Showing 32 of 32 results

Chapter: 35.4

Case Name: Dempsey v. Bucknell University, Civ. A. No. 4:11-CV-1679, 2013 U.S. Dist. LEXIS 144636, at *27-28 (M.D. Pa. Oct. 7, 2013)
December 11, 2013 (PRIVILEGE POINT)

"Decisions Highlight Important Differences Between the Work Product Doctrine and the Attorney-Client Privilege: Part III"

The last two Privilege Points described ways in which the work product doctrine provides less protection than the attorney-client privilege. However, in some situations the work product doctrine can apply when the privilege cannot.

In U.S. Bank National Ass’n v. PHL Variable Insurance Co., Nos. 12 Civ. 6811 & 1580 (CM) (JCF), 2013 U.S. Dist. LEXIS 143398, at *28 (S.D.N.Y. Oct. 3, 2013), the court confirmed that the work product doctrine can protect "the identities of people interviewed as part of counsel's investigation" – if disclosing those identities has "the potential to reveal counsel's opinion, thought processes, or strategies." The privilege cannot protect such information, because it covers only client-lawyer communications. Also, work product protection does not depend on a communication, in contrast to the attorney-client privilege. In Dempsey v. Bucknell University, Civ. A. No. 4:11-CV-1679, 2013 U.S. Dist. LEXIS 144636, at *27-28 (M.D. Pa. Oct. 7, 2013), the court found the privilege inapplicable to a lawyer's agents' "strategy notes" – because "there is nothing to suggest that these documents themselves were communicated to … counsel, nor that they contain references to any privileged communications within them." However, the court extended work product protection to the notes.

Lawyers should remember that the work product doctrine can protect documents that would not deserve privilege protection, and vice versa. The differing strengths and weaknesses of the two protections should prompt lawyers to consider both.

Case Date Jurisidction State Cite Checked
2013-10-07 Federal PA
Comment:

key case


Chapter: 35.4

Case Name: U.S. Bank National Ass’n v. PHL Variable Insurance Co., Nos. 12 Civ. 6811 & 1580 (CM) (JCF), 2013 U.S. Dist. LEXIS 143398, at *28 (S.D.N.Y. Oct. 3, 2013)
December 11, 2013 (PRIVILEGE POINT)

"Decisions Highlight Important Differences Between the Work Product Doctrine and the Attorney-Client Privilege: Part III"

The last two Privilege Points described ways in which the work product doctrine provides less protection than the attorney-client privilege. However, in some situations the work product doctrine can apply when the privilege cannot.

In U.S. Bank National Ass’n v. PHL Variable Insurance Co., Nos. 12 Civ. 6811 & 1580 (CM) (JCF), 2013 U.S. Dist. LEXIS 143398, at *28 (S.D.N.Y. Oct. 3, 2013), the court confirmed that the work product doctrine can protect "the identities of people interviewed as part of counsel's investigation" – if disclosing those identities has "the potential to reveal counsel's opinion, thought processes, or strategies." The privilege cannot protect such information, because it covers only client-lawyer communications. Also, work product protection does not depend on a communication, in contrast to the attorney-client privilege. In Dempsey v. Bucknell University, Civ. A. No. 4:11-CV-1679, 2013 U.S. Dist. LEXIS 144636, at *27-28 (M.D. Pa. Oct. 7, 2013), the court found the privilege inapplicable to a lawyer's agents' "strategy notes" – because "there is nothing to suggest that these documents themselves were communicated to … counsel, nor that they contain references to any privileged communications within them." However, the court extended work product protection to the notes.

Lawyers should remember that the work product doctrine can protect documents that would not deserve privilege protection, and vice versa. The differing strengths and weaknesses of the two protections should prompt lawyers to consider both.

Case Date Jurisidction State Cite Checked
2013-10-03 Federal NY
Comment:

key case


Chapter: 35.4

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 619 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "Work-product immunity extends to materials even if they were never disclosed to the client, of course, as it is conceivable that an attorney would not share with her client all memoranda or other products of her work as she prepares for litigation on behalf of that client.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 35.4

Case Name: Schwarz & Schwarz v. Certain Underwriters At Lloyd's, Civ. A. No. 6:07cv042, 2009 U.S. Dist. LEXIS 56912, at *6 (W.D. Va. July 1, 2009)
(analyzing protection for notes taken by in insured's corporate representative at depositions in a first party insurance case; finding that the notes deserve work product protection; "Although Underwriters asserts that Stanley's notes were not shared with counsel, counsel for Schwarz [insured] represented that they were taken at his direction. As the notes were created during the litigation process by a party representative, they are plainly subject to work product protection. The fact that Staley [insured's corporate representative] did not share them with counsel is not controlling. See Pete Rinaldi's Fast Foods, Inc. v. Great American Ins. Cos., 123 F.R.D. 198, 202 (M.D.N.C. 1988) (holding that the '[i]nvolvement of an attorney is a highly relevant but not necessarily controlling factor'). Underwriters made no showing of substantial need, indeed, it deposed Staley. As such, the notes are not subject to discovery.")

Case Date Jurisidction State Cite Checked
2009-07-01 Federal VA

Chapter: 35.5

Case Name: Shionogi & Co. v. Intermune Inc., No. C 12 03495 EDL, 2012 U.S. Dist. LEXIS 173452, at *3 (N.D. Cal. Dec. 5, 2012)
(finding that the work product doctrine protected plaintiff's translation of Japanese documents into English; "The Court has reviewed the parties' letter and concludes that it need not reach the question of whether translations created at the direction of counsel in this case are opinion work product because, at a minimum, the translations are ordinary work product. The translations constitute work product because they would reveal the results of a culling process with multiple levels; first, bilingual attorneys from the United States would review millions of pages of documents in Japanese, then bilingual attorneys from the United States, including bilingual lawyers from Plaintiff's law firm, would conduct a quality control of a sample of documents and of all documents categorized by the first level reviewers as 'hot,' and then Plaintiff's litigation team would review analyses of the 'hot' documents prepared by the second level reviewers and would make a decision about whether to translate the document.")

Case Date Jurisidction State Cite Checked
2012-12-05 Federal CA B 9/13

Chapter: 35.5

Case Name: Shionogi & Co. v. Intermune Inc., No. C-12-03495 EDL, 2012 U.S. Dist. LEXIS 173452, at *1 (N.D. Cal. Dec. 5, 2012)
February 27, 2013 (PRIVILEGE POINT)

"Can Translations of Foreign Documents into English Ever Deserve Work Product Protection?"

Although the attorney-client privilege generally protects only confidential communications between clients and their lawyers, the work product doctrine can provide a far broader range of protection. Among other things, work product protection does not depend on a lawyer's participation, or on confidentiality.

In Shionogi & Co. v. Intermune Inc., No. C-12-03495 EDL, 2012 U.S. Dist. LEXIS 173452, at *1 (N.D. Cal. Dec. 5, 2012), the court found that a party's translation of Japanese documents into English deserved work product protection, because plaintiff translated the documents "in furtherance of preparing Plaintiff's case." The court further held that the identity of those documents plaintiff thought important enough to translate also deserved work product protection. The court rejected defendant's effort to overcome plaintiff's work product protection – noting that defendant "focuses on the cost of translations, but such costs do not ordinarily constitute an undue hardship" that would justify overcoming the plaintiff's work product protection. Id. At *5. The court concluded that "Defendant has not shown a substantial need to piggyback on Plaintiff's translations because it can obtain its own." Id.

The work product doctrine rests on a fairly modest purpose – each litigant should prepare itself for litigation or trial, rather than "piggyback" on the other side's work.

Case Date Jurisidction State Cite Checked
2012-12-05 Federal CA
Comment:

key case


Chapter: 35.5

Case Name: Taylor v. McCallister, 40 Va. Cir. 327, 327-28 (Va. Cir. Ct. 1996)
(in a civil case arising from a traffic accident, ordering the plaintiff to make a transcript of the traffic court proceedings the plaintiff had ordered prepared available to defendant (in return for payment of duplications costs) because "defendant also has a substantial need for the material in preparation of the case," although agreeing with the plaintiff that the defendant could also have arranged to have a transcript prepared)

Case Date Jurisidction State Cite Checked
1996-01-01 State VA
Comment:

key case


Chapter: 35.5

Case Name: Taylor v. McCallister, 40 Va. Cir. 327, 327, 327-28 (Va. Cir. Ct. 1996)
(addressing work product protection for a hearing transcript plaintiff arranged to have created at a court hearing; ultimately concluding that the work product doctrine protected the transcript, but that the defendant could overcome the protection; "On August 5, 1996, plaintiff's counsel arranged to tape record and transcribe a hearing in General District Court relating to traffic offenses arising out of the accident which is the subject of this litigation. Defendant's representative was also present at the hearing but did not record the proceeding. Defendant seeks a copy of plaintiff's transcript."; "Even though the defendant had the same opportunity to tape and transcribe the proceeding, he did not do so. Especially since plaintiff has the transcript in question, the defendant also has a substantial need for the material in preparation of the case. In addition, there exists no other method to obtain the material by other means. Upon tender of reasonable costs of duplication, the defendant is entitled to a copy of the transcript.")

Case Date Jurisidction State Cite Checked
1996-01-01 State VA B 3/16
Comment:

key case


Chapter: 35.6

Case Name: Craft v. South Carolina State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017)
(finding that neither the privilege nor the work product protection covered communications in a town hall meeting open to the public; "Defendants served subpoenas on Plaintiffs' counsel's law firms, seeking production of documents and recordings related to town hall meetings Plaintiffs' counsel conducted in advance of the Sun City litigation."; "Plaintiffs' counsel assert that they prepared these presentations for the express purpose of giving legal advice to persons seeking to become class members in the related state-court litigation. However, Defendants have undercut that assertion by demonstrating that the meetings were open to the public and could be attended by non-clients. In order for the attorney-client privilege to apply, the communications must be confidential."; "Plaintiffs claim their attorneys created these presentations in anticipation of class litigation arising out of stucco defects in Sun City. Defendants argue that these presentations were nothing more than solicitation materials. Because the Court is not privy to the contents of the presentations, it is unable to determine whether Defendants' assertion is correct. Assuming, without deciding, that these presentations were subject to work--product protection, the Court concludes that any work-product protection was waived when Plaintiffs' counsel decided to give the presentations at meetings that were open to the public. The public nature of those meetings, and the media attention paid to them, created a significant likelihood that Defendants might obtain the presentations, thereby waiving work-product protection. Moreover, the Defendants have informed the Court that they were permitted to send a court reporter to one of the meetings at which Plaintiffs' counsel made these presentations. Accordingly, the Court concludes that any work--product protection applicable to these presentations was waived by Plaintiffs' counsel.")

Case Date Jurisidction State Cite Checked
2017-01-12 Federal SC
Comment:

key case


Chapter: 35.6

Case Name:


Case Date Jurisidction State Cite Checked
2017-01-12 Federal SC

Chapter: 35.6

Case Name: Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711, at *3, *4-5, *5-6, *6, *8, *9-10, *11 (D. Ariz. Sept. 29, 2015)
(holding that the attorney-client privilege protection did not cover communications between the plaintiff and his lawyer in the presence of the plaintiff's father-in-law, and that the plaintiff's disclosure of work product to the father-in-law did not waive that protection; also holding that the father-in-law could create protected work product; "Plaintiff's memorandum and the communications reviewed in camera make clear that Mr. Prussin is a friend of Plaintiff's, as well as his father-in-law, and an individual from whom Plaintiff seeks counsel. The submissions also make clear that Mr. Prussin did discuss litigation strategy with Plaintiff and his counsel. The Court cannot conclude, however, that this relationship brings Mr. Prussin within the attorney-client privilege."; "The court in Evans [United States v. Evans, 113 F.3d 1457 (7th Cir. 1997)] held that the presence of the defendant's friend, Holden, in communications with attorneys, resulted in waiver of the attorney-client privilege even though Holden was there to provide support and advice, to help locate a suitable criminal defense attorney, and was himself a lawyer."; "Plaintiff relies on Benedict v. Amaducci, No. 92-cv-05239-KMW, 1995 U.S. Dist. LEXIS 573, 1995 WL 23555 (S.D.N.Y. Jan. 20, 1995), in which a plaintiff informally retained a close friend with financial expertise to act as a financial advisor and assist in preparing plaintiff for litigation. 1995 U.S. Dist. LEXIS 573, [WL] at *1. The court found that the advisor became the functional equivalent of an independent contractor, and eventually entered into an oral agreement to receive compensation for his services. Id. The court held that the privilege protected only 'those communications involving [the advisor] when he was acting as plaintiffs' representative with respect to litigation, impending or pending.' 1995 U.S. Dist. LEXIS 573, [WL] at *2."; "Mr. Prussin is more like the friend of Evans than the friend in Benedict. The Court cannot conclude that Mr. Prussin acted as an independent contractor. Plaintiff has not identified any agreement that Mr. Prussin act in that capacity or be paid for his services. Mr. Prussin's actions were much like those of Holden in the Evans case -- a friend helping to arrange counsel, providing support, and participating in attorney-client communications. As in Evans, the Court concludes that Mr. Prussin was not necessary to Plaintiff's communications with his counsel and does not fall within the privilege."; "The work product protection applies not only to emails written by Mr. Prussin to Plaintiff and his counsel, but also to emails written to Plaintiff alone, so long as they were written in anticipation of litigation."; "The Court also concludes that emails written by Plaintiff and his counsel in anticipation of litigation constitute work product, and that they retain this protection even though they were shared with Mr. Prussin. As many courts have recognized, unlike the more sensitive attorney-client privilege, waiver of work product protection does not occur simply because a document is shared with a third person."; "Mr. Prussin is closely allied with Plaintiff in this litigation. His interests are aligned with Plaintiff's. The Court cannot conclude that disclosure of work product to him substantially increased the opportunity for Defendants to obtain the information, or that it was otherwise inconsistent with the work product protection. The Court concludes, therefore, that the disclosure did not waive the protection.")

Case Date Jurisidction State Cite Checked
2015-09-29 Federal AZ B 7/16
Comment:

key case


Chapter: 35.6

Case Name: L.W. v. Lackawanna County, Pa., Civ. A. No. 3:14-CV-01610, 2015 U.S. Dist. 65103 (M.D. Pa. May 19, 2015)
("[A]t the discovery conference counsel for Defendants mentioned his intent to compel production of notes taken by Plaintiffs' counsel at a group meeting between Plaintiffs, Plaintiffs' counsel, and the two nonparty witnesses represented by Plaintiffs' counsel regarding issues 'closely related to [P]laintiffs' claims in the instant case against a common adversary-Lackawanna County' for the purpose of 'learn[ing] the facts of each potential claim.'"; "[T]o the extent Defendants claim that Plaintiffs waived the work-product privilege by organizing a group meeting between Plaintiffs and nonparty witnesses, Defendants have not met their burden of showing that Plaintiffs waived the work-product privilege, especially considering that such notes were kept confidential and not disseminated amongst the Plaintiffs or nonparty witnesses.")

Case Date Jurisidction State Cite Checked
2015-05-19 Federal PA

Chapter: 35.6

Case Name: Zimmerman v. Florida, 114 So. 3d 446, 448 (Fla. Dist. Ct. App. 2013)
(analyzing privilege issues relating to taped interviews of a witness undertaken by a lawyer for the Treyvon Martin family; "[W]e also conclude that any testimony given by Crump [Treyvon Martin family's attorney] as to the substance of his interview of Witness 8 and the surrounding circumstances thereto would not violate the work product privilege because any privilege that may have existed was waived when Crump conducted the interview in the presence of two media representatives who subsequently aired portions of the interview on national television.")

Case Date Jurisidction State Cite Checked
2013-01-01 State FL B 4/14

Chapter: 35.9

Case Name: In re Intuitive Surgical Securities Litigation, Case No. 5:13-cv-01920-EJD (HRL), 2016 U.S. Dist. LEXIS 127486 (N.D. Cal. Sept. 19, 2016)
(holding that the plaintiff waived work product protection by including quotes from defendant's former employees that the plaintiff's lawyer obtained during interviews; allowing plaintiff to continue withholding the interview notes, although the plaintiff's use of the notes later could result in a different outcome; "Defendants nevertheless express concern that plaintiffs, who currently assert the work product protection as a shield, might later seek to use the documents in question as a sword to fend off further attacks on the complaint's allegations. Defendants argue that plaintiffs cannot have it both ways. Plaintiffs state that they do not intend to rely on the notes or memo in their affirmative case, or for impeachment, or to dispute Endweiss' sworn testimony. Nor will they use those documents to defend against any motion for summary judgment or any further motions for reconsideration of Judge Davila's decision on defendants' prior motion to dismiss. However, plaintiffs reserve their rights to use the notes and memo to defend against any motion that argues that counsel lacked a basis for the allegations made in the complaint. . . . Defendants say that they intend to bring precisely such a motion -- in which case, they contend that the documents must now be produced."; "At the moment, however, no such motion has been brought, and it remains to be seen what plaintiffs will do to defend themselves against such a motion, if it ever is filed. On this record, this court therefore is unprepared to rule prospectively as to any waiver.")

Case Date Jurisidction State Cite Checked
2016-09-19 Federal CA

Chapter: 35.9

Case Name: Patrick v. City of Chicago, No. 14 C 3658, 2015 U.S. Dist. LEXIS 85719 (N.D. Ill. July 1, 2015)
("[A]lthough a report prepared in anticipation of litigation is work product, the party must disclose that report if its author plans to testify at trial.")

Case Date Jurisidction State Cite Checked
2015-07-01 Federal IL

Chapter: 35.9

Case Name: In re Residential Capital, LLC, Ch. 11 Case No. 12-12020 (MG), 2013 Bankr. LEXIS 1507, at *16-17 (Bankr. S.D.N.Y. Apr. 12, 2013)
June 19, 2013 (PRIVILEGE POINT)

"Courts Address Claimed Protection for Communications or Documents the Client Plans to Use at Trial"

Not surprisingly, most courts recognize that privilege and work product protections essentially "evaporate" when the client forms the intent to disclose the communication or document to a third party. A related rules-based principle requires litigants to disclose before trial any communications or documents they intend to use at trial.

The effect of these related principles depends on when the court addresses them. In Phillips v. C.R. Bard, Inc., the court explained that if defendant "determines that it wants to retain the right to offer these [protected] documents as evidence in support of its defenses, it must abandon the attorney-client privilege or work product doctrine and produce the documents to Plaintiff." No. 3:12-cv-00344-RCJ-WGC, 2013 U.S. Dist. LEXIS 45647, at *65 (D. Nev. Mar. 29, 2013). If the issue comes up during or on the eve of trial, the court might apply a more drastic approach. In In re Residential Capital, LLC, the court held that debtors' counsel Morrison & Foerster "purposely and consistently adopted the strategy of selective (and extremely limited) disclosure" of legal advice provided to a debtor's board – while continuing to assert attorney-client privilege to bar discovery of documents or deposition testimony on the same subject matter. Ch. 11 Case No. 12-12020 (MG), 2013 Bankr. LEXIS 1507, at *16-17 (Bankr. S.D.N.Y. Apr. 12, 2013). The court pointed to the firm's privilege objection during discovery as "now preclud[ing] [debtors] from offering any evidence of the legal advice provided to the Debtors' officers and directors" on the relevant subject. Id. At *17.

Lawyers asserting privilege or work product protection during discovery might find themselves unable to present important evidence at trial.

Case Date Jurisidction State Cite Checked
2013-04-12 Federal NY
Comment:

key case


Chapter: 35.9

Case Name: Phillips v. C.R. Bard, Inc., No. 3:12-cv-00344-RCJ-WGC, 2013 U.S. Dist. LEXIS 45647, at *65 (D. Nev. Mar. 29, 2013)
June 19, 2013 (PRIVILEGE POINT)

"Courts Address Claimed Protection for Communications or Documents the Client Plans to Use at Trial"

Not surprisingly, most courts recognize that privilege and work product protections essentially "evaporate" when the client forms the intent to disclose the communication or document to a third party. A related rules-based principle requires litigants to disclose before trial any communications or documents they intend to use at trial.

The effect of these related principles depends on when the court addresses them. In Phillips v. C.R. Bard, Inc., the court explained that if defendant "determines that it wants to retain the right to offer these [protected] documents as evidence in support of its defenses, it must abandon the attorney-client privilege or work product doctrine and produce the documents to Plaintiff." No. 3:12-cv-00344-RCJ-WGC, 2013 U.S. Dist. LEXIS 45647, at *65 (D. Nev. Mar. 29, 2013). If the issue comes up during or on the eve of trial, the court might apply a more drastic approach. In In re Residential Capital, LLC, the court held that debtors' counsel Morrison & Foerster "purposely and consistently adopted the strategy of selective (and extremely limited) disclosure" of legal advice provided to a debtor's board – while continuing to assert attorney-client privilege to bar discovery of documents or deposition testimony on the same subject matter. Ch. 11 Case No. 12-12020 (MG), 2013 Bankr. LEXIS 1507, at *16-17 (Bankr. S.D.N.Y. Apr. 12, 2013). The court pointed to the firm's privilege objection during discovery as "now preclud[ing] [debtors] from offering any evidence of the legal advice provided to the Debtors' officers and directors" on the relevant subject. Id. At *17.

Lawyers asserting privilege or work product protection during discovery might find themselves unable to present important evidence at trial.

Case Date Jurisidction State Cite Checked
2013-03-29 Federal NV
Comment:

key case


Chapter: 35.10

Case Name: Medina v. American Airlines, Case No. 1D16-3777, 2016 Fla. App. LEXIS 18670 (Fla. App. Dec. 21, 2016)
(holding that the plaintiff would have to produce any independent medical examination videotape it intended to use at trial; "It is premature, however, to conclude that Medina has waived the privilege. The work product privilege evaporates once the party claiming the privilege elects to use the material at trial. . . . But Medina's counsel avers in her reply that Medina has not listed the video as evidence yet, and the questions in the deposition that are allegedly based on the video do not indisputably rely on the video or necessarily require its use at trial (for impeachment or otherwise). Medina may choose to use the video for impeachment; if so, the video loses its work product status."; "Because the work product privilege was not waived, disclosure of the video would cause irreparable harm.")

Case Date Jurisidction State Cite Checked
2016-12-21 State FL

Chapter: 35.10

Case Name: Medina v. American Airlines, Case No. 1D16-3777, 2016 Fla. App. LEXIS 18670 (Fla. App. Dec. 21, 2016)
(holding that the plaintiff would have to produce any independent medical examination videotape it intended to use at trial; "It is premature, however, to conclude that Medina has waived the privilege. The work product privilege evaporates once the party claiming the privilege elects to use the material at trial. . . . But Medina's counsel avers in her reply that Medina has not listed the video as evidence yet, and the questions in the deposition that are allegedly based on the video do not indisputably rely on the video or necessarily require its use at trial (for impeachment or otherwise). Medina may choose to use the video for impeachment; if so, the video loses its work product status."; "Because the work product privilege was not waived, disclosure of the video would cause irreparable harm.")

Case Date Jurisidction State Cite Checked
2016-12-21 State FL

Chapter: 35.10

Case Name: In Mahli, LLC v. Admiral Insurance Co., Civ. A. No. 1:14cv175-KS-MTP, 2015 U.S. Dist. LEXIS 112542 (S.D. Miss. Aug. 25, 2015)
October 28, 2015 (PRIVILEGE POINT)

"Claiming Privilege or Work Product Protection During Discovery Can Risk Trial Disaster"

Last week's Privilege Point addressed the decreasing subject matter waiver risk of corporations' pretrial disclosure of arguably privileged communications, or even their passing reference to legal advice in pretrial filings. When corporations are considering withholding documents or communications during discovery, they should also consider another risk.

In Mahli, LLC v. Admiral Insurance Co., Civ. A. No. 1:14cv175-KS-MTP, 2015 U.S. Dist. LEXIS 112542 (S.D. Miss. Aug. 25, 2015), defendant Admiral's lawyer interviewed several witnesses during his investigation into plaintiff's insurance claim. The court accepted Admiral's pledge not to call its lawyer as a trial witness to testify about those witnesses' statements to him. However, plaintiff sought to exclude any evidence of what the witnesses told Admiral's lawyer during the investigation (presumably focusing on Admiral's possible cross-examination of the witnesses at trial). When Mahli had sought those witnesses' statements during discovery, Admiral claimed privilege and work product protection — which Mahli apparently did not contest. The court ultimately excluded such evidence, concluding that "it would be patently unfair for Admiral to hide the substance of [several witnesses'] statements to [Admiral's lawyer] behind the attorney-client privilege or work-product doctrine during discovery, and to allow Admiral to use the statements against Mahli at trial." Id. At *13.

Corporate defendants might win a discovery battle if plaintiffs do not challenge their privilege or work product claims, or if plaintiffs lose motions to compel. But those corporations might lose the war if they ultimately need those withheld documents or communications at trial — but have forfeited that opportunity by not having disclosed them during discovery.

Case Date Jurisidction State Cite Checked
2015-08-25 Federal MS
Comment:

key case


Chapter: 35.10

Case Name: Dalton v. Crawley, Dkt. No. A-4033-12T3, 2014 N.J. Super. Unpub. LEXIS 788 (N.J. Super. April 8, 2014)
(ordering plaintiff to produce a collection of defendant's expert's testimony the plaintiff gathered from other cases, but not requiring the plaintiff to indicate which testimony she will use; "The example of video surveillance is illustrative. If a defendant has an investigator surreptitiously record a personal injury plaintiff engaging in physical activity, the film, disc, or other medium is discoverable only if a plaintiff can demonstrate a substantial need for the materials and an inability to obtain the substantial equivalent without undue hardship. . . . On the other hand, when a personal injury claim arises out of an accident recorded by 'routine surveillance conducted in the normal course of business, outside the context of litigation, which shows the actual incident[,]' the surveillance tape is discoverable. . . . Withholding discovery in the latter instance is prohibited. . . . In the latter instance, an attorney's decision to use the recording solely to cross-examine a plaintiff would not shield the recording from discovery.")

Case Date Jurisidction State Cite Checked
2014-04-08 State NJ

Chapter: 35.10

Case Name: Estate of Tigani, C.A. No. 7339 ML, 2013 Del. Ch. LEXIS 73, at *6 (Ct. Ch. Del. Mar, 20, 2013)
("I also noted that work product associated with any attorney testimony on which Josephine [executrix] intends to rely at trial may need to be produced, subject to the protections afforded by Rule 26(c)(3), which guards an attorney's mental impressions, conclusions, opinions, and legal theories.")

Case Date Jurisidction State Cite Checked
2013-05-20 State DE B 3/14

Chapter: 35.10

Case Name: Baird v. Dolgencorp, L.L.C., No. 4:11 CV 1589 DDN, 2013 U.S. Dist. LEXIS 17269, at *3 n.1 (E.D. Mo. Feb. 5, 2013)
(finding that a plaintiff could depose the defendant's investigator, who had videotaped plaintiff as part of the investigation; "'The undersigned notes that if the footage already produced by defendants is presented to the jury during trial, fairness will require defendants to produce any additional footage.'")

Case Date Jurisidction State Cite Checked
2013-02-05 Federal MO B 2/14

Chapter: 35.10

Case Name: Shared Med. Res., LLC v. Histologics, LLC, No. SACV 12 0612 DOC (RNBx), 2012 U.S. Dist. LEXIS 164336, at *12 (C.D. Cal. Nov. 14, 2012)
("If Plaintiff does decide to rely on attorney-client privileged information in its Opposition, then it will have generated a waiver applicable to all other attorney-client communications relating to the same subject matter. . . . However, if Plaintiff decides to affirmatively rely on privileged work-product, then it will have not have generated a broad waiver, but rather one of all 'factual' or 'non-opinion' work-product related to the same subject matter.")

Case Date Jurisidction State Cite Checked
2012-11-14 Federal CA B 7/13

Chapter: 35.10

Case Name: Appleton Papers, Inc. v. EPA, 702 F.3d 1018, 1022 (7th Cir. 2012)
("[A]lthough a report prepared in anticipation of litigation is work product, the party must disclose that report if its author plans to testify at trial.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal B 9/13

Chapter: 35.10

Case Name: Money One Fed. Credit Union v. Manegan (In re Manegan), Ch. 7 Case No. 06-10092-SSM, Adv. No. 06-1098, 2006 Bankr. LEXIS 3279, at *1, *4, *14-15 (Bankr. E.D. Va. Nov. 24, 2006)
(assessing a debtor's motion for summary judgment in an action brought by a credit card issuer; explaining that the credit card issuer had to establish "a prima facie case that it justifiably relied on the debtor's implied representation that she intended to repay the advances at the time they were made"; explaining that "[a]fter answering the complaint, the debtor served interrogatories and requests for production of documents on Money One. Two of the interrogatories sought discovery of the evidence Money One would present to show that its reliance on the alleged false statements respecting the debtor's financial condition was reasonable and that its reliance on other alleged false representations was justifiable. . . . To each interrogatory Money One responded only, 'This interrogatory requests a legal explanation which is attorney client privileged.' The debtor then filed the present motion for summary judgment asserting that the plaintiff has not shown that it either reasonably or justifiably relied on any alleged misrepresentation."; noting that "a party may properly require an opponent to disclose its theory of the case. Here, however, the only response to the interrogatory was the information requested as protected by the attorney client privilege. . . . If so, it is necessarily information that Money One will not present or rely upon at trial. The attorney client privilege is intended to protect information the client has provided to the attorney in order to obtain legal advice and under an understanding that it will not disclosed [sic] to anyone else. . . . Information that the client intends for the attorney to use at trial is by very definition not protected by the attorney client privilege, since the privilege extends only to facts that the client wishes to keep secret. When Money One responded to the debtor's interrogatories by asserting that any information concerning its reliance on the alleged misrepresentation was protected by the attorney client privilege, it was effectively stating that any such information was secret and would not be presented at trial. Since Money One cannot prevail at trial without presenting some evidence of reliance, it follows that Money One has not carried its burden of showing that it has evidence sufficient to make a prima facie case at trial." (emphases in original); granting the debtor's motion for summary judgment except for one charge, which the debtor has conceded was nondischargeable)

Case Date Jurisidction State Cite Checked
2006-11-24 Federal VA B 6/07

Chapter: 35.702

Case Name: In re Fundamental Long Term Care, Inc., 489 B.R. 451, 473 (M.D. Fla. 2013)
(holding that a trustee's lawyer may seek files of a firm which also represented debtor's subsidiary and another company, based on the co-client privilege; "The co-client exception and common interest doctrine analysis governing the attorney-client privilege applies with equal force to the work product doctrine.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal FL B 3/14

Chapter: 35.802

Case Name: Chen-Oster v. Goldman, Sachs & Co., No. 10 Civ. 6950 (AT) (JCF), 2013 U.S. Dist. LEXIS 173986, at *3-4 (S.D.N.Y. Dec. 11, 2013)
(within an opinion by Magistrate Judge James Francis, holding that defendant's contention interrogatories were too broad"Finally, the plaintiffs' assertion of work product protection is without merit. 'There are many legitimate ways in which an attorney's thoughts and strategy may be revealed, e.g., in pleadings, interrogatory answers, requests for admissions, responses to contention interrogatories and pre-trial orders. In those contexts, the work product privilege affords little or no protection.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-12-11 Federal NY B 5/14

Chapter: 35.803

Case Name: JDS Therapeutics, LLC v. CVS Pharmacy, Inc., 15-cv-4365 (JSR), 2015 U.S. Dist. LEXIS 145634 (S.D.N.Y. Oct. 22, 2015)
(holding that products tests can serve work product protection; "This entreaty is unpersuasive, however, because, as plaintiffs observe, any expert tests that they intend to use as evidence in this action will be timely disclosed to defendant in accordance with the expert disclosure deadlines set in the case management plan. Moreover, defendant is perfectly capable of testing its own products for the ingredient at issue, and 'where a party has the ability to 'perform its own tests', '[s]uch testing would not be [considered] an undue hardship.'")

Case Date Jurisidction State Cite Checked
2015-10-22 Federal NY

Chapter: 35.803

Case Name: Hatamian v. Advanced Micro Devices, Inc., Case No. 14-cv-00226-YGR (JSC), 2015 U.S. Dist. LEXIS 128678 (N.D. Cal. Sept. 24, 2015)
("Plaintiffs do not contend that the name of Expert A is work product or that it is not relevant; instead, they baldly assert that as the parties are not required to disclose their experts until next summer, Plaintiffs may hide the name of Expert A until that time. Again, the Court disagrees. Plaintiffs have chosen to utilize an expert in their complaint. Plaintiffs have not articulated any prejudice or reason not to treat that 'confidential witness' as any other 'confidential witness' in the complaint, at least for the purpose of disclosing the confidential expert witness's name. Further, as Plaintiffs agreed in open court before the district court to identify the 'confidential witnesses' in the complaint, that Defendants have not made a formal request for the name of Expert A is of no matter. Plaintiffs shall also provide Defendants with the name of Expert A.").

Case Date Jurisidction State Cite Checked
2015-09-24 Federal CA

Chapter: 35.804

Case Name: Hatamian v. Advanced Micro Devices, Inc., Case No. 14-cv-00226-YGR (JSC), 2015 U.S. Dist. LEXIS 128678 (N.D. Cal. Sept. 24, 2015)
("Plaintiffs do not contend that the name of Expert A is work product or that it is not relevant; instead, they baldly assert that as the parties are not required to disclose their experts until next summer, Plaintiffs may hide the name of Expert A until that time. Again, the Court disagrees. Plaintiffs have chosen to utilize an expert in their complaint. Plaintiffs have not articulated any prejudice or reason not to treat that 'confidential witness' as any other 'confidential witness' in the complaint, at least for the purpose of disclosing the confidential expert witness's name. Further, as Plaintiffs agreed in open court before the district court to identify the 'confidential witnesses' in the complaint, that Defendants have not made a formal request for the name of Expert A is of no matter. Plaintiffs shall also provide Defendants with the name of Expert A.").

Case Date Jurisidction State Cite Checked
2015-09-24 Federal ND

Chapter: 35.807

Case Name: Hatamian v. Advanced Micro Devices, Inc., Case No. 14-cv-00226-YGR (JSC), 2015 U.S. Dist. LEXIS 128678 (N.D. Cal. Sept. 24, 2015)
("Plaintiffs do not contend that the name of Expert A is work product or that it is not relevant; instead, they baldly assert that as the parties are not required to disclose their experts until next summer, Plaintiffs may hide the name of Expert A until that time. Again, the Court disagrees. Plaintiffs have chosen to utilize an expert in their complaint. Plaintiffs have not articulated any prejudice or reason not to treat that 'confidential witness' as any other 'confidential witness' in the complaint, at least for the purpose of disclosing the confidential expert witness's name. Further, as Plaintiffs agreed in open court before the district court to identify the 'confidential witnesses' in the complaint, that Defendants have not made a formal request for the name of Expert A is of no matter. Plaintiffs shall also provide Defendants with the name of Expert A.").

Case Date Jurisidction State Cite Checked
2015-09-24 Federal CA