United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
PAUL R. CHERRY, Magistrate Judge.
This matter is before the Court on Chicago South Shore & South Bend Railroad's Motion to Compel Production of Documents [DE 36], filed by Defendant Chicago South Shore & South Bend Railroad ("CSS") on November 13, 2014, and Plaintiff's Motion to Compel Production of Documents [DE 43], filed by Plaintiff CSX Transportation, Inc. ("CSX") on December 12, 2014. On January 23, 2015, the Court took under advisement both motions and ordered each party to produce for in camera inspection certain bates stamp numbered documents. Both parties have complied with the Court's order.
In this lawsuit, CSX claims that CSS owes it money damages arising from a train derailment on a siding and the subsequent collision with a second train on a nearby main track that resulted in damages to CSX of more than $4 million. CSX has alleged claims sounding in negligence and breach of contract, seeking a determination of which railroad is responsible for the derailment. Both railroads conducted investigations following the crash.
A party may "obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things." Fed.R.Civ.P. 26(b)(1). Relevancy is construed broadly to encompass "any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). A party may seek an order compelling discovery when an opposing party fails to respond to discovery requests or has provided evasive or incomplete responses. Fed.R.Civ.P. 37(a). The burden is on the objecting party to show why a particular discovery request is improper.
CSX and CSS each seek production from the other of documents that have been withheld based on the work product doctrine. The work product doctrine applies to documents and tangible things that are prepared in anticipation of litigation or for trial by and for another party or its representatives. Fed.R.Civ.P. 26(b)(3)(A). The test for each document is "whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." Caremark, Inc. v. Affiliated Computer Servs., Inc., 195 F.R.D. 610, 614 (N.D. Ill. 2000) (citing and quoting Binks Mfg. Co. v. Nat'l Presto Indus., Inc., 709 F.2d 1109, 1118-19 (7th Cir. 1983)).
The "remote prospect of future litigation" is insufficient to bring the work product doctrine into play. Binks Mfg., 709 F.2d at 1118. "If in connection with an accident or an event, a business entity in the ordinary course of business conducts an investigation for its own purposes, the resulting investigative report is produceable in civil pre-trial discovery." Id. at 1119 (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C. 1982)). More specifically, "[t]he fact that a defendant anticipates the contingency of litigation resulting from an accident or event does not automatically qualify an in house' report as work product.'" Id. (same). "While litigation need not be imminent, the primary motivating purpose behind the creation of a document or investigative report must be to aid in possible future litigation." Id. (same). The burden is on the party claiming the privilege to establish that the document falls within the privilege. Binks, Mfg., 709 F.2d at 1119.
1. CSS's Motion to Compel Production of Documents
In its motion, CSS represents that CSX immediately dispatched many people to the scene of the derailment both to investigate the cause of the collision and to begin clean-up activities to put the track back into service. CSS argues that CSX refuses to produce certain documents reflecting its investigation of the derailment of the first train, and CSS believes that the withheld documents were prepared in the ordinary course of the CSX's business. One of CSX's Train Accident Prevention ("TAP") Committee members was CSX Track Engineer Chuy Martinez, who was responsible for investigating the cause of the accident. CSS argues that the records of the TAP Committee investigation are not protected by the work product doctrine and that the production of these documents is relevant to its defense. CSS also argues that, even if the work product doctrine is found to apply to any of the documents, CSS has a substantial need for the documents to defend itself in CSX's lawsuit. See Fed.R.Civ.P. 26(b)(3)(A).
In response to the motion, CSX produced nine pages of documents but otherwise stands behind its decision to withhold the remaining documents as privileged under the work product doctrine. CSS asks the Court to compel CSX to produce all documents in CSX's possession that relate to, reflect, or discuss its investigation into the cause of the derailment, including, but not limited to, the documents that CSX has withheld from production on the basis of the work product doctrine.
As an initial matter, the Court is not persuaded by CSX's argument that, because CSX was not required to investigate why CSS 's train derailed, CSX's investigation into why CSS 's train derailed (as opposed to why its own train derailed) was solely for the purpose of establishing CSS's culpability for damages in anticipation of litigation and not as part of its post-derailment investigation. Whether CSX was required to investigate CSS's derailment is irrelevant. The TAP Committee investigated both derailments as part of its investigation of CSX's derailment.
The Court ordered CSX to produce for in camera inspection documents with the following bates stamp numbers that it identified on its privilege log as protected by the work product doctrine: CSX 1579, 1580, 1581, 1582, 1583, 1586, 1588, 1589, 1590, 1596, 1597, 1598, 1599, 1601, 1602, 1612, 1613, 1614, 1615, 1616, 1618, 1624, 1632, and 1633. CSS breaks these documents down into three categories, each of which the Court considers in turn.
First, CSS identifies two documents that were created within days of the April 8, 2012 derailment and were either authored by or sent to Chuy Martinez or by others who were identified by CSX as taking part in the investigation, including John Bradley, Rick Reed, and Brandon Wilkens.
Document CSX 1614 is identified on the privilege log as an email exchange authored by Ed Sparks and Chuy Martinez on April 8 and 9, 2012, with recipients listed as Chuy Martinez, Joshua Brass, Tod Echler, and Ed Sparks, and described as "internal communication prepared in anticipation of litigation." Although CSX stated that it produced all documents authored by Martinez in the days after the crash, CSX did not produce CSX 1614.This document was prepared as part of the internal investigation and not in anticipation of litigation. CSX is ordered to produce it.
Document CSX 1615 is identified on the privilege log as an email exchange authored by John Bradley and Bruce Rose on April 9, 2012, with recipients listed as Bruce Rose, John Bradley, Rick Reed, Brandon Wilkens, and Stacey Posey, and described as "internal communication prepared in anticipation of litigation in response to the April 8, 2012 email from Reed." This ...