EVIDENCE – Attorney work product & Statements obtained in anticipation of litigation : Tom Duffy, Sr. et al v. Hon. Karen L. Wilson, et al. (SC 3/19/2009)

Tom Duffy, Sr. et al v. Hon. Karen L. Wilson, et al.
2008-SC-000507-MR March 19, 2009
Opinion by Justice Venters; all sitting.

Ryan Owens died following football practice at Henderson County High School. Two weeks later, an adjuster for the school board’s insurer conducted interviews with witnesses. Present at the interviews were two attorneys for the school board, one of whom (Wilson) made statements to the effect that he was not hired to sue or defend anyone. Owens’ estate subsequently brought a wrongful death suit against the coaches and school board officials. The estate sought to compel production of the statements. The trial court granted the motion to compel concluding that the statements were not privileged attorney work product under CR 26.02(3) because, based on Wilson’s remarks, they were not made in anticipation of litigation. The trial court further held that even if the statements were considered attorney work product, they would still be discoverable since the estate had a substantial need for the statements and would be unable to otherwise obtain them without undue hardship since the witnesses’ memories would not be as clear as they were at the time of the interviews. The Court of Appeals affirmed, and the defendants sought a writ of prohibition blocking execution of the trial court’s order to compel from the Supreme Court.

The Supreme Court reversed the Court of Appeals and ordered it to enter the writ, concluding that the statements were attorney work product as they were “clearly” taken in anticipation of litigation. The Court stated that Wilson’s disclaimer, while truthful, was not a conclusive admission that litigation was not anticipated. The Court further held that the estate had not shown that it was unable to obtain a substantial equivalent of the statements without undue hardship; noting that the estate had presented no compelling argument that the witnesses’ memories had substantially deteriorated since the time of the incident.

In his dissent, Justice Cunningham wrote that common sense dictates that statements taken from witnesses within two weeks of the incident are not equivalent in quality or veracity to those taken six months later.