
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1803                           GERALD POULIN AND BRENDA POULIN,                               Plaintiffs, Appellants,                                          v.                          ALEXANDER MACDONALD GREER, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                   [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Selya, Circuit Judge.                                         _____________                                 ____________________             Paul  W. Chaiken, with whom  Robert C. Granger,  Brent A. Singer,             ________________             _________________   _______________        and Rudman & Winchell were on brief for appellants.            _________________             Harrison L.  Richardson, with whom  John B. Lucy  and Richardson,             _______________________             ____________      ___________        Troubh & Badger were on brief for appellees.        _______________                                 ____________________                                    March 24, 1994                                 ____________________                      BOWNES,  Senior  Circuit  Judge.    This  diversity                      BOWNES,  Senior  Circuit  Judge.                                   ______________________            action arises out of a  motor vehicle accident.  In  the pre-            dawn  of a  late  summer day  in Maine,  plaintiff-appellant1            Gerald  Poulin sustained  serious injuries after  driving his            truck  into  the  flatbed  of  a  tractor-trailer  which  was            blocking the  road.   Subsequently, Poulin sued  the tractor-            trailer's driver,  Alexander Greer, and its  owner, McConnell            Transport,  Ltd.  A jury  found defendants not  liable on the            ground that Greer's negligence was not the proximate cause of            Poulin's injuries.2  We affirm.                                          I.                                          I.                                      BACKGROUND                                      BACKGROUND                                      __________                      It was a clear, dry morning on September 11,  1990.            Sometime before 5:00 a.m., while it was still dark, Greer was            travelling  south along Route 191 in Maine, hauling a load of            baled straw.   Having missed his turn-off, Greer attempted to            turn  around in the driveway of Ray's Country Store which was                                            ____________________            1.  More precisely,  plaintiff-appellants in this  action are            Poulin, who seeks damages for  his personal injuries, and his            wife Brenda, who seeks damages for loss of consortium.            2.  Although the  special  interrogatories submitted  to  the            jury instructed the  jury to stop  answering questions if  it            found that Greer's negligence was  not the proximate cause of            Poulin's injuries,  the jury ignored this  directive and went            on to  find that Poulin's negligence was  the proximate cause            of his injuries, and that Poulin's negligence was equal to or            greater than  Greer's.  Under  Maine law, the  latter finding            would have been sufficient to defeat  plaintiffs' claim.  See                                                                      ___            Me.  Rev. Stat.  Ann. tit. 14,    156  (West 1980)  ("If such            claimant is  found by the  jury to be  equally at fault,  the            claimant shall not recover.").                                         -2-                                          2            located  off the  west  side of  the road.   While  Greer was            executing  this  maneuver, the  rear  wheels  of his  tractor            became stuck  in a drainage  ditch off  the east side  of the            road.  The  tractor of  Greer's truck had  turned around  and            faced  north; the flatbed or trailer portion of the truck sat            at  a forty-five degree angle across  the road, blocking both            lanes of traffic.                      Greer turned on  the yellow  revolving beacon  atop            the  tractor,  as well  as its  hazard  lights.   The truck's            headlights  were   on  low  beam,   facing  oncoming,   i.e.,                                                                    ____            southbound, traffic.   Although  Greer testified that  he had            reflective triangles  in the truck,  he never placed  them on            the  road as a warning  to approaching traffic.   The trailer            had a  reflector on both sides  of its base and  on each back            corner.                      At  approximately  4:40 a.m.,  Horace  "Denny" Lyon            arrived at the scene.  Lyon was travelling north on Route 191            when he saw the yellow revolving beacon of Greer's truck from            about  200  yards  away.    Initially  Lyon  thought  that  a            "wrecker" was towing a disabled car off the  road.  He slowed            down as  he approached.   Once  Lyon was  within seventy-five            feet  of  the truck,  he realized  that  there was  a flatbed            trailer  loaded with straw blocking the road.  He pulled into            the driveway at Ray's, stopped his vehicle, and spoke briefly                                         -3-                                          3            with Greer.  After promising to call the police, Lyon went on            his way.                      Shortly   before   5:00   a.m.,    another   driver            encountered the jackknifed truck.   Ricky Frye was travelling            north  on  Route 191  when he  saw  a large  black silhouette            blocking the road  about 100 yards in  front of him.   Before            pulling into  the driveway  at Ray's,  Frye noticed the  rear            reflectors on  Greer's  trailer.   After getting  out of  his            truck,  Frye  noticed that  the  yellow  revolving beacon  on            Greer's truck and its headlights were both on.                      The  crash occurred only minutes after Frye arrived            at the  scene.  Both he  and Greer, who were  talking to each            other  outside  of  Ray's  at  the  time,  saw  Poulin's  car            approaching.  Unlike  Lyon and Frye, Poulin  was headed south            on  Route  191.   Although they  expected  Poulin to  see the            truck, he  apparently did  not.   Poulin neither swerved  nor            braked as he plowed  head on into the flatbed full  of straw.            He suffered serious injuries.                      Plaintiffs  commenced  this  diversity   action  in            United  States  District Court  for  the  District of  Maine.            After  the  jury returned  a  verdict  in defendants'  favor,            plaintiffs appealed.                                         II.                                         II.                                      DISCUSSION                                      DISCUSSION                                      __________                                         -4-                                          4                      Plaintiffs seek  a new  trial on the  grounds that:            (1) the district court erroneously  instructed the jury as to            Greer's  duties as a truck  driver and erred  by declining to            give a  missing witness  instruction; (2) the  district court            abused its discretion by refusing to exclude the testimony of            Carol Ricci  as a sanction for  defendants' alleged discovery            violation; and  (3) the district court  abused its discretion            in  denying  plaintiffs' motion  to  compel  production of  a            photograph  of the  accident scene  taken one year  after the            accident by a consultant retained by defendants.            1. The Jury Instructions            1. The Jury Instructions               _____________________                      Plaintiffs   contend   that   the  district   court            committed reversible  error by  failing to instruct  the jury            that,  under Maine's  comparative negligence  statute, "[t]he            factfinder  must  be  told  [that]  .  .  .  it  should  give            consideration   to  the   relative  blameworthiness   of  the            causative fault of the claimant and the  defendant," and that            "[d]eliberate disregard  of safety rules must  be judged more            severely than merely imperfect  reaction to a crisis."   Wing                                                                     ____            v.  Morse, 300 A.2d  491, 500 (Me. 1973).   Because there was                _____            evidence that  Greer had  violated various state  and federal            safety regulations, plaintiffs claim that the jury could have            found  that Greer had  deliberately disregarded safety rules,            and that, therefore, his conduct should have been judged more            severely than Poulin's.                                         -5-                                          5                      Plaintiffs also maintain  that the court's  failure            to instruct the jury as to two federal safety regulations was            error.   Specifically, plaintiffs maintain  that the district            court should have  instructed the jury  (1) that Greer  could            lawfully drive  his tractor-trailer only if  he was satisfied            that  he had  three emergency  reflective triangles  with him            ready  for  use,  see  49 C.F.R.      392.8,  393.95(f)(2)(i)                              ___            (1992);  and (2) that if  Greer's attempt to  turn around had            caused property damage of any kind, he had a duty to take all            necessary precaution  to prevent additional  accidents at the            scene.  See 49 C.F.R.   392.40 (1992).                    ___                      Finally, plaintiffs argue  that the court's failure            to give a missing  witness instruction constituted reversible            error.  The court declined to instruct the jury that it could            draw  an adverse inference from  the fact that  Greer did not            testify at trial.   Greer lived beyond the subpoena  power of            the court, and chose not to attend the trial.  His deposition            testimony was entered into evidence.                      In response, defendants contend that the failure to            give  plaintiffs' requested  instructions was  not erroneous,            but,  in any  event,  plaintiffs waived  their challenges  by            failing to comply with Fed. R. Civ. P. 51.                      Before the  district  court charged  the  jury,  it            received proposed  instructions from  the parties and  held a            pre-charge conference.  At the conference, the court informed                                         -6-                                          6            the parties which portions  of their proposed instructions it            would read.   Plaintiffs duly stated their objections  to the            court's  omission  of  various  portions  of  their  proposed            charge,  including those  portions at  issue on  this appeal.            After the court instructed the jury, the judge called counsel            over to the sidebar and asked:  "Okay.  First, in addition to            any objections previously  made, do you have an objection you            wish to make as to the general content of the instructions at            this time?"  Plaintiffs' counsel replied, "No."                      Rule  51 of  the Federal  Rules of  Civil Procedure            provides  that, "[n]o party may assign as error the giving or            failure  to give  an  instruction unless  that party  objects            thereto  before the jury retires to consider its verdict. . .            ."   "We have construed  the Rule's requirement  that a party            must object `before the jury retires to consider its verdict'            to  mean  that   the  objection  must   be  made  after   the            instructions are given to the jury."   Smith v. Massachusetts                                                   _____    _____________            Inst. of  Technology, 877 F.2d 1106 (1st Cir.), cert. denied,            ____________________                            _____ ______            493  U.S. 965 (1989); see  Phav v. Trueblood,  Inc., 915 F.2d                                  ___  ____    ________________            764, 769 (1st Cir.  1990); McGrath v. Spirito, 733  F.2d 967,                                       _______    _______            968  (1st   Cir.  1984).    Even   if  plaintiffs'  requested            instructions had been proper,  counsel's failure to object to            their  omission after  the charge  constitutes waiver  of the            objection.  See Smith,  877 F.2d at 1109; Wells  Real Estate,                        ___ _____                     ___________________            Inc. v. Greater  Lowell Bd.  of Realtors, 850  F.2d 803,  809            ____    ________________________________                                         -7-                                          7            (1st  Cir.) (collecting  cases), cert.  denied, 488  U.S. 955                                             _____  ______            (1988).                      The record here is clear:  no objection was made by            plaintiffs  after the  charge.   The  district court's  post-            charge indication that the parties' prior objections would be            preserved  is of  no help  to plaintiffs.   "A  trial court's            statement  after the charge that  objections made prior to it            will be saved does not absolve an attorney from following the            strictures  of  the  rule.    Objections  cannot  be  carried            forward.  The rule is binding on both the court and attorneys            and  neither can circumvent it."   McGrath, 733  F.2d at 969;                                               _______            see Elgabri v.  Lekas, 964  F.2d 1255, 1259  (1st Cir.  1992)            ___ _______     _____            ("It is the obligation of trial counsel, as well as the trial            court, to comply with the strict requirements of the Rule.").                      Because of plaintiffs' failure to  comply with Rule            51,  we review the trial  court's instructions only for plain            error.  The "plain error" rule "`should  be applied sparingly            and only in exceptional cases or under peculiar circumstances            to  prevent  a clear  miscarriage of  justice.'"   Wells Real                                                               __________            Estate, 850  F.2d at  809 (quoting Nimrod  v. Sylvester,  369            ______                             ______     _________            F.2d  870, 873  (1st Cir.  1966)); see  Elgabri, 964  F.2d at                                               ___  _______            1259.    Under  the  "plain error"  exception,  an  erroneous            instruction  warrants  a  new  trial  only  where  the  error            "seriously  affected   the  fairness,  integrity   or  public                                         -8-                                          8            reputation of the judicial proceedings."   See Lash v. Cutts,                                                       ___ ____    _____            943 F.2d 147, 152 (1st Cir. 1991); Smith, 877 F.2d at 1110.                                               _____                      Our   review   of   the  record   reveals   nothing            exceptional  about this case.   It is evident  that no "clear            miscarriage of justice" has occurred, and therefore no "plain            error" exists.3            2.  Refusal to Preclude The Testimony of Carol Ricci            2.  Refusal to Preclude The Testimony of Carol Ricci                ________________________________________________                      Plaintiffs contend that  defendants violated  their            duty  to supplement  answers  to plaintiffs'  interrogatories            pursuant  to Fed. R. Civ.  P. 26(e)(2)(B).4   Because of this                                            ____________________            3.  In fact,  we doubt if there  was any error at  all in the            trial court's instructions.  In reviewing  a court's decision            not  to  give  a  particular  instruction,  our  duty  is  to            determine whether the instructions  as given tend to  confuse            or mislead the  jury with regard to the applicable principles            of law.   Computer Indentics  Corp. v. Southern  Pacific Co.,                      _________________________    _____________________            756   F.2d  200,  205  (1st  Cir.  1985).    If  the  judge's            instruction properly  informs the jury of the applicable law,            failure to  give the  exact  instruction requested  does  not            prejudice  the objecting party.   Service  Merchandise Co. v.                                              ________________________            Boyd  Corp., 722  F.2d  945, 950  (1st  Cir. 1983).    In the            ___________            present case  the district  court's instructions clearly  and            concisely  explained the  applicable law  to the  jury, while            avoiding  the repetitiveness of plaintiffs' proffered charge.            Furthermore, we do not believe that the district court abused            its  discretion   in  refusing  to  give  a  missing  witness            instruction.  See  United States v.  Arias-Santana, 964  F.2d                          ___  _____________     _____________            1262,  1268  (1st  Cir.  1992) (refusal  to  give  a "missing            witness" instruction reviewed for abuse of discretion).            4.  The  applicable  version of  Fed.  R. Civ.  P.  26(e), in            effect prior to December 1, 1993, provides in pertinent part:                      A  party who  has responded to  a request                      for  discovery with  a response  that was                      complete when  made is  under no duty  to                      supplement   the   response  to   include                      information thereafter acquired, except .                      .  .  (2) A  party  is  under  a duty  to                      seasonably  amend a prior response if the                                         -9-                                          9            alleged  violation, plaintiffs  maintain  that  the  district            court  should  have  sanctioned  defendant  by excluding  the            testimony  of Carol  Ricci,  and that  the  court abused  its            discretion by not doing so.                      During discovery, defendants were asked  to provide            plaintiffs with the name  of every witness known to  them who            could  provide information  about the  accident.   Defendants            were  also  asked  whether   each  witness  named  "gave  any            statement  or account, either oral  or in writing,  of his or            her knowledge of the  alleged occurrence."  If a  witness had            made any  such statement, plaintiffs asked  the defendants to            supply  the substance  of the  same.   Plaintiffs also  asked            defendants whether they, or any of their agents, had received            any oral or written statements  from anyone who had knowledge            or  information with  respect  to the  accident,  and if  so,            defendants were asked to supply the name of the person making            the  statement and its substance.   In their  answers to both            lines of  inquiry, dated  August 1992, defendants  named only            Greer and Frye.  It is undisputed that at the time defendants            responded their answers were complete.                                            ____________________                      party obtains information upon  the basis                      of  which  . . . (B) the party knows that                      the  response though correct when made is                      no longer true  and the circumstances are                      such that a failure to amend the response                      is in substance a knowing concealment.                                         -10-                                          10                      In November 1992, after speaking  with Ray Ketchen,            the  owner of  Ray's Country  Store, defendants  learned that            Lyon might have  some information about the  accident.  Carol            Ricci,  a paralegal,  contacted Lyon  by telephone  and spoke            briefly with  him.  According  to Ricci's notes,  Lyon stated            "that [the] truck was  easy to see" because of its  "light on            top" and "running lights," and that "I seen it real easy when            I  came  up  to it  in  [the]  road."    Defendants  did  not            supplement  their answers  to plaintiffs'  interrogatories to            include Lyon and his statement.  It   is   unclear    whether            plaintiffs  had spoken  with Lyon  prior to  his conversation            with   Ricci.     Shortly  thereafter,   however,   Lyon  was            interviewed  by plaintiffs  and informed  them he  had spoken            with  Ricci.    Defendants  quickly learned  that  Lyon  told            plaintiffs that he  had spoken with  Ricci.  By the  time the            trial commenced in May 1993, plaintiffs' counsel had met with            and interviewed Lyon on at least three separate occasions.                        At trial, Lyon testified  that, although he saw the            yellow revolving beacon from  a distance, the trailer  of the            truck, which  was blocking the road, was not easy to see.  In            fact, Lyon testified that  he did not see the  truck until he            was right on top  of it.5  On cross-examination,  Lyon denied            that he told Ricci that the truck was "easy to see."                                            ____________________            5.  On  cross-examination  Lyon  explained  that  this  meant            approximately seventy-five feet away.                                         -11-                                          11                      Defendants  sought  to  have  Ricci  testify  as  a            "rebuttal" witness.  Plaintiffs objected to  Ricci testifying            because she  was not listed on  defendants' pre-trial witness            list, and  because defendants  had violated their  duty under            Rule    26(e)(2)(B)   to   supplement    their   answers   to            interrogatories.   The court rejected  plaintiffs' arguments,            and allowed Ricci to testify.                      Defendants  argue that their  failure to supplement            was  not a violation of Rule 26(e)(2)(B) because there was no            "knowing  concealment"  on  their   part.    They  knew  that            plaintiffs  had spoken  with  Lyon, and  that plaintiffs  had            ascertained  that  Lyon had  spoken  to  Ricci.   Defendants,            therefore, assumed  that Lyon communicated to  plaintiffs the            same thing  that he  told Ricci.   Under  these circumstances            defendants maintain that there was no "knowing concealment."                      In reviewing  a trial  court's ruling on  whether a            discovery-related rule was violated, the abuse of  discretion            standard  controls.  See Thibeault v. Square D. Co., 960 F.2d                                 ___ _________    _____________            239, 243 (1st Cir.  1992); In re San  Juan Dupont Hotel  Fire                                       __________________________________            Litigation,  859  F.2d 1007,  1019  (1st  Cir.  1988).   "The            __________            knowing-concealment  clause  does   not  require   fraudulent            intent;  rather  it  is  designed  to  protect  a  party  who            reasonably  believes  `that the  change  that  has made  [an]            answer no longer accurate is known to [the  party's] opponent            or that it is a matter of no importance.'"   Fusco v. General                                                         _____    _______                                         -12-                                          12            Motors  Corp., Nos. 92-2473 and  93-1801, slip op.  at 16 n.6            _____________            (1st Cir. Dec. 6,  1993) (quoting Fortino v. Quasar  Co., 950                                              _______    ___________            F.2d  389, 396 (7th Cir.  1991)).  Moreover,  "[w]e have read            Rule  26(e) generously,  in light of  its dual  purposes, the            `narrowing  of issues  and  elimination of  surprise.'"   Id.                                                                      ___            (quoting  Johnson v. H.K. Webster,  Inc., 775 F.2d  1, 7 (1st                      _______    ___________________            Cir. 1985)).                      Viewing defendants' actions in the context in which            they  arose, we do not believe that the district court abused            its discretion by not finding a Rule 26 violation.  The court            accepted defendants' contention  that they were  surprised by            Lyon's  trial  testimony,  and that  they  reasonably thought            plaintiffs  knew  about  the   change  which  rendered  their            interrogatory  answers  inaccurate.    The   record  supports            defendants' contention that the  concealment in this case was            not "knowing."                      Assuming,  arguendo,  that  defendants' failure  to                                 ________            supplement  did  constitute a  discovery  rule violation,  we            still  do  not think  that  the district  court's  refusal to            preclude Ricci's  testimony warrants  a new trial.   Although            plaintiffs argue that a trial court may preclude testimony as                                                ___            a  sanction,  they  fail  to  explain  why  preclusion  was a                                                   ___            necessary sanction in this case.   Plaintiffs argue only that                               __ ____ ____            the district  court should have  precluded Ricci's  testimony            because Lyon was a "key witness."   A trial court's choice of                                         -13-                                          13            sanction for such a discovery violation is reviewed for abuse            of discretion.  See Prentiss & Carlisle v. Koehring-Waterous,                            ___ ___________________    _________________            972 F.2d 6, 9 (1st Cir.  1992); Jackson v. Harvard Univ., 900                                            _______    _____________            F.2d  464, 469 (1st Cir.), cert. denied, 498 U.S. 848 (1990).                                       _____ ______            This standard  of review presupposes that  the district court            possesses  a wide  latitude  in  formulating the  appropriate            sanction, if any,  for a discovery  violation.  See  Jackson,                                                            ___  _______            900 F.2d at 469 ("appellate inquiry is limited to whether the            trial court's chosen course of action came `safely within the            universe of suitable'  alternatives" (quoting Fashion  House,                                                          _______________            Inc. v. K Mart Corp., 892 F.2d 1076, 1082 (1st Cir. 1989))).            ____    ____________                      A  district court  confronted with  a  violation of            Rule  26(e)  may choose  from a  variety  of sanctions.   See                                                                      ___            Thibeault,  960 F.2d at 245.   Although preclusion  is one of            _________            the  sanctions  available, the  court  is  empowered to  take            whatever action it deems appropriate after considering all of            the  circumstances  surrounding  the  violation.   Id.    The                                                               ___            presence of surprise and prejudice play a central role in our            review of a district  court's decision to preclude or  not to            preclude testimony.  Id.                                 ___                      Although plaintiffs might  have been surprised upon            learning of the content  of Lyon's statement to Ricci,  it is            difficult  to discern any  prejudice arising from defendants'            belated  disclosure  of  the  same.    Lyon's  testimony  was            important to plaintiffs' case because of the time at which he                                         -14-                                          14            saw  Greer's  truck, not  because he  was  unable to  see the            trailer  clearly  from  a  distance.    Plaintiffs'  position            throughout  the trial  was that,  although Greer's  truck had            been disabled  for approximately twenty minutes  prior to the            accident, he never placed  his reflective triangles along the            highway to alert oncoming vehicles of potential danger.  Lyon            was the only  witness who  could place Greer's  truck at  the            scene  twenty  minutes  prior  to   the  crash.    In   fact,            plaintiffs' counsel, in arguing for the preclusion of Ricci's            testimony, stated that, "[w]hat's  important with Mr. Lyon is            the time, not whether he could see the trailer."                      Furthermore,  Lyon was  travelling  north on  Route            191, whereas Poulin was  travelling south.  Therefore, Lyon's            testimony on  the issue  of the  trailer's visibility  was of            limited probative value.   In fact, the issue of  the truck's            visibility from the standpoint of a southbound driver was the            subject of extensive expert  testimony offered by both sides.            Finally, plaintiffs never requested a recess prior to Ricci's            testimony  in order to counter its alleged force.  See Smith,                                                               ___ _____            877 F.2d  at 1111  ("`Courts have looked  with disfavor  upon            parties who claim surprise  and prejudice but who do  not ask            for a recess so that they may attempt to counter the opponent            testimony.'" (quoting Johnson, 775 F.2d at 7)).                                  _______                      Thus,  even if  defendants  did commit  a discovery            violation, the district court could reasonably determine that                                         -15-                                          15            plaintiffs  did  not   suffer  any   prejudice,  and,   given            defendants'  plausible  explanation  for  their   failure  to            supplement, that any violation was not willful.  The district            court  did  not,  therefore,  abuse its  discretion  when  it            declined  to  sanction  any discovery  violation  and allowed            Ricci's testimony.  See, e.g., Prentiss & Carlisle,  972 F.2d                                ___  ____  ___________________            at 9 (absent  prejudice to plaintiff  district court did  not            abuse  its  discretion by  refusing  to  preclude testimony);            Jackson, 950 F.2d  at 469  (preclusion is a  grave step,  and            _______            "`by  no means an automatic  response . .  . where failure to            make discovery [is] not willful'" (quoting Freeman v. Package                                                       _______    _______            Machinery Co., 865 F.2d 1331, 1341 (1st Cir. 1988))).            _____________                                         -16-                                          16            3.  Production of the Photographs            3.  Production of the Photographs                _____________________________                      In the  course  of discovery,  plaintiffs moved  to            compel the  production of photographs  depicting a recreation            of  the accident scene taken exactly one year after the crash            by  a  transportation consultant  named  Murray  Segal.   The            district court denied the motion, and found, inter alia:                                                         _____ ____                      1.   Murray D. Segal is  a transportation                      consultant  hired by  Defendants' insurer                      in anticipation of this litigation;                      2.  Murray D. Segal is not expected to be                      called as a witness at trial;                      3.   The  photographs Plaintiffs  seek to                      have produced  were  taken by  Murray  D.                      Segal.  They depict the  actual truck and                      load  involved in  the accident  which is                      the subject  of  this action.    However,                      they   were  taken  one  year  after  the                      accident.    They  are not  irreplaceable                      photographs  of the  actual scene  of the                      accident;                      4.  Plaintiffs have  not shown that  they                      could  not have  substantially duplicated                      the   photographs   themselves  using   a                      similar truck  and  load, nor  have  they                      shown   any   attempt  to   recreate  the                      accident scene  using the truck  and load                      which  were involved  in the  accident at                      any  time during  the  pendency  of  this                      litigation;            In  addition   to  denying  plaintiffs'   motion,  the  court            prohibited  defendants  from  introducing  any   evidence  or            testimony related to the  photographs.  Rule 26(b)(3) of  the            Federal Rules  of Civil  Procedure provides in  relevant part            that,                                         -17-                                          17                      a party may obtain discovery of documents                      and     tangible     things     otherwise                      discoverable  .  .  .  and   prepared  in                      anticipation of litigation  or for  trial                      by or for another party['s attorney] .  .                      .  only upon  a  showing  that the  party                      seeking discovery has substantial need of                      the materials  in the preparation  of the                      party's case and that the party is unable                      without  undue  hardship  to  obtain  the                      substantial  equivalent of  the materials                      by other means.            Fed.  R. Civ. P. 26(b)(3).  On appeal plaintiffs concede that            the photographs  constitute work  product, but maintain  that            they   demonstrated  the   requisite  substantial   need  and            inability to obtain substantially equivalent photographs.                       District  courts have broad discretionary powers to            manage  cases   and,   concomitantly,  to   manage   pretrial            discovery.  See Maynard  v. CIA, 986 F.2d  547, 567 (1st  Cir                        ___ _______     ___            1993); see also Thibeault,  960 F.2d at 242; San  Juan Dupont                   ___ ____ _________                    ________________            Hotel  Fire   Litigation,  859  F.2d  at   1019.    Appellate            ________________________            intervention  in such  matters  is warranted,  "`only upon  a            clear showing of manifest injustice, that is, where the lower            court's  discovery order  was plainly  wrong and  resulted in            substantial prejudice to the aggrieved party.'"  Maynard, 986                                                             _______            F.2d at 567  (quoting Mack  v. Great Atlantic  & Pacific  Tea                                  ____     ______________________________            Co., 871 F.2d 179, 186 (1st Cir. 1989)).            ___                      We  see  no  "manifest injustice"  in  the district            court's order denying plaintiffs' motion to compel production            of  the Segal photographs.   As the  court lucidly explained,            plaintiffs could have  hired a similar truck  and conducted a                                         -18-                                          18            "recreation"   comparable  to   the   one   commissioned   by            defendants.  Any photographs  taken at plaintiffs' staging of            the   accident  scene   would   have  provided   satisfactory            alternatives  to  defendants' photographs.    But, plaintiffs            never sought to obtain such  photographs, and it appears that            their failure to  do so was a  result of their own  inaction.            Finally, we fail to see how plaintiffs were prejudiced by the            court's refusal  to order  production of photographs  that it            prohibited the defendants from introducing in evidence.                      Our examination  of the pertinent  facts reveals no            error  let  alone an  abuse  of  discretion  in the  district            court's order.                      Affirmed.                      Affirmed.                      ________                                         -19-                                          19
