Showing 72 of 72 results

Chapter: 39.6

Case Name: Halley v. Oklahoma, Case No. 14-CV-562-JHP, 2016 U.S. Dist. LEXIS 74567 (E.D. Okla. June 8, 2016)
(holding that plaintiff's investigator's interviews of witnesses in Oklahoma did not deserve work product protection because he was not licensed to be a private investigator in Oklahoma; "Here, it is clear that work product protection never attached to the investigative report Williams prepared regarding the interviews he conducted in Oklahoma, because Williams was unlicensed to act as a private investigator in Oklahoma. Under Oklahoma law, a private investigator must obtain an Oklahoma license to practice in this State. . . . Violation of this provision is a misdemeanor subject to punishment of imprisonment for not more than 60 days and/or a fine of not more than $2,000. . . . Because Williams was acting illegally in conducting interviews in Oklahoma, such illegally-collected information does not obtain the benefit of work-product protection."; "The Court concludes Williams was acting illegally when he traveled to Oklahoma to interview witnesses to the events of this case. Granting work-product protection over such illegally obtained information would be antithetical to the integrity of the adversary process. Accordingly Williams' investigative report prepared regarding those interviews enjoys no work product protection and must be disclosed to Defendants.")

Case Date Jurisidction State Cite Checked
2016-06-08 Federal OK

Chapter: 39.6

Case Name: NAMA Holdings, LLC v. Greenberg Traurig LLP, 601054/08, 2015 N.Y. App. Div. LEXIS 7289 (N.Y. Sup. Oct. 8, 2015)
(applying the fiduciary exception; holding that an investor which on seventy percent of an LLC did not automatically deserve access to the LLC's privileged documents, and remanding for an in camera review; "'Since the fiduciary exception does not apply to attorney work product . . . It may also be necessary to inspect some of the documents to determine whether they were prepared in anticipation of litigation.")

Case Date Jurisidction State Cite Checked
2015-10-08 Federal NY

Chapter: 39.202

Case Name: In re: Fundamental Long Term Care, Inc. v. GECC, Case No. 8:11-bk-22258-MGW, Ch. 7, Adv. No. 8:13-ap-00893-MGW, 2014 Bankr. LEXIS 1945 (M.D. Fla. Apr. 30, 2014)
("FAS cannot overcome the failure to meet its privilege burden by simply claiming that some (or all) of the communications even if not made for the purpose of securing legal advice convey the in-house lawyers' mental impressions. Perhaps they do. And the work product doctrine, while ordinarily protecting materials prepared by or at the direction of a lawyer, has been construed to protect communications. But a lawyer's mental impressions are not protected work product unless they were made in anticipation of litigation. Once again, the record is completely devoid of any evidence that the mental impressions were formulated or conveyed in anticipation of litigation, and as a consequence, FAS is not entitled to invoke the work product doctrine to prohibit disclosure of Anderson's testimony.")

Case Date Jurisidction State Cite Checked
2014-04-30 Federal FL

Chapter: 39.203

Case Name: Palombaro v. Emery Federal Credit Union, Case No. 1:15-cv-792, 2017 U.S. Dist. LEXIS 6365 (S.D. Ohio Jan. 17, 2017)
(protecting intangible work product, and including that defendant's interrogatory asking how plaintiffs planned to prove their case was improperly sought plaintiffs' opinion work product; "Interrogatory 12 states: 'Describe in detail how you will establish that a particular fee was split between Genuine Title, LLC, and a 'Referring Broker' or Emery for each putative class member, including how you will establish the total amount of the fee, the amount of the fee that was split, the date the split fee payment was made, to whom the split fee was paid, how the split fee was paid, and the process that you, your counsel, the Court, or a jury will use to ascertain the identity and amount of the fee you contend was split.'"; "Plaintiffs' objections to these interrogatories under the work-product doctrine are well-taken. An attorney's work product is reflected 'in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways.'"; "Fed. R. Civ. P. 26(b)(3) provides work-product protection to documents and tangible things prepared in anticipation of litigation or for trial by or for an attorney. However, the contours of the work-product doctrine are broader than the protection provided by Rule 26(b)(3). As the Sixth Circuit has explained, the work-product doctrine is not limited only to documents and tangible things because 'disclosure of the opinions or mental processes of counsel may occur when nontangible work product is sought through depositions, interrogatories, and requests for admission.'"; "Here, Interrogatories 11, 12 and 13 do not seek the facts giving rise to plaintiffs' allegations of kickbacks and split fees, nor do they seek facts concerning the diligence of putative class members in pursuing their claims. Instead, Interrogatories 11 and 12 ask plaintiffs to describe how they plan to 'establish' that alleged referral payments and fee-splitting payments will be tied to each putative class member for purposes of the anticipated class certification motion."; "Further, these interrogatories are not contention interrogatories. Contention interrogatories 'are interrogatories that seek to clarify the basis for or scope of an adversary's legal claims.'. . . Such interrogatories 'ask a party to state the facts upon which it bases a claim or defense' or ask 'for an opinion or contention that relates to fact or the application of law to fact.'. . . As propounded, these interrogatories do not ask plaintiffs to 'state the facts upon which [they] base[]' their claims, nor do they seek 'an opinion or contention that relates to fact or the application of law to fact.' See id. Instead, these interrogatories seek information concerning the process by which plaintiffs 'will establish' their kickback and split fee allegations, the 'process' that their counsel 'will use to ascertain the identity and amount' of the alleged split fees, and the process counsel will use to 'ascertain' the diligence of putative class members. . . . Thus, such interrogatories do not seek the factual basis of plaintiffs' claims but information concerning counsel's legal strategy and mental impressions that is protected work product."; "Finally, defendant's contention that work-product protection is limited to documents and tangible things is not an accurate statement of the law. . . . Instead, an attorney's work product is reflected 'in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways.' Hickman, 329 U.S. at 511 (emphasis added).")

Case Date Jurisidction State Cite Checked
2017-01-17 Federal OH
Comment:

key case


Chapter: 39.203

Case Name: United States v. Frostman, Crim No. 4:16cr55, 2016 U.S. Dist. LEXIS 147899 (E.D. Va. Oct. 25, 2016)
(holding that a criminal defendant's lawyer waived opinion work product protection by presenting the criminal defendant in pleading guilty, while declining to acknowledge that the lawyer provided all the necessary warnings to the client before the guilty plea; "'Though not directly applicable here, Federal Rule of Evidence 502(g) provides that 'work product protection' means the protection the applicable law provides for tangible materials (or its intangible equivalent) prepared in anticipation of litigation or for trial." Federal Rule of Civil Procedure 26(b) addresses work product protection in civil matters.'")

Case Date Jurisidction State Cite Checked
2016-10-25 Federal VA

Chapter: 39.203

Case Name: WIII Uptown, LLC v. B&P Restaurant Group, LLC, Misc. A. No. 15-51-BAJ-EWD, 2016 U.S. Dist. LEXIS 119903 (M.D. La. Sept. 6, 2016)
(analyzing product protection for documents prepared by a non-testifying expert; "Viewing Johnson [a certified fraud examiner hired by defendant's lawyer as a consulting expert and fraud investigator] as a private investigator (rather than a non-testifying consulting expert), WIII is entitled to discover facts which were learned by Johnson during his investigation. . . . WIII asserts that it has not requested Johnson produce any documents or tangible things and instead only seeks Johnson's 'factual knowledge.' The court agrees that such factual knowledge is appropriately within the scope of discovery. Accordingly, the court concludes that B&P has not met its burden of establishing that compliance with Johnson's deposition subpoena would be unduly burdensome or would require the disclosure of privileged information. However, because '[t]he work product privilege protects intangible work product as well as what Fed. R. Civ. P. 26(b)(3) calls 'documents and tangible things,'" questions directed to an investigator during his deposition must be "'carefully tailor[ed] . . . so as to elicit specific factual material, and avoid broad based inquiries, . . . which could lead to the disclosure of trial strategies.'")

Case Date Jurisidction State Cite Checked
2016-09-06 Federal LA

Chapter: 39.203

Case Name: Rumble v. Fairview Health Services, Case No. 14-cv-2037 (SRN/FLN), 2016 U.S. Dist. LEXIS 115934 (D. Minn. Aug. 29, 2016)
(holding that the work product doctrine protected notes created by a nonlawyer, but that the plaintiff could overcome the notes and depose the note-taker; "During this deposition, Nelson [In-house lawyer for defendant] will not be required to testify about his impressions of any interviewee's credibility or his conclusions about what the OCR interviews meant for Fairview's potential liability. . . . These are examples of protected opinion work product. However, Nelson may be asked about his recollection of what questions OCR asked and what answers were given by the interviewees. . . . These are examples of ordinary work product. . . . The Court is confident that counsel for both parties can work within these parameters.")

Case Date Jurisidction State Cite Checked
2016-08-29 Federal MN

Chapter: 39.203

Case Name: Ellingson v. Piercy, Case No. 2:14-cv-04316-NKL, 2016 U.S. Dist. LEXIS 78803 (W.D. Miss. June 16, 2016)
(holding that a coroner's inquest constituted "litigation" for work product purposes; "Grellner's [County special prosecutor] intangible mental impressions are also covered by the work product privilege.")

Case Date Jurisidction State Cite Checked
2016-06-16 Federal MS

Chapter: 39.203

Case Name: Foster v. City of New York, 14 Civ. 4142 (PGG) (JCF), 14 Civ. 9220 (PGG) (JCF), 2016 U.S. Dist. LEXIS 14594 (S.D.N.Y. Feb. 5, 2016)
("Work product immunity, however, stretches further than the rule indicates, to include "intangible work product: an attorney's analysis made in anticipation of litigation, but which has not been memorialized. Such work product is immune from discovery just as if it had been reduced to writing.")

Case Date Jurisidction State Cite Checked
2016-02-05 Federal NY

Chapter: 39.203

Case Name: Owens-Hart v. Howard University, Civ. No. 14-cv-00758 (APM), 2016 U.S. Dist. LEXIS 13162, at *1, *4, *5 n.2 (D.D.C. Feb. 4, 2016)
(finding that the work product doctrine protected the intangible work product, such as deposition testimony; "In this case, Plaintiff Winifred Owens-Hart asserts that her former employer, Defendant Howard University, failed to accommodate her disability. Before the court is a discovery dispute that arose during the deposition of Professor Reginald Pointer, an employee of Howard University. Plaintiff's counsel asked Professor Pointer a series of questions about his deposition preparation that elicited objections and instructions not to answer from Howard University's counsel based on the assertion of the attorney-client privilege."; "Courts in this jurisdiction have addressed whether such deposition-preparation communications are shielded from discovery. Neither party, however, has cited these relevant decisions."; quoting Banks v. Senate Sergeant-at-Arms, 222 F.R.D. 1, 4 (D.D.C. 2004): "'Even if the attorney-client privilege is not available, the question may still be improper if the answer would tend to disclose the lawyer's intangible work product as I have defined it, i.e., it would disclose counsel's mental impressions, conclusions, opinions or legal theories.'")

Case Date Jurisidction State Cite Checked
2016-02-04 Federal DC B 7/16
Comment:

key case


Chapter: 39.203

Case Name: Ellis v. United States, Case No. 3:14-MC-00521-CWR-LRA, 2015 U.S. Dist. LEXIS 154464, at *21 (S.D. Miss. Nov. 16, 2015)
January 6, 2016 (PRIVILEGE POINT)

"Courts Analyze Work Product Doctrine Variations: Part II"

Last week's Privilege Point used two cases to address federal courts' surprising variations in the work product doctrine's "litigation" and "anticipation" elements. Courts also disagree about the doctrine's "motivation" element, and even about the content eligible for protection.

First, courts agree that the work product doctrine can protect documents motivated by settling ongoing litigation, but they disagree about the protection's applicability to documents motivated by clients' desire to avoid litigation. In Albritton v. CVS Caremark Corp., the court rejected the doctrine's applicability to documents intended to "avoid future litigation with the United States." Case No. 5:130-CV-218-TBR-LLK, 2015 U.S. Dist. LEXIS 152236, at *13 (W.D. Ky. Nov. 10, 2015). Other courts take a different approach. Second, courts disagree about whether Fed. R. Civ. P. 26(b)(3)'s reference to "documents and tangible things" excludes from protection intangible work product such as testimony. In Ellis v. United States, the court pointed to the rule's explicit language in holding that the doctrine "cannot apply to the extent plaintiff was summoned to appear and testify" before an IRS Special Agent. Case No. 3:14-MC-00521-CWR-LRA, 2015 U.S. Dist. LEXIS 154464, at *21 (S.D. Miss. Nov. 16, 2015). Most courts take a more expansive view — recognizing a parallel federal common law work product protection for testimony that would deserve protection if written down.

The huge variation among federal courts applying the very same federal rule sentence can be especially worrisome for corporations likely to find themselves as defendants — because they ordinarily will not know where the litigation will begin, and therefore will not know which work product doctrine variation will govern.

Case Date Jurisidction State Cite Checked
2015-11-16 Federal MS
Comment:

key case


Chapter: 39.203

Case Name: Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015)
("Even though Rule 26(b)(3) refers only to 'documents and tangible things,' work product protection also can apply to emails.'")

Case Date Jurisidction State Cite Checked
2015-09-29 Federal AZ

Chapter: 39.203

Case Name: Beverly v. Watson, No. 14 C 4970, 2015 U.S. Dist. LEXIS 114146 (N.D. Ill. Aug. 28, 2015)
("'Since Rule 26(b)(3) applies only to pretrial discovery of documents and tangible things, when work product protection is sought during trial or as to oral statements, courts must apply the principles articulated in Hickman v. Taylor.'")

Case Date Jurisidction State Cite Checked
2015-08-28 Federal IL

Chapter: 39.203

Case Name: In re GM LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015)
(limiting plaintiffs' questioning of the lawyer who investigated GM's ignition switch issue; noting that GM pledged not to call the lawyer or rely on the report at trial; "[T]o the extent that Plaintiffs intend to ask whether Valukas considered certain documents or facts in preparing the Report . . . those questions would invariably reveal Valukas's 'mental impressions [and] personal beliefs,'. . . Shelton v. American Motors Corp., 805 F.2d 1323, 1326 (8th Cir. 1986) ('[W]here, as here, the deponent is opposing counsel and has engaged in a selective process of compiling documents from among voluminous files in preparation for litigation, the mere acknowledgment of the existence of those documents would reveal counsel's mental impressions, which are protected as work product.")

Case Date Jurisidction State Cite Checked
2015-08-11 Federal NY
Comment:

key case


Chapter: 39.203

Case Name: Perez v. El Tequila LLC, Case No. 12-CV-588-JED-PJC, 2015 U.S. Dist. LEXIS 34174 (N.D. Okla. March 19, 2015)
(finding that the work product doctrine protected oral communications between a government lawyer and a third party's employees; "On December 31, 2014, Defendants deposed Speer and asked him to tell them about his conversation with the Casio expert on July 24. Counsel instructed Speer not to answer these questions on the grounds of work product, attorney-client privilege and counsel's communications with retained expert."; "The interviews of Casio employees at the direction of Plaintiff's counsel are protected by the work-product doctrine. Documents produced to the Court for in camera review establish that the purpose of the interview was for counsel to understand the computer codes reflected on Defendants' time records and to develop a coherent litigation strategy in prosecuting the case. Defendants have not been denied any discoverable information. Defendants have made no showing that the employees -- Deal and Leonhardt -- were unavailable for deposition.")

Case Date Jurisidction State Cite Checked
2015-03-19 Federal OK

Chapter: 39.203

Case Name: Lucas v. Gregg Appliances, Inc., Case No. 1:14-cv-70, 2014 U.S. Dist. LEXIS 168751 (S.D. Ohio Dec. 5, 2014)
("Although Defendants do not seek production of the progress invoices from Plaintiff, they should not be able circumvent the work product doctrine and indirectly obtain this information by deposing Hoerst.")

Case Date Jurisidction State Cite Checked
2014-12-05 Federal OH

Chapter: 39.203

Case Name: In re Baytown Nissan Inc. v. Gray, No. 01-14-00704-CV, 2014 Tex. App. LEXIS 12197 (Tex. Ct. App. Nov. 7, 2014)
("Deposition questions requesting Gray's [Dealer's lawyer] mental impressions regarding his conversation with Phillips [General counsel of the dealer association] (such as whether Phillips's statements 'were consistent with [his] experience') are core work product and not discoverable.")

Case Date Jurisidction State Cite Checked
2014-11-07 State TX

Chapter: 39.203

Case Name: XTL-NH, Inc. v. New Hampshire State Liquor Comm. and Exel, Inc., No. 2013-CV-119, 2014 N.H. Super. LEXIS 17 (N.H. Sup. Ct. Oct. 1, 2014)
(finding that a lawyer could not be asked certain questions about even non-privileged documents that had been produced; "Since they are not privileged, they have been produced. But of course, that is not the issue in this case; XTL seeks to go beyond these non-privileged documents, and question Attorney Judge about his thoughts and impressions regarding them, which is pure work product.")

Case Date Jurisidction State Cite Checked
2014-10-01 State NH
Comment:

key case


Chapter: 39.203

Case Name: Gropper v. David Ellis Real Estate, L.P., No. 13 Civ. 2068 (ALC) (JCF), 2014 U.S. Dist. LEXIS 29799, at *8, *9 (S.D.N.Y. Mar. 4, 2014)
(analyzing work product issues in an Americans with Disabilities Act case; "[T]he Second Circuit has noted that this is an overstatement."; quoting In re Grand Jury Subpoena dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007); "'While it may well be that work product is more deeply concerned with the revelation of an attorney's opinions and strategies, and that the burden of showing substantial need to overcome the privilege may be greater as to opinions and strategies than as to facts, we see no reason why work product cannot encompass facts as well. It is helpful to remember that the work product privilege applies to preparation not only by lawyers but also by other types of party representatives including, for example, investigators seeking factual information. If an attorney for a suspect, or an investigator hired for the suspect, undertakes a factual investigation, examining inter alia, the scene of the crime and instruments used in the commission of the crime, we see no reason why a work product objection would not properly lie if the Government called the attorney or the investigator . . . and asked 'What facts have you discovered in your investigation?'"; "[T]he work product doctrine may shield from discovery notes taken by an attorney that reflect the results of an investigation undertaken in anticipation of litigation. . . . The documents identified in the defendants' subpoena are plainly protected: they consist of the documents prepared by plaintiff's counsel in his investigation prior to commencing this action.")

Case Date Jurisidction State Cite Checked
2014-03-04 Federal NY B 8/14

Chapter: 39.203

Case Name: Roa v. Tetrick, Case No. 1:13-cv-379, 2014 U.S. Dist. LEXIS 24619, at *14 (S.D. Ohio Feb. 24, 2014)
(finding that the work product doctrine protected defendant's surveillance video tape of a plaintiff, but that the plaintiff could overcome the work product protection; allowing plaintiff to depose defendant's investigator, but protecting opinion work product; "While the work product doctrine protects both tangible and intangible things and documents . . . it does not protect the disclosure of underlying facts, regardless of who obtained those facts.")

Case Date Jurisidction State Cite Checked
2014-02-24 Federal OH B 7/14

Chapter: 39.203

Case Name: Roa v. Tetrick, Case No. 1:13-cv-379, 2014 U.S. Dist. LEXIS 24619, at *14-15 (S.D. Ohio Feb. 24, 2014)
(finding that the work product doctrine protected defendant's surveillance video tape of a plaintiff, but that the plaintiff could overcome the work product protection; allowing plaintiff to depose defendant's investigator, but protecting opinion work product; "[B]ecause a deposition of defendants' investigators may reveal counsel's tactical or strategic thoughts, deposition questions by opposing counsel must be carefully tailored to elicit specific factual information and 'avoid broad based inquiries . . . which could lead to the disclosure of trial strategies.' . . . While the Court will not limit the questioning to a so-called 'records' deposition as requested by defendants, the Court cautions plaintiffs to carefully craft their deposition questions so as not to elicit 'disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.' Fed. R. Civ. P. 26(b)(3).")

Case Date Jurisidction State Cite Checked
2014-02-24 Federal OH B 7/14

Chapter: 39.203

Case Name: Republic of Ecuador v. MacKay, 742 F.3d 860, 868 n.2 (9th Cir. 2014)
("'Although Rule 26(b)(3) is focused on documents and tangible things, Hickman [v. Taylor, 329 U.S. 495 (1947)] protects intangible things independent of the rate.'")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal B 6/14

Chapter: 39.203

Case Name: Accomazzo v. Kemp, 319 P.3d 231, 236 (Ariz. Ct. App. 2014)
(finding a lawyer for a wife claiming that she was under duress when she signed a prenuptial agreement did not have to testify about his client's understanding of the agreement; "The parties do not genuninely [sic] dispute that the Agreement was prepared in anticipation of litigation and is therefore subject to the protection of the work-product doctrine. To the extent that documents or other tangible items reflect Cohen's [lawyer] mental impressions, the work-product doctrine provides those items absolute protection from discovery. . . . And to the extent that Cohen otherwise holds impressions regarding Wife's understanding of the Agreement, his impressions are undiscoverable to the extent they are based on information learned in the course of his representation of Wife.")

Case Date Jurisidction State Cite Checked
2014-01-01 State AZ B 5/14

Chapter: 39.203

Case Name: US Bank Nat'l Ass'n v. PHL Variable Ins. Co., Nos. 12 Civ. 6811 & 13 Civ. 1580 (CM) (JCF), 2013 U.S. Dist. LEXIS 143398, at *23-24 (S.D.N.Y. Oct. 3, 2013)
("Although work product protection typically accrues to documents and tangible things, the doctrine also protects a witness from answering questions that 'reveal [his] attorneys' legal opinions, thought processes, [or] strategy.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-10-03 Federal NY B 5/14

Chapter: 39.203

Case Name: In re Weatherford Int'l Secs. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 110928, at *16 (S.D.N.Y. Aug. 5, 2013)
(in an opinion by Magistrate Judge James Francis, analyzing a topic for a Rule 30(b)(6) deposition; holding that verbal communication deserved work product protection only if it revealed a lawyer's legal strategy; "Question 33 inquires into whether Mr. Gyeszly [30(b)(6) designee] was aware that his attorneys communicated with counsel for Weatherford's Director of Internal Audit in preparation for the deposition. Since this question does not implicate any legal strategy, it is permissible.")

Case Date Jurisidction State Cite Checked
2013-08-05 Federal NY B 4/14

Chapter: 39.203

Case Name: In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 110928 (S.D.N.Y. Aug. 5, 2013)
October 30, 2013 (PRIVILEGE POINT)

"Can the Work Product Doctrine Protect Oral Communications?"

The federal work product rule and its state counterparts on their face protect only "documents and tangible things." Fed. R. Civ. P. 26(b)(3)(A). Some courts apply the rule literally, and deny any work product claim for oral communications – even if the doctrine would protect memorializations of those communications. Courts taking an expansive view either ignore the rule's literal language, or rely on the parallel federal work product common law articulated in Hickman v. Taylor, 329 U.S. 495 (1947).

Some courts take a middle ground. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 110928 (S.D.N.Y. Aug. 5, 2013), Judge James Francis cited an earlier Southern District of New York decision in extending work product to oral communications which reflect a lawyer's legal strategy or thought process. In essence, this approach protects intangible work product only if it meets the "opinion" work product standard.

Lawyers should not assume that the work product doctrine automatically protects their oral communications with witnesses and other third parties.

Case Date Jurisidction State Cite Checked
2013-08-05 Federal NY
Comment:

key case


Chapter: 39.203

Case Name: Sherwin-Williams Co. v. Motley Rice LLC, Case No. CV 09 689237, 2013 Ohio Misc. LEXIS 7, at *5 (Ohio Jan. 31, 2013)
(holding that the lead paint plaintiffs' law firm of Motley Rice must produce documents for in camera review, in response to defendant Sherwin-William's discovery of how Motley Rice obtained copies of Sherwin-Williams trade secrets; "The protection applies not just to documents and other things but to intangible work product, including an attorney's analysis, opinions, and strategy. Intangible work product is protected because, otherwise, attorneys' files would not be discoverable, but attorneys themselves would have no work product objection to depositions.")

Case Date Jurisidction State Cite Checked
2013-01-31 State OH B 3/14

Chapter: 39.203

Case Name: RLI Insurance Co. v. Conseco, Inc., Misc. No. 3:06mc11, 2007 U.S. Dist. LEXIS 17928 (E.D. Va. March 7, 2007)
("'Fed. R. Civ. P. 26(b)(3), which partially codified Hickman, controls discovery of documents. Hickman still controls discovery of testimony, so Hickman controls here.'")

Case Date Jurisidction State Cite Checked
2007-03-07 State VA

Chapter: 39.203

Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 746 n.6 (E.D. Va. 2007)
("Fed. R. Civ. P. 23(b)(3), which partially codified Hickman, controls discovery of documents. Hickman still controls discovery of testimony, so Hickman controls here. See, e.g., Maynard v. Whirlpool Corp., 160 F.R.D. 85, 87 (S.D.W. Va. 1995).")

Case Date Jurisidction State Cite Checked
2007-01-01 State VA B 3/16
Comment:

key case


Chapter: 39.203

Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 170 n.7 (Va. Cir. Ct. 2005)
(assessing the discoverability of an accident investigation report prepared by a railroad in connection with an accident in which plaintiff was injured; ultimately finding that the work product doctrine applied and could not be overcome; "The work product doctrine announced in Hickman was not limited to documents. Since Fed. R. Civ. P. 26(b)(3) and Va. Sup. Ct. R. 4:1(b)(3) are limited by their terms to the discovery of documents and tangible things, they leave the Hickman work product doctrine applicable to everything other than documents and tangible things. Thus, when discovery of 'work product' is sought through interrogatories or through questions propounded at the taking of deposition, the Rule has no application and one must revert to the principles enunciated in Hickman.")

Case Date Jurisidction State Cite Checked
2005-01-01 State VA

Chapter: 39.203

Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 169-70 (Va. Cir. Ct. 2005)
(assessing the discoverability of an accident investigation report prepared by a railroad in connection with an accident in which plaintiff was injured; ultimately finding that the work product doctrine applied and could not be overcome; "The new rule applied only to 'tangible' work product, while Hickman protected intangible work product.")

Case Date Jurisidction State Cite Checked
2005-01-01 State VA B 3/16
Comment:

key case


Chapter: 39.203

Case Name: Haga v. L.A.P. Care Servs., Inc., 2002 U.S. Dist. LEXIS 1605, at *6 (W.D. Va. Feb. 1, 2002)
(assessing a retirement home's effort to obtain discovery of the substance of interviews taken by plaintiff's lawyer of former retirement home employees; explaining that "to the extent that the interrogatory requests nontangible information, that information is protected from discovery by Hickman")

Case Date Jurisidction State Cite Checked
2002-02-01 Federal VA nsvb 2/23/04

Chapter: 39.203

Case Name: Haga v. L.A.P. Care Servs., Inc., Case No. 1:01CV00105, 2002 U.S. Dist. LEXIS 1605, at *2, *1, *6 (W.D. Va. Feb. 1, 2002)
(finding that intangible work product could be protected under the Hickman case, although only tangible work product deserved protection under Fed. R. Civ. P. 26(b)(3); assessing a retirement home's effort to obtain discovery of the substance of interviews taken by plaintiff's lawyer of former retirement home employees; agreeing with plaintiff that any record of interviews the plaintiff had with current or former employees at the defendant retirement home "necessarily contained theories and opinions formed in anticipation of litigation"; refusing to order plaintiff to reveal "the substance of the facts or opinions" obtained during plaintiff's counsel's ex parte interviews with present or former employees of defendant retirement home in a wrongful death case; explaining that "[t]o the extent that the interrogatory requests nontangible information, that information is protected from discovery by Hickman")

Case Date Jurisidction State Cite Checked
2002-02-01 Federal VA

Chapter: 39.203

Case Name: Haga v. L.A.P. Care Servs., Inc., Case No. 1:01CV00105, 2002 U.S. Dist. LEXIS 1605, at *1, *4-5, *5-6 (W.D. Va. Feb. 1, 2002) (not for publication)
("During discovery in this case, the defendant served a second set of interrogatories upon the plaintiff. One of the interrogatories requested the following: 'State the name, address and telephone number of each present or former employee of [the defendant], with whom you or any of your agents has [sic] communicated and state the substance of the facts or opinions which you obtained from each present or former employee.'" (internal citation omitted); "In this case, the defendant has not shown any extraordinary circumstances to warrant discovery of interviews conducted by the plaintiff's attorney. The persons interviewed are former employees of the defendant. The fact that the defendant corporation is no longer in business or that these former employees may have negative feelings about the defendant adds little to the argument."; "In the present case, I find that the defendant has not made such a showing. The defendant's interrogatory requests 'information,' and does not specify the form of the information. To the extent that the interrogatory requests material contained in documents or other tangible form, that material is protected from discovery by rule 26(b)(3). Likewise, to the extent that the interrogatory requests nontangible information, that information is protected from discovery by Hickman.")

Case Date Jurisidction State Cite Checked
2002-02-01 Federal VA B 3/16
Comment:

key case


Chapter: 39.203

Case Name: Cluverius v. James McGraw, Inc., Case No. HI-618-1, 1998 Va. Cir. LEXIS 27 (Va. Cir. Ct. (Richmond) Feb. 11, 1998)
(apparently holding that only a party to litigation can participate in the valid common interest arrangement, but explaining that the work product doctrine might apply; "Because the defendants McGraw, Sydnor, and Valley Forge have similar interests in their defenses to plaintiff's claims, they should be free to communicate among themselves, through counsel, about those concerns. However, although Fleet may share common interests with the defendants, it is not a 'party' to this litigation. Disclosures by counsel for McGraw, Sydnor, or Valley Forge to counsel for Fleet are not protected by the common interset doctrine but are safeguarded by the work product doctrine. The work product protection exists.")

Case Date Jurisidction State Cite Checked
1998-02-11 State VA
Comment:

key case


Chapter: 39.204

Case Name: Ellis v. United States, Case No. 3:14-MC-00521-CWR-LRA, 2015 U.S. Dist. LEXIS 154464 (S.D. Miss. Nov. 16, 2015)
(holding that the work product doctrine did not apply to testimony; "Because it applies only to tangible things or documents, the assertion of the doctrine cannot apply to the extent plaintiff was summoned to appear and testify before Agent Ivory. Therefore, plaintiff must appear to testify before Agent Ivory.").

Case Date Jurisidction State Cite Checked
2015-11-16 Federal MS

Chapter: 39.204

Case Name: Smyth v. Williamson, No. 2:13-cv-2553-DCN, 2014 U.S. Dist. LEXIS 64777 (D.S.C. May 12, 2014)
August 6, 2014 (PRIVILEGE POINT)

"Can the Work Product Doctrine Protect "Intangible" Work Product?"

Among many other variations in federal courts' analyses of the work product rule, courts disagree about whether the doctrine only applies to "documents and tangible things" — per Fed. R. Civ. P. 26(b)(3)(A)'s language. Most courts find that federal common law extends the same protection to intangible work product, such as a witness's memory being probed by an adversary's deposition questions.

Some courts take a narrower view. In Smyth v. Williamson, No. 2:13-cv-2553-DCN, 2014 U.S. Dist. LEXIS 64777 (D.S.C. May 12, 2014), automobile accident plaintiff Smyth sent a deposition subpoena to defendant Williamson's insurance company State Farm. Smyth sought a State Farm representative's testimony about (among other things) the "substance" of any statement Williamson gave to a State Farm agent. Id. at *3. Although the work product doctrine's applicability to either a document memorializing any statement (or even the statement itself) could present a close question, the court short-circuited any work product analysis. The court bluntly held that "Rule 26 does not apply to the current motion" — because "Smyth is not seeking discovery of any [documents or tangible] items but is rather seeking to depose a State Farm representative." Id. at *9.

Such a narrow work product view does not always have important ramifications. However, it would be easy to envision litigants prejudiced by allowing their adversaries to depose private investigators, consultants, or even paralegals, and ask about the "substance" of written reports that would clearly deserve work product protection.

Case Date Jurisidction State Cite Checked
2014-05-12 Federal SC
Comment:

key case


Chapter: 39.204

Case Name: Smyth v. Williamson, No. 2:13-cv-2553-DCN, 2014 U.S. Dist. LEXIS 64777 (D.S.C. May 12, 2014)
(analyzing work product issues in a third party insurance case; holding that the work product rule did not protect intangible work product, and therefore did not prohibit plaintiff from deposing a State Farm employee about the content of documents that would be work product; "On February 5, 2014, Smyth served a second subpoena on State Farm, setting a telephone deposition of a State Farm representative for February 25, 2014. State Farm's Mot. Ex. E. Smyth requested that the State Farm representative testify to (1) whether Williamson gave a statement to State Farm or any agent of State Farm regarding the accident, and if so, the substance of the statement and when it was made; and (2) whether State Farm or any of its agents communicated with Williamson about Smyth's injuries and damages."; "State Farm essentially argues that the work product doctrine applies and should prevent Smyth from deposing its representative."; "However, Rule 26 does not apply to the current motion. Rule 26(b)(3)(A) applies to 'documents' and 'tangible things,' and Smyth is not seeking discovery of any such items but is rather seeking to depose a State Farm representative."; "Because Smyth is not seeking any tangible work product, and because State Farm has not articulated why the attorney-client privilege should apply, privilege is not an appropriate reason to quash the subpoena.")

Case Date Jurisidction State Cite Checked
2014-05-12 Federal SC

Chapter: 39.204

Case Name: U.S. Ethernet Innovations LLC v. Acer, Inc., No. C 10-03724 CW (LB), 2013 U.S. Dist. LEXIS 142896, at *22-23 (N.D. Cal. Sept. 25, 2013)
(analyzing work product protection for documents created by a former HP consultant, now working with K&L Gates as a consultant; finding that the work product doctrine protected the consultant's documents; "That being said, a fact witness's view about relevant documents is closer to fact information than work product. A related issue is that even with work-product culled documents, 'substantial need' can justify disclosure of the culled documents. Part of the reason that there might not be a substantial need is that USEI is free under the district court's August 16 order to talk with Mr. Baker [Consultant] about what is important in the litigation regarding the enforcement of the patents, including his assessment of the important documents. This does not mean that USEI can ask what HP thinks is important or what Mr. Baker said to HP, but it can ask what Mr. Baker thinks is important. (HP agreed with this point at the hearing.) USEI's interests are protected by the district judge's order allowing it access to Mr. Baker and preventing HP from preventing access or requiring access only through HP and its counsel.")

Case Date Jurisidction State Cite Checked
2013-09-25 Federal CA B 5/14

Chapter: 39.204

Case Name: Baird v. Dolgencorp, L.L.C., No. 4:11 CV 1589 DDN, 2013 U.S. Dist. LEXIS 17269, at *5 (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; "What Bryan Schubert witnessed, that is relevant to the case, may be the subject of his deposition.")

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

Chapter: 39.204

Case Name: Baird v. Dolgencorp, L.L.C., No. 4:11 CV 1589 DDN, 2013 U.S. Dist. LEXIS 17269 (E.D. Mo. Feb. 5, 2013)
April 17, 2013 (PRIVILEGE POINT)

"Can the Work Product Doctrine Protect Intangible Work Product?"

On its face, Fed. R. Civ. P 26(b)(3) refers to "documents and tangible things that are prepared in anticipation of litigation or for trial." However, most courts also protect intangible work product (such as deposition testimony) – either ignoring the rule's literal language or relying on a parallel federal common law work product doctrine.

In Baird v. Dolgencorp, L.L.C., No. 4:11 CV 1589 DDN, 2013 U.S. Dist. LEXIS 17269 (E.D. Mo. Feb. 5, 2013), the court dealt with an investigator's surveillance videotapes of a plaintiff. The court rejected defendants' motion to quash plaintiffs' subpoena to depose the investigator. The court noted that the subpoena sought "testimony rather than documents or tangible things" – and "[w]hat [the investigator] witnessed, that is relevant to the case, may be the subject of his deposition." Id. At *4.

It makes far more sense to extend work product protection to the intangible articulation of what would clearly be protected if memorialized in writing. However, some courts read the work product rule literally.

Case Date Jurisidction State Cite Checked
2013-02-05 Federal MO
Comment:

key case


Chapter: 39.204

Case Name: Hammond v. Saini, No. 748 S.E.2d 585, 594 (N.C. Ct. App. 2013)
("[W]e reject defendants' argument that the trial court abused its discretion in compelling them to respond to plaintiff's interrogatories despite their objections based on the work product doctrine. It is well established that the work product doctrine only applies to documents or other tangible things. See Long, 155 N.C. App. At 136-37, 574 S.E. 2d at 176 (holding that 'plaintiff's interrogatories did not violate Rule 26(b)(3)' because they 'did not ask defendants for documents or tangible things').")

Case Date Jurisidction State Cite Checked
2013-01-01 State NC B 2/14

Chapter: 39.305

Case Name: FTC v. DIRECTV, Inc., Case No. 15-cv-01129-HSG (MEJ), 2016 U.S. Dist. LEXIS 103602 (N.D. Cal. Aug. 5, 2016)
("The FTC . . . shall respond to DIRECTV's factual questions, including factual questions regarding the existence of any pre-lawsuit studies, surveys, or research, and whether the FTC conducted such analyses before filing this action. That the documents themselves may be protected as attorney work product does not preclude DIRECTV from discovering the fact of their existence. That said, DIRECTV cannot inquire as to what facts the FTC Commissioners or other individuals considered or evaluated when deciding to initiate this action, as this would impermissibly reveal their evaluations of those materials.")

Case Date Jurisidction State Cite Checked
2016-08-05 Federal CA
Comment:

key case


Chapter: 39.305

Case Name: Roach v. Hughes, Civ. A. No. 4:13-CV-00136-JHM, 2015 U.S. Dist. LEXIS 101660 (W.D. Ky. Aug. 4, 2015)
(addressing work product issues related to a surveillance video tape a defendant took of a supposedly injured plaintiff; "In the present case, Plaintiffs argue that they seek discovery of mere factual information about Defendants' investigation of Ms. Roach -- the total duration of Defendants' surveillance of Ms. Roach -- and, accordingly, the work-product doctrine does not apply. Defendants intermingle arguments that the total duration of the surveillance is not discoverable because it is opinion work product, which is entitled to near absolute protection, and because Plaintiffs have not made a sufficient showing of substantial need for the information, as would be required if the requested discovery was ordinary work product."; "The Court finds that Defendants have not met their burden of establishing that the information sought by Plaintiffs' discovery request is encompassed within the work-product doctrine. Plaintiffs' request seeks only the duration of Defendants' surveillance of Ms. Roach, a fact concerning the creation of work product, which is not protected by the work-product doctrine . . . . Thus, the dates and times of Defendants' surveillance of Ms. Roach are discoverable facts not protected by the work-product doctrine."; "Defendants do not cite any cases in which the length of time an attorney decides to conduct surveillance has been characterized as opinion work product.")

Case Date Jurisidction State Cite Checked
2015-08-04 Federal KY

Chapter: 39.305

Case Name: US Bank Nat'l Ass'n v. PHL Variable Ins. Co., Nos. 12 Civ. 6811 & 13 Civ. 1580 (CM) (JCF), 2013 U.S. Dist. LEXIS 143398, at *30-31 (S.D.N.Y. Oct. 3, 2013)
("Other categories of information sought -- information about those who ordered and conducted the interviews, those who were present but not interviewed, and the dates of the interviews -- are not protected from disclosure because they are not likely to provide insight into counsel's opinions, thought processes, or strategy. . . . Similarly, the question of whether documents were collected from third parties is not likely to impinge on attorney work product protection, as it does not implicate the 'selection and compilation theory of work product,' which protects from disclosure 'counsel's sifting, selection and compilation' of otherwise unprotected documents." (citation omitted))

Case Date Jurisidction State Cite Checked
2013-10-03 Federal NY B 5/14

Chapter: 39.305

Case Name: Fort Worth Emps.' Ret. Fund v. J.P. Morgan Chase & Co., No. 09 Civ. 3701 (JPO) (JCF), 2013 U.S. Dist. LEXIS 65056, at *7, *7-8 (S.D.N.Y. May 7, 2013)
(holding that the work product doctrine did not protect the identity of confidential sources of information included in the complaint, or the date a client hired a lawyer; "The defendants also seek documents concerning the lead plaintiffs' retention of counsel in this action and all agreements with counsel concerning the lead plaintiffs' residential mortgage-backed securities ('RMBS') investments or monitoring of those investments. . . . Although the fact of a retainer, the identity of the client, and the fee information are not privileged . . . the party seeking disclosure must make a showing of the requested information's relevance to its claims or defenses."; "The defendants argue that the dates of the agreements' execution may be relevant to their statute of limitations defense. When the lead plaintiffs retained counsel may indeed be pertinent to identifying the time when the lead plaintiffs became aware of facts giving rise to potential claims. . . . Thus, the date each retention agreement was executed 'appears reasonably calculated to lead to the discovery of admissible evidence.' Fed. R. Civ. P. 26(b).")

Case Date Jurisidction State Cite Checked
2013-05-07 Federal NY B 3/14

Chapter: 39.305

Case Name: Abbo-Bradley v. City of Niagara Falls, 293 F.R.D. 401, 408 (W.D.N.Y. 2013)
("[T]he work product doctrine does not immunize litigants or their consultants from disclosing the underlying facts obtained during the course of their investigations. Under these principles, the facts relating to the chemical composition of the materials obtained as the result of environmental sampling in the neighborhood surrounding the Love Canal Landfill site, as well as the location, manner, and timing of the sampling activity, are discoverable, potentially relevant, and not protected from disclosure by the work product doctrine.")

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

Chapter: 39.305

Case Name: Abbo-Bradley v. City of Niagara Falls, 293 F.R.D. 401, 407 (W.D.N.Y. 2013)
("It is also widely recognized that, while the work product doctrine may in some circumstances protect from pretrial disclosure the results of a factual investigation undertaken by a party or its consultant in anticipation of litigation, the doctrine 'does not protect facts concerning the creation of work product, or facts contained within work product.'" (citation omitted))

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

Chapter: 39.402

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 647-48 (D. Nev. 2013)
("Given the fact that the notes were made on a calendaring e-mail regarding a 'liability meeting,' it is likely the notes can be considered to have been made in anticipation of litigation. However, without the benefit of knowing who made the notes, the court cannot reach a conclusion on this issue.")

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

Chapter: 39.402

Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09 2051 MD ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *40 (S.D. Fla. Oct. 18, 2012)
("The work product doctrine also protects oral expressions of an attorney's mental impressions, legal theories and subjective evaluations.")

Case Date Jurisidction State Cite Checked
2012-10-18 Federal FL B 12/13

Chapter: 39.403

Case Name: U.S. Bank National Ass'n v. PHL Variable Insurance Co., Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *3 (D. Minn. Mar. 30, 2016)
May 25, 2016 (PRIVILEGE POINT)

"Court Finds Bracewell & Guiliani Report Unprotected by the Privilege or the Work Product Doctrine"

Many clients assume that the attorney-client privilege will almost always automatically protect any law firm's report to them, and that the work product doctrine will also apply whenever they anticipate litigation. Like other common client assumptions, this overly optimistic view is frequently wrong.

In U.S. Bank National Ass'n v. PHL Variable Insurance Co., defendant PHL withheld from production a 39-page report written by three lawyers from the law firm then known as Bracewell & Guiliani — supporting its privilege and work product claim with a declaration that it retained Bracewell & Guiliani "for the purpose of seeking legal consultation, advice and counsel." Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *3 (D. Minn. Mar. 30, 2016). But the court rejected both claims. Among other things, the court pointed to non-protected emails, undoubtedly written by the defendant's business folks -- announcing that the company had hired Bracewell & Guiliani "'to review our current procedures,'" because that law firm had provided services to others "'serious about ensuring the quality of business.'" Id. At *6 (internal citations omitted). Other unprotected client documents described the law firm's activities as "'consulting,'" and mentioned the firm's recommendations about the company's "'business plan.'" Id. At *7 (internal citations omitted). The court also reviewed in camera the Bracewell & Guiliani report itself — noting that "the majority of the Report suggests improvements to PHL's business practices." Id. The court again pointed to its in camera review of the report in also rejecting PHL's work product claim — noting that the firm's report "was not 'mapping litigation strategy.'" Id. At *16 (citation omitted).

Corporations hiring law firms should remember that a court might review business executives' description of the law firm's role, and also read the law firm's communications.

Case Date Jurisidction State Cite Checked
2016-03-30 Federal MN
Comment:

key case


Chapter: 39.403

Case Name: U.S. Bank National Association v. PHL Variable Insurance Company, Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670 (D. Minn. March 30, 2016)
(finding that the attorney-client privilege nor the work product doctrine protected a risk analysis prepared by Bracewell & Guiliani; including after an in camera review the risk assessment involved business rather than legal concern; "Here, PHL contends that the Report was prepared in anticipation of potential litigation, and that such litigation was actually filed. It cites only conclusory statements in two declarations that the Report was 'prepared' or 'drafted in anticipation of litigation' and that 'PHL pursued litigation on several policies discussed in the [R]eport after the [R]eport's delivery to PHL.'. . . The fact that the subject matter of the Report could conceivably be litigated and likely was litigated at some point is not determinative. The Report was prepared long before this action was filed, and PHL has not pointed to any particular litigation anticipated by the Report. Additionally, in reviewing the Report, the Court finds that it was not 'mapping litigation strategy.'. . . The Report is primarily a business planning document aimed at minimizing the economic risk of STOLI policies. Thus, the Court finds that the Report as a whole was not drafted in anticipation of litigation.")

Case Date Jurisidction State Cite Checked
2016-03-30 Federal MN

Chapter: 39.403

Case Name: Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, 3:12-CV-933 (CSH), 3:12-CV-969 (CSH), 3:12-CV-1699 (CSH), 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158 (D. Conn. April 14, 2015)
(adopting the "because of" work product standard; "It follows that the extreme positions taken by both parties are rejected. DBNTC contends that the work product doctrine is inapplicable and it is entitled to discovery of all WMC's repurchase documents solely because repurchase analysis was a part of WMC's ordinary course of business. WMC contends that the work product doctrine entitles it to shield all its DBNTC-related repurchase documents solely because Jenner & Block was advising them on the matter. Neither contention is tenable."; "[T]he Court will direct that WMC must produce all existing documents responsive to Request No. 7 in DBNTC's First Request for Production, with the exception of documents WMC lists in a privilege log compiled in a manner consistent with this Ruling. That requires WMC, in such a log, to identify with particularity documents authored by Jenner & Block that are specifically directed to litigation strategy or possible litigation defenses. Documents that lack those characteristics are not eligible for protection under the work product doctrine.")

Case Date Jurisidction State Cite Checked
2015-04-14 Federal CT

Chapter: 39.403

Case Name: Robinson v. County of San Joaquin, No. 2:12-cv-2783 MCE GGH PS, 2014 U.S. Dist. LEXIS 69257 (E.D. Cal. May 20, 2014)
(analyzing privilege and work product protection for a consultant's report following an anonymous complaint about discrimination; "Moreover, the draft report itself does not reflect the County's strategies or legal theories in any respect. Rather, it was created by the consulting firm which was tasked by County Counsel with conducting a preliminary investigation and presenting its findings."; "[T]he court finds that the Spectrum Consulting Report was not created in anticipation of litigation. The fact that there was one anonymous complaint is too general and amorphous to be considered a legitimate impetus for litigation. To be protected as work product, there must be a real possibility of litigation.")

Case Date Jurisidction State Cite Checked
2014-05-20 Federal CA

Chapter: 39.403

Case Name: D'Andre v. Priester, No. 13 C 4117, 2014 U.S. Dist. LEXIS 50880 (N.D. Ill. April 14, 2014)
("That leaves a few documents that the subpoena respondents claim are covered only by the work product doctrine. The first of these are described as 'file folder labels.' That description falls far short of one that enables a court or a party to assess whether the item qualifies as work product. . . . It may well be that folders were labeled as a part of the preparation for litigation in this instance, probate but it seems highly unlikely that the labels qualify as the type of materials the doctrine is intended to protect from discovery. Courts have variously described such materials as reflecting an attorneys' mental processes in evaluating communications with their client . . . . The description 'File Folder Labels' simply does not cut it.")

Case Date Jurisidction State Cite Checked
2014-04-14 Federal IL

Chapter: 39.403

Case Name: Shire LLC v. Amneal Pharmaceuticals LLC, Civ. A. No. 2:11-cv-03781 (SRC) (CLW) (Consolidated), 2014 U.S. Dist. LEXIS 45075 (D.N.J. April 1, 2014)
("Similarly this is not work product because it does not contain a legal analysis nor is it sensitive preparatory work the rule is designed to protect.")

Case Date Jurisidction State Cite Checked
2014-04-01 Federal NJ

Chapter: 39.403

Case Name: Shire LLC v. Amneal Pharmaceuticals LLC, Civ. A. No. 2:11-cv-03781 (SRC) (CLW) (Consolidated), 2014 U.S. Dist. LEXIS 45075 (D.N.J. April 1, 2014)
("This document is not work product because it does not contain legal analysis or informal evaluation of the case.")

Case Date Jurisidction State Cite Checked
2014-04-01 Federal NJ

Chapter: 39.403

Case Name: Shire LLC v. Amneal Pharmaceuticals LLC, Civ. A. No. 2:11-cv-03781 (SRC) (CLW) (Consolidated), 2014 U.S. Dist. LEXIS 45075 (D.N.J. April 1, 2014)
("This is not work product because it is written by a non-attorney and does not provide an informal evaluation of the case that, under the circumstance, should be protected.")

Case Date Jurisidction State Cite Checked
2014-04-01 Federal NJ

Chapter: 39.403

Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
(holding that a company's Action Plan dealing with alleged failures of its medical device did not deserve work product protection; "The Plan itself contains no legal analysis and makes no mention of ongoing or anticipated litigation. Rather, the Plan is designed to satisfy regulatory requirements and to assist corporate officers in deciding how to respond to potential issues with the Recovery Filter.")

Case Date Jurisidction State Cite Checked
2014-03-28 Federal FL

Chapter: 39.403

Case Name: Premier Dealer Servs., Inc. v. Duhon, Civ. A. Nos. 12-1498 & -2790 SECTION: "H" (4), 2013 U.S. Dist. LEXIS 160204, at *19 (E.D. La. Nov. 8, 2013)
("After conducting the in camera review of the privilege log of emails/e-documents produced to the Court, the Court finds that the bulk of the emails for which Premier Dealer claimed the work-product doctrine involved communications which took place after litigation began, but had nothing to do with the ongoing action. For example, several of the emails involved the parties [sic] ability to open files with e-signatures, and or [sic] pertained to setting up client meetings. As stated above, the mere fact that litigation is pending will not transform 'everything done by, for or [involving] a party into work product worthy of protection.'" (citation omitted) (footnotes omitted))

Case Date Jurisidction State Cite Checked
2013-11-08 Federal LA B 5/14

Chapter: 39.403

Case Name: Wells Fargo & Co. v. United States, Misc. Nos. 10-57 & 10-95 (JRT/JJG), 2013 U.S. Dist. LEXIS 79814, at *110 (D. Minn. June 4, 2013)
("[O]rdinary work product must relate in some way to legal thinking connected to litigation.")

Case Date Jurisidction State Cite Checked
2013-06-04 Federal MN B 4/14

Chapter: 39.403

Case Name: In re MI Windows & Doors, Inc. Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *11-12 (D.S.C. May 1, 2013)
("As to the name of the two drafters, the fact that lawyers prepare a public document is not privileged as the mere fact that they do discloses no confidential communications.")

Case Date Jurisidction State Cite Checked
2013-05-01 Federal SC B 12/13

Chapter: 39.403

Case Name: In re MI Windows & Doors, Inc. Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *12 (D.S.C. May 1, 2013)
("The redaction has nothing to do with legal advice. It is simply a request from Matt DeSoto to lawyers to get a new point person involved in the litigation going forward. The identity of a corporate agent who is dealing with lawyers is not privileged.")

Case Date Jurisidction State Cite Checked
2013-05-01 Federal SC B 12/13

Chapter: 39.403

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 621 & n.282 (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; "Plaintiffs claim work-product immunity (and assert no other basis for non-production) as to e-mail communications regarding a modification to a scheduling order . . ., a problem with overlapping Bates numbering . . ., the scheduling of a hearing . . ., and a 'payment issue'. . .; none of these documents reflect the type of materials which are protected as opinion work-product and to protect such documents from disclosure would be inconsistent with the rationale of the work-product doctrine."; "These e-mail communications, presumably printed out as documents, as to administrative or scheduling matters obviously were communications held 'because of' Miller's work as he 'anticipated' litigation or prepared for trial, but that does not imbue the documents with the special protection afforded to work-product as they are not the type of 'documents and tangible things' envisioned by Fed. R. Civ. P. 26(b)(3).")

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

Chapter: 39.403

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 335-36 (M.D. Pa. 2013)
(analyzing issues in connection with a student's criminal prosecution for an alleged sexual assault, which apparently was dropped; concluding that the student's parents were within the privilege as the student's lawyer's agent and as joint clients, but that the student adviser was outside the privilege and the work product protection; "Document No. 71 is a collection of email messages exchanged between members of the Dempsey family, primarily concerning the criminal charges and student conduct proceedings against Reed Dempsey. . . . Many are just chatter among family members and references to news articles or blog posts of interest in light of Reed Dempsey's experience. Several are transmittal messages forwarding litigation documents without any comment at all --some of the attached documents may themselves be protected by the attorney-client privilege or the work-product doctrine, but the transmittal messages are not.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal PA B 5/14

Chapter: 39.403

Case Name: RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 217 (N.D. Ill. 2013)
("As with the attorney-client privilege, documents that are not primarily legal in nature are not privileged under the work product doctrine.")

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

Chapter: 39.403

Case Name: In re Republic of Ecuador, Case No. 4:11mc73 RH/WCS, 2012 U.S. Dist. LEXIS 157497, at *4 5 (N.D. Fla. Nov. 2, 2012)
("Many of the communications dealt with logistical matters such as when a flight would arrive or when an expert would have time to work on the case. The documents are not privileged or protected by the work-product doctrine.")

Case Date Jurisidction State Cite Checked
2012-11-02 Federal FL B 5/13

Chapter: 39.403

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., Civ. A. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530, at *22 (E.D. Va. Apr. 13, 2010)
(holding that DuPont had not waived the work product protection by providing work product to the government in an effort to cooperate with the government's criminal investigation of a former DuPont employee against whom DuPont was also planning to pursue a civil case; "This is a copy of the personal journal kept by Yang. The first entry is July 23, 2007, and the last entry is January 20, 2010. The dispute here is over the entry for December 8, 2008 wherein Yang reports briefly on a visit he received from Clarke. The substantive entry at issue discloses no fact or opinion work product at all, but it does reflect that Clarke discussed with Yang DuPont's plan to sue Kolon. According to Clarke's affidavit, the discussion with Yang reflected in this entry revealed some facts but no opinion work product. Thus, although the conversation with Yang might involve disclosure of work product, the entry at issue does not.")

Case Date Jurisidction State Cite Checked
2010-04-13 Federal VA B 3/16
Comment:

key case


Chapter: 39.403

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Industries, Inc., Civ. A. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530, at *19 (E.D. Va. April 13, 2010)
(holding that DuPont had not waived the work product protection by providing work product to the government in an effort to cooperate with the government's criminal investigation of a former DuPont employee against whom DuPont was also planning to pursue a civil case; inexplicably finding that the work product doctrine did not protect a cover e mail; "The covering email, although prepared when litigation was anticipated, is neither fact nor opinion work product.")

Case Date Jurisidction State Cite Checked
2010-04-13 Federal VA

Chapter: 39.503

Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 105619 (N.D. Cal. Aug. 9, 2016)
("It appears that many of the Watson notes (coded red) as well as the 'internal discussions' about the Watson negotiations (coded green) appear to be simply 'verbatim' lists of terms exchanged or proposed for exchange. These notes also include references to phrases like 'thanks for that' and 'we believe' indicating the notes were either a script for her conversations with Watson's General Counsel Buchen or verbatim notes of what was actually said. Given the context of ongoing settlement discussions and the verbatim/script nature of at least these portions of the notes, the notes are more akin to fact work product than opinion work product.")

Case Date Jurisidction State Cite Checked
2016-08-09 Federal CA

Chapter: 39.503

Case Name: Doe v. Township High School Dist. 211, No. 1-14-0857, 2015 Ill. App. LEXIS 432 (Ill. App. 1d 5th Div. June 5, 2015)
(analyzing protection for an internal investigation of possible sexual misconduct at a high school; "Here, we have memos made by a party's employee concerning possible witnesses. With respect to memos made by counsel, our supreme court has distinguished between: memos made by counsel of his or her impressions of a prospective witness, which are protected; and verbatim statements of the witness, which are not.")

Case Date Jurisidction State Cite Checked
2015-06-05 State IL

Chapter: 39.905

Case Name: Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., 13 Civ. 8997 (JPO) (GWG), 2015 U.S. Dist. LEXIS 69593 (S.D.N.Y. May 28, 2015)
(finding that a licensor and several licensees could not rely on a common interest agreement to avoid a waiver, because they had not worked together to pursue a common legal strategy; also finding the work product doctrine inapplicable; "DMFI points to the fact that these communications did not concern DMFI's and its licensees' 'day-to-day operations.' DMFI Opp'n at 15. But the relevant inquiry is whether those communications would have been created in the ordinary course of business, or would have taken essentially the same form, absent the prospect of litigation -- in other words, if they were created 'because of' the anticipated litigation. Adlman, 134 F.3d at 1202. This inquiry requires the Court to 'consider what would have happened had there been no litigation threat.' Wultz v. Bank of China Ltd., 304 F.R.D. 384, 395 (S.D.N.Y. 2015) (quoting Allied Irish Banks v. Bank of Am., N.A., 240 F.R.D. 96, 106 (S.D.N.Y. 2007)) (internal quotation marks omitted). Ernst's statement that the communications were meant to assist him in 'providing legal advice' to DMFI and 'coordinating [DMFI]'s and its licensees' legal strategy,'. . . Simply does not address what 'would have happened' had the letters been sent regarding the use of Non-Utilized Fruit and DMFI believed that it was not likely to be sued. Moreover, it seems obvious that DMFI necessarily would have inquired of its licensees as to their usage of the Non-Utilized Fruit given DMFI's interpretation of the License Agreement. In other words, upon receiving FDP's request to add fruit to the Non-Utilized Fruit list, DMFI would have had to obtain information from its licensees about the products they were marketing using the Mark in order to formulate its response.")

Case Date Jurisidction State Cite Checked
2015-05-28 Federal NY
Comment:

key case