Naik v. United Rentals, Inc.

182 So. 3d 223, 2015 La. App. LEXIS 2289, 2015 WL 7280595
CourtLouisiana Court of Appeal
DecidedNovember 18, 2015
DocketNo. 50,193-CA
StatusPublished
Cited by1 cases

This text of 182 So. 3d 223 (Naik v. United Rentals, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Naik v. United Rentals, Inc., 182 So. 3d 223, 2015 La. App. LEXIS 2289, 2015 WL 7280595 (La. Ct. App. 2015).

Opinion

MOORE, J.

hThe State of Louisiana, Office of Risk Management (“ORM”), appeals a judgment ordering it to comply with a subpoena duces tecum- and produce, in a tort suit in which the state is not a party, an accident reconstruction report involving a two-truck collision in De Soto Parish. For the reasons expressed, we affirm.

Procedural Background

The plaintiff, Naik, was driving a Ryder box truck on Hwy. 84 in De Soto Parish in December 2011. The defendant, Anthony, was coming the other way on Hwy. 84, driving an 18-wheeler hauling a flatbed trailer. A boom lift was loaded on the trailer. According to Naik, Anthony lost control of his rig, veered across the center line and- then jackknifed, causing the trailer to crash into the front of Naik’s Ryder. The impact knocked the boom lift off the trailer and onto the cab of the Ryder, essentially crushing Naik and his passenger, Latcha.

Naik filed this suit, in Caddo Parish, against Anthony, his employer, United Rentals/RSC, and their insurer, Liberty Mutual.1 Naik did -not ñame the state as a defendant,' and the defendants have not third-partied the state.

The case is still in the discovery phase. In September 2014, Naik filed a “Notice of Art. 1354 Records Deposition and Subpoena Duces Tecum” on ORM, seeking production of

All documents, writings and electronically stored information created by the Louisiana State Police and its agents, representatives or employees, for an accident that occurred on December 8, 2011, on U.S. Highway 84 * * ⅞ involw ing Ramanand Naik, Norman D. Latcha and Nathaniel Anthony. This request is specifically seeking, but not limited to, all ^accident reconstruction reports created by the Louisiana State Police which involve the above referenced accident.

The defendants did not oppose this subpoena.

ORM, however, did not attend the records deposition or produce the report. Naik filed a motion to compel discovery; ORM responded with a motion to quash the subpoena and for a protective order. ORM asserted several grounds: (1) the work-product privilege, La. C.C.P. art. 1424; (2) the “deliberative process privilege”2; and (3) the Federal-aid highway fund privilege, 23 U.S.C. § 409.

Naik responded that" under Art. 1424, the work-product privilege applied only in favor of an adverse party; since the state was not adverse to the plaintiff or any defendant, the privilege did not apply. He also contended that the deliberative process privilege and Federal-aid highway fund privilege were inapplicable.3

[225]*225 Action in the District Court

At a hearing in November 2014, ORM introduced a copy of its interagency agreement with Louisiana State Police, whereby ORM retains state troopers qualified and trained in accident reconstruction to make an independent analysis of certain motor vehicle accidents occurring on state highways. ORM called its Road Hazard Section supervisor, Richard LeJeune, who testified that ORM selects which accidents will be reconstructed; the report is made independently of any other report or Revaluation of the accident by law enforcement; and the report is used “to properly prepare a case for litigation should it go to litigation.” Mr. LeJeune had never seen this report and did not know if it identified a highway safety issue. Another witness, Lt. Steve Robinson, testified that he also had not read the report, and Trooper Allen VanHoef, who wrote it, testified only that it was totally different from the traffic crash report. 'Counsel for ORM, however, advised the court that there was “no mention of a roadway defect in the report.”

The court ruled from the bench' that neither the state nor any of its subdivisions was a party, and that if the report had found any defect in the road, it “might well be privileged because it would be in anticipation of litigation perhaps but they didn’t find anything.” Further, the court found no showing that the state “will ever be brought in as a defendant, original defendant or third-party defendant,” the purpose of the trial was to “get to the truth of what happened[,]” and the state “has information that may be helpful.” Finding that neither the work-product privilege nor any other privilege, applied, the court ordered production.

The court rendered judgment granting Naik’s motion to compel and denying ORM’s motion to quash. The court also signed an agreed motion and protective order designating the report as confidential. ORM took this suspensive appeal.4

| ¿Discussion

By its .sole assignment of error, ORM urges the court committed legal error in holding that the “anticipation of litigation” privilege of Art. 1424 did not apply to. the accident reconstruction report prepared and maintained ■ on behalf of ORM, a nonparty. It argues that under Art. 1424, there is a twofold inquiry to determine whether documents are protected by the privilege: (1) were the articles obtained or prepared in anticipation of litigation or trial, and (2) will the party, seeking the production be unfairly prejudiced, subject to undue hardship, ior subject to injustice by denial of the discovery? In support, ORM cites Cacamo v. Liberty Mutual Fire Ins. Co., 1999-1421 (La.App. 4 Cir. 10/10/01), 798 So.2d 1210, writ denied, 2001-2985 (La.1/25/02), 807 So.2d 844: “The article does not require’ that documents be prepared in anticipation of the litigation in which the documents are being requested.” Id. at 6, 798 So.2d at 1214. Similarly, Juneau v. Avoyelles Parish Police Jury, 482 So.2d 1022 (La.App. 3 Cir.1986), held, “It is not the time or date of the document which' controls whether it was prepared in anticipation of litigation, [226]*226but rather the content, nature; and purpose thereof.” ORM cites Mr. LeJeune’s testimony that the main reason for the report is “the preservation of evidence in anticipation of litigation[,]” together with litigation delays and repair work to roads. It concedes that Cacamo and Juneau involved party litigants, but argues the distinction is immaterial: To allow only parties to use the privilege would “eviscerate the protection the privilege affords” and permit litigants to go on “unlimited fishing expeditions in search of otherwise protected information and then bring those ‘non-parties’ into the litigation should they find 1 ^something.” ORM also contends that Naik offered no evidence of undue hardship; using the crash report, ORM suggests, Naik could hire his own expert reconstruction expert. It asks this court to reverse the order to compel and grant the motion to quash.

The scope of discovery is set forth in La. C.C.P. art. 1422:

Unless otherwise limited by order of the court in accordance with this Chapter, the scope of discovery is as set forth in this Article and in Articles 1423 through 1425.

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Bluebook (online)
182 So. 3d 223, 2015 La. App. LEXIS 2289, 2015 WL 7280595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/naik-v-united-rentals-inc-lactapp-2015.