Decisions Highlight the Importance of Lawyers Documenting the Basis for a Work Product Claim: Part II

December 7, 2011

Last week’s Privilege Point addressed lawyers’ power to articulate the basis for opinion work product protection when preparing witness interview memoranda. Lawyers should remember that their clients often have the same power to bolster a work product claim in other contexts.

In Bridgewater v. Carnival Corp., Case No. 10-CV-222412-KING/MCALILEY, 2011 U.S. Dist. LEXIS 106786 (S.D. Fla. Sept. 20, 2011), lightning hit near a catamaran operated by Rapsody Tours – a Jamaican excursion company. The lightning injured a passenger who had booked the excursion through Carnival Cruise Line. Rapsody prepared two “Incident Reports” about the lightning strike, and Carnival prepared one “Accident Report.” The court dealt first with Rapsody’s work product claim. Not surprisingly, Rapsody supported its claim with its general manager’s declaration that “it is her experience that injured guests ‘often seek to be compensated’ and that ‘litigation can ensue.'” Id. at *9. The declaration indicated that “the primary purpose for which Rapsody creates these items” is “in anticipation of [possible] litigation.” Id. at *9-10. Despite this declaration, the court rejected Rapsody’s work product claim. Among other things, the court pointed to the Incident Reports’ content, which the court described as “a straightforward recitation of objective facts about the circumstances surrounding the accident.” Id. at *14. The court noted after an in camera review that “[t]here simply is no analysis in those reports that hints at a focus on litigation.” Id. at *15.

Next week’s Privilege Point will address Carnival’s “Accident Report.”