Abdi v. SP Plus Corporation

• Court: Superior Court of Maine
• Decided: July 19, 2016
• Docket: CUMcv-15-431
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVLACTION Doc. No. CV-15-431 / FARHAN ABDI, STATE; OF Plaintiff Cumb erllilncJ MAINE: • E,$J. Clerk's Office

V. ORDER JUL 19 2DrS SP PLUS CORPORATION d/b/a STANDARD PARKING, RECEIVED Defendant

A recorded telephone conference on the parties' discovery dispute was held on

July 13, 2016. Plaintiff seeks the report prepared by defendant's facility manager in

December 2012 and argues the report is a document prepared in the usual course of

defendant's business. Defendant objects and argues the report is work product.

Plaintiff filed his complaint and his request for production of documents on

September 21, 2015. Defendant's objections to the request, dated October 30, 2015,

included objections to requests numbers 26 and 29, the subject of the parties' discovery

dispute. This case has been scheduled for jury selection and trial beginning August 8,

2015. On July 7, 2016, plaintiff requested a Rule 26(g) conference with the court.

Defendant did not prepare any report at the time of the alleged incident of

October 29, 2012. In December 2012, plaintiff appeared at defendant's business and

demanded payment of the medical bills he alleged resulted from injuries he sustained

on defendant's premises. As a result of plaintiff's demand, defendant's facility manager

interviewed people, took photos, and prepared a report; the report was sent to

defendant's insurer. "[O]ne of the routine functions of a claims adjuster in investigating an accident is

to prepare for possible litigation ... the analysis we here adopt will almost always

result in a preliminary finding that the claims file documents were prepared in

anticipation of litigation." Harriman v. Maddocks, 518 A.2d 1027, 1034 (Me. 1986).

Although defendant prepared the report, as opposed to a claims adjuster, the report

was sent to the insurer and became part of the claims file.

Further, "[t]he document must be prepared because of the prospect of litigation

when the preparer faces an actual claim or a potential claim following an actual event or

series of events that reasonably could result in litigation." Springfield Terminal Ry. Co.

v. Dep't of Trans]:b 2000 ME 126, Cf[ 19, 754 A.2d 353. Defendant must show "that the

documents were prepared principally or exclusively to assist in anticipated or ongoing

litigation." Id. ~ 17. Defendant prepared the report only after plaintiff's demand for

payment of his medical bills. Plaintiff's demand, which followed the alleged injury on

defendant's premises, renders the anticipation of litigation "objectively reasonable." Id.

Cf[ 16.

In addition, Rule 26(b )(3) provides:

[A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(l) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials 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.

2 M.R. Civ. P. 26(b)(3). Plaintiff has made no such showing in the June 22, 2016

letter to defendant's counsel, in the June 30, 2016 letter to the court, or at argument. The

eight-month lapse in time between defendant's objections to plaintiff's request for

production and plaintiff's request for a discovery conference a few weeks before trial

suggests that the report was not critical to plaintiff's trial preparation.

The entry is Defendant is not required to respond to Plaintiff's Request for Production of Documents Numbers 26 and 29.

Date: July 19, 2016 1.cy Mills Justice, Superior Court