The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
RYAN M. WHITMORE, et al.
Plaintiffs, CIVIL ACTION NO. 3:21-cv-01606
v. (SAPORITO, M.J.)
CBK RESORT HOLDINGS, LLC,
individually and d/b/a Camelback
Lodge and Aquatopia Indoor
Waterpark, et al.,
Defendants.
MEMORANDUM
This matter is before the court on the plaintiffs’ motion to compel
production of the January 5, 2022, recorded statement of defendants’
employee, Connor Kloiber (Doc. 29).
I. Statement of Facts
In their complaint, the plaintiffs have alleged that on February 24,
2020, the plaintiff, Ryan M. Whitmore, fractured his neck at the
defendants’ indoor water park on the simulated wave amusement ride
known as the “FlowRider.”
Following the incident, the defendants prepared a consolidated
report which included an account of the incident by the defendants’
employee, Connor Kloiber, who was stationed at the FlowRider at the time
Mr. Whitmore sustained his injuries. In response to a request for
production of documents, the defendants, without waiving objections,
disclosed that Mr. Kloiber’s recorded statement was taken on January 5,
2022, by defense counsel’s agent, Argonaut Investigations. Further, in
their response, the defendants maintained that Mr. Kloiber’s statement
was taken at the request of defense counsel and in anticipation of
litigation. The defendants refuse to disclose Mr. Kloiber’s statement on
the basis that it is protected from production by virtue of the attorney
work product doctrine as set forth in Fed. R. Civ. P. 26(b)(8). 1
The plaintiffs argue that their investigator telephoned Mr. Kloiber
to speak about the incident, and Mr. Kloiber directed all inquiries to
counsel for the defendants. In addition, the plaintiffs contend that they
have a substantial need in obtaining Mr. Kloiber’s recorded statement
because the case will turn on credibility and witness accounts, as Mr.
Kloiber allegedly is the only witness to the incident. Also, the plaintiffs
i Argonant Investigations also took recorded statements of four
additional employees of the defendants after suit was filed and in
anticipation of litigation. None of those statements were produced to
plaintiffs’ counsel, nor are they sought in the motion to compel.
assert that they cannot obtain the substantial equivalent of Mr. Kloiber’s
recorded statement without undue hardship.
The motion is fully briefed (Doc. 30; Doc. 31). The Court conducted
an oral argument on July 11, 2022. The motion is ripe for disposition.
II. Legal Standards
“Unlike the attorney-client privilege, the work product privilege is
governed, even in diversity cases, by a uniform federal standard embodied
in the federal rules.” U.S. Fid. & Guar. Co. v. Barron Indus., Inc., 809 F.
Supp. 355, 364 n.10 (M.D. Pa. 1992) (citing United Coal Cos., 839 F.2d at
966). “The work product doctrine is governed by a uniform federal
standard set forth in Fed. R. Civ. P. 26(b)(3) and ‘shelters the mental
processes of the attorney, providing a privileged area within which he can
analyze and prepare his client’s case.” In re Cendant Corp. Sec. Litig., 343
F.3d 658, 661-62 (3d Cir. 2003).
The purpose of the work-product doctrine differs from that of
the attorney-client privilege.... [T]he attorney-client
privilege promotes the attorney-client relationship, and,
indirectly, the functioning of our legal system, by protecting
the confidentiality of communications between clients and
their attorneys. In contrast, the work-product doctrine
promotes the adversary system directly by protecting the
confidentiality of papers prepared by or on behalf of attorneys
in anticipation of litigation. Protecting attorneys’ work
product promotes the adversary system by enabling
attorneys to prepare cases without fear that their work
product will be used against their clients.
Westinghouse, 951 F.2d at 1427—28. Moreover,
the doctrine is an intensely practical one, grounded in the
realities of litigation in our adversary system. One of those
realities is that attorneys often must rely on the assistance
of investigators and other agents in the compilation of
materials in preparation for trial. It is therefore necessary
that the doctrine protect material prepared by agents for the
attorney as well as those prepared by the attorney himself.
United States v. Nobles, 422 U.S. 225, 238-39 (1975) (footnote omitted).
Thus, under Rule 26(b)(3), the work-product doctrine shields from
discovery “documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another party or its
representative (including the other party’s attorney, consultant, surety,
indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(8)(A). “In
distinguishing between proceedings which qualify as litigation and those
that do not, the adversarial nature of the proceeding is characteristic of
litigation.” In re Rail Freight Fuel Surcharge Antitrust Litig., 268 F.R.D.
114, 117 (D.D.C. 2010). Although a common hallmark of litigation is
whether “the parties have the right to cross-examine witnesses or to
subject an opposing partys presentation of proof to equivalent
disputation,” see United States v. Am. Tel. & Tel. Co., 86 F.R.D. 603, 627
(D.D.C. 1980),
[t]he proper focus should be whether the proceeding required
the lawyer to function as lawyers usually do at a trial so that
the proceeding can be classified as “litigation.” This properly
segregates the transactional work of lawyers who draft
contracts or provide legal advice from lawyers who have to
represent clients before tribunals that have the power to
adjudicate their clients’ rights, whatever the nature of the
proceeding. If the tribunal has the power to adjudicate those
rights and demands that the party before it either make a
certain showing or disprove a particular allegation, the
process is adversarial by its very nature and surely qualifies
as litigation.
Rail Freight Fuel Surcharge, 268 F.R.D. at 118; see also Restatement (3d)
Lawyers § 87 cmt. H (“In general, a proceeding is adversarial when
evidence or legal argument is presented by parties contending against
each other with respect to legally significant factual issues.”).
Rule 26(b)(3) establishes two categories of protection: fact work
product and opinion work product. “Fact work product is discoverable only
upon a showing [of] ‘substantial need’ and by demonstrating that one
cannot otherwise obtain the ‘substantial equivalent’ of such materials
without ‘undue hardship.” In re Linerboard Antitrust Litig., 237 F.R.D.
373, 381 (E.D. Pa. 2006) (quoting Fed. R. Civ. P. 26(b)(3)). Opinion work
product, “which consists of ‘mental impressions, conclusions, opinions, or
legal theories of an attorney,’ is afforded almost absolute protection” and
it “is discoverable ‘only upon a showing of rare and exceptional
circumstances.” Linerboard, 237 F.R.D. at 381 (quoting Cendant, 343
F.3d at 663).
Waiver of the work-product doctrine also works differently than
waiver of the attorney-client privilege. Unlike the attorney-client
privilege, where disclosure to a third party waives the privilege unless the
disclosure is necessary to further the legal representation, “the work-
product doctrine serves instead to protect an attorney’s work product from
falling into the hands of an adversary,” and thus “disclosure must enable
an adversary to gain access to the information” for it to constitute waiver
of work-product protection. Westinghouse, 951 F.2d at 1428; see also
Miller, 104 F.R.D. at 445-46.
Finally, we note that,
fo]jrdinarily, the work-product doctrine should only be
applied after it is decided that attorney-client privilege does
not apply. This is because the work-product doctrine applies
only to “documents and tangible things otherwise
discoverable.” If the attorney-client privilege applies to a
particular item, it is absolutely undiscoverable and the
work-product rule does not apply.
Robinson v. Texas Automobile Dealers Ass'n, 214 F.R.D. 482, 442 (E.D.
Tex. 2003) (citations omitted) (quoting Fed. R. Civ. P. 26(b)(3)), vacated in
part on other grounds by 2013 WL 21911333 (5th Cir. July 25, 2003)
(mem.).
III. Discussion
Guided by the standards set forth above, Fed. R. Civ. P. 26(b)(8)
requires that we consider three questions in determining whether Mr.
Kloiber’s statement at issue in this case is discoverable: (1) whether the
statement was made in anticipation of litigation; (2) whether the
plaintiffs have shown substantial need of the statement; and (3) whether
the plaintiffs are unable, without undue hardship, to obtain the
substantial equivalent of the statement. See Brown v. Nicholson, 2007 WL
1237931 *2 (E.D. Pa. Apr. 25, 2007). During oral argument, the plaintiffs
conceded that the statement is work product but its production falls
within exceptions to the rule.
a. Was the statement made in anticipation of litigation?
Here, the plaintiffs concede that Mr. Kloiber’s recorded statement
was made in anticipation of litigation as it was obtained by defense
counsel’s investigator approximately four (4) months after suit was filed.
(Doc. 30, at 5). We also note that the statement in question was taken
just under two years after the date of the incident.
b. Have the plaintiffs established substantial
need to obtain the statement?
The plaintiffs argue that they have a substantial need to obtain the
recorded statement of Mr. Kloiber because Mr. Kloiber’s alleged account
that the plaintiff, Ryan Whitmore, was injured on his second attempt at
riding the FlowRider forms the basis of the defendants’ primary defense
that Mr. Whitmore failed to heed Mr. Kloiber’s warnings. Additionally,
the plaintiffs contend that Mr. Kloiber is the defendants’ only eye-
witness to this incident. Finally, they argue that as there is no video of
the incident, the outcome of the case will largely turn on the credibility
of the witnesses on the date of the incident. In support of their position,
the plaintiffs rely upon McCann v. Miller, Civil Action No. 08-561, 2009
WL 1941206 *2 (E.D. Pa. July 6, 2009), where the court held that the
plaintiff had a substantial need for contemporaneous statements of the
defendant’s employees because the outcome of the case “will largely turn
on credibility and witness accounts of the incident.”
The defendants do not directly address this prong of the rule.
Rather, the defendants refer to “plaintiffs claims of prejudice” which
were recognized by The Third Circuit (Doc. 31, at 4) and which do not
exist here.
Here, our facts are distinguishable from McCann in that the
statement sought by the plaintiffs was not a contemporaneous statement
made by Mr. Kloiber at or near the time of the incident. Rather, the
recorded statement was taken almost two years after the event giving
rise to the plaintiffs’ cause of action. Our inquiry, however, does not end
there.
c. Can plaintiffs obtain the substantial
equivalent of the statement without undue
hardship?
The plaintiffs maintain that they cannot obtain the substantial
equivalent of Mr. Kloiber’s recorded statement without undue hardship.
In support of this contention, the plaintiffs rely upon McNulty v. Bally’s
Park Place, Inc., 120 F.R.D. 27, 30 (E.D. Pa. 1988), where the court
ordered the production of a statement taken near the time of the
plaintiffs alleged slip and fall injury from an unavailable and potentially
deceased witness who was “the only witness to the plaintiff's fall” and
from whom only two statements were ever taken, both by the defendant.
Here, the plaintiffs acknowledge that they have located Mr. Kloiber, but
he refused to speak with the plaintiffs’ agent and he directed all inquiries
to defense counsel. (Doc. 30, at 7).
The defendants assert that the plaintiffs have not requested to
depose Mr. Kloiber and that defense counsel would make Mr. Kloiber
available for a deposition as a former employee of the defendants. (Doc.
31, at 4). Despite his unwillingness to speak with the plaintiffs’ agent,
Mr. Kloiber is otherwise available. Unlike the witness in McNulty, Mr.
Kloiber’s whereabouts are known to the plaintiffs, and defense counsel
has represented a willingness to produce him for a deposition. Thus, we
will deny the plaintiffs’ motion to compel. However, this opinion is
limited only to the facts presently before us. If circumstances should
change during or after the anticipated deposition of Mr. Kloiber, those
facts may yield a different result.
An appropriate order follows.
□ : .
GOskbH F, moe JR.
U.S. Magistrate Judge
Dated: July 13, 2022
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