TREJO v. ALL LYNN LLC (2023)

ORDER

Presently before the Court is a motion [D.I. 43] filed by Defendant, All Lynn, LLC, seeking entry of a protective order pursuant to Federal Rule of Civil Procedure 26(c) to preclude from disclosure documents that Defendant has identified as work product. Plaintiff, Othon Trejo, filed opposition to the motion, and Defendant filed a reply brief. The Court has considered the submissions of the parties and decides this matter pursuant to Federal Rule of Civil Procedure 78(b). For the reasons that follow and for good cause shown, Defendant's motion for a protective order is denied.

By way of background, this case arises out of an injury purportedly sustained by Plaintiff on August 16, 2018 while aboard the F/V ALL LYNN, a fishing vessel used for the purpose of commercial fishing. (Compl. [D.I. 1], pp. 2-4, ¶¶ 7, 11, 21.) Plaintiff alleges that while employed by Defendant helping to load and stow water, the captain of the vessel was “unreasonably anxious to leave the dock” and was “unreasonably hurrying the crew[,]” and as a result “Plaintiff and other crew members were frantically trying to lower the heavy boxes of stores into the hold below.” (Id. at p. 3, ¶¶ 15, 17.) Plaintiff further avers that while he was lowering a heavy box, the captain of the vessel deployed the outriggers without warning, which purportedly caused the vessel to jerk. (Id. at pp. 3-4, ¶¶ 18, 20.) As a result, Plaintiff allegedly lost his balance and purportedly sustained serious injuries to his back “which rendered him unable to work at his calling and caused him injury from which he shall never recover.” (Id. at p. 4, ¶¶ 21, 25.) Plaintiff instituted this action against Defendant pursuant to the Jones Act, 46 U.S.C. § 301014 et seq., and state law for negligence, unseaworthiness, and failure to pay maintenance and cure. (Id. at pp. 2, 5-9, ¶¶ 2, 30-53.)

On August 28, 2018, twelve days subsequent to the underlying incident, Jeffrey DuBois was contacted by Liberty International Underwriters, who insured the F/V ALL LYNN, to “investigate the circumstances surrounding the report of injury made by Othon Trejo[.]” (Decl. of Jeffrey D. DuBois (hereinafter, “DuBois Decl.”) [D.I. 43-2], Aug. 22, 2022, ¶ 4.) Plaintiff seeks production of Mr. DuBois’ entire investigation file, including notes of interviews taken by Mr. DuBois after Plaintiff's accident, arguing that such documents will demonstrate whether Defendant acted in bad faith when it decided not to pay certain of Plaintiff's medical bills. (See Pl.’s Br. in Opp. to Def.’s Mot. for a Protective Order (hereinafter, “Pl.’s Opp. Br.”) [D.I. 44], pp. 1-2.) Defendant produced some of Mr. DuBois’ file to Plaintiff but withheld other documents as work product. (Id. at pp. 3-4.) Defendant now seeks a protective order precluding the remaining documents from disclosure to Plaintiff.

In support of its request for a protective order, Defendant argues that the documents at issue were created by Mr. DuBois in anticipation of litigation. (Def.’s Br. in Supp. of its Mot. for a Protective Order (hereinafter, “Def.’s Br.”) [D.I. 43-1], p. 2.) Defendant notes that it referred the matter to its insurance company, who then appointed Marine Safety Corporation (hereinafter, “MSC”) to investigate the claim, “which was expected to give rise to an unseaworthiness and Jones Act (negligence) claim[.]” (Id. at p. 1.) In addition, MSC “was also asked to handle maintenance and cure payments to plaintiff.” (Id.) Defendant submitted with the motion a declaration from Mr. DuBois in which Mr. DuBois represents the following:

2. My responsibilities include Jones Act liability investigations, evaluation of claim exposures, administration of seaman's benefits, negotiating seaman's releases, and assisting in legal defense efforts.

3. A substantial portion of my work involves the investigation of injury claims made by commercial fisherman along the New England and Mid-Atlantic and seaboard. I may be appointed by vessel owners or their insurers when the circumstances suggest that the claim may lead to litigation.

4. I was contacted on or about August 28, 2018 ․ and asked to investigate the circumstances surrounding the report of injury made by Othon Trejo approximately two weeks earlier while he was working onboard the F/V ALL LYNN, which was insured by Liberty International and other underwriters.

5. This assignment was typical of the type of investigation that I am engaged to do with respect to seaman's injuries on commercial fishing vessels, when the vessel owner and its insurers are concerned that Jones Act litigation will eventually ensue.

6. In the Trejo case, this concern was triggered by the fact that Mr. Trejo did not return to the vessel after initial treatment for what seemed to be a relatively minor injury, and instead was repatriated to Virginia from Rhode Island. Shortly after he returned home, he began to complain of a more serious injury.

7. In order to investigate this claim, I traveled to Point Judith, Rhode Island to visit the vessel and interview the Captain and some of the crew. I may not be instructed to visit the vessel in person unless the circumstances and nature of injury/treatment raise the strong possibility that a Jones Act or unseaworthiness claim will be forthcoming.

(DuBois Decl., ¶¶ 2-7.) In addition, Defendant notes that MSC received a letter from Plaintiff's counsel less than four months after the alleged injury and states that “[t]his was not unexpected as MSC and underwriters anticipated that the claim would result in litigation ․ when it hired Dubois two weeks after the incident.” (Def.’s Br. at p. 2.) Further, Defendant argues that the fact that Plaintiff went home after he was treated for his injury rather than returning to the vessel “alone supports the likelihood for a future claim.” (Id. at p. 3.) Defendant also notes that “[t]he only obligation of the employer is to conduct an investigation prior to a denial of a claim for maintenance and cure” to avoid a claim for punitive damages, and therefore the Court may infer that an investigation was initiated because of anticipated litigation. (Id.) In its reply brief, Defendant offers to produce the documents to the Court for in camera review. (Def.’s Reply Br. in Supp. of its Mot. for a Protective Order [D.I. 46], p. 5.)

Although Plaintiff recognizes that Mr. DuBois was retained to conduct an investigation of the accident, Plaintiff asserts that Mr. DuBois’ investigation constituted a routine claims investigation and is therefore not protected work product. (Pl.’s Opp. Br. at p. 13.) Plaintiff notes in this regard that investigation of maintenance and cure claims are “nearly universal[ ]” in the maritime industry and that some of the DuBois documents that were produced by Defendant, including notes from the interview of David Kennedy, demonstrate that Mr. DuBois’ investigation sought “facts relevant to the administration of maintenance and cure” and do not contain legal conclusions. (Id. at pp. 9, 13.) Plaintiff asserts that the DuBois declaration “offers a muddled explanation as to why, in this case, litigation was probable” and that Defendant fails to demonstrate that the primary purpose of Mr. DuBois’ investigation was to prepare for anticipated litigation. (Id. at pp. 12-13.) Finally, Plaintiff argues that even if the DuBois file is work product, the documents must be produced because they contain evidence of Defendant's state of mind in refusing or delaying payment of maintenance and cure. (Id. at pp. 17-18.)

Federal Rule of Civil Procedure 26(c) provides in relevant part that the Court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” including “(A) forbidding the disclosure or discovery; (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; [or] (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters[.]” Fed. R. Civ. P. 26(c)(1)(A)-(D). “The party seeking a protective order bears the burden of demonstrating that good cause exists to limit or foreclose discovery” and must “demonstrate a ‘particular need for protection.’ ” Graham v. Carino, No. 09-4501, 2010 WL 2483294, at *2 (D.N.J. June 4, 2010) (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)).

Here, Defendant seeks a protective order barring from disclosure Mr. DuBois’ investigation file on the basis that the file constitutes work product. Pursuant to Federal Civil Rule 26(b)(3), “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).” Fed. R. Civ. P. 26(b)(3)(A). In considering a claim of work product, a court must consider both whether the moving party demonstrates that the documents were created in anticipation of litigation and “whether the material [was] produced because of the prospect of litigation and for no other purpose.” In re Gabapentin Pat. Litig., 214 F.R.D. 178, 183-84 (D.N.J. 2003) (internal quotation omitted). “Even where the reasonable anticipation of litigation is established, whether the document comes within the purview of the work product privilege still depends primarily on the reason or purpose for the documents’ production.” Id. at 184 (citing In re Grand Jury Investigation, 599 F.2d 1224, 1229 (3d Cir. 1979)); see also Czyzykowski v. F/V Ocean View Inc., No. 15-2018, 2017 WL 11699610, at *3 (D.N.J. Mar. 15, 2017) (same); Halpin v. Barnegat Bay Dredging Co., No. 10-3245, 2011 WL 2559678, at *15 (D.N.J. June 27, 2011) (same). “ ‘[M]aterials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes are not under the qualified immunity provided by this subdivision [i.e., work-product immunity].’ ” Kopacz v. Delaware River & Bay Auth., Nos. 04-911, 04-1281, 2005 WL 2086747, at *1 (D. Del. Aug. 29, 2005) (quoting Fed. R. Civ. P. 26 advisory committee note to 1970 Amendment). If the court finds that the material was created primarily in anticipation of litigation, the court may nonetheless order production if the documents “are otherwise discoverable under Rule 26(b)(1)” and the party seeking such materials demonstrates 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)(ii). If a court orders a party to produce work product, “it must protect against disclosure of 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 Court begins its analysis by noting that “a seaman injured in his employ enjoys a right to maintenance and cure — a small daily stipend to pay for food, lodging, and basic medical care.” Boudreaux v. Transocean Deepwater, Inc., 721 F.3d 723, 725 (5th Cir. 2013). However, “a seaman can lose the right to maintenance and cure” when the seaman “procures his employment by ‘intentionally’ and ‘fraudulently’ concealing a material medical condition causally related to the injury later sustained.” Id. at 726 (quoting McCorpen v. Cent. Gulf S. S. Corp., 396 F.2d 547, 548-49 (5th Cir. 1968)). An employer, therefore, “is entitled to investigate a claim for maintenance and cure before tendering any payments to the seaman — without subjecting itself to liability for compensatory or punitive damages.” Id. at 728. “If the employer finds any ‘causal link’ between the seaman's present injury and a concealed preexisting disability, it can ․ terminate its obligation to pay — even if the seaman's on-the-job accident (and the employer's negligence) contributed to the injury.” Id. Indeed, “[i]nvestigation of a crew member's illness or injury, including maintenance and cure obligations, are routine and part of the regular course of business in the maritime industry” and “the investigation is not work product.” Datin v. M/V SEA QUEST, INC., No. 07-0963, 2009 WL 10725740, at *7 (S.D. Cal. June 18, 2009).

An investigation file may nonetheless constitute work product if “the document[s] can fairly be said to have been prepared or obtained because of the prospect of litigation.” Halpin, 2011 WL 2559678, at *15 (internal quotation omitted). “Although the litigation need not be imminent, there must be an identifiable specific claim of impending litigation.” Id. (internal quotation omitted). In determining whether the employer anticipated litigation, however, “ ‘the concept that the mere occurrence of an accident constitutes anticipation of litigation has been soundly rejected․’ ” Robinson v. Winslow Twp., No. 11-530, 2012 WL 113643, at *3 (D.N.J. Jan. 13, 2012) (quoting Am. Home Assurance Co. v. United States, No. 09-258, 2009 WL 3245445, at *2 (D.N.J. Oct. 7, 2009)). “As set forth in a substantial body of case law, insurance companies ․ routinely investigate claims in the course of their business” and “not all work-product of a private investigator is entitled to work-product protection.” Id.

In this case, Defendant fails to produce sufficient evidence that Mr. DuBois’ investigation was conducted in anticipation of litigation. While Defendant asserts in its brief that litigation was anticipated at the time of the investigation (see Def.’s Br. at p. 3), this statement is not supported by the DuBois declaration. In this regard, the DuBois declaration submitted by Defendant includes vague language indicating that Mr. DuBois “may be appointed by vessel owners or their insurers when the circumstances suggest that the claim may lead to litigation[,]” that Mr. DuBois’ “assignment was typical of the type of investigation that [he is] engaged to do with respect to seaman's injuries on commercial fishing vessels, when the vessel owner and its insurers are concerned that Jones Act litigation will eventually ensue[,]” and that Mr. DuBois was instructed to visit the vessel, which he “may not be instructed to [do] unless the circumstances and nature of injury/treatment raise the strong possibility that a Jones Act or unseaworthiness claim will be forthcoming.” (DuBois Decl., ¶¶ 3, 5, 7.) These ambiguous assertions imply that litigation was anticipated, but Mr. DuBois does not state unequivocally that litigation was anticipated at the time he performed the investigation. Furthermore, because Mr. DuBois’ role is not limited to investigations for anticipated litigation and his responsibilities also include evaluation of claim exposures, administration of seaman's benefits, and negotiating seaman's releases, the Court is unable to conclude based on the scope of Mr. DuBois’ typical responsibilities that the investigation in this case was performed in anticipation of litigation rather than in the ordinary course of business. (DuBois Decl. at ¶ 2.)

In concluding that Defendant fails to demonstrate that the DuBois investigation file is work product, the Court finds Defendant's reliance on Halpin misplaced. In Halpin, the plaintiff's arm was crushed during a workplace incident, which caused a deep laceration and other injuries and required hospitalization for five days following the incident. Halpin, 2011 WL 2559678, at *1. In opposition to a motion to compel statements obtained by an investigator, the defendant provided a declaration from its investigator which expressly stated that at the time he performed an investigation, the investigator “ ‘expected that [the plaintiff] would file suit” due to “the fact that the injuries seemed ․ serious and [the plaintiff] was a Jones Act seaman[.]’ ” Id. at *2. In contrast to the obviously severe injury of the plaintiff in Halpin that led the investigator to anticipate litigation, the DuBois declaration in this case states that Plaintiff's injury “seemed to be a relatively minor injury” (DuBois Decl. at ¶ 6), and the medical records attached to the submissions indicate that Plaintiff was discharged from the medical clinic the day of the underlying incident. (Pl.’s Opp. Br., Ex. C.) Thus, Defendant fails to demonstrate that Plaintiff's injury was so severe that Defendant immediately anticipated litigation. Rather, Mr. DuBois contends that litigation was anticipated when Plaintiff “[s]hortly after he returned home ․ began to complain of a more serious injury” (DuBois Decl. at ¶ 6), but neither Defendant nor Mr. DuBois set forth the date on which Plaintiff allegedly began to complain of a more serious injury. Mr. DuBois conducted his investigation on August 28, 2018, twelve days after the underlying incident, and the record does not establish that Plaintiff began to complain of a more serious injury before that date. Therefore, Defendant fails to establish that Mr. DuBois conducted his investigation in anticipation of litigation.¹

Moreover, even if litigation was anticipated at the time Mr. DuBois conducted an investigation, Defendant fails to establish that anticipated litigation was the primary purpose of the investigation. Defendant's argument focuses solely on whether litigation was anticipated, but Defendant does not assert that the primary purpose of such investigation was to prepare for expected litigation. As noted above, “even where the reasonable anticipation of litigation is established, whether the document comes within the purview of the work-product doctrine still depends primarily on the reason or purpose for the document's production[.]” Halpin, 2011 WL 2559678, at *15 (internal quotations omitted). Defendant concedes that MSC – Mr. DuBois’ employer – was “asked to handle maintenance and cure payments to plaintiff” and notes that “[i]f [DuBois] were ․ simply a maintenance and cure adjuster, then his entire file has already been turned over in the form of medicals and payment made.” (Def.’s Br. at pp. 1-2.) Defendant thereby acknowledges that Mr. DuBois acted, at least in part, as a maintenance and cure adjuster and was not tasked solely with conducting an investigation for the purpose of anticipated litigation. (Id. at p. 2.) As discussed above, an employer may conduct an investigation in the ordinary course of business to determine whether an employee concealed a pre-existing condition for purposes of ascertaining the obligation to pay maintenance and cure, and Mr. DuBois’ investigation notes demonstrate efforts to determine whether Plaintiff had a pre-existing condition.² Because Defendant does not argue that the primary purpose of the investigation was anticipated litigation, it fails to meet its burden of demonstrating that the DuBois file constitutes protected work product.

In summary, the Court concludes that Defendant fails to demonstrate that the DuBois investigation file is protected work product. First, Defendant does not sufficiently demonstrate that litigation was reasonably anticipated when Mr. DuBois conducted an investigation. Second, Defendant has not argued, let alone demonstrated, that the investigation was primarily conducted for purposes of litigation rather than for a business purpose. Accordingly, the documents identified as work product on Defendant's privilege log to which Plaintiff lodges an objection are discoverable and must be produced.³

CONSEQUENTLY, for the reasons set forth above and for good cause shown:

IT IS on this 9th day of February 2023,

ORDERED that Defendant's motion [D.I. 43] for a protective order shall be, and is hereby, DENIED.

FOOTNOTES

1.   In so finding, the Court notes that Plaintiff disputes Mr. DuBois’ characterization of Plaintiff's injury as “relatively minor” as Plaintiff asserts that “Captain Brennan, the part-owner of the vessel, had first-hand knowledge of [Plaintiff's] severe pain and inability to move.” (Pl.’s Opp. Br. at p. 12.) If Plaintiff's injury was as obviously severe as Plaintiff represents, then Defendant may have reasonably anticipated litigation, as was the case in Halpin. Alternatively, if Plaintiff's injury seemed “relatively minor” as represented by Defendant, then Defendant may not have immediately anticipated litigation. The Court need not make a finding concerning the severity or obviousness of Plaintiff's injury in deciding this motion, however, because Defendant, as the party seeking a protective order, has the burden of demonstrating that it anticipated litigation when Mr. DuBois conducted his investigation. The evidence presented by Defendant indicates that litigation was not anticipated until Plaintiff began to complain of a more serious injury, yet Defendant fails to establish that such complaint preceded Mr. DuBois’ investigation.

2.   In this regard, Mr. DuBois’ notes of an interview with David Kennedy state that Plaintiff “never mentioned any back problems” and “never recounted prior injuries” and that Mr. Kennedy “never noticed anything out of [the] ordinary.” (Pl.’s Opp. Br., Ex. E.)

3.   Because Defendant does not argue that the materials were prepared primarily in anticipation of litigation, and therefore fails to demonstrate the threshold requirement that the documents may be entitled to work product protection, the Court rejects Defendant's request to review the documents in camera.

ANN MARIE DONIO, UNITED STATES MAGISTRATE JUDGE