IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Benjamin Laws, Jr., et al., :

 

Plaintiffs, :

 

v. : Case No. 2:12-cv-544 

 

Stevens Transport, Inc., : JUDGE GREGORY L. FROST

et al., Magistrate Judge Kemp

 

Defendants. :

 

 

 OPINION AND ORDER

This is a personal injury case arising out of a motor

vehicle accident. According to the parties, the accident

occurred in Lima, Ohio when plaintiff Benjamin Laws’ rental car

and a truck owned by defendant Stevens Transport and driven by

defendant Charles G. Dunn, III collided.

The parties have reached an impasse over this issue: must

certain photographs taken on the day of the accident be turned

over to the plaintiffs? There is no question that plaintiffs

have asked for all such photographs, nor any question that

defendants have not produced all the ones in their possession. 

The legal impediment to producing the withheld photographs is,

according to defendants, the work product doctrine. For the

following reasons, the Court agrees and will deny plaintiffs’

motion to compel production of the photos in question.

I. The Facts

The parties do not appear to dispute the relevant facts. 

The accident happened on June 4, 2010. The only evidence about

the photographs which defendants have withheld is found in an

affidavit from defendants’ counsel, Robert C. Buchbinder, which

was filed as a supplemental exhibit (Doc. 40). According to that

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affidavit, Mr. Buchbinder was contacted in some way (his

affidavit does not say how) by “[r]epresentatives of the

Defendants” that same day and asked to begin an investigation of

the accident. Mr. Buchbinder then hired Dave Helm, an

investigator who works for Custard Insurance Adjusters. Mr. Helm

went out to the scene of the accident and took the photographs

which plaintiffs want to see. Several reports, with exhibits,

prepared by Mr. Helm on the date of the accident are listed on

defendants’ privilege log. The Court infers from defendants’

memorandum in opposition (Doc. 38) that the photographs show the

truck at the accident scene and the condition of the rental car

“at a nearby lot ....” See Doc. 38 at 6 (“Defendants further

submit that if Plaintiffs are entitled to impose upon Defendants’

work product, then the following limited photographs, if any,

should be produced at Plaintiffs’ reasonable expense:

1. Photographs taken of the Defendants’ tractor trailer at the

scene on June 4, 2010; 2. Photographs taken of Mr. Laws’ rental

car at a nearby lot on June 4, 2010"). The Court notes that

there appear to be photos of the truck taken on the day of the

accident which may have been produced, since in an email dated

December 21, 2012, Mr. Buchbinder told plaintiffs’ counsel that

he would produce pictures taken by the adjuster of the “point of

impact” area of the truck after it was moved. See Doc. 37,

Exhibit G. 

There are other photographs of the accident. Mr. Dunn took

photos with his cell phone. Those have been produced. They all

appear to show the accident scene prior to any vehicles being

moved. It also appears to be a fact (although the Court is

unsure of the evidentiary basis for it, other than the fact that

defendants have said it and plaintiffs have not refuted it) that

the rental car was both unrepaired and available for some months

after the accident, and at a time when plaintiffs were

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represented by counsel. 

II. Work Product

The doctrine on which defendants rely was recognized by the

Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947). The

general contours of the work product doctrine have been

incorporated into Fed. R. Civ. P. 26(b)(3), and is applicable

when the prerequisites of that rule have been satisfied. The

rule exempts from discovery information which is otherwise

discoverable if it has been "prepared in anticipation of

litigation or for trial by or for another party or by or for

that other party's representative (including the other

party's attorney, consultant, surety, indemnitor, insurer, or

agent)...." The privilege can be overcome, however, if a party

“shows that it has substantial need for the materials to prepare

the case and cannot, without undue hardship, obtain their

substantial equivalent by other means." Id. If the Court does

direct that trial preparation materials be disclosed, the Court

is required to guard against "disclosure of the mental

impressions, conclusions, opinions, or legal theories of an

attorney or other representative of a party concerning the

litigation."

In determining whether the privilege is applicable

either to documents or other protected information, the

burden is placed initially upon the party seeking discovery

to show that the information is "otherwise discoverable,"

which means simply that it is both relevant to the action and

not subject to any other claim of privilege. Once that

burden has been met, the party opposing discovery must then

demonstrate that the document or information was "prepared in

anticipation of litigation or for trial...." Nothing else is

necessary in order to support a claim that Rule 26(b)(3) is

applicable. Once that showing has been made, the burden

shifts again to the party seeking discovery to demonstrate

both substantial need for the information and undue hardship

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in duplicating it elsewhere. 

In the memorandum supporting the motion to compel,

plaintiffs argue that the photographs are relevant - something

defendants do not dispute - and that it was incumbent on

defendants to come forward with evidence to show that they had

been prepared in anticipation of litigation. Their reply brief

focuses on the fact that defendants, in their memorandum in

opposition, did not produce any evidence showing that the photos

were taken at the direction of any defendant and in anticipation

of litigation. They were correct in that assertion when it was

made, but the subsequently-filed affidavit from Mr. Buchbinder

cured that defect, and plaintiffs have not questioned its

truthfulness. Accepting what Mr. Buchbinder has said, it is

fairly clear that these photographs are work product. He has

sworn that litigation was anticipated almost immediately after

the accident - a not unreasonable assumption to make - and that

he personally directed the investigation of the accident scene to

be done with the expectation that he would some day be defending

a lawsuit. Other courts have held that work product protection

applies to photos taken under similar circumstances. While it

may be true that “reports generated in the course of general

investigations, even if litigation is arguably anticipated, are

not entitled to work-product protection,” see American Home

Assur. Co. v. United States, 2009 WL 3245445, *2 (D.N.J. Oct. 7,

2009), “photographs of [an] accident scene ... which were taken

... on or shortly after the date of the accident [can] meet the

elements of work product [if] they were prepared (1) in

anticipation of litigation resulting from the accident and (2) by

or for [the defendant].” Carnes v. Crete Carrier Corp., 244

F.R.D. 694, 699 (N.D. Ga. 2007). These photographs are just

that.

III. Substantial Need and Undue Hardship

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Recognizing that the photographs might well have been taken

at an attorney’s direction and in anticipation of litigation,

plaintiffs argue, in the alternative, that they can satisfy Rule

26(b)(3)(A)(ii), which, as quoted above, allow a party to obtain

trial preparation materials through discovery by making a showing

of substantial need for those materials and by showing that undue

hardship would ensue if the party were to attempt to get them

elsewhere. Plaintiffs’ argument on this point goes like this. 

Neither plaintiff Benjamin Laws nor the investigating police

officers took any photographs at the accident scene. The cell

phone pictures taken by Mr. Dunn are of “limited quality.” (Doc.

37, at 5). All of the vehicles, including the rental car, have

now been repaired. Defendants have raised, among others, the

defense of failure to use a seat belt, and the pictures of the

rental car may be pertinent to that defense. Given that it is

now impossible to obtain equivalent pictures by other means, and

that it will impose a substantial hardship on plaintiffs not to

be able to see or use these photos, the Court should order them

to be produced.

Defendants do not argue that similar photographs can still

be taken. They do, however, argue that plaintiffs should not get

the photographs now because they could have taken similar

pictures in the month or two following the accident, and at a

time when plaintiffs had retained counsel. They assert this is

so because the pictures they are withholding show damage to the

rental car, which remained available for photographing for

several months, and show the accident scene, which still exists

(albeit without the vehicles present). They also argue that the

claim file and damage repair bills from Enterprise will reflect

the extent and nature of the damage to the rental car. Finally,

they have invited the Court to view the pictures taken by Mr.

Dunn, which, they say, rather than being of “limited quality,”

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accurately show both where the vehicles were positioned and how

each was damaged. Should the Court not accept this argument,

however, they ask to be reimbursed for their costs in having had

these photographs taken.

The plaintiffs must shoulder the burden of showing that they

have substantial need of these photographs and that they are

essentially unable to obtain their equivalent. Toledo Edison Co.

v. G.A. Technologies, 847 F.2d 335 (6th Cir. 1988). In order to

demonstrate substantial need for them, it is not enough just to

say that they contain relevant information. Rather,

“[s]ubstantial need is clearly shown when the materials sought

are essential to prove the discovering party's case, or where

without the information a distinct advantage would accrue to the

party having it.” Georgine v. Amchem Products, Inc., 1994 WL

502475, *2 (E.D. Pa. Sept. 2, 1994). Many courts, when analyzing

this question, look to Moore’s Federal Practice for the

applicable standard; for example, in Fletcher v. Union Pacific

R.R. Co., 194 F.R.D. 666, 671 (S.D. Ca. 2000), the court, quoting

6 James Wm. Moore et al., Moore’s Federal Practice §26.70[5][c],

at 26-221 to 26-222 (3d Ed. 1999), held that “[t]he substantial

need prong 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,” and observed that “a party's desire to find

corroborating evidence is insufficient to establish substantial

need.” Using this type of standard, courts have denied a request

to produce information protected by the work product doctrine if

the requesting party “has not demonstrated that the information

is integral to the preparation of its case.” Baltimore Scrap

Corp. v. David J. Joseph Co., 1996 WL 720785, *28 (D. Md. Nov.

20, 1996).

Plaintiffs have not met this burden. They have not argued

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that without the pictures, they are unable to present a case of

either liability or damages. Presumably, if no one had taken any

pictures at the scene, plaintiffs would still be able to put on

proof that the accident was defendants’ fault, and evidence

concerning the extent of Mr. Laws’ injuries. Or, put another

way, plaintiffs have not proved, or even suggested, that they

cannot. The pictures of the rental car might be helpful to their

case, but they have not shown that they are “essential” or

“integral.” This is not a case, for example, where plaintiffs

have an expert telling them that “the ... police investigation is

inadequate to support a reasoned opinion on significant aspects

of the crash” and that only the photos would supply the necessary

missing information. See, e.g., Jensen ex rel. Jensen v. Cashin, 

2008 WL 1439899, *2 (D. Vt. April 10, 2008). Therefore, on the

basis of the current record, the Court cannot find that

plaintiffs have a substantial need for these photographs.

The Court also questions (but need not decide) whether

plaintiffs have met the other prong of the test for obtaining

work product, which is the inability to obtain equivalent

information without undergoing undue hardship. Certainly, no one

can disagree that “[a] verbal description of a given area cannot

substitute for photographs of the location.” Zoller v. Conoco,

Inc., 137 F.R.D. 9, 10 (W.D. La. 1991). But here, plaintiffs can

still take pictures of the accident location, so they do not have

to rely solely on verbal descriptions of it which might “omit

relevant information ....” Id. Additionally, they have pictures

of the vehicles taken at the scene. Again, they have offered no

proof in support of the statement that these pictures are of

“limited quality” - and they have the burden of proof on each

element of the “substantial need” test. Further, nothing

suggests that the withheld photographs contain vital information

which can be obtained only by viewing them, and not from the

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other pictures or the accident report. And there is no

allegation or proof that Mr. Laws has no recollection, or only a

vague one, of the accident. Cf. Phillips v. Dallas Carriers

Corp., 133 F.R.D. 475 (M.D. N.C. 1990)(court ordered work product

related to accident produced where plaintiff suffered serious

head injury and had no recollection of details of the crash). 

Plaintiffs have also not responded to defendants’ argument (which

seems reasonable) that the nature and extent of damage to the

rental car is shown in the paperwork relating to its repair. All

of this strongly suggests that, in fact, plaintiffs already

possess the substantial equivalent of these photographs or can

obtain that information readily and without undue hardship. This

conclusion makes it unnecessary to address defendants’ further

argument that plaintiff could also, through the exercise of

diligence, have photographed the rental car at exactly the same

location, and with the same damage, as Mr. Helm did, because it

sat on Enterprise’s lot for a significant period of time after

being towed there, and even after plaintiffs retained counsel.

IV. Waiver by Mr. Dunn

Plaintiffs’ final argument is that they sent the identical

document request to both defendants, and only defendant Stevens

Transport responded with an objection. Mr. Dunn, who is

represented by the same counsel, apparently retained by the

insurer which covers both Stevens and himself, did not object. 

Plaintiffs argue that he has as much right to control the

photographs as does Stevens, since they were taken by an

investigator hired by his insurance company, and his silence in

the face of the document request constitutes a waiver of the work

product claim. Defendants’ memorandum does not appear to address

this argument directly, noting only that Mr. Dunn did not object

because he produced the only photos he had, those taken with his

cell phone. There is no dispute that Stevens Transport objected

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and listed these photos on its privilege log.

Plaintiff’s argument strikes the Court as hypertechnical at

best. While it may be true that "[b]y definition all rules of

procedure are technicalities," see Torres v. Oakland Scavenger

Co., 487 U.S. 312, 319 (1988)(Scalia, J., concurring), at the

same time, the Rules of Civil Procedure are not generally

designed “to create traps for the unwary,” Ellison v. Conoco,

Inc., 950 F.2d 1196, 1201 (5th Cir. 1992), but are to be

interpreted in such a manner as to achieve “the just, speedy, and

inexpensive determination of every action and proceeding.” 

Fed.R.Civ.P. 1. From the procedural history recited above, it is

clear that plaintiffs were not misled into believing that the

defendants were waiving work product protection for these

photographs, nor was it unreasonable for Mr. Dunn to believe that

his and Stevens’ counsel had adequately protected them by

claiming, as part of Stevens’ response to the document request,

that they were work product and by listing them on a privilege

log. This is especially so where plaintiffs appear to concede

that Mr. Dunn did not physically possess the photographs and has,

at most, some right to demand them from Stevens. Absent any case

law suggesting that the Court should resolve this type of issue

on the basis of this type of argument - the Court’ research, by

the way, has disclosed none, nor have plaintiffs cited to any -

the Court prefers to take the issue head-on, and to decide its

merits. It has done so here, and has resolved the question in

favor of the defendants.

V. Order

For the reasons set forth above, the Court denies

plaintiffs’ motion to compel discovery (Doc. 37).

VI. Procedure for Reconsideration

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

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reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.

I., F., 5. The motion must specifically designate the order or

part in question and the basis for any objection. Responses to

objections are due fourteen days after objections are filed and

replies by the objecting party are due seven days thereafter. 

The District Judge, upon consideration of the motion, shall set

aside any part of this Order found to be clearly erroneous or

contrary to law.

This order is in full force and effect, notwithstanding the

filing of any objections, unless stayed by the Magistrate Judge

or District Judge. S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp 

United States Magistrate Judge

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