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Carl D. Lewis and ) Carolyn Lewis v. Keen Transport

February 28, 2011

CARL D. LEWIS AND ) CAROLYN LEWIS, PLAINTIFFS,
v.
KEEN TRANSPORT, INC. AND ) MAGISTRATE JUDGE SUSAN E. COX BRIAN E. CRAIG, DEFENDANTS.
KEEN TRANSPORT, INC. DEFENDANT/THIRD PARTY
PLAINTIFF
v.
XL SPECIALIZED TRAILERS, INC., LONE STAR TRANSPORTATION, LLC, AND G.A.S. INVESTMENTS ) CORPORATION, THIRD PARTY DEFENDANTS.



The opinion of the court was delivered by: District Judge Joan H. Lefkow

MEMORANDUM OPINION AND ORDER

Plaintiffs bring a motion to compel production of a handwritten document that was created by defendant Brian Craig. Defendants oppose this motion arguing that the document is protected by the attorney-client privilege or by the work product doctrine. The Court has reviewed the document in camera, and the parties' submissions, and finds neither protection applicable. Therefore, plaintiffs' motion to compel is granted [dkt. 77].

BACKGROUND

Plaintiffs brought this suit alleging that the negligence of defendant Keen Transport, Inc. ("Keen") and its employee, defendant Brian Craig ("Craig"), resulted in personal injuries to plaintiff Carl Lewis ("Lewis"). According to the complaint, on September 15, 2008, Lewis was injured when a truck axle fell off of a fork lift that was being operated by Craig.*fn1 Sometime after the accident, Craig handwrote a statement describing the incident ("the statement"). At the top of the statement is the phrase: "This made for the purpose of possible future litigation."

To provide some factual context around the creation of the statement, defendants submit affidavits from two Keen employees, Greg Anderson ("Anderson") and Pete Trimble ("Trimble"). Anderson is an office manager at Keen's Aurora facility, where the accident occurred.*fn2 Trimble is the Corporate Safety and Claims Director at Keen.*fn3 Trimble, it appears, does not work at the Aurora facility.*fn4 According to the affidavits, as soon as Trimble heard about the accident, he called an insurance representative.*fn5 He also states that on that same day he spoke with defense counsel, Steven Krkljes ("Krkljes"), who remains counsel of record in this action.*fn6 According to Trimble, Krkljes advised him, "that if any statements were taken that such statements should be clearly identified as being for the purpose of possible future litigation."*fn7 Trimble states that he then relayed this instruction to the Aurora facility.*fn8 Anderson confirms that he received this direction from Trimble.*fn9 While the exact timing of these conversations is unknown, Trimble states that they all occurred on the morning of September 15, 2008.*fn10

The precise timing of when Craig wrote the statement is also unclear. According to Anderson, via affidavit, Craig wrote the statement the day after the accident, on September 16, 2008.*fn11 Specifically, Anderson states that he wrote the phrase, "This made for the purpose of possible future litigation" on the top of a piece of paper (that next day) and then gave the paper to Craig and Craig wrote his account of the events.*fn12 Trimble states that he reviewed the statement and "it is not the type of document that is created in the regular course of business of Keen when investigating accidents."*fn13

But Craig also testified in his deposition that he wrote a "report" approximately thirty minutes after the accident.*fn14 It is not clear whether this "report" is the statement, or something else. The only other accident report that the Court is aware of is an "Industrial Accident Investigation Report," which is dated September 17, 2008, and it is unclear who wrote it.*fn15 This report may relate to an exhibit plaintiffs submitted, which shows that it is a Keen policy for employees to complete "required state forms" following accidents.*fn16

This lawsuit was then filed on June 29, 2009.*fn17 Initially, the complaint named only Keen as a defendant.*fn18 Keen responded to discovery on June 4, 2010, but did not advise plaintiffs of the existence of Craig's statement because, apparently, defendants were not aware of its existence.*fn19

On August 6, 2010, Plaintiffs filed a Second Amended Complaint adding Craig as a defendant*fn20 and issued discovery requests to Craig. In discovery responses dated October 7, 2010, defendants identified the statement.*fn21

DISCUSSION

Plaintiffs now seek production of the statement, but defendants argue that the statement is shielded from production because of the attorney-client privilege or work product doctrine. Upon the filing of this motion, we requested the statement from defendants to review in camera. We note that Defendants have filed two responses to this motion: the first immediately after plaintiffs filed the motion, which argues only that the attorney-client privilege applies; and the second after the parties appeared in Court, which addresses the work product doctrine as well.*fn22

A. Attorney-client Privilege

Defendants primarily argue that the statement is protected by the attorney-client privilege. In diversity actions, state law of the forum state governs our analysis of the attorney-client privilege.*fn23 The purpose of the attorney-client privilege is to promote full and frank communications between a client and ...


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