United States District Court, D. Arizona
Tri-State Generation and Transmission Association, Inc.; and Tucson Electric Power Company, Plaintiffs,
Mitsubishi International Corporation; Mitsubishi Hitachi Power Systems, Ltd.; Mitsubishi Hitachi Power Systems Americas, Inc.; and Misuzu Seiko Company, Ltd., Defendants.
V. Wake Senior United States District Judge
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.
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.
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.)
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.)
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
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.
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.)
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.
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.)
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.
Plaintiffs have not shown that the Report is ...