STEVEN K. YAGER Petitioner
MONTANA SCHOOLS GROUP INSURANCE/ ALEXSIS RISK MANAGEMENT SERVICE Respondents/Insurers for LIVINGSTON SCHOOL DISTRICT NOS. 4 AND 1 Employer.
ORDER ON MOTION TO
under consideration is the claimant's motion to compel
discovery. The motion seeks production of two written
investigative reports. The first report was apparently
prepared on December 18, 1992 by Mike Warren, a private
investigator working for Pete Dunbar, who is also a private
investigator. The second is Mr. Dunbar's January 18, 1993
report to the insurer, which had requested the investigation.
Warren conducted surveillance of claimant and made a video
tape. The video tape has been produced by the insurer without
objection. However, the insurer objects to production of the
two reports on work-product grounds. It argues that it has no
obligation to produce the reports in advance of trial because
it does not plan to introduce the reports as a trial exhibit,
thus distinguishing its situation from that in Simons v.
State Compensation Mutual Ins. Fund, 50 St.Rptr. 1628
(December 16, 1993) (holding that a surveillance tape
must be listed as an exhibit in the pretrial order if a party
intends to use it as substantive evidence). However, the
insurer has listed Mr. Warren as a witness on its behalf and
has tendered him for deposition. That deposition was taken
recently and Warren's handwritten notes regarding
surveillance were provided to claimant's attorney.
Nonetheless, the claimant continues to demand the more formal
written reports, while the insurer maintains its steadfast
resistance to that demand.
insurer has requested oral argument. However, after reviewing
the briefs and undertaking its own legal research, the Court
deems argument unnecessary. It notes that neither party cited
any precedent specifically addressing the production of an
investigative report where the investigator will be a witness
Court's recent amended discovery order in Adels v.
Cigna Ins. Co., WCC No. 9307-6831 discusses Supreme
Court decisions holding that documents in the claim file of
an insurer are not entitled to automatic protection under the
work-product doctrine: claim file documents produced in the
ordinary course of the insurer's business, rather than in
anticipation of litigation are not protected.
Id., Order Amending Prior Order Denying Motion to
Compel (march 10, 1994). However, insurers do not ordinarily
employ private investigators to surveil claimants unless
litigation is expected. The protection afforded by the
work-product doctrine extends not only to attorneys but to
others acting as agents and representatives of attorneys,
including private investigators, United States v.
Nobles, 422 U.S. 225, 238-9 (1975). The reports are
protection is not absolute. Ordinary work product is
discoverable upon a showing that "the party seeking
discovery has substantial need of the material in the
preparation of the party's case and that the party is
unable without undue hardship to obtain the substantial
equivalent of the materials by other means." Palmer
v. Farmers Ins., 50 St.Rptr. 1210, 1220 (October 18,
1993) (quoting Rule 26(b)(3), Mont.R.Civ.P.) Mental
impressions, conclusions, opinions and legal theories are
discoverable only upon a showing that they are
"directly at issue and the need for the
material is compelling." Id.
(italics in the original; bolding added).
United States v. Nobles, supra, the United
States Supreme Court held that the work product protection
otherwise afforded reports of a private investigator is
waived where the party elects to present the investigator as
a witness. 422 U.S. at 239. The protection is waived
"with respect to matters covered in his testimony."
422 U.S. at 239-40. Only those portions of the
report that relate to testimony are discoverable.
Court may control the timing of discovery by requiring
production only after the party seeking discovery of work
product is deposed. Cabral v. Arruda, 556 A.2d 47,
50 (R.I. 1989).
applied to this case, Nobles requires the insurer to
produce those portions of Mr. Warren's written
investigative report which concern any matter on which he may
testify at trial. Excepted from disclosure are any
impressions, conclusions, and opinions he may have committed
to writing. Since the insurer may wish to redact
non-discoverable parts of the report, it shall submit to the
Court Mr. Warren's complete report, a redacted copy of
the report, and the reasons for the redactions. The Court
will then appoint its hearing examiner to conduct an
in camera inspection of the redacted
portions to determine whether any of them should be produced.
claimant has already been deposed, the insurer shall at the
same time furnish the redacted copy to claimant's
attorney. If the claimant has not already been deposed, the
insurer may defer production until it has taken his
deposition, provided the deposition is taken within 30 days.
Dunbar apparently has not been listed as a witness. Unless
his report includes statements made by Mr. Warren which are
otherwise discoverable, Mr. Dunbar's report need not be
disclosed. The insurer shall submit the Dunbar report for an
in camera inspection by the Court's
hearing examiner, who shall determine what, if any, parts of
it are discoverable.
IT IS HEREBY ORDERED AS FOLLOWS:
insurer shall produce those portions of Mr. Warren's
written investigative report that concern any matter which
Mr. Warren may testify at trial. Excepted from disclosure are
Mr. Warren's impressions, conclusions and opinions.
Within ten (10) days of this Order, the insurer shall submit
to the Court Mr. Warren's complete report, a redacted
copy of the report, and the reasons for the redactions. The
Court's hearing examiner will conduct an in