On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. HUD- L-2901-98.
Before Judges Skillman, Conley and Lesemann.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal involves the applicability of the work product privilege to a truck driver's recorded statement taken by the trucking company's litigation attorney shortly after the driver was involved in an accident resulting in personal injuries to the other driver. We conclude that the statement is protected work product because the trucking company's dominant purpose in taking the statement was to prepare for potential litigation and the company had an objectively reasonable basis for anticipating that suit would be brought by the other driver.
At approximately 11:40 a.m. on March 6, 1998, plaintiff was driving her car in a southerly direction on Tonnelle Avenue in North Bergen Township. Defendant Durrell Watford, a truck driver employed by defendant J.B. Hunt Transport, Inc. (Transport), was driving a truck in a northerly direction on the same roadway. Watford suddenly swerved into plaintiff's lane, resulting in a head-on collision.
Watford immediately notified Transport of the accident. That same day, Transport's "Litigation Manager" retained a New Jersey attorney, John Welch, to represent Transport and its driver in connection with the accident. According to the Litigation Manager, she retained Welch because "[a]fter receiving some preliminary information about the accident, including the fact that one of the involved drivers had been taken to the hospital with apparent facial injuries and multiple fractured bones, I fully anticipated this matter would result in litigation." On the day of the accident, Welch took a statement from Watford that was recorded by a court reporter.
Plaintiff subsequently brought this personal injury action. In response to plaintiff's interrogatories, defendants disclosed the existence of Watford's recorded statement. When plaintiff demanded production of the statement, defendants moved for a protective order, relying upon the work product privilege. The trial court denied the motion, stating in a letter opinion:
Anticipation of litigation in the context of R. 4:10-2(c) requires some action by the potential adverse party putting the party invoking the privilege on notice that litigation is likely as opposed to merely possible.
Defendants filed a motion for reconsideration, asserting both the work-product and attorney-client privileges. This motion was supported by Welch's affidavit which stated that "[d]uring my discussion with Mr. Watford before I began taking his statement, I advised him that I had been retained to represent both him and [Transport] with respect to any claims or suits which may arise concerning the accident which occurred earlier that day." Defendants also submitted an affidavit by Watford, which stated in part:
4. Mr. Welch made it clear to me immediately that he was my attorney and would act to protect my interests in this matter.
5. After Mr. Welch and I had a lengthy discussion about the accident and the potential for litigation, I proceeded to give him a sworn statement in the presence of a court reporter.
6. At the time I gave the statement, I fully believed that this matter would result in some type of legal proceedings, and I spoke to Mr. Welch on March 6, 1998 with the understanding that he was representing me in those proceedings.
The trial court denied the motion. In reaffirming its ruling that the work product privilege does not shield Watford's statement ...