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26 ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

TIMOTHY C. MYER and JOHN E.

GRISWOLD,

Plaintiffs,

v.

NITETRAIN COACH COMPANY INC.;

NASHVILLE COACH, INC.,

Defendants.

CASE NO. C06-804C

ORDER

This matter comes before the Court on Plaintiffs’ Motion to Compel Production of Videotape

(Dkt. No. 29), Defendants’ Response thereto (Dkt. No. 32), and Plaintiffs’ Reply (Dkt. No. 34). The

Court, having carefully considered all of the papers submitted and determined that oral argument is not

necessary, hereby GRANTS Plaintiffs’ motion, as follows. 

I. BACKGROUND AND FACTS

Many of the facts of this case have been recited in a prior Order of this Court. (See September,

25, 2006 Order (Dkt. No. 22).) Relevant to the instant motion are the following facts. On June 18,

2004, Plaintiffs Tim Myer and John Griswold (“Plaintiffs”) were sleeping in bunks on a touring coach of

Defendant Nitetrain Coach Company, Inc. (“Nitetrain”). Plaintiff Griswold was sleeping in a bunk

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26 ORDER – 2

directly above Plaintiff Myer’s bunk. At or near Mt. Vernon, Washington, Plaintiff Griswold’s bunk

collapsed onto Plaintiff Myer, injuring both men. This lawsuit originally was filed in King Count Superior

Court against Defendant Nitetrain. Subsequently, Defendant Nashville Coach, Inc. (“Nashville”) was

added to the lawsuit and the matter was removed to this Court. In September 2006, this Court denied

Plaintiffs’ motion to remand the case to state court. 

The design of the collapsed bunk beds is central to this lawsuit. Critical to the instant motion is

the fact that the bunks in which Plaintiffs were sleeping had been “reconfigured” from a three-bunk

vertical arrangement to a two-bunk vertical arrangement prior to the incident. On February 9, 2006,

Plaintiffs deposed Jack Winter, Defendant Nitetrain’s Safety Manager. In his deposition, Mr. Winter

testified to having made a videotape with Jamie Simmons, Defendant Nashville’s foreman, showing the

entire reconfiguration process from a three-bunk-high sleeping station to a two-bunk-high sleeping

station in a model coach similar to the one where Plaintiffs slept. Mr. Winter had performed the same

procedure prior to Plaintiffs’ use of the bunks. 

Plaintiffs requested this videotape from Defendants, arguing that it is critical to the liability issue. 

Defendants refused, claiming work product protection. In response, Plaintiffs filed this motion,

contending that Nitetrain’s insurance company requested the videotape in its regular course of business,

not in anticipation of litigation as required for the work-product doctrine to apply. Further, Plaintiffs

argue, even if the doctrine applies, they have shown substantial need for the videotape. 

II. ANALYSIS

A. Work-Product Doctrine

Work-product protection only applies to “documents and tangible things” prepared “in

anticipation of litigation.” FED. R. CIV. P. 26(b)(3). Work product may include documents or things

prepared by a party or by or for a party’s representative, which may be, inter alia, an attorney or insurer. 

Id. Thus, an attorney’s involvement is not a prerequisite to applying the doctrine. However, “‘[m]ore

than the mere possibility of litigation must be evident’ for materials to be considered immune from

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26 ORDER – 3

discovery under the work-product doctrine.” Heath v. F/V Zolotoi, 221 F.R.D. 545, 549 (W.D. Wash.

2004) (quoting Detection Sys., Inc. v. Pittway Co., 96 F.R.D. 152, 155 (W.D.N.Y. 1982)). “It is well

established that documents prepared in the ordinary course of business are not protected by the workproduct doctrine because they would have been created regardless of the litigation.” Id. at 549–50. The

point at which an attorney becomes involved in representing the party asserting the privilege may be

relevant in this regard. The burden is on the party asserting the work-product privilege to show that the

privilege exists. Id. at 549; see also FED. R. CIV. P 26(b)(3), R. 26(b)(5)(A). Finally, in order to reduce

the element of surprise and facilitate settlement, courts liberally construe pretrial discovery. Seattle Times

Co. v. Rhinehart, 467 U.S. 20, 34 (1984). 

This Court has stated that insurance companies have a “routine duty to investigate accidents [and]

such materials are not prepared in anticipation of litigation but are prepared in the ordinary course of

business absent unique circumstances showing the contrary.” Heath, 221 F.R.D. at 550 (citing Schmidt

v. Cal. State Auto. Ass’n, 127 F.R.D. 182, 184 (D. Nev. 1989)). Defendants argue that Nitetrain is in the

business of purchasing and leasing motor coaches, and thus creating such a videotape is clearly in

anticipation of litigation. However, because the insurance company requested the videotape, the focus

should be on whether Nitetrain’s insurance company requested the videotape in its ordinary course of

business. The critical issue here is whether the videotape was produced in the ordinary course of business

as part of an insurance investigation. The court finds that the facts of the instant case indicate that it was.

The first important fact is the point at which an attorney became involved on the side of the party

claiming the work-product protection. “The involvement of an attorney makes it more likely than not

that the focus has shifted toward litigation, making materials more likely to have been prepared in

anticipation of litigation.” Wikel v. Wal-Mart Stores, Inc., 197 F.R.D. 493, 495 (N.D. Okla. 2000), cited

in 6 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE §§ 26.70[3][c][i], at 26-220.3 (3d ed.

1999). Chip Huffman, the co-owner of Nitetrain, stated in his deposition that in response to a letter from

Plaintiff Myer’s counsel advising of the potential for a lawsuit, he reported the accident to his insurance

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company. (Kohles Decl. Ex. C). Thus, at first glance, it appears that the insurance company could have

requested the videotape in anticipation of litigation. However, Mr. Huffman indicated that after reading

the letter, he merely reported the accident to the insurance company, not necessarily the threat of a

lawsuit. Shortly after this report, the insurance company requested the videotape from Mr. Huffman. 

After the videotape was created, the insurance company obtained an attorney. Indeed, Defendants do not

argue that the videotape was prepared with—or even subsequent to—the involvement of an attorney. 

Instead, they argue that attorney involvement is irrelevant. Although absence of a lawyer in the

preparation is not dispositive, the fact that an attorney was obtained by the insurance company only after

the videotape was submitted is significant. Here, the facts suggest that the insurance company conducted

an investigation by requesting the videotape and reviewing the videotape, thereafter concluding that legal

representation was necessary. Because requesting and reviewing the videotape was the first action that

the insurance company took, and because it only later obtained counsel, the videotape procurement was

likely part of a routine investigation. 

The timing of the procurement of the videotape is also significant. Jack Winter stated that the

videotape was made probably within a week of the accident, and no later than July 13, 2004, three weeks

after the accident. This close proximity suggests that the videotape was part of an investigation of the

accident. Moreover, Mr. Winter contends that the videotape focuses on the reconfiguration of the bunks,

which could indicate the reason for the failure of the bunks. These additional circumstances surrounding

production of the videotape therefore also support the conclusion that it was produced as part of an

accident investigation. 

Due to (1) the chronology of attorney involvement after creation of the videotape, (2) the short

time period between the accident and the videotape creation, and (3) the content of the videotape, the

Court finds that the videotape was created as part of the insurance company’s “routine duty” to

investigate accidents. Accordingly, the videotape is not “work product.” 

//

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B. Substantial Need

Even if the videotape could be characterized as work product, it would be discoverable in any

event, because Plaintiffs have shown substantial need for the videotape. Rule 26(b)(3) of the Federal

Rules of Civil Procedure provides that a party may discover documents “prepared in anticipation of

litigation . . . only upon showing that the party seeking discovery has substantial need of the materials in

the preparation of the party’s case and that the party is unable without undue hardship to obtain the

substantial equivalent of the materials by other means.” FED. R. CIV. P. 26(b)(3). As one district court

has explained, in order to demonstrate substantial need, the court examines: (1) “whether the information

is an essential element in the requesting party’s case” and (2) “whether the party requesting discovery can

obtain the facts from an alternate source.” Fletcher v. Union Pac. R.R. Co., 194 F.R.D. 666, 671 (S.D.

Cal. 2000) (citing 6 MOORE ET AL., supra §§ 26.70[5][c], at 26-221 to 26-222). 

The videotape involves facts which may be essential elements of Plaintiffs’ negligence claim. The

reconfiguration process in the videotape is demonstrated by Jack Winter, the employee who performed

the same reconfiguration to Plaintiffs’ bunks prior to the incident. Thus, how the reconfiguration process

was performed likely is relevant to determining liability issues in Plaintiffs’ negligence claim. Further,

although the videotape is not a contemporaneous account of the event, as discussed supra, it was

produced within a very short time of the accident by the same person who reconfigured the bunks shortly

before the Plaintiffs used them. Finally, Plaintiffs cannot obtain the information within the videotape in

other ways. Defendants argue that Plaintiffs were able to depose Jack Winter, and that his deposition is

equivalent to the videotape. However, deposing a witness two years after the accident puts into question

the accuracy of the witness’s memory. In comparison to Jack Winter’s demonstration of the

reconfiguration in the videotape shortly after the accident, the deposition of Jack Winter is less reliable. 

Because Plaintiffs have demonstrated that the videotape speaks to an essential element of their

claim and obtaining the same information from another source is doubtful, they have demonstrated a

substantial need for the videotape. 

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26 ORDER – 6

III. CONCLUSION

For the reasons set forth in this Order, Plaintiffs’ Motion to Compel is hereby GRANTED in its

entirety. Defendants must produce to Plaintiffs the requested videotape.

SO ORDERED this 2nd day of March, 2007.

A

John C. Coughenour

United States District Judge

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