NIEMEYER, Circuit Judge:
We address in this appeal the extent to which the work product rule of Fed. R.Civ.P. 26(b)(3) provides immunity from discovery of 26 documents withheld from discovery in this case.
In connection with litigation pending in the Southern District of New York between two insurance companies to resolve the proper apportionment of losses occasioned by a fire in West Virginia, National Union Fire Insurance Company, one of the parties, caused a subpoena duces tecum to be issued by the United States District Court for the Southern District of West Virginia to the custodian of records of Murray Sheet Metal Company, Inc., in Parkersburg, West Virginia, who is not a party to the New York proceedings.
On April 4, 1990, a fire broke out in a General Electric Company plastics plant located in Washington, West Virginia. The fire began at a location in the plant which was at the time being renovated by Murray Sheet Metal Company. Although the direct fire damage was relatively minor, extensive polychlorinated biphenyl (PCB) contamination was discovered in the area, causing damage to portions of the building, tools, equipment, and even clothing of persons working there. The cleanup costs are estimated in the millions of dollars. The insurance company providing coverage to General Electric for the plant, Arkwright Mutual Insurance Company, undertook to pay the losses, including cleanup costs, and instituted suit in the Southern District of New York against National Union Fire Insurance Company for reimbursement under a reinsurance agreement. National Union is resisting payment because it believes that the PCB contamination was not caused by the fire but rather was a preexisting condition at the site and therefore not covered by its insurance. It also complains that it was not notified of the fire for over a month and then was not provided access to the plant.
Promptly after the fire, Murray Sheet Metal Company began an investigation into the circumstances of the fire and the PCB contamination. With its own employees, it gathered data concerning the PCBs, including information about their use at the plant, and the source and extent of contamination. Murray conducted medical tests of its employees and analyzed their clothing. Murray personnel also obtained statements from other Murray employees who worked at the plant. Murray's initial investigation was conducted on April 5, 1990, principally by Ruth Morrison, Murray's safety director, along with other employees. Murray also notified its own insurance company, which in turn hired an independent adjusting company, Gay & Taylor, to investigate the fire. Three days after the fire, on April 7, 1990, representatives of Gay & Taylor entered the plant and, together with representatives of General Electric and its insurance company, conducted a further investigation and performed testing for PCB contamination.
Because Gay & Taylor is located in Alabama, National Union initiated discovery proceedings in the Northern District of Alabama to obtain the product of Gay & Taylor's investigation. Following a dispute about whether the work product rule immunized the information from discovery, the Alabama court granted National Union's motion to compel discovery and ordered that Gay & Taylor produce documents related to PCB contamination, but not related to the causes or origins of the fire or to Murray's culpability for the fire. That order is on appeal in the Eleventh Circuit. See Arkwright Mut. Ins. Co. v. National Union Fire Ins. Co., No. CV91-Y-0826-S (N.D.Ala. May 31, 1991), appeal docketed, No. 91-2117 (11th Cir. July 1, 1991).
Similarly, to discover the investigatory documentation developed by Murray's employees, who are located in West Virginia, National Union filed a notice of deposition in the Southern District of West Virginia directed to the custodian of records at Murray to appear at deposition and produce Murray's documents "regarding the existence,
National Union filed a motion to compel the production of the 26 documents and offered "to limit disclosure to this litigation." From the court's order denying production of the documents, this appeal followed.
Proper application of the work product rule requires recognition and accommodation of two competing policies. On the one hand, fairness in the disposition of civil litigation is achieved when the parties to the litigation have knowledge of the relevant facts, and therefore the discovery rules are given "a broad and liberal treatment." Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947). On the other hand, our adversary system depends on the effective assistance of lawyers, fostered by the privacy of communications between lawyer and client and the privacy in development of legal theories, opinions, and strategies for the client. The court in Hickman elaborated:
Id. at 510-11, 67 S.Ct. at 393.
Thus, the jurisprudence of Rule 26(b)(3),
We take notice of the fact that members of society tend to document transactions and occurrences to avoid the foibles of memory and to perpetuate evidence for the resolution of future disputes. And because litigation is an ever-present possibility in American life, it is more often the case than not that events are documented with the general possibility of litigation in mind. Yet, "[t]he mere fact that litigation does eventually ensue does not, by itself, cloak materials" with work product immunity. Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1118 (7th Cir.1983). See also Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C.1982) ("The fact that a defendant anticipates the contingency of litigation resulting from an accident or an event does not automatically qualify an `in house' report as work product."). The document must be prepared because of the prospect of litigation when the preparer faces an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation. Thus, we have held that materials prepared in the ordinary course of business or pursuant to regulatory requirements or for other non-litigation purposes are not documents prepared in anticipation of litigation within the meaning of Rule 26(b)(3). See Goosman v. A. Duie Pyle, Inc., 320 F.2d 45, 52 (4th Cir.1963). Following any industrial accident, it can be expected that designated personnel will conduct investigations, not only out of a concern for future litigation, but also to prevent reoccurrences, to improve safety and efficiency in the facility, and to respond to regulatory obligations. Determining the driving force behind the preparation of each requested document is therefore required in resolving a work product immunity question.
Even when documents and tangible things are prepared in anticipation of litigation or for trial, to the extent they do not involve the mental impressions, conclusions, opinions, or legal theories concerning the litigation, they may be discoverable on
In short, to resolve whether Rule 26(b)(3) grants immunity from discovery, the district court must determine, from an examination of the documents or their circumstances, whether they were prepared in anticipation of litigation or for trial. If so and if the documents embody opinions and theories about the litigation, discovery is refused without further inquiry. If opinions and theories about the litigation are only part of a document otherwise discoverable, the court may require production of a redacted copy. With regard to other documents falling within the scope of Rule 26(b)(3), the court must determine whether the requesting party has a substantial need for them, taking into account their relevance and importance and the availability of the facts from other sources.
The record before us, as before the district court, consisting mainly of the "Privileged Documents Log," is inadequate to conduct the necessary analysis in this case. Consequently, we remand the case to the district court to review the documents and their circumstances, as necessary, and apply the Rule 26(b)(3) principles in the first instance. Without finally resolving the issue on any specific document, however, in the interest of judicial economy, we do make some observations for general consideration upon remand.
Several documents (nos. 8, 10, 11, 12, 13, 14) appear to be written witness statements taken by Murray's safety director and others on April 5, 1990, immediately after the fire. Because the statements were taken by persons charged with safety responsibilities, we question whether the documents were prepared in anticipation of litigation or for trial. Assuming they were and they do not contain opinions and trial strategies, National Union would have to demonstrate a substantial need for their production. When evaluating a party's need for statements taken immediately after an accident, we have observed:
McDougall v. Dunn, 468 F.2d 468, 474 (4th Cir.1972). See also Goosman, 320 F.2d at 50-51 (considering similar facts to be "good cause" for a discovery order under a superseded version of Rule 34). On the other hand, statements taken later (for example, nos. 9, 22) are more likely to contain information otherwise available to National Union through its own efforts to obtain statements or to take depositions.
Other documents withheld raise more serious doubts about whether they were prepared in anticipation of litigation or for trial. For example, document no. 2 appears to constitute a collection of medical bills submitted by health care providers who examined potentially injured persons. Document no. 21 is undated and was prepared by Koppers Company about "coal tar pitch composition."
Finally, we observe that because the district court ruled only on the work product immunity, it did not reach other grounds given by Murray for refusing to produce the documents and therefore neither do we. This would only become necessary if the immunity of Rule 26(b)(3) does not attach.
Accordingly, we remand the case for further proceedings in accordance with this opinion.