United States District Court, W.D. Virginia, Harrisonburg Division
MEMORANDUM OPINION AND ORDER
JOEL C. HOPPE, Magistrate Judge.
Pending before the Court is Plaintiff Anthony Wade Galloway's Motion to Compel Production of Sworn Witness Statements made pursuant to Rule 37(a) of the Federal Rules of Civil Procedure. ECF No. 15. Defendants Sunbelt Rentals, Inc. ("Sunbelt"), and David Church filed a response in opposition to the motion. ECF No. 17. Neither party requested oral argument. On December 24, 2014, the Court ordered ex parte submission of the contested witness statements for in camera review. ECF No. 23. The Defendants complied on December 31, 2014. ECF No. 25.
This motion is before me by referral under 28 U.S.C. § 636(b)(1)(A). ECF No. 11. After reviewing the parties' briefs, the contested witness statements, and the applicable law, I find that Galloway's motion is well-founded, and I therefore GRANT the Motion to Compel.
I. Relevant Facts
The parties agree on the majority of the facts. See Pl. Br. 1-3; Def. Br. 1-3. On August 21, 2012, Galloway was operating a moped in Winchester, Virginia when he collided with a commercial truck operated by Church, an employee of Sunbelt. Pl. Br. 1. Galloway filed a complaint in state court in Frederick County, Virginia, alleging negligent operation of a motor vehicle by Church. Id. The case was removed to this Court by the Defendants, ECF No. 1, and is scheduled for a jury trial beginning on May 26, 2015.
In their initial disclosures, the Defendants identified witness statements from Robert and Kristin Underwood. Id. at 1; id. Ex. 1, at 2-3. The Underwoods observed the accident from their nearby vehicle and have knowledge of the accident and the events leading up to it. Pl. Br 2. Defense counsel took the Underwoods' statements on August 28, 2012, at a Virginia circuit court. Id. The statements were sworn, taken in question and answer format, and transcribed by a court reporter. Id. The Defendants have refused to turn over these statements, citing work-product privilege. Id. at 1-2. Further, Kristin Underwood has refused Galloway's request for authorization to receive the statements and indicated to defense counsel that she does not wish Galloway to have the statements. Id. at 2-3.
The parties disagree on one key fact: Galloway asserts that Defendants intend to rely on the Underwoods' statements to support their claims that Church was not negligent and that Galloway was contributorily negligent. Pl. Br. 3. In their brief, Defendants state that they included the Underwoods' statements in their initial disclosures because they were unsure whether the Underwoods would be available for deposition and trial. Def. Br. 1. They now know that the Underwoods are available and disclaim any current intent to rely on the sworn statements as evidence should the case go to trial. Id.
In their reply brief, Defendants provide additional facts about their business and the investigation. Defense counsel were retained by Sunbelt to handle any litigation arising out of this specific incident and are not on general retainer. Def. Br. 2; Def. Br. Ex. A, at ¶¶ 7-8. Sunbelt does not hire counsel or take sworn witness statements about an incident unless it anticipates litigation arising from it. Def. Br. 3; Def. Br. Ex. A, at ¶¶ 12, 14. Before taking the Underwoods' statements, and in anticipation of litigation, defense counsel issued a spoliation of evidence letter to Galloway's counsel. Def. Br. 2; Def. Br. Ex. B. Finally, the Underwoods gave a statement to police the day after the incident, and this statement is in Galloway's possession. Def. Br. 2; Def. Br. Ex. C.
Rule 26(b)(3) of the Federal Rules of Civil Procedure insulates work product from discovery. Work product is "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." Fed.R.Civ.P. 26(b)(3)(A). It is divided into two categories: fact work product and opinion work product. In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994). Opinion work product includes the mental impressions, conclusions, opinions, and legal theories of a party's attorney. Id . Fact work product encompasses such things as statements, interviews, chronologies, and correspondence. Id. ; see also In re John Doe, 662 F.2d 1073, 1076 (4th Cir. 1981) (defining fact work product). Opinion work product is heavily protected and "can be discovered only in very rare and extraordinary circumstances." In re Allen, 106 F.3d 582, 607 (4th Cir. 1997) (emphasis omitted) (quoting In re Grand Jury Proceedings, 33 F.3d at 348). Fact work product may be subject to production if it is otherwise discoverable under Rule 26(b)(1) and the party seeking the fact work product shows a substantial need for the material and an inability to secure its substantial equivalent by alternate means without undue hardship. Id. ; Fed.R.Civ.P. 26(b)(3)(A).
Galloway argues that the Underwoods' statements do not qualify as any kind of work product because they were taken shortly after the accident and before suit had been filed. Pl. Br. 3-4 (citing McDougall v. Dunn, 468 F.2d 468 (4th Cir. 1972)). In McDougall, after the plaintiff and defendant had been in a car accident, the plaintiff moved to compel production of statements secured by a claims adjuster of the defendant's insurance carrier. Id. at 473. The court doubted whether these statements were work product because they were taken in the regular course of the insurance carrier's business rather than in anticipation of litigation. Id .; accord Nat'l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992) ("[M]aterials prepared in the ordinary course of business or pursuant to regulatory requirements or for other non-litigation purposes are not documents prepared in anticipation of litigation within the meaning of Rule 26(b)(3)."). The court was not concerned with when the statements were taken, as Galloway suggests, but with the purpose for which they were taken. McDougall, 468 F.2d at 473. In this case, defense counsel were retained specifically to handle any litigation arising out of Galloway's accident, Def. Br. 2; Def. Br. Ex. A, at ¶¶ 6-11, and the Underwoods were questioned to preserve their statements in case they were unavailable for deposition or trial testimony, Def. Br. 1, 3. The Defendants make clear that the Underwoods' statements were not taken in the regular course of Sunbelt's business.
The Underwoods' statements are fact, rather than opinion, work product. Though courts recognize that work product encompasses a spectrum delineated by the amount of attorney thought inherent in the item, determining the amount of protection it deserves requires a binary classification as either fact or opinion. See Gulf Grp. Gen. Enters. Co. v. United States, 96 Fed.Cl. 64, 68 (2011) (quoting Office of Thrift Supervision v. Vinson & Elkins, LLP, 168 F.R.D. 445, 446 (D.D.C. 1996), aff'd, 124 F.3d 1304 (D.C. Cir. 1997)). Defendants concede that the Underwoods' statements are fact work product, Def. Br. 4, and they are right to do so. Though the transcript contains defense counsel's questions, those questions do not contain enough attorney thought to deserve the great protection provided to opinion work product, especially considering that the Underwoods' answers, reproduced verbatim, are inherently factual. See Dobbs v. Lamonts Apparel, Inc., 155 F.R.D. 650, 652 (D. Alaska 1994) (considering verbatim responses to a questionnaire put to potential class members to be factual information); Penk v. Oregon State Bd. of Higher Educ., 99 F.R.D. 511, 516-17 (D. Or. 1983) (same).
Galloway can thus discover the Underwoods' statements if he demonstrates a substantial need for them and an inability to secure their substantial equivalent without undue hardship. Fed.R.Civ.P. 26(b)(3)(A). In his brief in support, Galloway stresses how soon after the accident the statements were taken and how he was unable to initiate his own investigation until after he was discharged from the hospital two months later. Pl. Br. 4-6. Defendants counter by arguing that Galloway can easily secure the statements' substantial equivalent by deposing the Underwoods and examining the statement they gave to police the day after the accident. Def. Br. 6-7.
The Fourth Circuit has recognized that contemporaneous witness statements "constitute unique catalysts in the search for truth' in the judicial process." Nat'l Union, 967 F.2d at 985 (quoting McDougall, 468 F.2d at 474). Memory inevitably fades and with it the accuracy of witness statements. See McDougall, 468 F.2d at 474 (quoting New York Cent. R.R. Co. v. Carr, 251 F.2d 433, 435 (4th Cir. 1957) ("[T]he lapse of many months and the dimming of memory provides much reason for  counsel to examine any substantially contemporaneous declarations or admissions.")). Accounts rendered from fresh recollections are universally held to be more reliable than those given after time has passed. Bowling v. Appalachian Elec. Supply, Inc., No. 3:13cv27347, 2014 WL 1404572, at *6 (S.D. W.Va. Apr. 10, 2014). Therefore, "courts have widely found good cause to compel the disclosure of a witness statement made at the time of the accident; particularly, if the party seeking the statement did not have an opportunity to question the witness until weeks or months later." Id. (citing McDougall, 468 F.2d at 474); see also, 6 Moore's Federal Practice § 26.70[c] (Matthew Bender 3d ed.) (Contemporaneous statements "are unique in that they provide an immediate impression of the facts. A lapse of time itself may make it impossible to obtain a substantial equivalent of the material"). Courts have generally considered statements taken within one week of an incident to be contemporaneous. Bowling, 2014 WL 1404572, ...