Gochenour v. Sears, Roebuck & Co.

Thomas D. Horne, Chief Judge

Daniel J. Travostino, Esquire
107 North King Street
Leesburg, Virginia 20176 Eric J. Berghold, Esquire
11350 Random Hills Road, Suite 500
Fairfax, Virginia 22030 Gentlemen:

Plaintiff in this personal injury case has moved to compel answers to interrogatories propounded to the corporate defendants. The interrogatories relate to an incident report concomitant with the alleged injury. Recovery is sought for injuries sustained from a falling metal display rack. Sears asserts that the report was prepared in anticipation of litigation and is protected from disclosure. Counsel for plaintiff replies that either (1) the report was prepared in the ordinary course of business and is not protected, or (2) even if prepared in anticipation of litigation should be disclosed because she has substantial need of the report in the preparation of her case and that she is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Va. Sup. Ct. R. # 4:1 (b)(3).

This Court has previously adopted a standard for determining whether materials are protected work product prepared in anticipation of litigation. Whitehurst v. Lloyd, 37 Va. Cir. 224 (1995); Larson v. McGuire, 42 Va. Cir. 40 (1997). There is no reason to retract from the application of that standard. Thus, statements taken when litigation was "reasonably foreseeable" are protected, even though taken in the ordinary course of business.

The report in question was submitted for in camera inspection.

Several conclusions can be drawn from a review of the report. First, it is a contemporaneous narrative of the events giving rise to the instant cause of action. Second, at the time the report was drafted one might reasonably foresee that the plaintiff would seek legal redress for her alleged injuries. Third, that the report, having been prepared contemporaneously with the events covered, has about it an aura of reliability not found in historical narratives prepared months later.

The document is of a kind and character that is important to the case. Because it is a contemporaneous narrative, it cannot be duplicated. It is of peculiar and substantial importance to counsel in evaluating, preparing, and presenting plaintiff's case. It is a potential wellspring to be used in responding to discovery, preparing for testimony, evaluating settlement offers, refreshing recollection, and impeachment. There is no substitute for such a document in the arsenal of discovery available to the plaintiff.

Accordingly, the Court will grant the motion and compel production of the report. Mr. Travostino may draw an order consistent with this opinion to which counsel for the defendant may note his exception.

Very truly yours,

Thomas D. Horne, Chief Judge