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Tri-State Generation and Transmission Association Inc. v. Mitsubishi International Corporation

United States District Court, D. Arizona

July 15, 2016

Tri-State Generation and Transmission Association, Inc.; and Tucson Electric Power Company, Plaintiffs,
v.
Mitsubishi International Corporation; Mitsubishi Hitachi Power Systems, Ltd.; Mitsubishi Hitachi Power Systems Americas, Inc.; and Misuzu Seiko Company, Ltd., Defendants.

          ORDER

          Neil V. Wake Senior United States District Judge

         Before the Court is Defendants’ Joint Motion to Compel Production of Root Cause Analysis (Doc. 117) and the parties’ accompanying briefs. For the reasons that follow, the motion will be granted.

         I. BACKGROUND

         In 2012, Tucson Electric Power Company (“Tucson Electric”) operated a generator in an electric power station on behalf of Tri-State Generation and Transmission Association, Inc. (“Tri-State”). On July 2, 2012, part of the generator failed, causing extensive damage.

         Days later, Tucson Electric’s general counsel, Todd Hixon, emailed two senior managers in the company, instructing them to retain a third-party investigator to conduct a “root cause analysis” of the generator’s failure “in anticipation of litigation.” (Doc. 120-1, ¶¶ 2-3.) One of the managers, Arie Hoekstra, retained investigative firm Structural Integrity Associates, Inc. (“Structural Integrity”) to conduct the analysis. (Id., ¶ 4; see also Docs. 117-1, 117-2.) Hoekstra informed Structural Integrity that the analysis would be for purposes of litigation. (Doc. 120-1, ¶ 4.)

         On August 17, 2012, Structural Integrity emailed Hixon and Hoekstra its root cause analysis report (the “Report”). (Doc. 117-2.) Hoekstra forwarded the Report to three Tri-State employees. (Id.) Each page of the Report was marked “Confidential - Prepared at the Direction of Counsel - Attorney Work Product.” (Doc. 120-1, ¶ 7.)

         On July 1, 2014, Tucson Electric and Tri-State (collectively “Plaintiffs”) filed the instant lawsuit. (Doc. 1.) They claim that Defendants improperly designed, manufactured, or otherwise handled the part of the generator that failed, and they seek damages for negligence, product liability, and breach of implied warranty. (Id. at 4-8.)

         In discovery, Defendants asked Plaintiffs to produce all “documents relating or pertaining to any investigation of” the generator’s failure. (Doc. 117-3 at 8; Doc. 117-4 at 8.) Plaintiffs did not produce the Report.

         Defendants move to compel production of the Report pursuant to Federal Rule of Civil Procedure 37(a)(3)(B). (Doc. 117.) They claim the Report was one of many such reports prepared by Plaintiffs in the ordinary course of business. As evidence, they point out that in September 2012-two months after the generator’s failure-the generator was damaged in an unrelated incident, and Tri-State retained Structural Integrity to conduct another root cause analysis. (See Docs. 117-7, 117-8.)

         In response, Plaintiffs contend that the Report is protected work product under Rule 26(b)(3)(A). (Doc. 120.) They claim the Report was not prepared in the ordinary course of business, because root cause analyses of generator failures are typically handled internally by Tucson Electric, not by third parties operating at the direction of Tucson Electric’s general counsel. (Doc. 120-1, ¶¶ 5-6.) They also argue that production of the Report would constitute premature disclosure of an expert opinion.

         Both parties suggest additional documents for the Court to review in camera. Plaintiffs offer to provide the emails Hixon sent to Tucson Electric’s senior management in the days following the generator’s failure. (Doc. 120 at 2.) Defendants ask that the Court compare the Report with all other root cause analyses prepared by Plaintiffs, in the event that the Court is unpersuaded by Defendants’ briefs. (Doc. 121 at 7.)

         II. ANALYSIS

         Plaintiffs have not shown that the Report is protected work product or that its production would be premature expert disclosure. No in-camera review is necessary.

         A. Plaintiffs have not shown that the Report is ...


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