A recent decision from the Southern District of Florida provides some guidance on the discoverability of surveyor’s reports prepared prior to the commencement of litigation. In B.M.I. Interior Yacht Refinishing, Inc. v. M/Y CLAIRE, 2015 WL 4316929 (S.D. Fla. July 15, 2015), several contractors brought an in rem suit against the M/Y CLAIRE seeking to foreclose on maritime liens arising from the owner of the M/Y CLAIRE’s failure to pay for work performed on the vessel. A discovery dispute arose between one of the contractors, Nautical Specialists, and the owner of the vessel over a report prepared by a surveyor prior to Nautical filing its claim.

The report in question was prepared for the vessel owner in order to evaluate the quality of the work performed on the vessel by the various contractors. The vessel owner refused to produce the report to Nautical claiming that it constituted protected work product under FRCP R. 26(b)(3)(A) and R. 26(b)(4). In seeking to compel the production of the report, Nautical argued the report did not qualify as work product because it was prepared prior to the contemplation of litigation and any work product protection would have been waived when the Captain of the M/Y CLAIRE disclosed portions of the surveyor’s report to an agent of Nautical during a telephone call shortly after Nautical inspected the vessel with the surveyor.

The court ruled that the surveyor’s report qualified as work product FRCP Rule 26 under both the “primary purpose” and the “because of” tests. The court held that the primary purpose of the report was to aid in litigation because, although the present suit by Nautical had not yet been filed, separate lawsuits by the owner of the vessel against the contractors had been commenced by the time the report was prepared. Additionally, the report was also prepared because of anticipated litigation because the survey was undertaken at the request of the vessel owner’s attorney in order to determine the deficiencies in the work not paid for by the vessel’s owner.

The court rejected Nautical’s waiver argument, finding that the only information disclosed was a general summary of the survey’s findings as to the work of Nautical. The court questioned whether a description of the report’s findings could qualify as a disclosure, but concluded that even if a disclosure of portions of a protected document was made, it did not constitute a complete waiver of the work product protection as to the whole document.

Although it found the surveyor’s report to be protected work product, the court ruled that exceptional circumstances under FRCP R. 26(b)(4)(B) warranted the disclosure of certain temperature readings obtained by the surveyor during his inspection of the vessel. The temperature readings were relevant to Nautical’s claims and otherwise unavailable from any other source. The court rejected Nautical’s exceptional circumstances argument as to all other areas of the report.

This case underscores the value of retaining counsel early on in a casualty or commercial dispute. The fact that a survey, or any investigative report for that matter, was prepared at the request of counsel will provide strong support for establishing a work product defense to its production in future litigation.

Author: Tripp Dubose