Case:   Matthiews v Crosby Tugs, LLC
             Eastern District of Louisiana
             No. 15-05985, 2016 U.S. Dist. LEXIS 114455 (2016)

A tug towing company employee was injured while he was aboard a vessel owned by the defendant, Crosby Tugs, L.L.C. Crosby sought production of documents from Aucoin Claims Service. Aucoin was a non-party to the suit who was hired by the employer insurer, Allianz Global and Corporate Specialty, to manage adjustment of the underlying claim. Aucoin is a "full service loss prevention and claims management company," and did not employ attorneys in the adjustment of the plaintiff's claim. The documents sought by the defendant essentially included the entire case investigation file. Aucoin resisted the subpoena. Aucoin argued the documents were attorney work-product, and therefore privileged under Rule 26(b)(3) of the Federal Rules of Civil Procedure. Crosby countered the documents were created in Aucoin's normal course of business, and falls outside of the Fifth Circuit's test for privileged materials.

On the hearing for the subpoena, the Eastern District magistrate judge noted the historical development of the work-product privilege. Based on the Federal Rules of Evidence, proponents of evidentiary privileges have the burden of establishing the applicability of any privilege they wish to rely upon. Here, Aucoin failed to meet that burden. Rule 26(b)(3) protects ordinary work product prepared for or by an attorney in anticipation of litigation. However, material produced in the ordinary course of business is excluded from the privilege. To determine if a document is created in anticipation of litigation, the court will look in to reason or purpose for creating the document. If the primary motivating purpose behind the creation is to aid in litigation, the document may be protected. Factors courts will evaluate include retention of legal counsel, counsel's involvement in creating the document, and whether the document is routinely created in practice or whether it is a one off document created in response to a particular circumstance. Of particular importance, if a document is found to have been created regardless if there is litigation, then some courts will likely find that it is created in the normal course of business, and not subject to the work-product privilege.

The Eastern District applied the framework described above and required Aucoin to produce the documents. The court determined Aucoin provided the services of a traditional insurance company and otherwise did not interact with an attorney in any demonstrable way during the period in which the documents were created. Allianz required Aucoin to monitor the plaintiff's claim and ensure he received seamen's benefits in order to prevent a lawsuit. The court reasoned the documents were created in order to prevent litigation from ever occurring. Thus, they could not be said to have been created in anticipation of litigation. Lastly, the documents sought by Crosby were typically created on a daily basis for every insurance claim that comes before the company. The Eastern District found them to be routine and not subject to protection.

In a last ditch effort, Aucoin argued at a minimum, a fraction of the documents sought were created to provide a "record" for attorneys in the event that litigation followed and should be protected. The Eastern District rejected this argument on the grounds that it does not account for the fact that it is precisely the type of routine documents an adjuster is expected to create for every file he manages. The actual, substantive adjustment necessarily preceded any documents related to "recordkeeping." Because the two classes of documents are explicably intertwined and routinely created, the court required Aucoin to produce the documents. 

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