 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Ex parte Norfolk Southern Railway Co.9/3/2004
of litigation exists in this proceeding that was not present in Assured Investors Life Insurance Co., in which preparing a report because an incident "might result in some legal action" created what the Court there described as "speculation as to possible litigation." This case is governed by Ex parte State Farm Mutual Automobile Insurance Co., 386 So. 2d 1133, 1136 (Ala. 1980), followed in Ex parte Royal Globe Insurance Co., supra, 428 So. 2d at 636, and in which this Court quoted with approval from Almaguer v. Chicago, Rock Island & Pacific R.R., 55 F.R.D. 147, 149 (D. Neb. 1972), as follows:
"' tatements taken by a claim agent immediately after an accident are taken in anticipation of litigation. * * * The anticipation of the filing of a claim against a railroad, when a railroad employee has been injured or claims to have been injured on the job , is undeniable, and the expectation of litigation in such circumstances is a reasonable assumption.'"
386 So. 2d at 1136 (emphasis added).
D. Availability of the Rule 26(b)(3) Exception
Even if the work-product privilege applies, Rule 26(b)(3), Ala. R. Civ. P., recognizes an exception when the party requesting the material can show substantial need coupled with undue hardship. Green, however, has made no showing that she has substantial need of the materials to prepare her case and that she is "unable without undue hardship to obtain the substantial equivalent of the materials by other means." Rule 26(b)(3). Indeed, Green has already taken the deposition of the conductor and other members of the train crew operating the train at the time of the accident.
IV. Conclusion
We grant the petition and issue the writ. The trial court is directed to set aside its order requiring production of the statement given by the conductor to the claims agent.
PETITION GRANTED; WRIT ISSUED.
Nabers, C.J., and Houston, See, Brown, Harwood, Woodall, and Stuart, JJ., concur.
|