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Chadwell v. Lone Star Railroad Contractors Inc.

United States District Court, E.D. Arkansas, Jonesboro Division

August 8, 2019

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
v.
LONE STAR RAILROAD CONTRACTORS, INC., et al. DEFENDANTS
v.
NUCOR CORPORATION RESPONDENT

          OPINION AND ORDER

          J. LEON HOLMES UNITED STATES DISTRICT JUDGE

         Thomas 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.

         Chadwell 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 documents.

         The 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 that rule,

[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).

         The 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.

         The 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 litigation.

         The 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.

         Nucor 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.

         Certainly 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.

         The 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 ...


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