UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

____________

No. 95-31171 (Summary Calendar) ____________

BILLY KING,

Plaintiff - Appellant,

versus

ODECO INCORPORATED, ET AL,

Defendants,

and

MURPHY EXPLORATION AND PRODUCTION COMPANY,

Defendant - Appellee,

THE GRAY INSURANCE COMPANY INCORPORATED and LAFITTE WELDING WORKS INCORPORATED

Intervenors - Appellants.

Appeal from the United States District Court For the Eastern District of Louisiana (94-CV-2117 “C”)

January 8, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

* Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent Plaintiff Billy King appeals the district court’s judgment in

favor of defendant Murphy Exploration and Production Company

(“Murphy”) dismissing King’s complaint with prejudice. We affirm.

I

Murphy owns and operates an offshore oil production platform

called OCEAN 66 (“OCEAN 66" or “the facility”). In 1993, Murphy

determined that a fuel tank at the facility leaked and needed

repairs. After a bidding process, Murphy awarded this work to

Lafitte Welding Works (“Lafitte”). Lafitte sent a seven-man crew

to the facility, and it completed the job in ten days.

King was a member of the Lafitte repair crew, and was employed

as a “rigger.” To fix the fuel tank, the crew moved its welding

equipment through the mud pump room to the bulk barite room. When

the crew completed the repairs, it moved the equipment to another

area. However, after testing the fuel tank, the crew discovered

that the tank still had a number of leaks. King was told to move

the welding equipment back into the bulk barite room so the crew

could finish the job. Part of this equipment included welding

leads, which are thick cables that supply electricity for welding.

The welding leads were in sections and too heavy to be carried in

a bundle or coil.

After hauling one section of lead into the bulk barite room,

except under the limited circumstances set forth in Local Rule 47.5.4.

-2- King returned through the mud pump room to fetch another one. At

that point, he alleges that the tip of his boot caught under the

edge of a steel grating, and he toppled forward. As he fell, King

claims that he saw a vertical pipe in his way and, to avoid hitting

it face-first, he pirouetted almost 180 degrees, striking his neck

and back against the pipe.

King then finished the task of positioning the welding leads.

Later, he reported the accident to Murphy.

The grating on which King purportedly tripped was an old one

that had sunk in the middle, causing the edges to protrude up by as

much as an inch. It was in an area of the mud pump room in which

people would normally walk. King testified that the grating was

clearly visible, and that he had passed over it a number of times.

The plaintiff sued Murphy and Odeco, Inc., the former owner of

OCEAN 66, in state court in Louisiana.2 After Murphy removed the

suit to the federal district court, Lafitte and The Gray Insurance

Company (“Gray”) intervened as plaintiffs. The district court

bifurcated the issues of liability and damages. After a bench

trial on liability, the district court entered judgment on behalf

of Murphy, dismissing the claims of King, Lafitte, and Gray.

On appeal, King argues that the district court erred by

refusing to require production of photographs taken by Murphy of

the mud pump room, by concluding that the grating did not pose an

2 King later amended his complaint to delete his claims against Odeco.

-3- unreasonable danger, and by making an alternative finding that the

accident was solely caused by King’s negligence. Also, Lafitte and

Gray contend that the district court erred by making a second

alternative finding that the condition of the grating did not

constitute a “ruin” under Louisiana law.

II

King avers that the district court mistakenly declined to

order Murphy to produce photographs it took of the mud pump room.

We review district court rulings on discovery matters for abuse of

discretion. Scott v. Monsanto Co.,

(5th Cir.

1989).

King twice demanded production of any photos. More than a

year before trial, he requested that Murphy produce “any and all

photographs” of the accident site. Then, having learned that such

photos existed, he filed an in limine motion on the day of trial

for their production. The district court denied the motion,

determining that the photos were protected from disclosure by the

work product doctrine.

As a preliminary matter, King suggests that Murphy was

precluded from contesting his in limine motion for discovery of the

photos because Murphy did not object to his initial request to

produce “any and all photographs.” However, according to Murphy,

its employee did not take the photos until less than a month before

trial. Murphy claims that, because the photos did not exist at the

-4- time King made his initial request, it had no basis for objecting

to the request at that time. King does not dispute this. Hence,

his argument has no merit.

King next contends that, even if Murphy was entitled to object

to his in limine motion, the district court should not have

permitted Murphy to shield the photos from discovery under the work

product doctrine. The work product doctrine protects that which an

attorney causes to be created in anticipation of litigation.

United States v. El Paso Co.,

(5th Cir. 1982),

cert. denied,

,

,

(1984). The party who asserts work product protection for an item

sought to be discovered has the burden of establishing that it was

prepared in anticipation of litigation. If the party can satisfy

that requirement, the burden shifts to the party seeking discovery

to overcome that protection. Hickman v. Taylor,

, 511-

12,

,

(1947). To overcome work

product protection, a party must show that (1) he has “substantial

need of the materials in the preparation of [his] case” and (2)

that he “is unable without undue hardship to obtain the substantial

equivalent of the materials by other means.” FED. R. CIV. P.

26(b)(3).

Murphy asserts that its counsel arranged to have a Murphy

employee take the photographs shortly before trial. Murphy claims

that this employee was not a witness during the trial, and that the

-5- company did not show the photos to any witness. Murphy also

maintains that it never introduced the photos into evidence.

King does not dispute any of these contentions. Accordingly, we

find that the district court did not abuse its discretion in

finding that the photographs are work product material.

Parties commonly argue that they have substantial need for

discovery of work product material because it contains information

that can only be found in the material itself. Koenig v.

International Sys. and Controls Corp. Secs. Litig. (In re Int’l

Sys. and Controls Corp. Secs. Litig.),

(5th

Cir. 1982). The “[e]xistence of a viable alternative to invading

work product, will, in most situations . . . negate any substantial

need.” Fisher v. National R.R. Passenger Corp.,

(S.D. Ind. 1993). One readily available source is the

plaintiff’s own knowledge and testimony.

Another is

deposition testimony. In re International Systems,

.

King fails to contend that the photos contain information that

he could not have obtained elsewhere. His argument that he had

substantial need for the photographs is entirely conclusory; he

merely claims that the photos were “crucial evidence” and that they

would have had a “bearing . . . on the ultimate liability question

in this case.” In the absence of a statement of exactly what

information King requires from the photos, it is difficult to

-6- determine if he has substantial need for the photos. Even if King

had made an appropriate legal argument, though, he would still fail

to meet his burden of showing substantial need. For instance, in

lieu of attempting to compel production of the photos, King could

have relied on his own knowledge of the grating and the layout of

the mud pump room. Moreover, he could also have obtained this

information from deposition testimony. Therefore, King cannot show

substantial need for the photos.

King also suggests that he would have faced undue hardship in

acquiring the substantial equivalent of the photos by means other

than attempting to compel their production. While he concedes that

Murphy gave him permission to inspect OCEAN 66, he points out that

it would have been costly for him to fly out or hire a vessel to

take him there.

A plaintiff can claim undue hardship if he cannot obtain the

information he seeks by deposition.

. For instance, if

the plaintiff makes a particularized showing that a witness cannot

recall the event in question or is unavailable, this may constitute

undue hardship.

Another aspect of undue hardship is unusual

expense.

. The undue hardship test, though, is

generally not satisfied merely by the expense of obtaining

materials. Pine Top Ins. Co. v. Alexander & Alexander Servs.,

Inc., No. 85 Civ. 9860,

, at *2 (S.D.N.Y. Oct. 7,

1991). King does not argue that he was unable to obtain the

-7- information in the photos by deposition. He also does not present

any evidence that he inquired into the cost of visiting OCEAN 66

before the trial or what this cost would have been. Hence, we find

that he has failed to show undue hardship.

Accordingly, we determine that the district court did not

abuse its discretion in refusing to order Murphy to produce its

photos of the mud pump room.

III

King next contends that the district court erred by

determining that the grating did not pose an unreasonable danger.

We review a district court’s findings of fact for clear error, but

review issues of law de novo. C & B Sales & Serv., Inc. v.

McDonald,

(5th Cir. 1996).

In Oster v. Department of Transp. & Development,

(La. 1991), the Louisiana Supreme Court summarized the test

under Louisiana law to determine negligence and strict liability

where the plaintiff alleges damages resulting from a dangerous

condition on land. It noted that under either theory of liability,

one of the elements the plaintiff must prove is that “the thing

[that caused the damage] contained a ‘defect’ (i.e., it had a

condition that created an unreasonable risk of harm to the

plaintiff).”

. The court stated that “the only

difference between the negligence theory of recovery and the strict

liability theory of recovery is that the plaintiff need not prove

-8- the defendant were aware of the existence of the ‘defect’ under a

strict liability theory.”

(footnote omitted). “Under both

theories, the absence of an unreasonably dangerous condition of the

thing implies the absence of a duty on the part of the defendant.”

In determining whether the condition was unreasonably

dangerous, the Louisiana Supreme Court ruled, a court cannot

conduct a mechanical analysis but, rather, must consider a myriad

of considerations.

“In addition to the likelihood and

magnitude of the risk and the utility of the thing, the interpreter

should consider a broad range of social, economic, and moral

factors including the cost to the defendant of avoiding the risk

and the social utility of the plaintiff’s conduct at the time of

the accident.”

.

The district court conducted the appropriate review under

Oster. In examining whether or not the grating was unreasonably

dangerous, it made the following findings: (1) King and his fellow

laborers were working as a specialized welding repair crew under

contract to repair a fuel tank on an offshore facility; (2) the

repair area was not in service as a work area on the facility, and

was not subject to daily use; (3) King and his superintendent was

aware of the condition of the grating and the potential hazard; (4)

the lighting in the room was adequate for its purpose; (5) no

member of the crew, besides King, complained about tripping over

-9- the grating, despite the fact that the repair crew traversed the

room frequently during the course of the job; (6) the grating was

not designed to be welded in place, but was intended to be

removable in order to provide access to the equipment below; (7)

the surface differential of the grating was an inch or less; (8)

King and his superintendent testified that the condition did not

pose any risk at all to a worker who was conscious of his footing;

and (9) King and his fellow laborers had encountered inconveniences

far more serious than the grating in the mud pump room in order to

carry out their work.

We determine that none of these findings is clearly erroneous.

Moreover, we hold the district court did not err in considering

these findings sufficient to conclude that the grating was not an

unreasonably dangerous condition.

IV

Because we determine that the judgment of the district court

is correct, we need not consider King’s challenge to the district

court’s alternative finding that King’s own negligence was the

cause of the accident or Lafitte and Gray’s challenge to the

district court’s second alternative finding that the grating does

not constitute a “ruin” under Louisiana law.

V

For the foregoing reasons, we AFFIRM the judgment of the

district court.

-10-