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Ex parte Norfolk Southern Railway Co.9/3/2004
PETITION FOR WRIT OF MANDAMUS
Norfolk Southern Railway Company and Central of Georgia Railroad Company ("the railroads") petition for a writ of mandamus to review the trial court's order refusing to uphold their assertion of the work- product privilege in a wrongful-death action. We grant the petition and issue the writ.
I. Factual Background and Procedural History
Joseph E. Green died as a result of a grade-crossing collision between the dump truck he was operating and a train owned and operated by the railroads. His wife, Regina Green, in her capacity as the executrix of his estate, filed a wrongful-death action against the railroads. In their answer, the railroads asserted the defense of contributory negligence. Green requested that the railroads produce any written statements prepared by investigators relating to the collision. The railroads objected, citing, among other grounds, the work-product privilege as set forth in Rule 26(b)(3), Ala. R. Civ. P.
In support of their objection, the railroads submitted an affidavit of a claims agent for Norfolk Southern, who testified that his department is a part of the legal department at Norfolk Southern and that he reported to both house counsel and outside counsel. The claims agent stated that he had investigated the accident made the basis of the action, that at the time he was investigating the accident he knew that a death had occurred as a result of the accident, and that he expected that a wrongful-death claim would be asserted on behalf of the estate of the decedent. The claims agent then stated that in anticipation of the litigation he took a recorded statement from the conductor of the train, that the purpose of taking the conductor's statement was to assist the attorneys for the railroads, and that when he took the statement he expected that the statement would be confidential. The trial court, after an in camera inspection, ordered the railroads to produce the statement. The railroads petitioned for a writ of mandamus directing the trial court to recognize the applicability to the statement of the work-product privilege.
II. Availability of Review by Petition for Writ of Mandamus and Standard of Review
In Ex parte Dillard Department Stores, Inc., [Ms. 1021239, October 3, 2003] ___ So. 2d ___ (Ala. 2003), this Court delineated when review of an order dealing with discovery is available by a petition for a writ of mandamus and the standard of that review, in light of Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810 (Ala. 2003):
"Mandamus is an extraordinary remedy and will be granted only when there is '(1) a clear legal right in the petitioner to the order sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court.' Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991). In Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810 (Ala. 2003), this Court announced that it would no longer review discovery orders pursuant to extraordinary writs. However, we did identify four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus. Such circumstances arise (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So. 2d 640, 644-45 (Ala. 2001); (b) when a discovery order compels the production of patently irrelevant or duplicative documents the production of which clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit received by the requesting party, see, e.g., Ex parte Compass Bank, 686 So. 2d 1135, 1138 (Ala. 1996); (c) when the trial court either
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