Western District of Washington Denies Plaintiff’s Motion to Quash Subpoena and Grants Defendant’s Motion to Compel Testimony

Western District of Washington Denies Plaintiff’s Motion to Quash Subpoena and Grants Defendant’s Motion to Compel Testimony

By Corey Lloyd

Channel Construction, Inc. v. Northland Services, Inc., 2015 WL 778090 (W.D. Wash. 2015)

            Recently, the Western District of Washington ruled on a motion in Channel Construction, Inc. v. Northland Services Inc., in which a maritime survey made on behalf of Channel was not privileged work product and that the surveyor could be deposed.From 2010 through 2012, a Barge owned by Channel Construction was leased intermittently to Northland Services. Northland used the barge as a platform for A/C generation and refrigeration of fish products. In 2011 the Barge started to develop a starboard list. In 2012 while the Barge was again on lease to Northland Services, it began to take on water. The leak was substantial enough to drydock the Barge for inspection. Channel’s insurance broker assigned maritime surveyor Richard Blomquist to assess the damage. He determined the leaks which were caused by stray-current damage (i.e. electrolysis) which caused the hull to rust. Channel subsequently sued Northland, alleging the damage was caused by their generator system aboard the Barge.Northland served subpoenas in order to access to Mr. Blomquist’s reports and deposition testimony, and Channel moved to quash. Channel argued that because Mr. Blomquist is their expert witness and his work was made in anticipation of litigation, his files are protected work product. The Western District of Washington disagreed with Channel’s argument. The controlling rule in determining whether Mr. Blomquist’s work product is privileged is indeed whether or not it was developed in anticipation of litigation, but more specifically, if it was developed because of imminent litigation.The court found that although there was a possibility of litigation when Mr. Blomquist performed his survey, the survey was requested for the more imminent purposes of filing an insurance claim and addressing the emergency which led to the dry docking of the Barge.The court also found Northland’s case citations from other districts persuasive - New York courts have routinely held that reports sent by an insured are generally considered to be created in the ordinary course of business, not in anticipation of imminent litigation. Further, the court stated that if every survey or claims investigation were deemed to be completed in anticipation of litigation, very little in admiralty would escape work product privilege.Because Mr. Blomquist was hired prior to the initiation of any litigation; because the survey was requested in order to assess a claim and to address the routine maritime emergency; and because the court is cautious of setting a precedent that could allow all drydock surveys or claims investigations to be viewed as privileged work product, the Western District determined that privilege does not apply to Mr. Blomquist’s report and that his deposition testimony could be compelled.