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In re Complaint of B & C Seafood LLC

United States District Court, D. New Jersey, Camden Vicinage

June 7, 2019

IN RE THE MATTER OF THE COMPLAINT OF B & C SEAFOOD LLC, AS OWNER OF THE F/V TOOTS II

          MEMORANDUM OPINION AND ORDER

          JOEL SCHNEIDER, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the parties' discovery dispute concerning a “Root Cause Analysis” report withheld by claimants Sargasso Sea, Inc. and Fairfield Maxwell Services, Ltd. (collectively, “Oleander claimants”) on the ground of privilege. The Court received the Oleander claimants' letter brief [Doc. No. 46], the opposition papers of petitioner B & C Seafood LLC [Doc. No. 48] and cross-claimants Jesse and Kirk Sullivan [Doc. No. 49], the Oleander claimants' reply [Doc. No. 50], and the parties' supplemental filings [Doc. Nos. 51, 53, 54]. No. oral argument was held. See Fed.R.Civ.P. 78; L. Civ. R. 78.1. The Court has reviewed the Root Cause Analysis in camera. For the reasons to be discussed, petitioner's challenge to the Oleander claimants' assertion of privilege over the report is SUSTAINED, and the Oleander claimants' assertion that its Root Cause Analysis is privileged is OVERRULED.

         Background

         Petitioner B & C Seafood LLC, as owner of the F/V TOOTS II, filed this action on February 5, 2018 seeking exoneration from, or limitation of liability, for damages sustained by complainants resulting from a collision the vessel was involved in. See Compl. [Doc. No. 1]. On or about October 6, 2017, in the late evening, the F/V TOOTS II was fishing approximately sixty (60) miles off the coast of New Jersey when petitioner contends the M/V OLEANDER, a container vessel owned and operated by the Oleander complainants, collided with the F/V TOOTS II. Id. ¶ 5. At all relevant times, petitioner contends its vessel was seaworthy and fit for service in every respect. Id. ¶ 7.

         Shortly after the incident, the Oleander claimants retained counsel from the law offices of Freehill Hogan & Mahar LLP (“Freehill”). See Letter, Mar. 1, 2019 [Doc. No. 46]. Freehill subsequently retained Safety Management Systems, LLC (“SMS”), an occupational safety consulting firm, to conduct an investigation and to prepare a report on a possible root cause for the incident. Id. at 2. On October 16, 2017, Roger H. Miller, a director at SMS, produced his “Root Cause Analysis” report (“RCA” or “Report”) to Freehill. Id. The Oleander claimants contend the RCA Report has neither been reviewed or shared with anyone other than claimants or their counsel. Id.

         On January 23, 2019, petitioner filed a letter [Doc. No. 39] with the Court writing pursuant to L. Civ. R. 37.1 to request its assistance in resolving several discovery disputes. Among the disputes were alleged deficiencies with the Oleander claimants' privilege log, and the claim that the RCA Report was privileged. See Letter at 2. Petitioner contends the Oleander claimants failed to specify a basis for the claimed privilege, and more generally, that its privilege log failed to meet the minimum standards set forth in Fed.R.Civ.P. 26(b)(5) and L. Civ. R. 34.1.

         On February 11, 2019, the Court held a discovery conference and subsequently Ordered the Oleander claimants to serve a letter brief to support its privilege claim. See Scheduling Order [Doc. No. 44]. In its brief [Doc. No. 46], the Oleander claimants assert the RCA is privileged on two grounds: as (1) attorney work-product and/or (2) facts or opinions held by a non-testifying expert pursuant to Fed.R.Civ.P. 26(b)(4)(D). Letter Br. at 2-3. Claimants contend that, because SMS was retained by Freehill as a consulting expert to conduct an investigation and prepare the RCA Report when litigation was reasonably anticipated, the Report qualifies as work-product and, therefore, is non-discoverable. In support of this contention, claimants submit the affidavit of the Report's preparer, Roger H. Miller. See id., Ex. B. Miller contends he was retained by Freehill “to work as a consultant on behalf of [Oleander claimant] Fairfield Maxwell Services, Ltd.” (“FMSL”). Id. ¶ 2. Miller further contends the RCA “was intended to assist Freehill with its evaluation of potential liability and prospective claims against the fishing vessel.” Id.

         Petitioner responds in opposition [Doc. No. 48] contesting the Oleander claimants' characterization of its asserted basis for preparing the RCA Report. Petitioner contends the RCA Report was prepared “for future risk mitigation” and pursuant to domestic regulations and international law, and thus, cannot qualify as attorney work-product or non-discoverable facts or opinions held by a non-testifying expert. See Opp. Br. at 1-2. More specifically, petitioner contends the Oleander claimants were obligated under the International Safety Management (“ISM”) Code to generate the RCA Report. Id. Petitioner further contends Oleander claimant FMSL is the “ISM Manager” whose “function is to assure the Oleander is operated in compliance with the ISM Code, ” and alleges the RCA was prepared “to remain compliant with [their] ISM obligations.” To support its position, petitioner argues “[l]itigation support is not among the core services identified on [SMS'] website.” Id. at 3-4, Exs. A-I. Cross-claimants Jesse and Kirk Sullivan adopt and rely [Doc. No. 49] on the arguments raised by petitioner.

         In their reply [Doc. No. 50], the Oleander claimants assert the RCA Report was prepared in anticipation of litigation and for no other purpose. Responding to petitioner's ISM Code argument, the Oleander claimants submit a “Vessel Deficiency Reporting Form” (“VDS Form”) dated October 6, 2017 and contend that this document was generated to comply with the ISM Code - not the RCA Report. See Reply at 2. Counsel for claimants further contends its client previously neglected to provide it with a copy of the VDS Form, but that it has since produced copies to all parties and the Court. In light of the foregoing claim, claimants assert that petitioner's argument “that the [RCA] Report was required by, or prepared in furtherance, of the ISM Code lacks merit.” Id.

         After this matter was fully briefed, petitioner filed a letter with the Court seeking to supplement its prior filings. See Letter, Mar. 22, 2019 [Doc. No. 51]. Attached to the letter is “a true and accurate copy of an excerpt of the M/V OLEANDER'S October 9, 2017 deck log which states: ‘1500 Mr. Roger Miller on board to carry out the ISM/ISPS/MLC Annual Audits.'” Id., Ex. A. Petitioner contends this entry was made “immediately after the collision” and prior to the vessel's port call “at which Oleander's ISM compliance agency was scheduled to visit the ship.” Petitioner contends this evidence conclusively establishes the RCA Report is not litigation work-product.

         Discussion

         The work-product doctrine provides qualified immunity from discovery to certain material prepared by or at the direction of an attorney in anticipation of litigation. See Fed.R.Civ.P. 26; In re Cendant Corp. Sec. Litig., 343 F.3d 658, 662 (3d Cir. 2003). The party asserting the doctrine bears the burden of proving that a document is protected. In re Riddell Concussion Reduction Litig., C.A. No. 13-7585 (JBS/JS), 2016 WL 7108455, at *6 (D.N.J. Dec. 5, 2016) (citation omitted). To meet this burden, the “party claiming protection must demonstrate the precise manner in which a document is protected.” Id. “Blanket assertions do not suffice.” Id.

         In order for a document to qualify as protected work-product, “it must be reasonably clear based on the surrounding facts and the nature of the materials” that the document was prepared because of anticipated litigation. Id. (quoting Reich v. Hercules, Inc., 857 F.Supp. 367, 373 (D.N.J. 1994)). Documents prepared in the ordinary course of business or created for another purpose are not protected, regardless of their utility in subsequent litigation. Id. Thus, a party seeking to invoke the work-product doctrine must prove at least the following two elements: (1) that a document was prepared because of reasonably anticipated litigation and (2) that the document “was prepared because of the prospect of litigation and for no other purpose.” Id.

         Whether a document was prepared in anticipation of litigation is a difficult determination. A party must show “that there existed an identifiable and specific claim of impending litigation when the materials were prepared.” Id. at *7; see Rockwell Automation, Inc. v. Radwell Int'l, Inc., C.A. No. 15-5246 (RBK/JS), 2019 WL 1864198, at *3 (D.N.J. Apr. 25, 2019). “The mere involvement of an attorney does not, in itself, evidence that a document was prepared in anticipation of litigation.” Riddell, 2016 WL 7108455, at *7. However, a document may still be protected even though it was not prepared by an attorney. Id.; see Supernus Pharm., Inc. v. TWI Pharm., Inc., C.A. No. 15-369 (RMB/JS), 2016 WL 5339594, at *4 (D.N.J. June 21, 2016). In order to qualify as work-product the “dominant purpose” in preparing the document must be the concern about potential litigation and that concern must be objectively reasonable. Riddell, 2016 WL 7108455, at *7; see also Littlejohn v. Vivint Solar, C.A. No. 16-9446 (NLH/JS), 2018 WL 6705673, at *2 (D.N.J. Dec. 20, 2018) (“[D]ocuments are protected if their primary ...


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