Seawolf Tankers Inc. v. Laurel Shipping LLC

Background

Freepoint Commodities Singapore Pte Ltd., Freepoint Commodities LLC, and Laurel Shipping LLC (collectively, F&L) asked the court to order Seawolf Tankers Inc. to produce a brief that Seawolf’s testifying expert, Anuj Chopra, had received. Chopra had prepared an expert report about whether Seawolf exercised due diligence under industry custom and practice in connection with the vessel and voyage at issue.

At Chopra’s deposition, he testified that he had received a general briefing about the case, including the company, vessel, and voyage. F&L then requested the brief. Seawolf asserted attorney work-product protection, which generally protects documents prepared for litigation, and also relied on protections for communications between attorneys and testifying experts.

The court reviewed the eight-page brief privately, outside the parties’ presence, to determine what it contained. The brief was prepared by Seawolf’s counsel in anticipation of litigation. It included a factual overview of the voyage, references to testimony, inspection reports, and emails, and sections discussing counsel’s theories, litigation strategy, and analysis of the parties’ claims and defenses.

Court’s Analysis

The court explained that factual work product can lose protection when provided to a testifying expert and considered by that expert in forming an opinion. The court applied an objective test to determine whether Chopra “considered” the brief. Under that test, material may be considered if the expert received, reviewed, read, or authorized it before or while forming an opinion, when the material relates to the facts or opinions involved.

The court found that Chopra considered the brief. Although Chopra believed that the facts were in attached evidence and other documents, the court determined that he had received a general briefing about the case and that the brief contained the type of information he would objectively have considered when assessing the voyage.

The court also found that significant portions of the brief contained facts or data. It therefore ordered production of the first two pages, the carryover paragraph, and the first four complete paragraphs on page 3.

The court treated the sections titled “Ridgebury’s Response to Plaintiffs’ Claim of Unseaworthiness” and “Plaintiffs’ Claim of Breach of Voyage Charter against Seawolf” differently. Those sections contained counsel’s theories and analysis and were protected opinion work product, meaning counsel’s mental impressions and legal strategy. Seawolf could redact those portions.

However, facts or data embedded in those sections could not automatically be redacted. Seawolf had to confirm whether those facts or data appeared in the Chopra Materials or in the Dyson Report and its exhibits. If they appeared in either source, Seawolf could redact them from the brief. If they did not, the facts or data had to remain unredacted.

Disposition

The court granted F&L’s letter motion. It ordered Seawolf to produce the brief with the specified redactions no later than February 16, 2024. The opinion decided a discovery dispute and did not resolve the parties’ underlying claims about the voyage, unseaworthiness, or breach of the voyage charter.