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Resurrection Healthcare v. Ge Health Care

March 16, 2009

RESURRECTION HEALTHCARE AND FACTORY MUTUAL INSURANCE CO., PLAINTIFFS,
v.
GE HEALTH CARE, DIVISION OF GENERAL ELECTRIC CO., DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Maria Valdez

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Plaintiffs' Motion to Compel Discovery Responses [Doc. No. 39]. For the reasons that follow, the motion is granted in part and denied in part.

BACKGROUND

Plaintiffs Resurrection Health Care and Factory Mutual Insurance Co. (collectively "Resurrection") filed their complaint against defendant GE Health Care ("GEHC") in Illinois state court on September 17, 2007. On October 23, 2007, the case was removed to federal court on the basis of diversity jurisdiction. In the complaint, Resurrection alleges that on July 25, 2006, GEHC employees, who were contracted to operate a bio-medical department in a Resurrection-affiliated hospital, negligently allowed mercury to spill on the hospital's floor and improperly disposed of the mercury after the spill was discovered.

Resurrection's motion seeks to compel GEHC to produce four documents it has withheld due to claims of attorney-client privilege and/or work product.*fn1 The documents at issue include interviews of GEHC employees who were present at the hospital at the time of the spill; a written statement by one of those employees; and documentation of a site visit by another GEHC employee.

DISCUSSION

A. Work Product

The application of the work product doctrine is governed by federal law. See A.O. Smith Corp. v. Lewis, Overbeck & Furman, No. 90 C 5160, 1991 WL 192200, at *1 (N.D. Ill. Sept. 23, 1991). The work product doctrine protects "documents and tangible things... prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." Fed. R. Civ. P. 26(b)(3).

In determining whether a document was prepared in anticipation of litigation, the threshold question generally 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 for or obtained because of the prospect of litigation." North Shore Gas Co. v. Elgin, Joliet & E. Ry. Co., 164 F.R.D. 59, 61 (N.D. Ill. 1995) (citation omitted) (emphasis added); see Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 145 F.R.D. 84, 86 (N.D. Ill. 1992). Therefore, documents that were prepared for other reasons, such as documents created in the ordinary course of business, cannot be withheld as work product. See Caremark, Inc. v. Affiliated Computer Servs., Inc., 195 F.R.D. 610, 614 (N.D. Ill. 2000); see also In re General Instrument Corp. Sec. Litig., 190 F.R.D. 527, 530 (N.D. Ill. 2000) ("[A] document prepared for both legal and non-legal review is not privileged."); Allendale, 145 F.R.D. at 87 (holding that documents prepared in the ordinary course of business are not work product even if litigation is imminent or ongoing).

In addition, to be subject to work product immunity, the documents at issue must have been created in response to "a substantial and significant threat" of litigation, which can be shown by "'objective facts establishing an identifiable resolve to litigate.'" Allendale, 145 F.R.D. at 87 (citation omitted). Documents are not work product simply because "litigation [is] in the air," IBJ Whitehall Bank & Tr. Co. v. Cory & Assocs., Inc., No. 97 C 5827, 1999 WL 617842, at *5 (N.D. Ill. Aug. 12, 1999), or "there is a remote possibility of some future litigation." McCook Metals LLC v. Alcoa, 192 F.R.D. at 259. "The fact that litigation actually ensues or that a party has retained an attorney, initiated investigations, or engaged in negotiations over a claim, is insufficient to dispositively establish anticipation of litigation." Allendale, 145 F.R.D. at 87.

The Court finds that the documents at issue are not protected work product because GEHC has failed to show that they were created in response to a substantial and significant threat of litigation. GEHC's claim that "[d]ue to the extensive nature of the contamination... GE Health Care reasonably anticipated... that litigation was likely," (GEHC Resp., Ex. A, ¶ 7), is not sufficient by itself. See Caremark, 195 F.R.D. at 615 (quoting Binks Mfg. Co. v. Nat'l Presto Indus., Inc., 709 F.2d 1109, 1119 (7th Cir. 1983)) ("'The 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.'").

The mercury spill at issue occurred on July 25, 2006. The present lawsuit was filed in Illinois state court on September 17, 2007. Document 2 was created on March 30, 2007;*fn2 Document 3 was created and/or revised on various dates from September 28, 2006 to March 28, 2007; Document 4 was prepared on August 1, 2006; and Document 5 was prepared on October 4, 2006. The documents at issue were created almost six months to over one year before the lawsuit was filed, and GEHC has offered no objective facts demonstrating an identifiable resolve to litigate before that date. Cf. Ocean Atl. Dev't Corp. v. Willow Tree Farm, LLC, No. 01 C 5014, 2002 WL 1968581, at * 5 (N.D. Ill. Aug. 23, 2002) (finding a significant threat of litigation existed where the defendant's communications "frequently reference[d] its fear that [plaintiff] would file suit against it... and remark[ed] on [plaintiff's] litigious nature").

Moreover, even if litigation had been imminent at the time the documents were created, GEHC has not established that the internal investigation of the mercury spill was performed solely for the purpose of litigation, and the documents would not have been created in the ordinary course of business. See Caremark, 195 F.R.D. at 615 (quoting Binks, 709 F.2d at 1119) ("'If in connection with an accident or an event, a business entity in the ordinary course of business conducts ...


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