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Herrera v. Union Pacific Railroad Co.

United States District Court, D. Nebraska

April 24, 2017

GUILLERMO HERRERA III, Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY, a Delaware corporation; Defendant.

          MEMORANDUM AND ORDER

          CHERYL R. ZWART UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court on Defendant Union Pacific Railroad's Motion to Compel, (Filing No. 90). For the reasons discussed below, the motion will be denied. Defendant's request for further relief is denied without prejudice to refiling.

         BACKGROUND

         Plaintiff Guillermo Herrera III filed this action alleging he was injured from heat exposure on July 26, 2015. A representative of Plaintiff's attorney - investigator K. Sean Dillon - interviewed Union Pacific employees Logan Newman, Dennis Dickison, Jeremy M. Marsing, and Branden H. Bradley. The interviews were audio-recorded by Dillon. Dillon then prepared a narrative summary of the respective interviews and presented a copy of the summary to each witness for the witness' review and signature. The employee witnesses were allowed to make corrections to their narrative summaries. However, Defendant alleges the Union Pacific employee witnesses were not provided with a full transcript of their respective statements prior to reviewing and signing their narrative summaries.

         Each of the four Union Pacific employee witnesses were deposed. At the depositions, Plaintiff's counsel provided each deponent with his signed narrative statement and referred to the deponent's statement throughout the course of the deposition. Counsel for the defendant had not seen the statements prior to the depositions. Defendant moved for the production of the original audio recordings of the interviews with each of the Union Pacific employees. Plaintiff asserts the audio recordings are protected by the work product doctrine and Defendant has not shown it cannot, without undue hardship, obtain the substantial equivalent to the recordings by other means.

         Additionally, Plaintiff has now revealed that the original audio recordings no longer exist. That is, counsel states they were inadvertently deleted off of the phone of the investigator who completed the interviews on behalf of Plaintiff. In light of this information, Defendant seeks an order forbidding Plaintiff from using the statements as evidence or as a means of refreshing the respective witness' recollection. Defendant also seeks an order striking those deposition portions for which the the Union Pacific employee or Plaintiff's counsel relied upon the written statements.

         ANALYSIS

         Under the work product doctrine “[o]rdinarily, 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.” Fed.R.Civ.P. 26(b)(3)(A). “There are two kinds of work product - ordinary work product and opinion work product.” Baker v. General Motors Corp., 209 F.3d 1051, 1054 (8th Cir. 2000). Ordinary work product consists of factual information. Id. Opinion work product includes an attorney's mental impressions and legal theories of the case. Id. The court may order production of ordinary work product if the party seeking the information demonstrates a substantial need for the materials and the inability to obtain the information without undue hardship. Id. But opinion work product “enjoys almost absolute immunity and can be discovered only in very rare and extraordinary circumstances, such as when the material demonstrates that an attorney engaged in illegal conduct or fraud.” Id.

         Even if unable to show of substantial need and undue hardship, a party may be entitled to the opposing party's work product if counsel has waived the protection. In Pittman v. Frazer, the 8th Circuit explained:

If documents otherwise protected by the work-product rule have been disclosed to others with an actual intention that an opposing party may see the documents, the party who made the disclosure should not subsequently be able to claim protection for the documents as work product. But disclosure of some documents does not destroy work product protection for other documents of the same character.

Pittman, 129 F.3d 983, 988 (8th Cir. 1997)(quoting Wright & Miller § 2204 at 209).

         If an intentional disclosure of work product is made, the protection is made as to other undisclosed communication or information only if (1) the waiver was intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together.” Fed. R. Cic. P 502(a); Schwarz v. City of Treasure Island, case no. 8:05cv1696, 2010 WL 11474978 at *1 (M.D. Fla., October 13, 2010).

         Union Pacific demands production of the audio recording underlying the written summaries, explaining it has a substantial need for the recordings and Plaintiff waived any work product protection by providing the interview summaries to the witnesses for reference during their depositions. Plaintiff argues Defendant has full access to the witnesses and could interview them at any time, particularly since they are all Union Pacific employees. Plaintiff does not address the work product waiver argument.

         Here, by openly using the interview summaries at the depositions, Plaintiff voluntarily disclosed contents of his interview with the Union Pacific employee witnesses. To the extent those summaries are work product, Plaintiff voluntarily waived that protection. The more difficult question is whether ...


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