipment with his
personal camera upon arrival and again the following day.
Document #110 at 7. Also on the following day the Rose Law
Firm retained an expert safety consultant to investigate and
provide opinions relating to the incident in order to help
the Rose Law Firm render its legal services. Id. at
8. As part of his services the expert took photographs of the
incident scene and equipment on the day after it occurred.
Id. Additionally, in the days following the incident
Austin Strother, Nucor Steel Arkansas's safety
coordinator, took photographs of the incident scene and
equipment, the cleanup, and the railcar rerailing process
after being instructed to do so by Mr. Bailey. Id.
Eighth Circuit has noted that ordinary work product, as
opposed to opinion work product, includes “photographs
and raw information.” Pittman v. Frazer, 129
F.3d 983, 987-88 (8th Cir. 1997). In Pittman
photographs gathered by Union Pacific's investigator
after a railroad accident constituted ordinary work product.
Id. District courts have also held that photographs
taken at the direction of an attorney are protected work
product. Huggins v. Fed. Express Corp., 250 F.R.D.
404, 407 (E.D. Mo. 2008); Eisenberg v. Carnival
Corp., 2008 WL 2946029 at *1 (S.D. Fla. July 7, 2008);
Amerson v. Outlaw, 2012 WL 4866440, at *1 (E.D. Ark.
Oct. 12, 2012). The photographs described above - those taken
in the days following the accident by Mr. Bailey, the safety
consultant expert retained by the Rose Law Firm, and Mr.
Strother at the direction of Mr. Bailey - are protected work
product because they were taken in anticipation of
parties dispute whether Chadwell has a substantial need for
the photographs and an inability to obtain the substantial
equivalent of the contemporaneous photographs without undue
hardship. Fed.R.Civ.P. 26(b)(3)(A)(ii). Chadwell says she
needs these photographs because without them she cannot
adequately prepare her case and present the scene to a jury.
Chadwell argues that she cannot obtain their substantial
equivalent because the railroad crossing where the derailment
occurred has since been removed. Document #109 at 4.
argues that Chadwell has already obtained the substantial
equivalent of the photographs. Nucor points out that it has
previously produced photographs of the incident scene that
Nucor took immediately after the incident but before
retaining legal counsel; photographs of the incident scene
taken by the Mississippi County Coroner's Office; and the
entire OSHA inspection file created after the incident, which
contains photographs of the incident scene and equipment
taken by an OSHA representative on the day it occurred.
Document #111 at 9; Document #110 at 8-9. Nucor also reports
that in November of 2017 plaintiff's counsel and experts
photographed, measured, and collected physical information
related to the derailed railcar and area where the incident
occurred, and that in fall of 2018 plaintiff's counsel
interviewed many current or former Nucor employees and
locomotive operators. Document #110 at 9.
obtaining the photographs at issue would make presenting her
case at least somewhat easier for Chadwell because it is
additional evidence that she lacks. But she does not have a
“substantial” need for the photographs,
especially considering that she already has contemporaneous
photographs taken by Nucor, the coroner's office, and an
OSHA investigator; as well as physical information related to
the derailed railcar and incident area; and information from
interviews with witnesses and current and former Nucor
employees and locomotive operators. Nucor need not produce
the photographs at issue.
second category of items Chadwell seeks consists of witness
statements regarding the derailment by Nucor employees.
According to Mr. Bailey's affidavit, shortly after
discovering the incident Nucor contacted the Rose Law Firm
and retained its services. Document #110 at 4-5. Anticipating
an OSHA inspection later that day, Mr. Bailey asked Nucor to