SCRANTON – A federal judge has denied a request to disclose the contents of two deposition interviews with lifeguards on duty while a man suffered personal injuries at the Camelback Lodge and Indoor Waterpark, finding them to be privileged work product.
On June 22, U.S. Magistrate Judge Martin C. Carlson ruled that CBK Lodge, L.P.’s motions to quash and for a protective order would be granted, while plaintiff Jack Y. Daloya and Keren Esayev’s motions to compel discovery and for sanctions would be denied.
Daloya and Esayev first filed a complaint on March 12, 2019, alleging that Daloya suffered personal injuries at the defendants’ Camelback Lodge and Indoor Waterpark, while participating for the first time on a FlowRider attraction at the park.
“As to these interviews, the parties have diametrically opposed views. The plaintiff regards them as fully discoverable. The defendants contend that they are privileged work product. The parties have fully briefed this issue, and at our direction, the interviews were provided to us for our in camera review,” Carlson said.
“Having conducted this review, for the reasons set forth below, with respect to these interviews, the plaintiff’s motions to compel and for sanctions will be denied and the defendants’ motions to quash and for protective order will be granted.”
Carlson explained that as a general rule, “private investigator interviews conducted on behalf of counsel in preparation of litigation are encompassed by the work product privilege”, and that such notes, “when prepared by an investigator acting at the direction of counsel in anticipation of litigation, constitute ordinary or fact work product.”
“In the instant case, it appears that the lifeguards were available to be deposed by the plaintiff, thus fully satisfying the need to obtain their testimony. This fact substantially undermines the plaintiff’s demand for production of these notes since the question of ‘whether such material is discoverable typically turns on whether the witness is available for deposition,” Carlson said.
“Further, beyond speculative assertions that the interview notes may be useful to the plaintiff in preparing for trial or cross examining these lifeguard witnesses, Daloya has made no showing of a substantial need for access to these otherwise privileged interviews. As a matter of law, this speculative claim is insufficient to overcome the privilege since access to otherwise privileged interviews ‘cannot be secured simply to [attempt to] show that the testimony on deposition is false.”
Carlson added that his in camera review of the interviews “strongly suggests that no such showing can be made here of a compelling need to obtain the interview notes for purposes of cross-examining these witnesses.”
“Simply put, our in camera review has identified no glaring discrepancies between the statements of these witnesses and the defendants’ litigation posture which might serve as a substantial need justifying disclosure of these privileged notes. Finding that these notes are privileged, and that the privilege has not been overcome, we will deny the plaintiff’s request for disclosure of these interviews,” Carlson said.
Carlson further ordered that the parties will consult, confer and notify the court on or before July 9, regarding whether any remaining discovery issues need to be resolved. After the July 23, 2021 discovery deadline ends, Carlson also ruled that the parties will consult, confer, and on or before Aug. 6, and provide the court with a supplemental case management plan prescribing a schedule for pretrial proceedings, or further mediation in this case.
U.S. District Court for the Middle District of Pennsylvania case 3:19-cv-00439
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com