The Rhode Island Superior Court has held in an asbestos case that photographs taken by defendants’ forensic photographer during an inspection of the jobsite of plaintiff’s decedent are not protected by the work-product doctrine from discovery by plaintiff who also attended the inspection. However, the Court held that documents that defendants selected from the production by the decedent’s employer are protected from discovery by the doctrine. [Disclosure: this firm represents one of the defendants that objected to plaintiff’s attempts to discover its photographs and documents].
Decedent worked at one jobsite for over 30 years and almost all his alleged exposure occurred there. The jobsite was a facility that made products for pharmaceutical industry. There had been a lot of different kinds of equipment throughout the facility. Plaintiff named hundreds of different defendants. Plaintiff’s counsel subpoenaed records reflecting the equipment present in the facility during the 30 plus years that decedent worked there. Plaintiff’s counsel also arranged for a joint-inspection of the jobsite by plaintiff and-defendants in 2011. Defendants hired a forensic photographer to take photographs and video of the jobsite. Plaintiff’s counsel took photos with his own camera that malfunctioned. Two years later, plaintiff served a request for production of the photos defendants had taken and for the documents defendants had selected from all the documents the jobsite had produced. Defendants objected on the grounds that both the photos and the documents were protected from discovery by the work-product doctrine.
Plaintiff moved to compel. She argued that the photos were not work-product because they did not reflect the mental impressions of attorneys and the documents were not prepared in anticipation of litigation. Plaintiff argued that even if the documents and photos were created in anticipation of litigation she had shown a substantial need because she had to prove her decedent was exposed to defendants’ products. Moreover, she could not get the photos by other means without substantial hardship because the current of the facility would not allow a second inspection.
The Superior Court reviewed Rhode Island law respecting the work-product doctrine. The doctrine protects from discovery documents that are prepared in anticipation of litigation. There are two kinds of work-product, opinion work-product and factual work-product. Opinion work product, which reflects an attorney’s mental impressions, opinions, or legal theories, is absolutely immune from discovery. Factual work-product, which is created in anticipation of or during litigation, has only a qualified immunity from discovery. Another party can obtain discovery of factual work-product if it has a substantial need for the materials in the preparation of its case and it is unable to obtain the materials by other means without substantial hardship. Rhode Island courts often look to federal case law for determining the scope of the work-product doctrine.
The Court said that photographs do have the potential to be opinion work-product in that they may reflect the mental impressions and theories of counsel. It said that the purpose of work-product is to keep counsel’s analysis confidential. However, because the photos were taken in the presence of plaintiff’s counsel, defendants had waived the confidentiality. Even if defendants’ counsel attempted to conceal from plaintiff’s counsel what they wanted photographed, plaintiff’s counsel could have learned the same information by listening to the instructions that defense counsel gave to the photographer.
The Court then addressed whether the photographs were discoverable factual work-product (after determining they were clearly factual work-product). The Court said plaintiff had a substantial need for the photos because they may constitute the best evidence that plaintiff was exposed to defendants’ products. The Court said plaintiff had shown substantial hardship because the facility had been sold and many of the items depicted in the photographs were no longer there. The Court said plaintiff’s photos were not the substantial equivalent of defendants’ photos because many of them were of such poor quality that they could not be used as evidence. While the Court criticized the failure of plaintiff’s counsel to plan better for the inspection, it said this was clearly not an instance of plaintiff attempting to “freeload” on the work of defendants because plaintiff’s counsel had arranged the inspection and attempted to take photographs with his own equipment.
The Court denied plaintiff’s request to compel defendants to produce the documents they had selected from the facilities’ production of documents. It said these documents were factual work product and plaintiff could obtain the same information it sought through her own review of the documents through a new subpoena. The Court said mere inconvenience did not constitute the substantial hardship necessary to compel discovery of factual work product.
The opinion seems to create new law in several respects. As an initial matter, the Rhode Island Supreme Court has recently held that an inadvertent disclosure of work-product did not constitute a waiver. Here, the Superior Court made no finding that defendants had intentionally waived whatever opinion work-product protection applied to the photographs. In fact, the Court did not even find an actual waiver of any kind. Apparently, the Court assumed that defense counsel made no effort to keep their instructions to their photographer confidential. Moreover, the Court did not find that plaintiff’s counsel actually heard the instructions being given. Accordingly, there was apparently not even an inadvertent disclosure to constitute the basis of a waiver argument.
With respect to plaintiff’s showing of substantial hardship, the Court focused on the present unavailability of the equipment that had been photographed two years earlier. However, it was evident that plaintiff knew immediately that her photographic equipment had malfunctioned. There was apparently no explanation offered for why plaintiff waited for two years before addressing the problem, for example, by immediately seeking another inspection of the facility.
Defendants are moving to clarify the Court’s ruling with respect to the extent of waiver and substantial hardship in light of facts that were apparently not known to the Court.
Cary v. 3M Co., P.C. No. 10-3263, slip op., (R.I. Super. Nov. 6, 2013)
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