JONES v. SWEPI LP

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROSA JONES, ADMINISTRATIX of )

the ESTATE of MARC JONES, )

DECEASED, )

)

Plaintiff, ) 2:19-cv-00050

)

v. )

)

SWEPI L.P. et al., )

)

Defendants. )

OPINION

Mark R. Hornak, Chief United States District Judge

Pending before the Court is Defendant Consolidated Rig Works, L.P.’s (“Consolidated

Rig”) Motion for a Protective Order seeking to prevent discovery of multiple email threads, field

service reports, and an internal memorandum. (ECF No. 95.) Plaintiff Rosa Jones asserts that

Consolidated Rig’s “blanket assertions” that the disputed documents are work product falls well

short of meeting the invoking-party’s burden. (ECF No. 96.) And even if blanket assertions were

enough, Ms. Jones argues that the documents at issue were not created primarily for the purpose

of litigation, thus placing the documents outside the work product doctrine’s protection. For the

reasons that follow, except for the December 12, 2018, emails identified in paragraph thirty-six

(36) of its Motion, Consolidated Rig’s Motion is DENIED. Because Ms. Jones withdrew her

request for the December 12, 2018 emails (ECF No. 96, at ¶ 36), Consolidated Rig’s Motion as to

those emails is DENIED AS MOOT.

I. LEGAL STANDARD

Federal Rule of Civil Procedure 26(b)(3) governs work product protection for documents.

The Rule provides: “Ordinarily, a party may not discover 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)(3). But the Rule allows for disclosure of otherwise protected work product if the

requesting “party shows that it has substantial need for the materials to prepare its case and cannot,

without undue hardship, obtain their substantial equivalent by other means.” Id.

To determine whether the work product doctrine protects a document, the Court conducts

a two-part inquiry: First, the Court asks whether litigation could reasonably have been anticipated

when the document was created. Second, the Court asks whether the document was prepared

primarily for the purpose of litigation. See United States v. Rockwell Int’l, 897 F.2d 1255, 1265–

66 (3d Cir. 1990). “Documents prepared for other purposes that prove useful in subsequent

litigation are not attorney work-product.” In re Gabapentin Pat. Litig., 214 F.R.D. 178, 184 (D.N.J.

2003). The party invoking work product protection bears the burden of establishing both parts of

the Court’s inquiry. See Highland Tank & Mfg. Co. v. PS Int’l, Inc., 246 F.R.D. 239, 246 (W.D.

Pa. 2007). “Blanket assertions are not enough to shift the burden to the party seeking discovery.”

Id. (citing S. Union Co. v. Sw. Gas Corp., 205 F.R.D. 542, 549 (D. Ariz. 2002)).

II. DISCUSSION

Consolidated Rig moved for a protective order preventing the discovery of multiple emails,

field service reports, and an internal memorandum. (ECF No. 95.) For some of these documents,

Consolidated Rig attached redacted versions as an exhibit to its Motion. For others, Consolidated

Rig withheld the document altogether. Jones filed a Response in opposition, arguing that

Consolidated Rig’s assertion of work product was too generalized; the requested documents were

not work product; and even if the documents were work product, Jones has a substantial need for

their production. (ECF Nos. 96 and 97.) The Court reviewed Consolidated Rig’s exhibits (ECF

Nos. 95-1 and 95-2) and reviewed the withheld or redacted documents in camera. (ECF Nos. 104

and 106.)

For simplicity, the Court’s discussion will group the contested documents into four (4)

categories. First, the Court will discuss the withheld field service reports.1 Second, the redacted

emails.2 (ECF Nos. 95-1 and 95-2.) Third, the withheld emails.3 And fourth, the withheld internal

memorandum.4 Based on its review, the Court concludes that none of the withheld documents are

protected by the work product doctrine.

A. The Withheld Field Service Reports

Consolidated Rig provided the Court with eight (8) field service reports it withheld on work

product grounds. The Court then conducted an in camera review of these contested documents and

concludes that they are not work product.

All of the withheld field service reports were created between November 7 and November

14, 2018—shortly after Mr. Jones’s death. In them, a Consolidated Rig technician, Donald Taylor,

documents maintenance performed on the snubbing rig involved in Mr. Jones’s tragic accident

(“snubbing rig # 10”). (ECF No. 95, at 19–25.) In its Motion, Consolidated Rig states that because

Mr. Taylor created the reports after the accident, Consolidated Rig “reasonably anticipated the

prospect of litigation resulting from the accident.” (Id.) Consolidated Rig further asserts that the

reports “contain mental impressions and opinions from Consolidated Rig personnel concerning

areas of the snubbing rig where Mr. Taylor’s focus should be concentrated.” (Id.) Thus,

Consolidated Rig argues, disclosure of the field service reports “could reveal Consolidated Rig

1 The withheld field service reports are identified in paragraphs 38, 39, 40, 41, 42, 43, 44, 45.

2 The redacted emails are identified in paragraphs 27, 28, 29, 32, 33, 34, 35, 36.

3 The withheld emails are identified in paragraphs 24, 25, 26, 30, 31.

4 The withheld internal memo is listed in paragraph 37.

personnel’s thought processes, opinions and conclusions concerning possible contributing factors

to the plaintiff’s accident, whether Consolidated Rig would have potential liability based upon

those contributing factors, and strategy respecting Consolidated Rig’s defenses to anticipated

litigation.” (Id.)

Consolidated Rig does not offer any more substantive justification for why these particular

withheld field service reports are work product, other than what the Court quoted above. Based on

the Court’s in camera review, the field service reports are not work product. In them, Mr. Taylor

simply details maintenance he performed on the snubbing rig involved in the accident that killed

Mr. Jones. Nothing about the reports facially suggests that they were created for the primary

purpose of litigation. Rockwell Int’l, 897 F.2d at 1265–66. Instead, they facially appear to

document the work Mr. Taylor performed on the snubbing rig in the weeks following the accident.

What’s more, Consolidated Rig has offered up no extrinsic evidence—for example, affidavits from

its general counsel or outside counsel—to suggest it sent Mr. Taylor to the accident site for some

litigation-centric purpose. Because work product protection only extends to documents that are

created primarily for litigation, not just any document that is later useful for litigation, the field

service reports fall outside Rule 26(b)(3)’s protection. In re Gabapentin Pat. Litig., 214 F.R.D. at

184.

B. The Redacted Emails

Consolidated Rigs next supplied to the Court, for in camera review, the redacted emails

identified in paragraphs twenty-seven (27), twenty-eight (28), twenty-nine (29), thirty-two (32),

thirty-three (33), thirty-four (34), thirty-five (35), and thirty-six (36) of its Motion. (ECF No. 95.)

Following its review, the Court concludes that the contested redactions do not constitute work

product.

The redacted emails that Consolidated Rig seeks to protect are part of an email chain that

is partially an internal Consolidated Rig conversation and partly correspondence with a

representative of Shell. The email chain’s subject line reads: “Re: Issuance of Industry Learning

from Incident.” (ECF No. 95-1, at 36.) And the conversation was in regard to Shell, the company

that operated the rig site where Mr. Jones died, drafting a sort of accident report to share broadly

within the industry. (Id.)

The first email in the thread is from Shayne Dustin, using a Shell email address, to Caleb

Fulks, using a Consolidated Rig email address. (Id.) In that initial email, which is left completely

unredacted, Mr. Dustin thanks Mr. Fulks for his “time and support in sharing a broad industry

learning.” (Id.) Mr. Dustin goes on to offer a template report for Mr. Fulks to use and suggests a

simple way of phrasing the description of the accident in the report. (Id.) Mr. Dustin also tells Mr.

Fulks that he wants to have the industry learning report done in time to share with executives at

Shell in the upcoming weeks. (Id.) And Mr. Dustin says: “we want to share the learnings broadly

to ensure that learning from this incident helps our entire industry.” (Id. at 37.) Finally, Mr. Dustin

attached a copy of the draft industry learning report, which is addressed to “Service Sector of the

Oilfield Industry.” (Id. at 41.) The draft report, left completely unredacted, suggests a possible

cause of the accident that killed Mr. Jones as well as a fix for the piece of equipment involved.

(Id.)

Looking closely to the email chain’s redacted portions, Consolidated Rig seeks to protect

a few sentences exchanged between Mr. Rick Coon and Mr. Caleb Fulks relating to the industry

learning report described above. (Ex. 95-2, at 12–13.) The emails in question were sent on

December 7, 2018; December 9, 2018; and December 11, 2018. (Id.) Other Consolidated Rig

personnel who were included on the email chain but were not active participants included: Jeremy

Lawrence (Service Manager), Wayne Chance (Manager), and Kenneth “Kenny” Butler (Chairman

of the Board and Technical Sales). (Id.) The redacted portions include both parts of Mr. Fulks’s

email and parts of Mr. Coon’s response to Mr. Fulks regarding the industry learning report. (Id.)

In the redacted portions, Mr. Fulks indicates that the Shell template did not “add anything in the

way of legal protection” and further states that the template should be reviewed by Consolidated

Rig’s outside counsel, John Salterelli, before releasing to Shell for broader sharing. In response,

Mr. Coon stated that he forwarded said report to Mr. Salterelli. In another redacted portion of his

reply, Mr. Coon made a statement suggesting that additional safety warnings on valves’ hosing

may be needed, but Mr. Coon also asserted that his comment was not directed at the snubbing rig

accident at issue here.

Specifically, Consolidated Rig argues that Mr. Coon’s December 7, 2018 reply falls within

the scope of the work product protection because the email “was sent well after Consolidated Rig

reasonably anticipated the prospect of litigation resulting from the accident” and discusses

contributing factors to the plaintiff’s accident which would demonstrate liability on the part of

Consolidated Rig. (ECF No. 95, at 12, 15.) The December 9, 2018 and December 11, 2018 emails

are redacted on the same grounds. (Id. at 12, 13, 15, 16, 17.) Further, regarding the December 11,

2018 email, Consolidated Rig argues that because Mr. Coon’s reply had been sent after the

complaint in this action was filed, the timing evidences “that litigation had already been reasonably

anticipated immediately following notification of this accident”; and that Mr. Coon “was

confirming the request to send the documents for legal review.” (Id. at 17.) In sum, Consolidated

Rig argues that based on its descriptions of the emails and justifications for redactions summarized

above, each redaction contains “mental impressions of Consolidated Rig personnel concerning the

accident”; “strategy respecting and concerning potential defenses to the accident”; and “opinions

and strategy . . . prepared in anticipation of litigation.” (Id., at 15, 16, 17.)

Consolidated Rig bears the burden of establishing that the content behind the redacted

portions of these emails was made both in reasonable anticipation of litigation and with the primary

purpose of preparing for litigation. See Highland Tank, 246 F.R.D. at 246. In light of its in camera

review, the Court concludes that Consolidated Rig has not met its burden. The Court addresses

each of Consolidated Rig’s arguments pertaining to the email redactions in chronological order.

First, Consolidated Rig’s argument that the December 7, 2018 redaction is entitled to

protection because the content of the email contains internal discussions about the plaintiff’s

accident and whether Consolidated Rig would have potential liability (ECF No. 95, at 15) does not

satisfy Consolidated Rig’s burden on such a motion because these arguments are merely blanket

assertions. See Highland Tank, 246 F.R.D. at 246. Further, while Mr. Coon’s comment in the email

about a safety warning may, if liberally interpreted, suggest that Mr. Coon’s email was sent in

anticipation of litigation, the email’s content does not persuade the Court that the email was created

for the primary purpose of preparing for litigation, and both components are required to trigger

work product protection. Rockwell Int’l, 897 F.2d at 1265–66. Notably, Mr. Coon’s email reply

makes clear at the outset that his statement pertaining to the potential need for safety warnings

bore no relation to Mr. Jones’s accident or the industry learning report being discussed.

Accordingly, the wording of Mr. Coon’s reply facially demonstrates that his email response was

not sent with an eye on potential litigation following Mr. Jones’s death, and thus, it does not fall

in the scope of work product protection. Id.

Second, Consolidated Rig’s arguments that Mr. Fulks’s statements in the December 9,

2018 email thread fall within the work product protection are also advanced by its making blanket

assertions, which is “not enough to shift the burden to the party seeking discovery.” See Highland

Tank & Mfg. Co., 246 F.R.D. at 246. Taking a closer look at the email’s content, Mr. Fulks’s

suggestion that Consolidated Rig share the report with “DWS and shell for general approval” and

his second suggestion to Mr. Coon that the company “run [the industry learning report] by

Salterelli prior to officially releasing it to Shell for their use” does not indicate that the email was

sent in anticipation of or in preparation for litigation regarding the October 27, 2018 accident.

First, correspondence surrounding a broad industry learning report does not facially support a

conclusion that the emails were litigation specific. Second, Mr. Fulks’s statement: “prior to

officially releasing it to Shell for their use” indicates that the correspondence was for a purpose

other than preparing Consolidated Rig for litigation in the instant matter. Rather, this statement

demonstrates that the purpose behind the email was to ensure the creation of an accurate and

thoroughly reviewed industry learning report prior to releasing to Shell for broader dissemination.

Thus, these redactions were not in anticipation of litigation surrounding Mr. Jones’s accident on

snubbing rig # 10 nor were they sent in preparation for litigation stemming from the accident.

When a document is prepared for another purpose other than litigation as the motivating force, the

document is not afforded the work product protection. See In re B & C Seafood LLC, 431 F. Supp.

3d 533, 536 (D.N.J. 2019) (Documents “created for another purpose are not protected”).

Third and finally, Consolidated Rig contends that the December 11, 2018 email should be

protected because it would otherwise reveal Mr. Coon’s confirmation that the industry learning

report (which the Court notes was left entirely unredacted) should be sent to legal counsel for

review. (ECF No. 95, at 17–18.) In the Court’s assessment, the redaction is not work product, and

further, Consolidated Rig’s reasoning does not support a finding of work product protection. Mr.

Coon’s confirmation that he sent along the industry learning report to outside counsel suggests

nothing more than what was already described above; it does not suggest that his confirmation

email was sent in anticipation of or in preparation for the litigation arising from Mr. Jones’s

accident. Again, it strikes the Court that sending a document to counsel for review prior to an

industry-wide dissemination would be for a purpose reflecting ordinary or common practice

because Consolidated Rig would want to ensure that a report intended to be broadly shared was

thoroughly reviewed prior to releasing to Shell or another like-company for official use. That

communication does not evince a litigation-detected purpose. See In re B & C Seafood LLC, 431

F. Supp. 3d at 536 (holding that documents “prepared in the ordinary course of business or created

for another purpose are not protected”).

Next, while Consolidated Rig’s argument regarding the timing of Mr. Coon’s December

11, 2018 email could lead to an inference that Mr. Coon’s reply was made in anticipation of

litigation, such an inference is not a benefit to which Consolidated Rig is entitled on a motion for

protective order.5 Id. In sum, the Court concludes that Consolidated Rig has not met its burden,

and the redacted portions of email chains dated December 7, 2018; December 9, 2018; and

December 11, 2018 do not fall within the scope of work product protection.

5 Ms. Jones’s Complaint was filed on December 10, 2018 (ECF No. 1-2). At 7:29 AM the very next day, Mr. Coon

sent the reply to Mr. Fulks’s email chain. (ECF No. 1-1.) Meanwhile, process was not served on Defendant Shell

Energy Service Company until December 17, 2018 and was not served on Defendant Swepi L.P. until December 26,

2018. (ECF No. 1-3.) Finally, Consolidated Rig was not added as a Defendant until June 9, 2019. (ECF Nos. 36 and

38.) Consolidated Rig wants the Court to infer from these dates that Mr. Coon’s reply to Mr. Fulks on December 11,

2018, sent just twenty-four (24) hours or less after Ms. Jones filed her first complaint against a defendant other than

Consolidated Rig, in addition to the earlier-in-time email redactions on December 7 and 9, were in anticipation of

litigation arising out of the accident. Logically speaking, however, these dates do not support such an inference.

First, Consolidated Rig was not yet a named party in the action at the time Mr. Coon sent the email, and because the

email does not facially support a claim that the email was sent in anticipation of litigation, it would not fall within

the work product protection’s scope. Mr. Coon’s reply was instead a confirmation that he forwarded the broad

industry learning report to Mr. Salterelli for review with the intent that Mr. Salterelli review the report before

Consolidated Rig sent off to Shell for use and sharing. Consolidated Rig’s burden on a motion for protective order is

not satisfied by unsupported inferences like the one Consolidated Rig asks the Court to make here, i.e., that the

email was sent in anticipation of litigation. Highland Tank, 246 F.R.D. at 246 (explaining that the party invoking

work product protection bears the burden of establishing both that the document was made in anticipation of and in

preparation for litigation).

C. The Withheld Emails

Next, Consolidated Rig submitted to the Court a series of five (5) emails or email threads

for an in camera review, and the Court concludes that none are not entitled to the work product

protection. The withheld emails were sent a few days after the October 27, 2018 accident, and the

Court will first review the contents of the emails prior to discussing its rulings.

On October 31, 2018, correspondence took place between Mr. Fulks and Jeremy Lawrence,

Consolidated Rig’s Service Manager, in which Mr. Lawrence appears to be explaining to Mr. Fulks

some mechanics of the snubbing rig system and how a malfunction could have occurred. In another

email chain dated October 31, 2018, Mr. Fulks forwarded Mr. Lawrence an older email thread,

which predates the accident that killed Mr. Jones by a few months. In the earlier-in-time email

chain that Mr. Fulks forwarded, Chris Griffin, Consolidated Rig’s Sales Manager, sent a message

to a group of Consolidated Rig executives (including Mr. Fulks) and an unidentified Hotmail email

address. The subject line of the email chain was: “DWS snub 10 (9) follow up Q&A update #3.”

In it, Mr. Griffin requested that the Consolidated Rig executives review the Q&A update regarding

snubbing rig # 10, the snubbing rig where Mr. Jones’s accident later occurred, prior to sending out

to customers or including in training materials.

In another withheld email thread dated October 31, 2018, and with the subject line, “Snub

10 Videos,” Melissa Ortiz, Consolidated Rig’s Technical Publications and Document Control

Manager, sent Mr. Fulks and Mr. Lawrence a dropbox link (that is no longer active to the Court’s

knowledge). Finally, on October 31, 2018, Mr. Griffin forwarded to Mr. Coon and Mr. Fulks an

older email chain that dates back to July 2016. The July 2016 email chain was entitled “#9

Investigation and Repair Items” and originated with Jay Lyons, a Deep Well Services (DWS)

Superintendent, in which Mr. Lyons provided to Consolidated Rig executives and a few other

DWS employees a list of needed repairs on snubbing rig number nine (9).

Consolidated Rig argues that the emails described above should be withheld in their

entirety because “the communication[s were] sent several days following the plaintiff’s accident

and after Consolidated Rig reasonably anticipated the prospect of litigation resulting from the

accident.” In addition, because the emails contain “discussions concerning possible contributing

factors to the plaintiff’s accident,” Consolidated Rig argues that the emails contain “mental

impressions of Consolidated Rig personnel concerning the accident, and contains strategy

respecting and concerning potential defenses to the accident” and should be withheld on those

grounds. (ECF No. 95, at 10, 11, 14.)

In the Court’s view, the email chains that Consolidated Rig seeks to protect either discuss

generally the snubbing rig where Mr. Jones was killed or include forwarded content that predates

the October 27, 2018 accident (some by months and one email chain by two years). The content

of the emails does not facially suggest that they were created in accordance with the work product

doctrine’s second required prong: with the primary purpose of preparing for litigation in the instant

case. Rockwell Int’l, 897 F.2d at 1265–66. Rather, the email chains reflect what the Court

concludes to be emails sent in the regular course of business, which includes corresponding about

and investigating a recent accident as well as routine compilations of investigation reports detailing

necessary repairs on snubbing rigs. See In re B & C Seafood LLC, 431 F. Supp. 3d at 536

(“Documents prepared in the ordinary course of business or created for another purpose are not

protected, regardless of their utility in subsequent litigation.”). Again, the fact that a few days after

Mr. Jones’s death, Mr. Griffin, Mr. Lawrence, or Mr. Fulks corresponded regarding the event;

requested videos of snubbing rig # 10; or forwarded along email chains dated well before the

accident does not now bring these documents or their contents under the protection of Rule

26(b)(3) because documents “prepared for other purposes that prove useful in subsequent litigation

are not attorney work-product.” In re Gabapentin Pat. Litig., 214 F.R.D. at 184. Notably, one of

the email chains that Consolidated Rig now seeks to withhold as work product includes

information about a snubbing rig other than the one involved in the present accident, which does

not support a finding that the emails were sent in anticipation of or preparation for litigation.

Another withheld email purports to be for sales or customer relations purposes as Mr. Griffin stated

in his email that an investigation report circulated for review by Consolidated Rig personnel was

“to show our customer base that we are learning and getting better with every step,” and not for

the primary purpose of litigation in the present matter. Finally, Consolidated Rig has offered no

extrinsic evidence, such as affidavits from its general counsel or outside counsel, to suggest that

the withheld emails, or the dropbox link included in one of the withheld emails, were conceived

with litigation as the primary motivation. See In re B & C Seafood LLC, 431 F. Supp. 3d at 536

(explaining that to meet its burden, the party moving for work product protection must

“demonstrate the precise manner in which a document is protected”). Again, because work product

protection extends only to documents that are created primarily for litigation, not just any

document that is later useful for litigation, the withheld emails are not entitled to Rule 26(b)(3)’s

protection. In re Gabapentin Pat. Litig., 214 F.R.D. at 184; see In re B & C Seafood LLC, 431 F.

Supp. 3d at 536.

D. The Withheld Internal Memorandum

Finally, Consolidated Rig submitted an internal memorandum (the “memo”) to the Court

for in camera review. The memo is dated November 18, 2018, which is a little over two (2) weeks

after the accident that killed Mr. Jones. The Court concludes that the internal memo does not

constitute work product and should not be withheld.

Consolidated Rig argues that because this memo was prepared “well over two [2] weeks

following the plaintiff’s accident,” it was prepared while Consolidated Rig “reasonably anticipated

the prospect of litigation resulting from the accident.” (ECF No. 95, at 19.) And thus, Consolidated

Rig argues that the “contents of the memo and its attachments contain mental impressions . . .

concerning the accident.” (Id.) Consolidated Rig additionally notes that “two (2) photographs

attached to this memo were taken during assembly of the snubbing rig in 2016 and those

photographs have already been produced to the plaintiff.” (Id.) Consolidated Rig’s concern,

however, is that the photographs’ “inclusion with this memo, coupled with the attachments and

schematic diagrams, tend to show Consolidated Rig personnel’s mental impressions, opinions and

strategy respecting defense to anticipated litigation.” (Id.)

The Court finds that the timing of the memo and its contents demonstrate that litigation

was reasonably anticipated when the memo was prepared. However, reasonably anticipating

litigation is not all that must be shown to afford a document work product protection. The Court

concludes that it cannot be fairly said that the primary or motivating purpose of the memo was to

prepare for litigation surrounding the October 2018 accident. See In re B & C Seafood LLC, 431

F. Supp. 3d at 537–38 (holding that a report prepared “to serve the purpose of future risk

mitigation, not litigation” does not receive work product protection); In re Martin Marietta

Materials, Inc., No. 10-0036, 2011 WL 1321546, at *3 (E.D. La. Apr. 15, 2011) (finding that a

“Root Cause Analysis” Report was not work product because it was prepared to evaluate and

advance work place safety, not for the primary purpose of litigation). Based on its in camera

review, the Court is not persuaded by Consolidated Rig’s blanket assertions that the document, or

any accumulation of the document with other evidence, contains mental impressions of

Consolidated Rig’s employees regarding the incident and potential defenses. These assertions are

not enough to shield the memo from discovery, especially when the memo contains attachments

of repair and investigation reports predating Mr. Jones’s accident by two years. See In re B & C

Seafood LLC, 431 F. Supp. 3d at 536; Highland Tank, 246 F.R.D. at 246. In the Court’s view, the

internal memo instead appears to be a report prepared with the primary purpose of identifying what

caused Mr. Jones’s accident by compiling past “Q&A” updates, which appear to the Court to

reflect matters in the ordinary course of Consolidated Rig’s business. In re B & C Seafood LLC,

431 F. Supp. 3d at 536 (“Documents prepared in the ordinary course of business or created for

another purpose are not protected, regardless of their utility in subsequent litigation.”). Further, in

the memo, there is no legal advice or analysis; rather, the memo contains a compilation of “critical

issues” and “mistakes” that may have given rise to the accident and that should be part of a

“corrective and preventative action report.” These notations appear to be a mitigative response to

the accident, rather than a report compiled with litigation as the primary motivator. Finally,

Consolidated Rig’s argument that the memo includes discussions as to “whether Consolidated Rig

would have potential liability” does not trigger Rule 26(b)(3)(A) protection––a blanket assertion

of the company’s assessment of liability does not mean that the memorandum was created for the

primary purpose of litigation. Highland Tank, 246 F.R.D. 239 at 246. The Court therefore

concludes that the memo, although likely made in reasonable anticipation of litigation, was not

made for the primary purpose of litigation. Instead, its primary purpose appears to be identifying

what happened to cause the accident to avoid future safety issues on other snubbing rig sites.

Accordingly, the memo does not fall within the scope of Rule 26(b)(3)(A)’s protection.

III. CONCLUSION

Based on its in camera review of Consolidated Rig’s withheld field service reports,

redacted emails, withheld emails, and withheld internal memo, the Court concludes that none of

the withheld or redacted documents are entitled to the work product doctrine protection pursuant

to Rule 26(b)(3). Consolidated Rig has not met its burden as the party invoking the work product

protection, but also, following the Court’s independent review of the documents, the Court

concludes that these documents either were not made in reasonable anticipation of litigation or

were not made with preparation for litigation surrounding Mr. Jones’s death as the primary

purpose. Accordingly, Consolidated Rig’s Motion for a Protective Order is hereby DENIED.

/s Mark R. Hornak

Mark R. Hornak

Chief United States District Judge

Dated: October 28, 2020

cc: All counsel of record via ECF