Betts Patterson Mines

Court Reiterates that Routine Claim Investigations Are Not Protected by Work Product Doctrine in Subsequent Litigation

In Channel Construction, Inc. v. Northland Services, Inc. (a case decided last month), Judge Coughenour (of the U.S. District Court of the Western District of Washington) held that the work product doctrine does not protect the records or opinions of a maritime surveyor who surveyed damage to a barge following an incident in which a barge began taking on water.  Following the incident, the owner of the barge contacted its insurance broker, International Marine Underwriters (IMU).  IMU hired a maritime surveyor to survey the barge.  The surveyor issued a report noting the cause of the damage.  The report did not address issues of fault.  Following receipt of the report, IMU and the barge owner each hired legal counsel to allegedly consider litigation against the entity that chartered the barge, Northland Services, Inc. 

Almost two years later, the barge owner sued Northland.  During these proceedings and during the barge owner’s bankruptcy, Northland sought to depose the surveyor and access to the surveyors’ files.  Judge Coughenour addressed the work product doctrine in response to the owner’s motion to quash subpoenas for the surveyor’s files and his deposition and on Northland’s motion to compel.  

The judge held that the work product doctrine was not applicable for two reasons.  First, the court held that the main purpose of the survey report was for filing a claim with IMU.  The court noted that an email from the time of the survey suggested a concern that Northland may have been at fault for the possible damage.  Nevertheless, the court held that a suggestion of possible fault is not “an identifiable resolve to litigate.”  The court concluded that the report would have been prepared regardless of whether the owner was concerned with fault or litigation.  Therefore, the court rejected the work product claim.  Second, the court noted that IMU and not the owner hired the surveyor.  The owner’s involvement with the surveyor was to assess a claim with IMU or to address a routine emergency.  The court noted that neither of these purposes were consistent with a finding of privilege under the work product doctrine. 

While the Court’s holding is not unique or groundbreaking in its reasoning, it serves as a reminder that claim investigations may be discoverable in subsequent litigation. 

David Greenberg