Waiver of Work Product Protection by Post-Incident Repair of Machine

In Luttrell v. DN Solutions America Corporation, 2024 WL 4836017 (E.D. Mo. Nov. 20, 2024), the court stated that Michael Luttrell was killed while operating a Doosan PUMA V400 Vertical Turning Center machine at an Ace Manufacturing facility.  His wife sued multiple defendants.

A spinning workpiece was ejected from the machine.  It went through a heavy reinforced steel door, and both struck the plaintiff in the chest.  The discovery dispute centered primarily on plaintiff’s request for a video recording of a live-streamed, post-incident expert inspection of the machine.

The death occurred on April 2, 2020.  On April 24, 2020, one defendant, DNSA, inspected the machine.  The inspection was live streamed to defense observers.  The machine was repaired “shortly after” that inspection.

Plaintiff sought to compel production of any “photographs, videos, testing reports and evaluation reports (i.e. the raw factual information and data) about the condition of the Machine obtained during DNSA’s inspection on April 24, 2020.”  However, in response, DNSA asserted work product protection.

The court applied Fed.R.Civ.P. 26(b)(3)(A) which governs work product and Rule 26(b)(5)(A)(ii) which calls for a privilege log.  It wrote:

The privilege log DNSA provided to Plaintiff is deficient. It does not provide enough information for Plaintiff even to discern what items were withheld, much less to assess Defendant’s work product claim with respect to each one of them…. On the other hand, Plaintiff has met her burden of showing a substantial need for the requested materials and that the substantial equivalent of the information cannot be obtained through other means.

So, what happened?

Plaintiff was not present at the inspection, in person or through counsel.  She said that she was not represented at that time.  DNSA asserted that she could have obtained counsel.

The court understandably wrote: “The Court does not find that persuasive. Plaintiff’s failure to obtain counsel and an expert within 22 days of her husband’s death is a far cry from the situations the work product privilege is meant to prevent.”

Defendant made another argument. It suggested that the plaintiff “could conduct her own inspection by mounting the damaged door on the Machine.”  The court noted that the machine had been repaired, “so any inspection at this point would not provide Plaintiff with the substantial equivalent of the information obtained at the April 2020 inspection of the damaged Machine.”

Based on a letter from DNSA, plaintiff believed that there was a video of the live-streamed inspection as well as results of non-destructive testing and scanning of the machine.  The letter stated: “As part of the inspection process, our consulting experts will be conducting a non-destructive inspection of and scanning the subject turning center, including its controllers and computers, all component parts, such as the chuck, jaws and workholdings, all tools and inserts in the subject turning center at the time of the accident, the work piece and the work area.”

Plaintiff  submitted a FOIA request to OSHA.  She received a 106-page redacted file with four photographs, but no videos.  Ace, the plant operator, produced records, a .DAT file, and a video of the time when the incident occurred, but not a video of the post-incident inspection.  Defendant TechMach produced a volume of data, but indicated that it had no videos or ESI relating to the inspection.

This led the court to state: “Despite her efforts, Plaintiff has not obtained any video of the live stream inspection or the results of the non-destructive inspection and scanning of the Machine conducted by DNSA’s consulting experts at the inspection…. Plaintiff believes that information to be in the hands of DNSA based on a letter sent by DNSA’s counsel regarding the April 2020 inspection.”

Therefore, it was alleged that relevant information, obtained in anticipation of litigation by the defendant, had not been produced and the court had determined that an inspection of the repaired machine would not provide the “substantial equivalent” of the information plaintiff requested.

The court held that plaintiff had shown a “substantial need” for the information; however, DNSA’s privilege log did not disclose what information DNSA or its consultants had obtained.

Therefore, the court stated:

To the extent such information exists, the Court finds that Plaintiff has shown a substantial need for the materials and that the substantial equivalent of the information cannot be obtained through other means. As such, DNSA must provide Plaintiff with an updated privilege log that provides enough information about each item obtained during the inspection on April 24, 2020, for Plaintiff to discern whether it is duplicative of something already in her possession. The parties should then meet and confer to discuss each item. Without disclosing anything containing the mental impressions, conclusions, opinions, or legal theories of DNSA’s attorney or other representative concerning the litigation, DNSA must produce any item obtained during the inspection that is not already in Plaintiff’s possession. [emphasis added].

It will be interesting to see what happens.  There may be two potential spoliation issues.  First, the condition of the machine was changed.  Second, if there was a video of the live stream session, was it preserved?  The initial question may be whether litigation was reasonably anticipated.  I am assuming it was.

If there was a video of the live-streamed inspection, and if it provides satisfactory secondary evidence of the condition of the machine and cause of the incident, that may be sufficient to meet the duty to preserve the machine.  However, if it does not, one may speculate that a spoliation motion will follow.  If the machine was altered after the common-law duty to preserve arose, the common law doctrine of spoliation may come into play. Of course, Fed.R.Civ.P. 37(e) applies only to ESI.

If there was a video of the live streamed inspection, and if it was not preserved – – something we do not presently know – – Fed.R.Civ.P. 37(e) would likely apply.