Showing 211 of 211 results

Chapter: 40.1

Case Name: In re MDM Marina Corp., No. 13-cv-597 (ENV) (VMS), 2013 U.S. Dist. LEXIS 177916, at *11 (E.D.N.Y. Dec. 18, 2013)
(analyzing protections in a first party insurance context; "Contrary to Claimant's argument that factual statements cannot be privileged . . ., it is well-settled that the protections of the work-product doctrine include both fact and opinion work-product.")

Case Date Jurisidction State Cite Checked
2013-12-18 Federal NY B 5/14

Chapter: 40.1

Case Name: Sheets v. Insurance Co. of N. Am., No. 4:04CV00058, 2005 U.S. Dist LEXIS 27060, at *3 (W.D. Va. Nov. 8, 2005)
("Fact work-product consists of documents prepared by an attorney that do not contain the attorney's mental impressions. In re Grand Jury Proceedings, 33 F.3d at 348.")

Case Date Jurisidction State Cite Checked
2005-11-08 Federal VA

Chapter: 40.4

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: 40.4

Case Name: Swoboda v. Manders, Civ. A. 14-19-EWD, 2016 U.S. Dist. LEXIS 657900 (M.D. La. May 19, 2016)
(holding that an investigation agency had to disclose facts it uncovered during an investigation of possible trademark infringement; "[E]ven if the documents Plaintiff seeks are protected work product, underlying facts are not so protected."; "Plaintiff is entitled to discover the facts which were learned during Continental's investigation."; "Continental is hereby ORDERED to produce to Plaintiff any documents or portions of documents which contain purely factual information.")

Case Date Jurisidction State Cite Checked
2016-05-19 Federal LA

Chapter: 40.4

Case Name: Gilead Sciences, Inc. v. Merck & Co., Case No. 5:13-cv-04057-BLF, 2016 U.S. Dist. LEXIS 3263 (N.D. Cal. Jan. 11, 2016)
(holding that the opinion work product doctrine protected a lawyer/scientist's protocol, and the adversary could not successfully argue that the test results were simply "facts" to which they were entitled; "Scientist A conducts an experiment. Scientist B recreates that experiment years later, with a protocol provided by Scientist C. In a patent suit over this work, all would seem discoverable, even after the new Federal Rules have renewed awareness of the importance of proportionality. But what if Scientist C also is an attorney for the party that hired Scientist B, and the discovery sought includes work product in his possession that he never communicated to anyone, let alone Scientist B? This motion presents just such a question."; "[W]hat Gilead seeks is plainly opinion work product. Gilead argues that it seeks discovery 'only into the scientific facts surrounding the development of the protocol,' and not Weingarten's legal opinions, thought processes or legal explanations for his actions regarding the protocol. But the protocol was communicated to Clemens expressly for the purpose of disproving Gilead's assertion in the U.K. litigation that Griffon's experiment failed to create the 2'-methyl-up-2'-fluoro-down nucleoside. Whether Weingarten himself created the protocol or merely reviewed it, it would be impossible to separate out the work he did as a scientist and the work he did as an attorney. Any adjustments Weingarten made to the protocol would necessarily have been done in consideration of its purpose in countering Gilead's litigation position, and the scientific facts surrounding any differences between the protocol and Griffon's procedures were necessarily motivated by attorney thought processes."; "Consider this. Gilead questions the protocol's instruction that 'all solvents and reagents should be new and from unopened bottles,' which it says was not present in Griffon's lab notebook. This difference between the protocol and Griffon's procedure, says Gilead, is not regular scientific practice. However, as Merck explained at oral argument, this instruction arose from 'trying to anticipate the kinds of questions that no scientist would ever ask but which a lawyer with an ax to grind certainly would.' That is, while a scientist might not ordinarily start with fresh bottles, a lawyer would do so in order to 'eliminate questions that would arise . . . About how do you know that the reagents were what they purported to be.' In other words, the scientific instruction necessarily reflects the attorney's strategic thinking about issues likely to arise down the road in litigation. When an attorney with experience in other fields wields that non-legal knowledge in furtherance of litigation goals, the attorney's mental impressions, conclusions or opinions remain protected opinion work product because the non-legal and legal thinking are inextricably intertwined in service of the litigation.")

Case Date Jurisidction State Cite Checked
2016-01-11 Federal CA
Comment:

key case


Chapter: 40.4

Case Name: Edward Wisner Donation v. BP Exploration & Production, Inc., Civ. A. No. 14-1525, 2015 U.S. Dist. LEXIS 153846 (E.D. La. Nov. 13, 2015)
(analyzing protection for documents created in connection with the BP Gulf of Mexico oil spill; protecting as work product documents created by an expert who assisted in educating BP lawyers; "While the underlying facts are discoverable, the Fitzgerald [Expert] Reports do not lose their status as work product merely because they contain factual information.").

Case Date Jurisidction State Cite Checked
2015-11-13 Federal LA

Chapter: 40.4

Case Name: Braxton v. Heritier, Civ. A. No. 14-12054, 2015 U.S. Dist. LEXIS 114780 (E.D. Mich. Aug. 28, 2015)
("[T]he doctrine 'does not protect the disclosure of underlying facts, regardless of who obtained those facts.'")

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

Chapter: 40.4

Case Name: Lee v. Chicago Youth Centers, No. 12 C 9245, 2014 U.S. Dist. LEXIS, *16 (N.D. Ill. June 10, 2014)
("[W]ork-product protection only prevents the disclosure of protected documents or communications, not the underlying facts. . . . It is the burden of the party seeking work-product protection to establish its applicability to the documents claimed to be protected.")

Case Date Jurisidction State Cite Checked
2014-06-10 Federal IL

Chapter: 40.4

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: 40.4

Case Name: Gropper v. David Ellis Real Estate, L.P., No. 13 Civ. 2068 (ALC) (JCF), 2014 U.S. Dist. LEXIS 29799, at *7-8 (S.D.N.Y. Mar. 4, 2014)
(analyzing work product issues in an Americans with Disabilities Act case; "Though it is often asserted that the work product doctrine does not prevent disclosure of facts, . . . the Second Circuit has noted that this is an overstatement.")

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

Chapter: 40.4

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: 40.4

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 *24-25 (S.D.N.Y. Oct. 3, 2013)
("Though it is often asserted that the work product doctrine does not prevent disclosure of facts, . . . the Second Circuit has noted that this is an overstatement: '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.'" [quoting In re Grand Jury Subpoena dated October 22, 2001, 282 F.3d 156, 161 (2d Cir. 2002) (internal citations omitted)])

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

Chapter: 40.4

Case Name: Gueniot Kornegay v. Blitz U.S.A., No. 3:10CV429 TSL MTP, 2012 U.S. Dist. LEXIS 172468, at *7-8 (S.D. Miss. Dec. 5, 2012)
(analyzing a Rule 30(b)(6) deposition of a Wal-Mart employee; "[F]acts are not protected by the attorney-client privilege or the work-product doctrine. Likewise, the underlying facts are not privileged strictly because they were provided to the deponent by counsel.")

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

Chapter: 40.4

Case Name: Corporate Express Office Prods., Inc. v. Gamache (In re Wagar), Civ. No. 1:06-MC-127 (LEK/RFT), 2006 U.S. Dist. LEXIS 90345, at *49-50 (N.D.N.Y. Dec. 13, 2006)
("[T]he attorney-client privilege does not protect a deponent's knowledge of the relevant facts, whether they were learned by counsel or facts learned from an attorney from independent sources. . . . The same principles are true with regard to the work product doctrine because work product may encompass facts as well.")

Case Date Jurisidction State Cite Checked
2006-12-13 Federal NY B 7/16
Comment:

key case


Chapter: 40.4

Case Name: National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 n.5 (4th Cir. 1992)
("The work product immunity never reaches to protect from discovery actual evidence taken from the scene or facts about the scene or incident. Facts stated by witnesses may be discovered by deposition or interrogatory. We are discussing only formulations of the facts contained in documents actually prepared for litigation.")

Case Date Jurisidction State Cite Checked
1992-01-01 Federal

Chapter: 40.7

Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *19 (E.D. Va. Dec. 14, 2012)
("While there does not appear to be any controlling precedent of the Fourth Circuit, courts that have considered the question have recognized that draft documents, although prepared for public consumption, can constitute work product.")

Case Date Jurisidction State Cite Checked
2012-12-14 Federal VA B 9/13
Comment:

key case


Chapter: 40.7

Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *21 (E.D. Va. Dec. 14, 2012)
("This protection plainly applies to most of the draft briefs, motions, and declarations that are listed on Lawson's privilege log and that the Court reviewed in camera. Insofar as the privilege log identifies work product as the privilege being claimed, these documents, although not subject to attorney-client privilege, are properly withheld.")

Case Date Jurisidction State Cite Checked
2012-12-14 Federal VA B 9/13

Chapter: 40.7

Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *21 (E.D. Va. Dec. 14, 2012)
("The Court, therefore, concludes that certain draft documents, although prepared for public consumption, nevertheless are protected by the work product doctrine, presuming that they are claimed as such and are, in fact, prepared in anticipation of litigation.")

Case Date Jurisidction State Cite Checked
2012-12-14 Federal VA B 9/13

Chapter: 40.10

Case Name: West Virginia v. Honorable Louis H. Bloom, No. 13-1172, 2014 W. Va. LEXIS 345 (W. Va. App. April 10, 2014)
(holding that insurance coverage counsel's retainer letter and bills did not deserve work product protection; "In the instant proceeding, the Petitioners argue generally that the retention agreement and billing statements were protected by the work product doctrine. The Petitioner's brief did not make any specific work product argument regarding the retention agreement. With respect to the billing statements, the Petitioners argued that those documents reveal the mental impression of counsel, because they 'reveal exactly what was done, how long it took and precisely the issues researched, and how long such research and writing took.' We disagree."; "We have reviewed both the retention agreement between CRW and Montpelier, and the two billing statements tendered by CRW. The retention agreement is a general agreement that states how legal work would be assigned to CRW, how conflict of interests would be resolved, how billing would occur, CRW's obligation to obtain professional liability insurance, how disputes between the parties would be resolved, and a few other miscellaneous matters. Nothing contained in the retention agreement would make either prong the work product doctrine applicable. . . . With respect to the two billing statements, those documents are typical non-protected billing statements that provide very general descriptions of the work performed, the initials of the attorney performing the work, and the time it took to perform each task (as indicated, the actual amount charged was ordered redacted). . . . we find that the circuit court was correct in adopting the discovery commissioner's recommendation that the work product doctrine did not prevent disclosure of the retention agreement agreement and billing statements.")

Case Date Jurisidction State Cite Checked
2014-04-10 State WV

Chapter: 40.10

Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at *16 (D.D.C. Dec. 23, 2013)
(analyzing the waiver impact of an insured seeking recovery of attorneys fees he spent in an earlier litigation; approving the insured's privilege log; "Documents 37 and 42 both relate to the preparation of a litigation budget, the final version of which was ultimately sent to FFIC. While it may be the rare litigation budget that is prepared, drafted, and discussed by lawyers 'in anticipation of litigation,' Feld has a plausible basis here to assert the work-product privilege: the ongoing dispute over whether FFIC would reimburse Feld for his litigation expenses. These documents were created in late October 2009, well after the parties had exchanged testy letters regarding their respective positions on the requirements of Feld's insurance policies.")

Case Date Jurisidction State Cite Checked
2013-12-23 Federal DC B 5/14

Chapter: 40.10

Case Name: Bowman v. Green Tree Servicing, Inc., Civ. A. No. 3:12 CV 31, 2012 U.S. Dist. LEXIS 146473, at *9 (N.D. W. Va. Oct. 11, 2012)
("[C]ourts have repeatedly held that attorney retainer agreements, just as with the attorney client privilege, are not protected by the work product doctrine.")

Case Date Jurisidction State Cite Checked
2012-10-11 Federal WV B 12/13

Chapter: 40.11

Case Name: The William Powell Co. v. National Indemnity Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 55148 (S.D. Ohio April 11, 2017)
("While billing records may qualify as protected work product to the extent the billing entries reflect the specific nature of the services provided by counsel and thus reveal the mental processes of counsel . . . the Court lacks sufficient information to determine the nature of the entries contained within the excel document to conclude this document is protected as work product.")

Case Date Jurisidction State Cite Checked
2017-04-01 Federal OH

Chapter: 40.11

Case Name: Judicial Watch, Inc. v. United States Dept. of Justice, Civ. A. No. (BAH) 14-1024, 2015 U.S. Dist. LEXIS 99982 (D.D.C. July 31, 2015)
("[T]he clear weight of authority -- including prior decisions by judges on this Court -- holds that attorney time records while not per se protected by the work product privilege, may nonetheless contain protected work product. . . . Where time records are not only created by legal personnel but also reference the subject of legal research, persons contacted and interviewed by the attorney, or other issues bearing on the mental impressions of the attorneys, those portions of the time records are protected work product."; "In the present case, the defendant's time records contain 'Ms. Bosserman's [a career senior legal counsel for the Civil Rights Division] accounts of the tasks as she performed them, including notes about locations visited, persons consulted, staff briefings, and other case developments.". . . This material was prepared in contemplation of an ongoing criminal investigation and provided to supervisors to assist them in overseeing the investigation and potential prosecution of certain IRS employees. . . . As a result, according to the defendant, the time records provide 'a roadmap of [the DOJ's] investigative plans' and their disclosure would 'prematurely reveal the scope and focus of the investigation.'. . . Thus, 'in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'"; "Consistent with the great weight of authority at both the federal and state level, the portions of Ms. Bosserman's time records detailing the locations visited, persons contacted, staff briefings, and other case developments are protected from disclosure as attorney work product.")

Case Date Jurisidction State Cite Checked
2015-07-31 Federal DC

Chapter: 40.11

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)
("Plaintiff also argues that the fee agreement and progress invoices are protected by the attorney-client privilege and work product doctrine. 'In discovery disputes, a blanket assertion of privilege regarding attorney fee bills is typically not appropriate.'. . . Even if these documents contained information protected by the attorney-client privilege, Plaintiff waived this privilege by forwarding them to Hoerst. However, this does not result in a waiver of the work product doctrine because Hoerst is not an adversary.")

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

Chapter: 40.12

Case Name: Ortiz v. City of Worcester, No. 4:15-cv-40037-TSH, 2017 U.S. Dist. LEXIS 71281 (D. Mass. May 10, 2017)
("The work product doctrine protects tangible work product, see Fed. R. Civ. P. 26(b)(3)(A), and intangible work product, such as an investigator's oral communications with a party's counsel about, for example, the structure of the investigation and impressions gleaned from interviews conducted by the investigator, disclosure of which would tend to reveal counsel's tactical or strategic thoughts or evaluation of the case.")

Case Date Jurisidction State Cite Checked
2017-05-10 Federal MA
Comment:

key case


Chapter: 40.12

Case Name: Herrera v. Union Pacific Railroad Co., 8:15CV426, 2017 U.S. Dist. LEXIS 61787 (D. Neb. April 24, 2017)
(holding that the plaintiff waived work product protection for an audio tape interview of a defendant's employee by using statements from the interview; "Here, by openly using the interview summaries at the depositions, Plaintiff voluntarily disclosed contents of his interview with the Union Pacific employee witnesses. To the extent those summaries are work product, Plaintiff voluntarily waived that protection. The more difficult question is whether as to the underlying audio recordings, the work product protection has also been waived."; "Under ordinary circumstances the court would conduct an in camera review of the audio recordings to determine what, if any, work product protection attached to the questions and the witnesses' respective answers. . . . However, the raw audio in this case was deleted by Plaintiff's representative and it cannot be reviewed by the court."; "Assuming the witnesses' answers contained nothing more than a factual recitation of the events, the audio recorded answers would likely be subject to disclosure. . . . But without hearing the audio or reviewing a transcript of the interview, the court cannot determine whether Plaintiff's counsel's questions would be subject to the work product waiver. Counsel's questions of witnesses are often inexorably intertwined with his thought process and mental impressions, pushing that information into the category of opinion work product -- which enjoys almost absolute immunity."; "Since the audio recordings no longer exist, the court must determine what, if any, remedy is appropriate at this stage in the litigation."; "The witnesses each testified at their respective depositions that they had a chance to review the narrative summaries, make changes to them, and affirm that the statements were 'true to the best of [their] knowledge' and they offered no changes at their depositions."; "The Defendant seeks the audio recordings to determine in what manner, if any, Plaintiff's representative's questions may have impacted the witness' answers. By seeking this information, Defendant may be seeking the mental impressions and thought processes of the questioner, which clearly falls into the category of opinion work product. Even if the raw audio were still available, the court has serious questions about whether Defendant would be granted access to the questions asked by Plaintiff's counsel's representative during the interview.")

Case Date Jurisidction State Cite Checked
2017-04-24 Federal NE

Chapter: 40.12

Case Name: In the Matter of the Complaint of American River Transportation Co. for Exoneration, Case No. 4:11-cv-00523-JAR, 2017 U.S. Dist. LEXIS 60255 (E.D. Mo. April 20, 2017)
(holding that the work product doctrine protected a lawyer's interview notes, but not the witness's statement; "According to ARTCO, shortly after the accident, its attorneys investigated the incident on ARTCO's behalf, and in the course of that investigation, interviewed the M/V Julie White's crewmembers, including Sadnick, McCoy, and Pryzblo. ARTCO claims its attorneys reduced these interviews to written statements, and each crewmember signed his respective statement. Sadnick's statement included a page he wrote without assistance from ARTCO's counsel; it also included pages ARTCO's counsel had authored, which Sadnick signed. ARTCO produced Sadnick's statement in relation to an investigation by the United States Coast Guard, and it has already produced it to the United States in this action.")

Case Date Jurisidction State Cite Checked
2017-04-20 Federal MO

Chapter: 40.12

Case Name: In the Matter of the Complaint of American River Transportation Co. for Exoneration, Case No. 4:11-cv-00523-JAR, 2017 U.S. Dist. LEXIS 60255 (E.D. Mo. April 20, 2017)
(holding that the work product doctrine protected a lawyer's interview notes, but not the witness's statement; "Notes and memoranda an attorney prepares from a witness interview are protected work product. . . . This is because attorney notes tend to reveal the attorney's legal conclusions, as attorneys tend to focus on those facts they deem legally significant when taking notes. . . . In contrast, the work product doctrine does not extend to verbatim, non-party witness statements."; "Having reviewed McCoy and Pryzblo's written statements in camera, the Court concludes that they are not attorney work product. More specifically, the Court concludes that the statements are recitations of the facts surrounding the March 6, 2011 allision involving the M/V Julie White, as it was witnessed by McCoy and Pryzblo, who are not parties to this action. . . . Notably, the statements do not reveal the mental impressions or legal theories of ARTCO's counsel, and it appears the statements may have been handwritten by the crewmembers themselves. . . . The Court further notes that, even if ARTCO's counsel authored the statements after interviewing the crewmembers, McCoy and Pryzblo signed their respective statements, essentially adopting them as their own.")

Case Date Jurisidction State Cite Checked
2017-04-20 Federal MO
Comment:

key case


Chapter: 40.12

Case Name: R.D. v. Shohola Camp Ground and Resort, Civ. No. 3:16-CV-1056, 2017 U.S. Dist. LEXIS 47562 (M.D. Pa. March 30, 2017)
(holding that a plaintiff which relied on excerpts of a video interview prepared by a private investigator to produce additional videotapes; "As a general rule, private investigator interviews conducted on behalf of counsel in preparation of litigation are encompassed by the work product privilege. Therefore, disclosure of these interviews typically may not be compelled, provided that the witness is available to be deposed."; "In some instances, parties may waive the privilege by selectively disclosing portions of privileged materials to some third parties. When this takes place, the issue then becomes assessing the proper scope of the waiver."; "Thus, when one party makes a tactical, selective waiver of the privilege as to a portion of some material it is incumbent upon the court to ensure that the waiver also encompasses any additional information which needs to be disclosed in order to avoid any unfair litigative advantage. However, given the importance of the privilege any expansion of a partial waiver should be limited and carefully defined and should only encompass that additional information which ought in fairness to be disclosed. Therefore, a limited waiver of the privilege by selective disclosure of some information should not be transformed into a wholesale waiver by the courts."; "This limited waiver analysis is intended solely to avoid permitting a party from inappropriately using the privilege as both a sword and a shield. In this setting, as we assess claims of unfairness flowing from a selective waiver of the privilege, we are mindful that: 'Unfairness may occur 'when a party attempts to use the communication in a litigation or where the party 'makes factual assertions, the truth of which can only be assessed by examination of the privileged communications.'"; "Judged by these standards, we note that the selective disclosure of the investigative interview of E.J., which occurred in the course of G.M.'s deposition was related to a specific topic: E.J.'s recollection concerning sexual contact and activity between E.J., N.S., G.M. and R.D. which may have occurred in the tent shared by these four boys during a camping excursion in 2007."; "We have now conducted a comparative analysis of this excerpt with the entirety of the videotaped interview of E.J., which has been provided to us as Exhibit B of the plaintiff's in camera submission."; "The entire videotape interview comprises approximately 1 hour and 58 seconds. . . . In our view, nothing which preceded the disclosed portion of the interview is so closely associated with the events described by E.J. that this limited waiver would compel the release of these initial portions of the videotaped interview. There are, however, three limited excerpts from the videotaped interview that take place later in the course of the interview which in our judgment directly relate to the disclosed portion of the interview, contain a recounting of E.J.'s recollection of this particular event, and would be necessary for a full, complete and completely fair understanding of this witness' recollection.")

Case Date Jurisidction State Cite Checked
2017-03-30 Federal PA
Comment:

ley case


Chapter: 40.12

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; "Whether plaintiffs should be compelled to produce notes and a memo concerning pre-litigation interviews of non-party Charles Endweiss, a former Intuitive employee. This court is told that Endweiss' third interview was conducted by plaintiff's counsel and their investigator and that a portion of that interview was recorded to aid counsel's preparation of an investigative memo. That memo, which plaintiffs say was not disclosed to Endweiss, served as the basis for certain statements alleged in the Amended Class Action Complaint."; "Defendants subsequently deposed Endweiss. They cite portions of the deposition transcript and claim that he denied making statements attributed to him in the complaint. Citing other portions of Endweiss' testimony, plaintiffs insist that he 'overwhelmingly confirmed the complaint allegations attributed to him.'. . . Plaintiffs advised that the recording of Endweiss' interview no longer exists because it had been overwritten in the usual course of business. They otherwise object to the production of the notes and memo concerning Endweiss' interview on the ground that those documents are attorney work product.")

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

Chapter: 40.12

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; "Notes taken by an attorney, or an attorney's agent, during a witness interview often qualify as opinion work product because '[a]ttorney notes reveal an attorney's legal conclusions because, when taking notes, an attorney often focuses on those facts that she deems legally significant. In this way, attorney notes are akin to an attorney's determination as to which documents are important to a case . . . .". . . However, 'not every item which may reveal some inkling of a lawyer's mental impressions is protected as opinion work product. Opinion work product protection is warranted only if the selection or request reflects the attorney's focus in a meaningful way.'"; "A review of Nelson's Notes reveals that they consist entirely of ordinary work product. The Notes contain summaries of the questions asked by OCR and the interviewees' answers. They do not contain any of Nelson's mental impressions or suggest that Nelson considered some questions or answers significant for any particular reason. The mere fact that Nelson summarized the questions and answers, and only recorded some of the exchanges, does not make the Notes opinion work product because this does not reflect an 'attorney's focus in a meaningful way.'"; "To be opinion work product, the document in question must reveal an attorney's legal conclusions or mental impressions. . . . Nelson cannot remember whether an attorney instructed him to take notes and there is no indication he was told what he should take notes on. OCR 'set the direction' of the interviews when it selected the interviewees and what questions would be asked. Nelson was merely a passive observer during these interviews. His Notes summarize some of the questions asked and the answers given, but offer no mental impressions or legal conclusions. Afterwards, Nelson did not share his Notes with any attorney. Under these circumstances, the Notes consist entirely of ordinary work product.")

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

key case


Chapter: 40.12

Case Name: Rigas v. United States, 11-CV-6964 (KMW), 2016 U.S. Dist. LEXIS 113914 (S.D.N.Y. Aug. 24, 2016)
(finding that the work product doctrine did not protect documents taken during the lawyer's client's interview with government prosecutors; explaining that the lawyer had represented a Buchanan Ingersoll lawyer during the interviews, which focused on Buchanan Ingersoll's representation of Adelphia, the company for which the two criminal defendants worked; also finding that the criminal defendants could overcome any possible work product protection; "'McLaughlin [Lawyer for the Buchanan Ingersoll lawyer being interviewed by the government] cites a number of decisions from other jurisdictions holding that notes of a witness interview can be protected as opinion work product. . . . But, as those decisions acknowledge, Second Circuit law is different, and therefore these decisions are unhelpful to this Court's analysis. See Dir. of Office of Thrift Supervision v. Vinson & Elkins, L.L.P., 168 F.R.D. 445, 446-47 (D.D.C. 1996) (noting that Second Circuit law is contrary to D.C. Circuit law on this point, and that decisions from both the Second Circuit and the Southern District of New York expressly acknowledge the inconsistency). Moreover, subsequent decisions of the D.C. Circuit have made clear that an attorney's notes of a witness's statements do not automatically qualify as opinion work product, but rather are entitled to heightened protection only if 'there is some indication that the lawyer sharply focused or weeded the materials.' F.T.C. v. Boehringer Ingelheim Pharmaceuticals, Inc., 778 F.3d 142, 152, 414 U.S. App. D.C. 188 (D.C. Cir. 2015) (quoting In re Sealed Case, 124 F.3d 230, 236-37, 326 U.S. App. D.C. 317 (D.C. Cir. 1997) (finding that attorney's notes summarizing witness's statements "could be classified as opinion only on a virtually omnivorous view of the term")).")

Case Date Jurisidction State Cite Checked
2016-08-24 Federal NY
Comment:

key case


Chapter: 40.12

Case Name: Rigas v. United States, 11-CV-6964 (KMW), 2016 U.S. Dist. LEXIS 113914 (S.D.N.Y. Aug. 24, 2016)
(finding that the work product doctrine did not protect documents taken during the lawyer's client's interview with government prosecutors; explaining that the lawyer had represented a Buchanan Ingersoll lawyer during the interviews, which focused on Buchanan Ingersoll's representation of Adelphia, the company for which the two criminal defendants worked; also finding that the criminal defendants could overcome any possible work product protection; "'McLaughlin [Lawyer for the Buchanan Ingersoll lawyer being interviewed by the government] cites a number of decisions from other jurisdictions holding that notes of a witness interview can be protected as opinion work product. . . . But, as those decisions acknowledge, Second Circuit law is different, and therefore these decisions are unhelpful to this Court's analysis. See Dir. of Office of Thrift Supervision v. Vinson & Elkins, L.L.P., 168 F.R.D. 445, 446-47 (D.D.C. 1996) (noting that Second Circuit law is contrary to D.C. Circuit law on this point, and that decisions from both the Second Circuit and the Southern District of New York expressly acknowledge the inconsistency). Moreover, subsequent decisions of the D.C. Circuit have made clear that an attorney's notes of a witness's statements do not automatically qualify as opinion work product, but rather are entitled to heightened protection only if 'there is some indication that the lawyer sharply focused or weeded the materials.' F.T.C. v. Boehringer Ingelheim Pharmaceuticals, Inc., 778 F.3d 142, 152, 414 U.S. App. D.C. 188 (D.C. Cir. 2015) (quoting In re Sealed Case, 124 F.3d 230, 236-37, 326 U.S. App. D.C. 317 (D.C. Cir. 1997) (finding that attorney's notes summarizing witness's statements "could be classified as opinion only on a virtually omnivorous view of the term")).")

Case Date Jurisidction State Cite Checked
2016-08-24 Federal NY

Chapter: 40.12

Case Name: SFEG Corp. v. Blendtec, Inc., No. 3:15-0466, 2016 U.S. Dist. LEXIS 63738 (M.D. Tenn. May 13, 2016)
July 27, 2016 (PRIVILEGE POINT)

"Courts Wrestle with Work Product Protection for Interview-Related Documents: Part III"

In SFEG Corp. v. Blendtec, Inc., No. 3:15-0466, 2016 U.S. Dist. LEXIS 63738 (M.D. Tenn. May 13, 2016), plaintiff's lawyer interviewed defendant's former quality manager — taking interview notes, preparing a memorandum about the interview, drafting and later revising a proposed affidavit, and then arranging for an executed affidavit. Defendant sought the executed affidavit. The court noted that "there appears to be a split of authority among [Sixth Circuit] district courts on the issue." Id. at *5. Some courts hold "that a third party's affidavit, once signed by the affiant, is no longer attorney work product as a matter of law." Id. The other line of cases extend work product protection to affidavits lawyers prepare after an interview, because "the contents of that affidavit almost certainly will reveal 'the mental impressions, conclusions, opinions, or legal theories' of the lawyer." Id. (citation omitted). The court adopted the second approach — concluding that lawyers "almost certainly included in this draft affidavit those facts that counsel deemed significant to the legal theories applicable to the case." Id. at *6. Furthermore, "the character of such disclosure is not somehow changed at the moment the witness signs the affidavit." Id. at *7. But then the court inexplicably addressed whether defendant could overcome the applicable work product protection — thus apparently only extending fact rather than the stronger opinion work product protection to the executed affidavit.

It is difficult if not impossible to find consistent and useful principles from these and similar cases.

Case Date Jurisidction State Cite Checked
2016-05-13 Federal TN B 7/16
Comment:

key case


Chapter: 40.12

Case Name: Manitowoc Co. v. Kachmer, Case No. 14-cv-9271, 2016 U.S. Dist. LEXIS 61503 (N.D. Ill. May 10, 2016)
July 20, 2016 (PRIVILEGE POINT)

"Courts Wrestle with Work Product Protection for Interview-Related Documents: Part II"

In Manitowoc Co. v. Kachmer, Case No. 14-cv-9271, 2016 U.S. Dist. LEXIS 61503 (N.D. Ill. May 10, 2016), defendants sought the audio recordings of Manitowoc's outside lawyer's deposition preparation interviews of five employees who were later terminated. The court first rejected Manitowoc's privilege claim, because the interviewed employees were not in the protected "control group" under Illinois privilege law. The court also rejected the lawyer's opinion work product claims. After examining the transcripts in camera, the court found that the lawyer's "questions were simply not influential enough to take the Employees' responses out of the realm of a witness's factual assertions and into the realm of his own work product." Id. at *9-10. The court acknowledged that "[h]ad [the lawyer] taken the Employees' statements by hand, or summarized the interviews in his own words, or in some way filtered or recorded only what he perceived to be the most important or relevant parts of the Employees' statements, we would be much more inclined to believe that [the lawyer] had injected his own mental impressions or legal theories into the interviews." Id. at *10. But after finding opinion work product protection unavailable, the court then inexplicably found that the audio recordings (after redaction of lawyer's "later-inserted notes and impressions of the interviews") did not even deserve fact work product protection. Id. at *2 & *10-11.

Most courts take the same approach as the decision discussed in last week's Privilege Point — applying at least fact work product protection to such verbatim witness statements.

Case Date Jurisidction State Cite Checked
2016-05-10 Federal IL B 7/16
Comment:

key case


Chapter: 40.12

Case Name: The Manitowoc Co., Inc. v. Kachmer, Case No. 14-cv-9271, 2016 U.S. Dist. LEXIS 61503 (N.D. Ill. May 10, 2016)
(analyzing privilege and work product protection for recorded interviews by the plaintiff company's lawyer of employees who later left the company; holding that the privilege did not apply because the employees were not then in the control group under Illinois law; holding that the work product doctrine did not apply because the court concluded after an in camera review that the interviews did not reflect the lawyer's opinions or strategy; ordering production of the audio recordings after allowing a lawyer to redact later-added notes and impressions; inexplicably not considering the audio recordings to be fact work product; "Plaintiff . . . maintains that even if Aziere's notes are redacted, the recordings are protected by the work-product doctrine because Aziere's questions to the Employees and their corresponding responses directly reflect his thought processes and mental impressions about the case. . . . We disagree with Plaintiff's assessment.")

Case Date Jurisidction State Cite Checked
2016-05-10 Federal IL

Chapter: 40.12

Case Name: Hatamian v. Advanced Micro Devices, Inc., Case No. 14-cv-00226-YGR (JSC), 2016 U.S. Dist. LEXIS 60551 (N.D. Cal. May 6, 2016)
(finding that lawyers' interview notes and witness summaries deserved either opinion or fact work product protection; "Interview notes can be either factual work product, opinion work product, or both.")

Case Date Jurisidction State Cite Checked
2016-05-06 Federal CA

Chapter: 40.12

Case Name: Hatamian v. Advanced Micro Devices, Inc., Case No. 14-cv-00226-YGR (JSC), 2016 U.S. Dist. LEXIS 60551, at *4 (N.D. Cal. May 6, 2016)
July 13, 2016 (PRIVILEGE POINT)

"Courts Wrestle with Work Product Protection for Interview-Related Documents: Part I"

Companies' lawyers frequently interview third-party witnesses. Companies' adversaries often seek the resulting interview transcripts, notes, summaries, reports, statements or affidavits — which can generate disputes over fact and opinion work product protection. The former can be overcome, so companies usually seek the absolute or nearly absolute opinion work product protection. Three federal court decisions issued over seven days in May highlight the confusing and divergent case law governing work product protection for interview-related documents.

In Hatamian v. Advanced Micro Devices, Inc., securities fraud defendant AMD moved to compel production of plaintiffs' investigator's "notes of interviews with confidential witnesses [former AMD employees], including 'Interview Reports.'" Case No. 14-cv-00226-YGR (JSC), 2016 U.S. Dist. LEXIS 60551, at *4 (N.D. Cal. May 6, 2016). Plaintiffs called these documents "'classic work product,'" but AMD argued that the documents were unprotected "'verbatim recitation[s] of each witness's factual statement,'" without "'any attorney's mental impressions.'" Id. at ¶ 8 (internal citation omitted). The court held that "[i]nterview notes and witness summaries drafted by counsel are subject to attorney work product protection." Id. The court then indicated that interview notes "can be either factual work product, opinion work product, or both" — explaining that "[t]o the extent that the investigator's contemporaneous notes and interview reports reflect only verbatim witness statements, they are only factual work product." Id. at ¶ 18. Because the court concluded that defendant could not overcome the fact work product protection for the investigator's interview notes and reports, it did not have to decide if those documents deserved the more protective opinion work product protection.

This widely accepted approach does not make much sense. Interview notes or reports reflecting a witness's verbatim answer to a question such as "tell me what you know" presumably would deserve only fact work product protection. But the witness's verbatim answers to a long series of pointed and focused questions would seem to deserve opinion work product protection, if they reflect the interviewer's strategy.

Case Date Jurisidction State Cite Checked
2016-05-06 Federal CA B 7/16
Comment:

key case


Chapter: 40.12

Case Name: Hatamian v. Advanced Micro Devices, Inc., Case No. 14-cv-00226-YGR (JSC), 2016 U.S. Dist. LEXIS 60551 (N.D. Cal. May 6, 2016)
(finding that lawyers' interview notes and witness summaries deserved either opinion or fact work product protection; "To the extent that the investigator's contemporaneous notes and interview reports reflect only verbatim witness statements, they are only factual work product.")

Case Date Jurisidction State Cite Checked
2016-05-06 Federal CA

Chapter: 40.12

Case Name: Hatamian v. Advanced Micro Devices, Inc., Case No. 14-cv-00226-YGR (JSC), 2016 U.S. Dist. LEXIS 60551 (N.D. Cal. May 6, 2016)
(finding that lawyers' interview notes and witness summaries deserved either opinion or fact work product protection; "Interview notes and witness summaries drafted by counsel are subject to attorney work product protection."; "Here . . . an investigator at Plaintiffs' counsel's law firm conducted the interviews as part of the effort to draft the complaint in this action -- that is, in anticipation of litigation. In short, the interview materials are protected work product.")

Case Date Jurisidction State Cite Checked
2016-05-06 Federal CA

Chapter: 40.12

Case Name: Hatamian v. Advanced Micro Devices, Inc., Case No. 14-cv-00226-YGR (JSC), 2016 U.S. Dist. LEXIS 60551 (N.D. Cal. May 6, 2016)
("Apart from statements made during the witness interviews, Defendants also seek communications between the confidential witnesses and Plaintiffs' counsel. E-mails or letters from counsel to the witness are protected by the work product doctrine. . . . With respect to messages from the witness to counsel, some courts have concluded that they are protected work product, while others have not. . . . The touchstone appears to be whether the communications at issue constituted interview correspondence for the purposes of witness development. Such appears to be the case here: the communications were between Plaintiffs' counsel's investigators and confidential witnesses who were being contacted for the purposes of investigating claims to draft the Complaint. Accordingly, the communications are protected work product.")

Case Date Jurisidction State Cite Checked
2016-05-06 Federal CA

Chapter: 40.12

Case Name: Genesis Turf Grass, Inc. v. Synatek LP, No. 1396 MDA 2015, 2016 Pa. Super. Unpub. LEXIS 537 (Pa. Super. Feb. 19, 2016)
(holding the interview notes of a former employee witness can deserve work product protection; "[T]he trial court ordered Appellant to produce the 'documents with respect to the conversation between Attorney Asbell and Mr. Ratcliff.'. . . While the order stated that the attorney-client privilege did not prevent disclosure of this information, the trial court's order fails to address the fact that protected work product material may be at issue. Although the trial court order suggested on the record at the hearing on Respondent's motion to compel that Appellant could redact from Attorney Asbell's notes any of counsel's mental impressions or legal positions, the trial court fails to recognize that counsel's notes may not contain any discoverable material such as verbatim statements made by Ratcliff, but simply be counsel's personal recollection and summary of the interview.")

Case Date Jurisidction State Cite Checked
2016-02-19 Federal PA

Chapter: 40.12

Case Name: In re Cathode Ray Tube (CRT) Antitrust Litig., MDL No 1917,Master Case No 3:07cv05944SC,No 13cv01173; No 13cv05724; No 13cv05261; No 13cv05264; No 13cv05727; No 13cv05726; No 13cv05723; No 13cv05725; 2015 U.S. Dist. LEXIS 147413 (N.D. Cal. Oct. 5, 2015)
("Although memoranda and statements drafted by a party's counsel in interviewing third party witnesses in preparation for litigation are not protected from discovery by the attorney-client privilege . . . Discovery of such attorney interview memoranda and facts learned could constitute 'unwarranted inquiries into the files and mental impressions of an attorney.'")

Case Date Jurisidction State Cite Checked
2015-10-05 Federal CA

Chapter: 40.12

Case Name: United States v. Bertie Ambulance Service, Inc., No. 2:14-CV-53-F, 2015 U.S. Dist. LEXIS 83537 (E.D.N.C. June 25, 2015)
(analyzing opinion work product protection for witness interview reports; holding that some of their report deserved opinion work product while others did not; "In this case, the contents of the Reports of Interview for the interviews conducted in 2009 and 2010 were not 'sharply focused or weeded' by the Plaintiff. . . . In Agent LeFaivre's declaration, he stated, 'The timing, conduct, and information to be sought from the Bertie Ambulance interviews were generally discussed with U.S. Attorney Fowler before and after the interviews.'. . . Further, the interviews took place without a government lawyer present, and the Reports of Interview are an accurate depiction of the witnesses' own words. . . . Although Agent LeFaivre met with counsel to generally discuss the interviews, that alone is not enough to rise to the level of 'sharply focused or weeded' by counsel.")

Case Date Jurisidction State Cite Checked
2015-06-25 Federal NC

Chapter: 40.12

Case Name: United States v. Bertie Ambulance Service, Inc., No. 2:14-CV-53-F, 2015 U.S. Dist. LEXIS 83537 (E.D.N.C. June 25, 2015)
(analyzing opinion work product protection for witness interview reports; holding that some of their report deserved opinion work product while others did not; "However, the Reports of Interview for the interviews conducted in 2014 were 'sharply focused and weeded' by counsel. . . . According to Agent LeFaivre's declaration, Fowler directed LeFaivre to 'conduct additional interviews regarding specific issues' and 'provided guidance regarding the additional information sought from former Bertie Ambulance EMTs.'. . . Plaintiff's lawyers 'shaped the topics that were covered' and 'framed the questions that were asked' in the interviews.")

Case Date Jurisidction State Cite Checked
2015-06-25 Federal NC

Chapter: 40.12

Case Name: United States v. Bertie Ambulance Service, Inc., No. 2:14-CV-53-F, 2015 U.S. Dist. LEXIS 83537 (E.D.N.C. June 25, 2015)
(analyzing opinion work product protection for witness interview reports; holding that some of their report deserved opinion work product while others did not; "In regards to witness interview memorandum, courts look at whether the content of the memorandum has been 'sharply focused or weeded' by counsel. . . . When counsel 'selected witnesses to be interviewed, selected the topics to be addressed with each witness, selected the documents to be shown to witnesses, led the interviews, and asked the questions,' the memoranda were considered opinion work-product.")

Case Date Jurisidction State Cite Checked
2015-06-25 Federal NC
Comment:

key case


Chapter: 40.12

Case Name: United States v. Bertie Ambulance Service, Inc., No. 2:14-CV-53-F, 2015 U.S. Dist. LEXIS 83537 (E.D.N.C. June 25, 2015)
(analyzing opinion work product protection for witness interview reports; holding that some of their report deserved opinion work product while others did not; "However, the Reports of Interview for the interviews conducted in 2014 were 'sharply focused and weeded' by counsel. . . . According to Agent LeFaivre's declaration, Fowler directed LeFaivre to 'conduct additional interviews regarding specific issues' and 'provided guidance regarding the additional information sought from former Bertie Ambulance EMTs.'. . . Plaintiff's lawyers 'shaped the topics that were covered' and 'framed the questions that were asked' in the interviews.")

Case Date Jurisidction State Cite Checked
2015-06-25 Federal NC
Comment:

key case


Chapter: 40.12

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: 40.12

Case Name: United States v. Tailwind Sports Corp., Case No. 1:10-cv-00976 (CRC), 2015 U.S. Dist. LEXIS 4610 (D.D.C. Jan. 12, 2015)
(analyzing bicyclists Floyd Landis's qui tam action against Lance Armstrong, concluding that government agents' witness interview memoranda from the civil investigation deserved opinion work product protection, but that similar witness interview memoranda prepared during the government's criminal investigation deserved only fact work product protection, which Armstrong could overcome; "The memoranda in Exhibit G of the Government's supplemental brief -- law enforcement interview summaries from the criminal investigation -- are a different kettle of fish. . . . Nearly half of the interviews took place without a government lawyer present and the Court's in camera review reveals that all of the memoranda appear to be substantially verbatim agent summaries of open-ended discussions of issues relevant to the criminal investigation. While a prosecutor involved in the investigation attests that he and other members of the U.S. Attorney's Office for the Central District of California set the general direction of the investigation and the interviews . . . It does not appear that these attorneys focused the content of the memoranda themselves or participated in drafting them, as the civil lawyers did with respect to the summaries drafted in furtherance of their investigation. . . . The Court finds that the Government must produce to Armstrong the memoranda contained in Exhibit G. The Government may redact any portions of the memoranda that reflect opinion work product, such as attorney notes or highlighting.")

Case Date Jurisidction State Cite Checked
2015-01-12 Federal DC
Comment:

key case


Chapter: 40.12

Case Name: United States ex rel. Landis v. Tailwind Sports Corp., Case No. 1:10-cv-00976 (CRC), 2015 U.S. Dist. LEXIS 4610 (D.D.C. Jan. 12, 2015)
March 18, 2015 (PRIVILEGE POINT)

“Do Witness Interview Memoranda Deserve Opinion or Merely Fact Work Product Protection?: Part I”

Unlike the absolute attorney-client privilege, the work product doctrine offers two possible levels of protection. Lawyers' (and other client representatives') opinions deserve absolute or nearly absolute protection in most courts. In contrast, non-opinion fact work product provides only a qualified privilege — which an adversary can overcome by proving "substantial need" for the documents, and the inability to obtain their "substantial equivalent" without "undue hardship." Fed. R. Civ. P. 26(b)(3)(A)(ii).

In United States ex rel. Landis v. Tailwind Sports Corp., Case No. 1:10-cv-00976 (CRC), 2015 U.S. Dist. LEXIS 4610 (D.D.C. Jan. 12, 2015), the court addressed the work product protection level for litigation-related witness interview memoranda. In bicyclist Floyd Landis's qui tam action, Lance Armstrong sought to discover government agents' witness interview memoranda. The court first dealt with memoranda government agents prepared in their civil investigation of Armstrong. The court noted that even the memorandas' factual portions reciting the witnesses' statements had been "'sharply focused or weeded'" by lawyers (quoting In re Sealed Case, 124 F.3d 230, 236 (D.C. Cir. 1997). Id. at *5. The court therefore held that all the memoranda in question deserved opinion work product protection — because government lawyers "'shape[d] the topics that were covered' and 'frame[d] the questions that were asked.'" Id. at *9 (citation omitted). The court rejected Armstrong's discovery efforts, because the D.C. Circuit considers opinion work product "virtually never discoverable." Id. at *4.

The court then turned to witness memoranda government agents prepared during their now-closed criminal investigation of Armstrong — which the court described as "a different kettle of fish." Id. at *9. Next week's Privilege Point will discuss those memoranda.

Case Date Jurisidction State Cite Checked
2015-01-12 Federal DC
Comment:

key case


Chapter: 40.12

Case Name: United States ex rel. Landis v. Tailwind Sports Corp., 303 F.R.D. 429 (D.D.C. 2015)
March 25, 2015 (PRIVILEGE POINT)

“Do Witness Interview Memoranda Deserve Opinion or Merely Fact Work Product Protection?: Part II”

Last week's Privilege Point discussed Lance Armstrong's unsuccessful attempt to discover witness interview memoranda government agents prepared during their civil investigation of Armstrong's misdeeds. United States ex rel. Landis v. Tailwind Sports Corp., 303 F.R.D. 429 (D.D.C. 2015).

Armstrong also sought witness memoranda from the government's now-closed criminal investigation. The court acknowledged the government's affidavits, stating that lawyers "set the general direction of the [criminal] investigation and the interviews." Id. at 432. But after an in camera review, the court concluded that "it does not appear that these attorneys focused the content of the memoranda themselves or participated in drafting them." Id. Instead, the memoranda "appear to be substantially verbatim agent summaries of open-ended discussions of issues relevant to the criminal investigation." Id. This meant that the memoranda only deserved fact work product protection, which Armstrong could overcome. However, the court allowed the government to "redact any portions of the memoranda that reflect opinion work product, such as attorney notes or highlighting." Id. at 433.

Lawyers seeking the higher level of opinion work product protection for their witness interview memoranda should (1) explicitly articulate any of their opinions in the memoranda, and (2) be prepared to prove that they "shaped" the interview topics and "framed" the questions whose answers the memoranda memorialized.

Case Date Jurisidction State Cite Checked
2015-01-01 Federal DC
Comment:

key case


Chapter: 40.12

Case Name: In re Rothstein Rosenfeldt Adler, P.A., Case No. 11-61338-CIV-COHN, 2013 U.S. Dist. LEXIS 43484 (S.D. Fla. Mar. 27, 2013)
(holding that work product protected a bankruptcy trustee's interview notes of prisoner [Rothstein])

Case Date Jurisidction State Cite Checked
2013-03-27 Federal FL B 3/14

Chapter: 40.12

Case Name: SEC v. Cuban, Civ. A. No. 3:08-CV-2050-D, 2013 U.S. Dist. LEXIS 37167, at *15-16, *16 (N.D. Tex. Mar. 15, 2013)
(concluding that Mark Cuban could not overcome the SEC's work product protection for interview notes prepared one year before testimony that was available to Cuban; "[O]bjective information, such as verbatim witness testimony, is not opinion work product . . . provided that the notes' compilation or organization of such information does not 'reveal the lawyer's selection process and thus his mental impressions.'" (citation omitted); "But summaries of witness interviews can themselves be 'opinion work product because [they] are suffused with the [attorney's] mental impressions and conclusions.'. . . And notes of witness interviews are also generally opinion work product because they can reveal mental impressions, such as the importance placed on certain information.")

Case Date Jurisidction State Cite Checked
2013-03-15 Federal TX B 3/14

Chapter: 40.12

Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *7-8 (W.D. Va. June 28, 2012)
("Under Virginia law, the work-product doctrine is closely related to the attorney-client privilege. See Edwards, 370 S.E.2d at 302; see also Rules of Sup. Ct. of Va. Rule 4:1(b)(3) (2011.) '"Work product" generally is defined as "the product of a party's investigation or communications concerning the subject matter of a lawsuit if made (1) to assist in the prosecution or defense of a pending suit, or (2) in reasonable anticipation of litigation." BLACK'S LAW DICTIONARY 1600-01 (7th ed. 1999).' Virginian-Pilot Media Cos., LLC v. City of Norfolk School Bd., 81 Va. Cir 450, 2010 WL 7765117, at *8 (Dec. 28, 2010). 'Generally, material such as "interviews, statements, memoranda, correspondence, briefs, mental impressions, [and] personal beliefs," which are "prepared by an adversary's counsel with an eye toward litigation" may be free from discovery.' Edwards, 370 S.E.2d at 302 (quoting Hickman v. Taylor, 329 U.S. 495, 511 (1947)).")

Case Date Jurisidction State Cite Checked
2012-06-28 Federal VA

Chapter: 40.12

Case Name: Skibinski v. Lunger, Case No. 06-152, 2008 Va. Cir. LEXIS 1, at *7-8, *6 (Va. Cir. Ct. Jan. 7, 2008)
(addressing the lawsuit in which the purchasers of a home sued the sellers of the home for not disclosing defects in a home addition that defendants had built; noting that defendants had spoken with the contractor who built the addition, who admitted that he had discussed the defects with the defendants at the time he built their addition; addressing defendants' argument that plaintiffs had failed to identify the contractor as a possible witness, and had also failed to identify communications they had with the contractor (including written communications); noting among other things that plaintiffs had not identified the contractor's admissions about his discussions with the defendants in response to defendants' interrogatory asking plaintiffs to identify the factual basis for their allegation that the defendants were aware of the defects; rejecting plaintiffs' argument that these facts deserved work product protection and did not have to be disclosed; "Generally, the work product doctrine protects an attorney from opening his files for inspection by an opposing attorney. . . . This includes material generated by attorneys in anticipation of litigation such as trial preparation or notes from a witness interview. Here, Defendants requested factual information regarding the basis for the Plaintiffs' claim. Regardless of the fact that the information was obtained by counsel, it is clearly within the scope of discoverable material as contemplated by Rule 4:1. If Defendant William Lunger's interrogatories had requested the identification of witnesses the Plaintiffs intended to call at trial, attorney work product would have been a colorable objection. But simply seeking the identification and knowledge of all witnesses who have knowledge of the facts of the case is not."; also rejecting plaintiffs' argument that their failure to identify the contractor and their communications with the contractor did not prejudice the defendants, because "they have known of [the contractor's] existence since 1999 and have had equal access to him"; declining to dismiss plaintiffs' complaint or preclude the contractor's testimony, but ordering plaintiffs to pay defendants' attorneys fees in connection with the motions)

Case Date Jurisidction State Cite Checked
2008-01-07 State VA

Chapter: 40.12

Case Name: Brown v. Laboratory Corp. of Am., 67 Va. Cir. 232, 233 (Va. Cir. Ct. 2005)
(assessing work product protection for medical incident reports after an infant died; concluding that the work product doctrine did not apply; "The work product doctrine exception to discovery is set forth in Supreme Court of Virginia Rule 4:1(b)(3) which provides for the protection of documents and tangible things prepared in 'anticipation of litigation or for trial.' 'Any "interviews, statements, memoranda, correspondence, briefs, mental impressions, [and] personal beliefs . . . prepared by an adversary's counsel with an eye toward litigation" may be free from discovery".' RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269 (Norfolk 2002) (citing Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1970)).")

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

Chapter: 40.12

Case Name: McDonald v. Sentara Medical Group, 64 Va. Cir. 30, 35-36 (Va. Cir. Ct. (2004)
(holding that the work product doctrine protected documents prepared by a hospital after the plaintiff slipped and fell on the premises; "The work product doctrine can exclude from discovery 'interviews, statements, memoranda, correspondence, briefs, mental impressions, [and] personal beliefs [PSI] prepared by an adversary's counsel with an eye toward litigation.' Hickman v. Taylor, 329 U.S. 495, 511, 91 L. Ed. 451, 67 S. Ct. 385 (1947). See Rakes v. Fulcher, 210 Va. 542, 546, 172 S.E.2d 751, 755-56 (1970); Commonwealth v. Edwards, 235 Va. 499, 510, 370 S.E.2d 296, 302, 4 Va. Law Rep. 3003 (1988).")

Case Date Jurisidction State Cite Checked
2004-01-01 State VA

Chapter: 40.12

Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 200 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "Any information regarding Plaintiff's claim history and driving record collected by State Farm is work product because it was prepared in anticipation of litigation and disclosure of the information would permit Plaintiff to discover Defendant's trial preparation. The Virginia Supreme Court has held that material such as interviews, statements, memoranda, correspondence, briefs, mental impressions, and personal beliefs which are prepared by an adversary's counsel with an eye towards litigation may be free from discovery under the attorney work product doctrine. Commonwealth v. Edwards, 235 Va. 499, 510, 370 S.E.2d 296, 4 Va. Law Rep. 3003 (1988) (citing Hickman v. Taylor, 329 U.S. 495, 511, 91 L. Ed. 451, 67 S. Ct. 385 (1947)).")

Case Date Jurisidction State Cite Checked
2003-01-01 State VA

Chapter: 40.12

Case Name: Head v. Inova Health Care Servs., 55 Va. Cir. 43, 45 (Va. Cir. Ct. 2001)
(holding that the attorney-client privilege and the work product doctrine protected correspondence between the hospital's lawyer and a risk management analyst about an investigation of an incident that ultimately resulted in the litigation, including memoranda from the analyst to the hospital's lawyer "summarizing interviews with treating nurses"; not explaining if the analyst was an employee or consultant) [Thacher, J.]

Case Date Jurisidction State Cite Checked
2001-01-01 State VA nsvb 2/23/04

Chapter: 40.12

Case Name: In re Sealed Case, 124 F.3d 230, 236 (D.C. Cir. 1997)
March 18, 2015 (PRIVILEGE POINT)

“Do Witness Interview Memoranda Deserve Opinion or Merely Fact Work Product Protection?: Part I”

Unlike the absolute attorney-client privilege, the work product doctrine offers two possible levels of protection. Lawyers' (and other client representatives') opinions deserve absolute or nearly absolute protection in most courts. In contrast, non-opinion fact work product provides only a qualified privilege — which an adversary can overcome by proving "substantial need" for the documents, and the inability to obtain their "substantial equivalent" without "undue hardship." Fed. R. Civ. P. 26(b)(3)(A)(ii).

In United States ex rel. Landis v. Tailwind Sports Corp., Case No. 1:10-cv-00976 (CRC), 2015 U.S. Dist. LEXIS 4610 (D.D.C. Jan. 12, 2015), the court addressed the work product protection level for litigation-related witness interview memoranda. In bicyclist Floyd Landis's qui tam action, Lance Armstrong sought to discover government agents' witness interview memoranda. The court first dealt with memoranda government agents prepared in their civil investigation of Armstrong. The court noted that even the memorandas' factual portions reciting the witnesses' statements had been "'sharply focused or weeded'" by lawyers (quoting In re Sealed Case, 124 F.3d 230, 236 (D.C. Cir. 1997). Id. at *5. The court therefore held that all the memoranda in question deserved opinion work product protection — because government lawyers "'shape[d] the topics that were covered' and 'frame[d] the questions that were asked.'" Id. at *9 (citation omitted). The court rejected Armstrong's discovery efforts, because the D.C. Circuit considers opinion work product "virtually never discoverable." Id. at *4.

The court then turned to witness memoranda government agents prepared during their now-closed criminal investigation of Armstrong — which the court described as "a different kettle of fish." Id. at *9. Next week's Privilege Point will discuss those memoranda.

Case Date Jurisidction State Cite Checked
1997-01-01 Federal
Comment:

key case


Chapter: 40.13

Case Name: Ortiz v. City of Worcester, No. 4:15-cv-40037-TSH, 2017 U.S. Dist. LEXIS 71281 (D. Mass. May 10, 2017)
("Mr. Coffey's written statement, which was obtained by Plaintiff's counsel and his investigator, is indisputably work product, and, therefore, a document that Plaintiff was not required to produce in the absence of a showing by the defendants of substantial need."; "Applying the terms of Rule 502(a), by producing Mr. Coffey's statement, Plaintiff has waived protection for undisclosed communications, tangible or intangible, which concern the same subject matter, and which ought, in fairness, to be considered in conjunction with that subject matter. The 'subject matter' as to which Plaintiff has waived work product protection is Mr. Coffey's written statement. 'What 'in fairness' should be 'considered' along with what has been disclosed is all the circumstances involved with respect to this [statement], including how it came to be obtained, at whose direction it was obtained, and the manner in which it was obtained . . . [and including] any written or oral communications between [Mr. Rand] and counsel for [Plaintiff] with respect to [Mr. Coffey's statement].'. . . The defendants are entitled to testimony from Mr. Rand [plaintiff's private investigator] on each of these subjects based on Plaintiff's limited waiver of work product protection."; "Mr. Coffey was an unaligned third party who remained free to disclose the contents of any conversation he heard between Mr. Pineiro [Plaintiff's lawyer] and Mr. Rand to whomever he chose, including the defendants. Indeed, the defendants were free to, and did, take Mr. Coffey's deposition . . . . Accordingly, there is no work product protection for any oral communications that Mr. Pineiro had with Mr. Rand while in Mr. Coffey's presence.")

Case Date Jurisidction State Cite Checked
2017-05-10 Federal MA
Comment:

key case


Chapter: 40.13

Case Name: In the Matter of the Complaint of American River Transportation Co. for Exoneration, Case No. 4:11-cv-00523-JAR, 2017 U.S. Dist. LEXIS 60255 (E.D. Mo. April 20, 2017)
(holding that the work product doctrine protected a lawyer's interview notes, but not the witness's statement; "According to ARTCO, shortly after the accident, its attorneys investigated the incident on ARTCO's behalf, and in the course of that investigation, interviewed the M/V Julie White's crewmembers, including Sadnick, McCoy, and Pryzblo. ARTCO claims its attorneys reduced these interviews to written statements, and each crewmember signed his respective statement. Sadnick's statement included a page he wrote without assistance from ARTCO's counsel; it also included pages ARTCO's counsel had authored, which Sadnick signed. ARTCO produced Sadnick's statement in relation to an investigation by the United States Coast Guard, and it has already produced it to the United States in this action.")

Case Date Jurisidction State Cite Checked
2017-04-20 Federal MO

Chapter: 40.13

Case Name: In the Matter of the Complaint of American River Transportation Co. for Exoneration, Case No. 4:11-cv-00523-JAR, 2017 U.S. Dist. LEXIS 60255 (E.D. Mo. April 20, 2017)
(holding that the work product doctrine protected a lawyer's interview notes, but not the witness's statement; "Notes and memoranda an attorney prepares from a witness interview are protected work product. . . . This is because attorney notes tend to reveal the attorney's legal conclusions, as attorneys tend to focus on those facts they deem legally significant when taking notes. . . . In contrast, the work product doctrine does not extend to verbatim, non-party witness statements."; "Having reviewed McCoy and Pryzblo's written statements in camera, the Court concludes that they are not attorney work product. More specifically, the Court concludes that the statements are recitations of the facts surrounding the March 6, 2011 allision involving the M/V Julie White, as it was witnessed by McCoy and Pryzblo, who are not parties to this action. . . . Notably, the statements do not reveal the mental impressions or legal theories of ARTCO's counsel, and it appears the statements may have been handwritten by the crewmembers themselves. . . . The Court further notes that, even if ARTCO's counsel authored the statements after interviewing the crewmembers, McCoy and Pryzblo signed their respective statements, essentially adopting them as their own.")

Case Date Jurisidction State Cite Checked
2017-04-20 Federal MO
Comment:

key case


Chapter: 40.13

Case Name: United States v. Dico, Inc., 4:10-cv-00503, 2017 U.S. Dist. LEXIS 52787 (S.D. Iowa March 27, 2017)
("Dr. George never signed a final declaration, therefore this is not a case in which a party has adopted a sworn affidavit prepared by an attorney as his own. Furthermore, an attorney typically secures an affidavit with a particular objective in mind. . . . Just as attorney notes reveal legal conclusions because they focus on facts deemed as legally significant . . .a draft affidavit is likely to focus on parts of witness statements the attorney who prepared it deems legally significant or contain statements the attorney hopes the witness will adopt because they would benefit a client . . . . The privilege log produced by the Government indicates the Filter Team provided several draft declarations to Dr. George's counsel and exchanged numerous emails concerning its contents between July 8, 2016, and October 24, 2016. Clerk's No. 323-3 at 7-11."; "Based on the frequency with which the draft declarations and the emails intended to refine their contents were exchanged, the Court concludes these materials reflected the mental processes of the attorneys on the Filter Team. Therefore, the Court concludes these materials also constituted work product that was, at a minimum, privileged from discovery absent a showing of substantial need and inability to obtain their substantial equivalent without undue hardship.")

Case Date Jurisidction State Cite Checked
2017-03-27 Federal IA
Comment:

key case


Chapter: 40.13

Case Name: The Manitowoc Co., Inc. v. Kachmer, Case No. 14-cv-9271, 2016 U.S. Dist. LEXIS 61503 (N.D. Ill. May 10, 2016)
(analyzing privilege and work product protection for recorded interviews by the plaintiff company's lawyer of employees who later left the company; holding that the privilege did not apply because the employees were not then in the control group under Illinois law; holding that the work product doctrine did not apply because the court concluded after an in camera review that the interviews did not reflect the lawyer's opinions or strategy; ordering production of the audio recordings after allowing a lawyer to redact later-added notes and impressions; inexplicably not considering the audio recordings to be fact work product; "After an in camera inspection of the transcripts, we have not found anything that would show that Aziere's mental impressions and theories about the case are so 'inextricably intertwined' with his line of questioning that we can reasonably characterize the Employees' statements as the work product of Aziere himself. . . . In fact, it is possible to redact Aziere's questions from the transcripts and read the Employees' responses on their own as a fairly coherent description of the underlying facts of the case, which in our opinion shows that the interviews were more about collecting the verbatim statements of third-party witnesses than about preparing those witnesses for a deposition. Aziere's questions were simply not influential enough to take the Employees' responses out of the realm of a witness's factual assertions and into the realm of his own work product."; "Further, the fact that Aziere took audio recordings of the interviews cuts against the argument that his mental impressions and legal theories are 'inextricably intertwined' with the underlying factual content of the interviews. . . . Put simply, by using an audio recording device Aziere has done nothing to make the resulting 'document' his own work product. Had he taken the Employees' statements by hand, or summarized the interviews in his own words, or in some way filtered or recorded only what he perceived to be the most important or relevant parts of the Employees' statements, we would be much more inclined to believe that Aziere had injected his own mental impressions or legal theories into the interviews. But that is not the case. There is nothing in the transcripts to support Plaintiff's assertion that Aziere's questions themselves make the Employees' verbatim statements his own work product. . . . The recordings contain the verbatim statements of third-party witnesses. Under those circumstances, the work-product doctrine does not shield them from discovery.")

Case Date Jurisidction State Cite Checked
2016-05-10 Federal IL

Chapter: 40.13

Case Name: Patel v. Kensol-Franklin, Inc., Civ. A. No. 3:14-1439, 2016 U.S. Dist. LEXIS 36684 (M.D. Pa. March 22, 2016)
(in a bad faith insurance case, analyzing privilege and work product protection for a post-accident investigation; finding that both protections applied; "Exhibit 3, page 1 is a September 13, 2012 statement from Letica employee Dipakkumar Patel, a Letica Packer Handler and relative of decedent, taken at the direction of attorney Michael, initialed by Anne Ventimiglio, Letica's Vice President of HR. This statement is protected from disclosure by the attorney-client privilege and the work-product doctrine.")

Case Date Jurisidction State Cite Checked
2016-03-22 Federal PA

Chapter: 40.13

Case Name: In re Cathode Ray Tube (CRT) Antitrust Litig., MDL No 1917,Master Case No 3:07cv05944SC,No 13cv01173; No 13cv05724; No 13cv05261; No 13cv05264; No 13cv05727; No 13cv05726; No 13cv05723; No 13cv05725; 2015 U.S. Dist. LEXIS 147413 (N.D. Cal. Oct. 5, 2015)
("Although memoranda and statements drafted by a party's counsel in interviewing third party witnesses in preparation for litigation are not protected from discovery by the attorney-client privilege . . . Discovery of such attorney interview memoranda and facts learned could constitute 'unwarranted inquiries into the files and mental impressions of an attorney.'")

Case Date Jurisidction State Cite Checked
2015-10-05 Federal CA

Chapter: 40.13

Case Name: The New York Times Co. v. U.S. Dept. of Justice, 14-CV-3777 (JPO), 2015 U.S. Dist. LEXIS 133520 (S.D.N.Y. Sept. 30, 2015)
(in a FOIA case, analyzing work product protection for taped interviews of criminal detainees; "The first legal dispute between the parties, then, is whether substantially verbatim witness statements are (1) never work product, (2) always work product, or (3) sometimes work product and sometimes not."; "The proper rule, then, is that witness statements are sometimes but not always work product. They are work product when they reveal an attorney's strategic impressions and mental processes. This revelation could occur through the attorney's mere selection of whom to interview, even where the content of the interview may not be work product itself.")

Case Date Jurisidction State Cite Checked
2015-09-30 Federal NY

Chapter: 40.13

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: 40.13

Case Name: Galloway v. Sunbelt Rentals, Inc., Civ. A. No. 5:14-cv-00040, 2015 U.S. Dist. LEXIS 4121, at *6-7 (W.D. Va. Jan. 14, 2015)
(holding that post-accident witness statements deserved fact but not opinion work product protection, which the plaintiff could overcome; "Though the transcript contains defense counsel's questions, those questions do not contain enough attorney thought to deserve the great protection provided to opinion work product, especially considering that the Underwoods' answers, reproduced verbatim, are inherently factual.")

Case Date Jurisidction State Cite Checked
2015-01-14 Federal VA B 3/16
Comment:

key case


Chapter: 40.13

Case Name: United States v. Tailwind Sports Corp., Case No. 1:10-cv-00976 (CRC), 2015 U.S. Dist. LEXIS 4610 (D.D.C. Jan. 12, 2015)
(analyzing bicyclists Floyd Landis's qui tam action against Lance Armstrong, concluding that government agents' witness interview memoranda from the civil investigation deserved opinion work product protection, but that similar witness interview memoranda prepared during the government's criminal investigation deserved only fact work product protection, which Armstrong could overcome; "[T]he D.C. Circuit has instructed that notes and memoranda reflecting the 'opinions, judgments and thought processes of counsel' fall into the former category, whereas those whose content has not been 'sharply focused or weeded' by counsel fall into the latter . . . . Accordingly, courts in this district have held substantially verbatim witness statements contained in interview memoranda that have not been 'sharply focused or weeded' by an attorney to be fact rather than opinion work product.")

Case Date Jurisidction State Cite Checked
2015-01-12 Federal DC
Comment:

key case


Chapter: 40.13

Case Name: Mirkarimi v. Nevada Property 1 LLC, Case No. 12cv2160-BTM (DHB), 2014 U.S. Dist. LEXIS 163774 (S.D. Cal. Nov. 21, 2014)
(denying work product protection for quesionnaires sent to potential class members; "[T]he work product doctrine generally does not protect a witness's verbatim responses to questionnaires. . . . Further, district court's within this circuit have concluded that responses to questionnaires in class actions are discoverable. . . . Accordingly, the Court finds that responses from the putative class members to a questionnaire from Plaintiff would be discoverable. The Court declines to order specific production at this time. However, Defendant may request this information from Plaintiff through an appropriate means of discovery.")

Case Date Jurisidction State Cite Checked
2014-11-21 Federal CA

Chapter: 40.13

Case Name: Vazquez v. City of New York, 10-CV-6277 (JMF), 2014 U.S. Dist. LEXIS 160270 (S.D.N.Y. Nov. 14, 2014)
(analyzing work product protection for witness interview statements; "The documents largely consist of statements made by Gilbert Vega, and thus constitute factual work product. Further, in light of Vega's significance to the case and the fact that Plaintiff has and had limited access to him, Plaintiff has shown substantial need.")

Case Date Jurisidction State Cite Checked
2014-11-14 Federal NY

Chapter: 40.13

Case Name: Vazquez v. City of New York, 10-CV-6277 (JMF), 2014 U.S. Dist. LEXIS 160270 (S.D.N.Y. Nov. 14, 2014)
(analyzing work product protection for witness interview statements; "The document includes statements made by Michael Donnelly, and thus constitutes factual work product. Further, in part because Donnelly is a defendant in this action, Plaintiff has a substantial need for his statements.")

Case Date Jurisidction State Cite Checked
2014-11-14 Federal NY

Chapter: 40.13

Case Name: DiMaria v. Concorde Entm't, Inc., Civ. No. 12-11139-FDS, 2013 U.S. Dist. LEXIS 112533, at *6 (D. Mass. Aug. 9, 2013)
("The defendant has satisfied its burden of establishing that the work product doctrine applies here by submitting an affidavit prepared by the attorney who conducted the meetings with the employees and solicited their statements. . . . The statements are plainly 'documents,' and the attorney's affidavit demonstrates that they were prepared at her request and collected 'in anticipation of litigation' that was reasonably foreseeable, particularly given the nature of the incident." (citation omitted))

Case Date Jurisidction State Cite Checked
2013-08-09 Federal MA B 4/14

Chapter: 40.13

Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *7-8 (W.D. Va. June 28, 2012)
("Under Virginia law, the work-product doctrine is closely related to the attorney-client privilege. See Edwards, 370 S.E.2d at 302; see also Rules of Sup. Ct. of Va. Rule 4:1(b)(3) (2011.) '"Work product" generally is defined as "the product of a party's investigation or communications concerning the subject matter of a lawsuit if made (1) to assist in the prosecution or defense of a pending suit, or (2) in reasonable anticipation of litigation." BLACK'S LAW DICTIONARY 1600-01 (7th ed. 1999).' Virginian-Pilot Media Cos., LLC v. City of Norfolk School Bd., 81 Va. Cir 450, 2010 WL 7765117, at *8 (Dec. 28, 2010). 'Generally, material such as "interviews, statements, memoranda, correspondence, briefs, mental impressions, [and] personal beliefs," which are "prepared by an adversary's counsel with an eye toward litigation" may be free from discovery.' Edwards, 370 S.E.2d at 302 (quoting Hickman v. Taylor, 329 U.S. 495, 511 (1947)).")

Case Date Jurisidction State Cite Checked
2012-06-28 Federal VA

Chapter: 40.13

Case Name: Grimaldi v. Burgess, 78 Va. Cir. 104, 105 (Va. Cir. Ct. 2009)
(finding that a doctor who supplied a certifying opinion required by statute could testify on behalf of Plaintiff as an expert, and continue to withhold notes that the expert prepared in connection with the certification she prepared; "With respect to the notes of Carol Grimaldi [medical expert who prepared a certifying opinion required by Va. Code § 8.01-20.1, and who was later designated by Plaintiff as a testifying expert], Plaintiffs counsel has represented to the Court that the documents were prepared in anticipation and in preparation for litigation in this case. The Defendant's counsel argues that since Ms. Grimaldi will be testifying as to events that she witnessed involving the Defendant, her prior recordation of said events, should be discoverable. However, there is no evidence that these documents were recorded contemporaneously, as the events occurred. After reviewing the notes in camera the Court observed that some of the notes had multiple dates, e.g. July 1 or July 2, suggesting the author could not remember the exact date of the events and that the notes were written at a later time. There is no evidence to suggest the notes were not prepared in anticipation of litigation in this matter. Additionally, material such as 'interviews, statements, memoranda, correspondence, briefs, mental impressions, [and] personal beliefs' which are prepared in anticipation of trial may be free from discovery, Commonwealth v. Edwards, 235 Va. 499, 370 S.E.2d 296, 4 Va. Law Rep. 3003 (1988)(citing Rakes v. Fulcher, 210 Va. 542, 172 S.E.2d 751. Upon considering the representation of Plaintiff's counsel and after reviewing Ms. Grimaldi's notes in camera this Court holds they are protected by the attorney-client work product doctrine and Ms. Grimaldi may testify at trial.")

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

Chapter: 40.13

Case Name: Brown v. Laboratory Corp. of Am., 67 Va. Cir. 232, 233 (Va. Cir. Ct. 2005)
(assessing work product protection for medical incident reports after an infant died; concluding that the work product doctrine did not apply; "The work product doctrine exception to discovery is set forth in Supreme Court of Virginia Rule 4:1(b)(3) which provides for the protection of documents and tangible things prepared in 'anticipation of litigation or for trial.' 'Any "interviews, statements, memoranda, correspondence, briefs, mental impressions, [and] personal beliefs . . . prepared by an adversary's counsel with an eye toward litigation" may be free from discovery".' RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269 (Norfolk 2002) (citing Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1970)).")

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

Chapter: 40.13

Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 171 (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; "While the Virginia Supreme Court has not addressed the exact issue before the Court, it has noted that the work product doctrine 'protects an attorney from opening his files for inspection by an opposing attorney' and recognized that the privilege extends to statements taken by third-persons for the use of trial counsel. . . . The Court has also held that material such as interviews, statements, memoranda, correspondence, briefs, mental impressions, and personal beliefs which are prepared by an adversary's counsel with an eye towards litigation may be free from discovery under the attorney work product doctrine.")

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

key case


Chapter: 40.13

Case Name: McDonald v. Sentara Medical Group, 64 Va. Cir. 30, 35-36 (Va. Cir. Ct. (2004)
(holding that the work product doctrine protected documents prepared by a hospital after the plaintiff slipped and fell on the premises; "The work product doctrine can exclude from discovery 'interviews, statements, memoranda, correspondence, briefs, mental impressions, [and] personal beliefs [PSI] prepared by an adversary's counsel with an eye toward litigation.' Hickman v. Taylor, 329 U.S. 495, 511, 91 L. Ed. 451, 67 S. Ct. 385 (1947). See Rakes v. Fulcher, 210 Va. 542, 546, 172 S.E.2d 751, 755-56 (1970); Commonwealth v. Edwards, 235 Va. 499, 510, 370 S.E.2d 296, 302, 4 Va. Law Rep. 3003 (1988).")

Case Date Jurisidction State Cite Checked
2004-01-01 State VA

Chapter: 40.13

Case Name: McDonald v. Sentara Medical Group, 64 Va. Cir. 30, 36 (Va. Cir. Ct. (2004)
(holding that the work product doctrine protected documents prepared by a hospital after the plaintiff slipped and fell on the premises; "The Supreme Court of Virginia has provided that the work product doctrine 'protects an attorney from opening his files for inspection by an opposing attorney' and recognized the extension of this privilege to, for example, statements taken by third-persons for the use of trial counsel. Rakes v. Fulcher, 210 Va. 542, 546-47, 172 S.E.2d 751, 755-56 (1970).")

Case Date Jurisidction State Cite Checked
2004-01-01 State VA

Chapter: 40.13

Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 200 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "Any information regarding Plaintiff's claim history and driving record collected by State Farm is work product because it was prepared in anticipation of litigation and disclosure of the information would permit Plaintiff to discover Defendant's trial preparation. The Virginia Supreme Court has held that material such as interviews, statements, memoranda, correspondence, briefs, mental impressions, and personal beliefs which are prepared by an adversary's counsel with an eye towards litigation may be free from discovery under the attorney work product doctrine. Commonwealth v. Edwards, 235 Va. 499, 510, 370 S.E.2d 296, 4 Va. Law Rep. 3003 (1988) (citing Hickman v. Taylor, 329 U.S. 495, 511, 91 L. Ed. 451, 67 S. Ct. 385 (1947)).")

Case Date Jurisidction State Cite Checked
2003-01-01 State VA

Chapter: 40.13

Case Name: Pipkin v. Pleasant Care, Inc., 43 Va. Cir. 443, 443-44 (Chesapeake 1997)
("It appears to be undisputed that the `statements' in question were done at the request of the superiors of the two people who gave them. The statements were prepared in response to a complaint made by a person identified as the decedent's daughter concerning the decedent's condition and a call from a family member of the decedent saying that Certified Nursing Assistant (CAN) Connie Davis did not know what she was doing. One statement was given on February 2, 1997, the day the decedent was transferred from Pleasant Care, Inc., to Chesapeake General Hospital, and the other was given the next day. There is no assertion that the statements were prepared in response to a request by the defendant's attorney or even its insurer."; declining to protect as work product statements made by employees after an incident)

Case Date Jurisidction State Cite Checked
1997-01-01 State VA

Chapter: 40.13

Case Name: Whitehurst v. Lloyd, 37 Va. Cir. 224 (Va. Cir. Ct. 1995)
(applying the work product doctrine to a statement taken by the insurer four days after plaintiff's motor vehicle accident; "Under the facts of this case, it was reasonably foreseeable that litigation would ensue at the time the statement was taken.")

Case Date Jurisidction State Cite Checked
1995-01-01 State VA

Chapter: 40.14

Case Name: United States v. Dico, Inc., 4:10-cv-00503, 2017 U.S. Dist. LEXIS 52787 (S.D. Iowa March 27, 2017)
("Dr. George never signed a final declaration, therefore this is not a case in which a party has adopted a sworn affidavit prepared by an attorney as his own. Furthermore, an attorney typically secures an affidavit with a particular objective in mind. . . . Just as attorney notes reveal legal conclusions because they focus on facts deemed as legally significant . . .a draft affidavit is likely to focus on parts of witness statements the attorney who prepared it deems legally significant or contain statements the attorney hopes the witness will adopt because they would benefit a client . . . . The privilege log produced by the Government indicates the Filter Team provided several draft declarations to Dr. George's counsel and exchanged numerous emails concerning its contents between July 8, 2016, and October 24, 2016. Clerk's No. 323-3 at 7-11."; "Based on the frequency with which the draft declarations and the emails intended to refine their contents were exchanged, the Court concludes these materials reflected the mental processes of the attorneys on the Filter Team. Therefore, the Court concludes these materials also constituted work product that was, at a minimum, privileged from discovery absent a showing of substantial need and inability to obtain their substantial equivalent without undue hardship.")

Case Date Jurisidction State Cite Checked
2017-03-27 Federal IA
Comment:

key case


Chapter: 40.14

Case Name: Whitchurch v. Canton Marine Towing Co., Inc., No. 16-cv-3278, 2017 U.S. Dist. LEXIS 42034 (C.D. Ill. March 23, 2017)
(holding that a third party's affidavits did not deserve work product protection; "Courts have held, however, that affidavits by third party witnesses are not covered by the work-product privilege because the affidavits are sworn statements of fact based on personal knowledge, and so, are not documents that contain attorney mental impressions or opinions. See Murphy v. Kmart Corp., 259 F.R.D. 421, 428-31 (D. S.D. 2009); but cf. Red Spot, 2007 U.S. Dist. LEXIS 73621, 2007 WL 2904073, at *1-*3 (draft of affidavits and notes made to prepare affidavits are privileged). Without such complete information, the Court cannot determine whether Canton can meet its burden to establish its claims of privilege.")

Case Date Jurisidction State Cite Checked
2017-03-23 Federal IL

Chapter: 40.14

Case Name: SFEG Corp. v. Blendtec, Inc., No. 3:15-0466, 2016 U.S. Dist. LEXIS 63738 (M.D. Tenn. May 13, 2016)
July 27, 2016 (PRIVILEGE POINT)

"Courts Wrestle with Work Product Protection for Interview-Related Documents: Part III"

In SFEG Corp. v. Blendtec, Inc., No. 3:15-0466, 2016 U.S. Dist. LEXIS 63738 (M.D. Tenn. May 13, 2016), plaintiff's lawyer interviewed defendant's former quality manager — taking interview notes, preparing a memorandum about the interview, drafting and later revising a proposed affidavit, and then arranging for an executed affidavit. Defendant sought the executed affidavit. The court noted that "there appears to be a split of authority among [Sixth Circuit] district courts on the issue." Id. at *5. Some courts hold "that a third party's affidavit, once signed by the affiant, is no longer attorney work product as a matter of law." Id. The other line of cases extend work product protection to affidavits lawyers prepare after an interview, because "the contents of that affidavit almost certainly will reveal 'the mental impressions, conclusions, opinions, or legal theories' of the lawyer." Id. (citation omitted). The court adopted the second approach — concluding that lawyers "almost certainly included in this draft affidavit those facts that counsel deemed significant to the legal theories applicable to the case." Id. at *6. Furthermore, "the character of such disclosure is not somehow changed at the moment the witness signs the affidavit." Id. at *7. But then the court inexplicably addressed whether defendant could overcome the applicable work product protection — thus apparently only extending fact rather than the stronger opinion work product protection to the executed affidavit.

It is difficult if not impossible to find consistent and useful principles from these and similar cases.

Case Date Jurisidction State Cite Checked
2016-05-13 Federal TN B 7/16
Comment:

key case


Chapter: 40.14

Case Name: Delmonico v. A.O. Smith Corp. (In re Asbestos Litig.), C.A. No. PC-14-2901, 2016 R.I. Super. LEXIS 9, at *7 (R.I. Super. Ct. Jan. 22, 2016)
(finding that plaintiff's affidavit about asbestos exposure deserved work product protection, and holding after an in camera review of the withheld documents that the defendant could not overcome the work product doctrine on the grounds that the affidavit might provide impeachment material; "The Court is satisfied that the exposure affidavits fall under the protections of factual work product. . . . Plaintiffs' counsel prepared the exposure affidavits just four days before filing the Complaint, and the exposure affidavits contain the basic facts underlying Mr. Delmonico's claims. The timing of their creation and their content clearly fall within the ambit of material 'gathered in anticipation of litigation.' . . . Indeed, the exposure affidavits were made with the express purpose of litigating the case.")

Case Date Jurisidction State Cite Checked
2016-01-22 Federal RI B 7/16

Chapter: 40.14

Case Name: Baylor v. Mitchell Rubenstein & Associates, Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. 2015)
("Upon in camera review, the Court finds that both the email exchange and the computer entry were made because of the prospect of litigation against plaintiff. The affidavit in question was prepared solely to accompany the complaint in a lawsuit against plaintiff. The affidavit, and any documents discussing it, would not have been created at all if the suit was not forthcoming. As such, these documents concerning the affidavit would not have been prepared in substantially similar form and had litigation not been imminent.")

Case Date Jurisidction State Cite Checked
2015-01-01 Federal DC

Chapter: 40.14

Case Name: Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., Civ. A. No. 09-6644, 2014 U.S. Dist. LEXIS 93881, at *8 (E.D. La. July 10, 2014)
August 27, 2014 (PRIVILEGE POINT)

“Courts Analyze Work Product Protection for Final and Draft Affidavits”

Analyzing work product protection for party or witness affidavits can involve several factors.

In Colon v. City of New York, No. 12-CV-9205 (JMF), 2014 U.S. Dist. LEXIS 92483 (S.D.N.Y. July 8, 2014), the court assessed affidavits that a malicious prosecution plaintiff finalized, but had never filed, in his earlier criminal case. The court concluded that the work product doctrine applied — because the plaintiff had prepared the affidavits "in connection with his post-conviction litigation." Id. at *9. However, the court held that the defendant City could overcome the protection, because the 1999 affidavits contained "factual assertions made by the Plaintiff regarding events that occurred in 1989 and 1990." Id. The court pointed to "the length of time that has passed" since the events, and the City's possible use of the affidavits to impeach the plaintiff. Id. Two days later, another court dealt with draft affidavits. In Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., the defendants fought to discover drafts of the "near-identical" affidavits filed by several individual gas and oil royalty claimants. Civ. A. No. 09-6644, 2014 U.S. Dist. LEXIS 93881, at *8 (E.D. La. July 10, 2014). The court noted that a defense lawyer "admitted at the oral hearing that he seeks to review the 'back and forth process' between" the plaintiffs and their lawyer "while drafting the affidavits." Id. at *16. The court held that disclosing those drafts would "reveal the mental impressions and strategies of counsel for claimants," and thus found the draft affidavits immune from discovery as opinion work product. Id.

Lawyers assessing protections for party or witness affidavits must consider, among other things, the affiant's role (communications between a client affiant and her lawyer might deserve privilege as well as work product protection); the affidavit's status (some courts might find that the final version loses any privilege or work product protection); and lawyers' role in preparing draft affidavits (the more extensive the role, the more likely the privilege or the opinion work product doctrine is to apply).

Case Date Jurisidction State Cite Checked
2014-07-10 Federal LA
Comment:

key case


Chapter: 40.14

Case Name: Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., Civ. A. No. 09-6644C/W10-106 Ref: All Cases Section "N" (3), 2014 U.S. Dist. LEXIS 93881 (E.D. La. July 10, 2014)
(holding that the privilege and the work product doctrine protected draft affidavits; "With regard to the draft affidavits, the general rule is that draft documents are only privileged to the extent that communications contained therein are not revealed to third parties.")

Case Date Jurisidction State Cite Checked
2014-07-10 Federal LA

Chapter: 40.14

Case Name: Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., Civ. A. No. 09-6644C/W10-106 Ref: All Cases Section "N" (3), 2014 U.S. Dist. LEXIS 93881 (E.D. La. July 10, 2014)
("Under this rule, claimants should generally produce to defendants redacted copies of the draft affidavits."; "However, there is case law on which claimants rely to support their argument that redacted draft affidavits are non-discoverable."; "The Court finds that redacting the documents themselves would reveal the attorneys' mental impressions. Indeed, counsel for Statoil admitted at the oral hearing that he seeks to review the 'back and forth process' between counsel and claimants while drafting the affidavits. The Court can not fathom how that would not reveal the mental impressions and strategies of counsel for claimants. The draft affidavits are thus protected from disclosure. Accordingly, the Court also denies the motion as to the draft affidavits.")

Case Date Jurisidction State Cite Checked
2014-07-10 Federal LA

Chapter: 40.14

Case Name: Colon v. City of New York, No. 12-CV-9205 (JMF), 2014 U.S. Dist. LEXIS 92483 (S.D.N.Y. July 8, 2014)
August 27, 2014 (PRIVILEGE POINT)

“Courts Analyze Work Product Protection for Final and Draft Affidavits”

Analyzing work product protection for party or witness affidavits can involve several factors.

In Colon v. City of New York, No. 12-CV-9205 (JMF), 2014 U.S. Dist. LEXIS 92483 (S.D.N.Y. July 8, 2014), the court assessed affidavits that a malicious prosecution plaintiff finalized, but had never filed, in his earlier criminal case. The court concluded that the work product doctrine applied — because the plaintiff had prepared the affidavits "in connection with his post-conviction litigation." Id. at *9. However, the court held that the defendant City could overcome the protection, because the 1999 affidavits contained "factual assertions made by the Plaintiff regarding events that occurred in 1989 and 1990." Id. The court pointed to "the length of time that has passed" since the events, and the City's possible use of the affidavits to impeach the plaintiff. Id. Two days later, another court dealt with draft affidavits. In Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., the defendants fought to discover drafts of the "near-identical" affidavits filed by several individual gas and oil royalty claimants. Civ. A. No. 09-6644, 2014 U.S. Dist. LEXIS 93881, at *8 (E.D. La. July 10, 2014). The court noted that a defense lawyer "admitted at the oral hearing that he seeks to review the 'back and forth process' between" the plaintiffs and their lawyer "while drafting the affidavits." Id. at *16. The court held that disclosing those drafts would "reveal the mental impressions and strategies of counsel for claimants," and thus found the draft affidavits immune from discovery as opinion work product. Id.

Lawyers assessing protections for party or witness affidavits must consider, among other things, the affiant's role (communications between a client affiant and her lawyer might deserve privilege as well as work product protection); the affidavit's status (some courts might find that the final version loses any privilege or work product protection); and lawyers' role in preparing draft affidavits (the more extensive the role, the more likely the privilege or the opinion work product doctrine is to apply).

Case Date Jurisidction State Cite Checked
2014-07-08 Federal NY
Comment:

key case


Chapter: 40.14

Case Name: Innovation Ventures, L.L.C. v. Aspen Fitness Products, Inc., 11-13537, 2014 U.S. Dist. LEXIS 82706, at *10 (E.D. Mich. June 18, 2014)
(holding that the work product doctrine protected a lawyer-prepared draft and unsigned witness affidavit; "The unsigned draft affidavits in this case do not reflect statements of fact by Mr. Woznica; rather, they were prepared by counsel and presented to Mr. Woznica for his review and correction. They are part of the evolution and development of the final draft. As such, the drafts constitute the attorney's trial preparation materials.")

Case Date Jurisidction State Cite Checked
2014-06-18 Federal MI

Chapter: 40.14

Case Name: Innovation Ventures, L.L.C. v. Aspen Fitness Products, Inc., 11-13537, 2014 U.S. Dist. LEXIS 82706, at *8 (E.D. Mich. June 18, 2014)
(holding that the work product doctrine protected a lawyer-prepared draft and unsigned witness affidavit; "There is a split of authority among district courts as to whether the draft of an affidavit is protected by the work-product doctrine. . . . [M]ore recent cases hold that unsigned draft affidavits do fall within the scope of the work-product doctrine.")

Case Date Jurisidction State Cite Checked
2014-06-18 Federal MI

Chapter: 40.14

Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *11 (D. Mass. May 3, 2013)
(adopting a set of rules to govern privilege and work product determinations; ultimately concluding that disclosure to a public relations agency waived the attorney-client privilege but not the work product doctrine and that agency-created documents did not deserve work product protection; "Draft versions of a declaration submitted by Heather Goodman of the consulting firm Two Labs Marketing to the D.C. federal district court in support of Astellas's [defencant] lawsuit against the FDA, as well as communications between Goodman and Astellas or outside counsel regarding the content of and revisions to that declaration, are protected by the work-product doctrine.")

Case Date Jurisidction State Cite Checked
2013-05-03 Federal MA B 8/13

Chapter: 40.14

Case Name: Burtch v. Luminescent Sys., Inc. (In re AE Liquidation, Inc.), Ch. 7 Case No. 08-13031 (MFW), Adv. Nos. 10-55460 & -55384 (MFW), 2012 Bankr. LEXIS 5710, at *11 (Bankr. D. Del. Dec. 11, 2012)
("[T]he affidavits and related documents consist of emails and draft affidavits exchanged between the Defendants' attorneys and the two witnesses. It is unlikely that the Defendants' attorneys included opinion work product in correspondence with outside, third-party witnesses. Therefore, the Court finds that the affidavits and related documents are ordinary, fact-based work product not entitled to the heightened protection of opinion work product.")

Case Date Jurisidction State Cite Checked
2012-12-11 Federal DE B 9/13

Chapter: 40.15

Case Name: Vaughn v. Amerigas Propane, L.P., No. 5-15-0205, 2016 Ill. App. Unpub. LEXIS 704, at *20 (Ill. App. Ct. Apr. 6, 2016)
("[T]he actual video surveillance tapes produced by the consultants are discoverable in this action.")

Case Date Jurisidction State Cite Checked
2016-04-06 Federal IL B 8/16

Chapter: 40.15

Case Name: Vaughn v. Amerigas Propane, L.P., No. 5-15-0205, 2016 Ill. App. Unpub. LEXIS 704, at *20 (Ill. App. Ct. Apr. 6, 2016)
("[T]he actual video surveillance tapes produced by the consultants are discoverable in this action.")

Case Date Jurisidction State Cite Checked
2016-04-06 Federal IL B 8/16

Chapter: 40.15

Case Name: Carpenter v. Madere & Sons Towing, LLC, Civ. A. No. 15-705, Section "E" (2), 2016 U.S. Dist. LEXIS 4297 (E.D. La. Jan. 13, 2016)
(holding that a surveillance video tape prepared in the ordinary course of business did not deserve work product protection just because the litigant's lawyer asked that the video tape be preserved; "Surveillance videotape of an accident scene taken in the ordinary course of business, even if created by a party, does not become work product merely because the party's counsel directed that the videotape be preserved. . . . When even a party's own routinely taken and preserved videotape is not work product, it was absurd for defense counsel to assert that a non-party's routinely taken surveillance videotape made in the ordinary course of its business can be the protected work product of a party or a lawyer who had nothing to do with its preparation, especially when any such objection had also been waived by the failure timely to assert it either in a written response under Rule 34(b) or in a motion for protective order under Fed. R. Civ. P. 26©, made applicable in Fed. R. Civ. P. 37(d)(2).")

Case Date Jurisidction State Cite Checked
2016-01-13 Federal LA

Chapter: 40.15

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; "[T]he identity of the second investigator, just like the duration of Defendants' surveillance of Ms. Roach, is relevant nonprivileged factual matter that is not protected from discovery as work product.")

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

Chapter: 40.15

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: 40.15

Case Name: Sowell v. Target Corp., Case No. 5:14-cv-93-RS-GRJ, 2014 U.S. Dist. LEXIS 72435 (N.D. Fla. May 28, 2014)
(finding that defendant Target created a video tape in the ordinary course of business and that the tape did not become work product because Target preserved it; ordering the tape produced to the plaintiff before her deposition; "The surveillance video in this case was taken and recorded in the routine and ordinary course of business of Target. There is no evidence (nor does Defendant argue) that the store surveillance video system was implemented or created because of the prospect of litigation. Indeed, common sense dictates that store surveillance videos are utilized by stores to prevent and detect theft by customers or by store employees. Consequently, Defendant has not demonstrated that the recording of the slip and fall in this case during the store's routine surveillance was created in anticipation of litigation."; "Moreover, as the Schulte [Schulte v NCL (Bahamas) Ltd., no. 10-23265-CIV, 2011 U.S. Dist. LEXIS 9520, 2011 WL 256542 (S.D. Fla. Jan. 25, 2011)] court concluded the mere act of preserving the tape as opposed to creating the original recording is not sufficient to transform a document created in the ordinary course of business into work product protected from disclosure.")

Case Date Jurisidction State Cite Checked
2014-05-28 Federal FL

Chapter: 40.15

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: 40.15

Case Name: Roa v. Tetrick, Case No. 1:13-cv-379, 2014 U.S. Dist. LEXIS 24619, at *7 (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; "[T]he surveillance materials were prepared 'because of' existing litigation to document Mr. Roa's activities. Therefore, the surveillance videos and related information constitute work product under Rule 26(b)(3)(A).")

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

Chapter: 40.15

Case Name: Meighan v. Transguard Ins. Co. of Am., Inc., 298 F.R.D. 436, 446 (N.D. Iowa 2014)
(analyzing work product issues in a first party insurance bad faith context; "I find that the documents related to surveillance of Meighan constitute 'pure factual investigation of the claim' rather than documents that were prepared in anticipation of litigation. . . . Presumably, TransGuard wanted to obtain surveillance of Meighan to determine if his injury was as disabling as he claimed to determine whether he was entitled to TTD benefits under the policy or not. Nothing indicates the TransGuard employees were discussing surveillance as part of a litigation strategy or under Sutton's [defendant's outside lawyer] direction. Although I have found TransGuard could have anticipated litigation as of March 13, 2012, these surveillance communications arise from the investigation and adjustment of Meighan's claim. Indeed, communications between Sutton and Armstrong [plaintiff's lawyer] during the time these documents were created indicate that TransGuard had recently agreed to pay past TTD benefits and reinstate Meighan's TTD benefits if he would refrain from filing a lawsuit.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal IA B 8/14

Chapter: 40.15

Case Name: Popina v. Rice-Steward, 86 Va. Cir. 402, 404 (Va. Cir. Ct. 2013)
("The majority of Virginia Courts have concluded that such videos are not protected by the work-product doctrine and are discoverable. Fere v. Doe, 66 Va. Cir. 61, 61 (Chesterfield Cnty. 2004) citing Runions v. Norfolk & Western Ry., 51 Va. Cir. 341 (City of Roanoke 2000).")

Case Date Jurisidction State Cite Checked
2013-04-05 State VA B 3/16
Comment:

key case


Chapter: 40.15

Case Name: Popina v. Rice-Steward, 86 Va. Cir. 402, 404 (Va. Cir. Ct. April 5, 2013)
("The second issue before the court is the Defendant's effort to protect the surveillance video of the Plaintiff from discovery. However, the court notes that neither Plaintiff nor Defendant cited the facts related to the purported surveillance video or the precise nature of the information sought either in pleadings or at the ore tenus argument. The majority of Virginia Courts have concluded that such videos are not protected by the work-product doctrine and are discoverable. . . . However, the court declines to rule on this issue as insufficient facts have been presented and any opinion would be advisory absent particular facts.")

Case Date Jurisidction State Cite Checked
2013-04-05 State VA B 6/6

Chapter: 40.15

Case Name: Smith v. Chen, 2013-Ohio-4931, at ¶ 17 (Ohio Ct. App. 2013)
("The parties do not dispute that the surveillance video was prepared at the direction of defendants' counsel in anticipation of litigation. Thus, they do not dispute that the surveillance video is attorney work-product. Accordingly, the parties simply dispute the court's finding that plaintiff established good cause for the production of the surveillance video.")

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

Chapter: 40.15

Case Name: Fare v. Doe, 66 Va. Cir. 61, 62 (Va. Cir. Ct. 2004)
(finding that the work product doctrine did not protect surveillance videotape relied upon by a doctor in preparing an independent medical examination; ordering the surveillance videotape produced before trial, but allowing defendant to depose the plaintiff first; "Virginia circuit courts vary on when video surveillance should be disclosed; however, the courts have consistently held that, if a defendant intends to use a video at trial, that the defendant will have the right to depose the plaintiff prior to disclosure of the video. See Fender v. Norfolk Southern Ry., 55 Va. Cir. 344, 346 (City of Norfolk 2001); Runions v. Norfolk & Western Ry., 51 Va. Cir. 341, 344 (City of Roanoke 2000); McIntyre v. CSX Transp., Inc., 22 Va. Cir. 302, 302-03 (City of Richmond 1990). The facts of this case are distinguishable from the opinions cited above in that this video may not only be introduced at trial, but was relied on by Defendant's expert in the Independent Medical Examination. Not only must the Court consider that, if the video were not disclosed until trial, the Plaintiff would be prejudiced by not being adequately prepared at trial, but also, Plaintiff would be prejudiced by not being afforded the opportunity to show the video to Plaintiff's experts in advance of trial so that Plaintiff's experts may use the video in forming their opinions. The Court must find a balance between Plaintiff's interests and Defendant's interest in not disclosing the video until after Plaintiff has been deposed. The parties have agreed to continue the trial for this matter that was previously scheduled on November 10, 2004. The Court orders that Defendant has the right to depose Plaintiff prior to disclosure of the surveillance video but requires that Defendant promptly produce the video to Plaintiff after Plaintiff's deposition and in no case later than ninety days prior to trial.")

Case Date Jurisidction State Cite Checked
2004-01-01 State VA B 3/16

Chapter: 40.15

Case Name: Fare v. Doe, 66 Va. Cir. 61, 61-62 (Va. Cir. Ct. 2004)
(finding that the work product doctrine did not protect surveillance videotape relied upon by a doctor in preparing an independent medical examination; ordering the surveillance videotape produced before trial, but allowing defendant to depose the plaintiff first; "Upon consideration of case law in Virginia and other jurisdictions, this Court adopts the reasoning of the majority of Virginia circuit courts that surveillance videos are not protected by the work-product doctrine and are discoverable. Fender v. Norfolk Southern Ry., 55 Va. Cir. 344 (City of Norfolk 2001); Runions v. Norfolk & Western Ry., 51 Va. Cir. 341 (City of Roanoke 2000); Lee v. Richmond, Fredericksburg & Potomac RR., 23 Va. Cir. 357 (City of Richmond 1991); McIntyre v. CSX Transp., Inc., 22 Va. Cir. 302 (City of Richmond 1990); Moore v. CSX Transp., Inc., 22 Va. Cir. 97 (City of Richmond 1990).")

Case Date Jurisidction State Cite Checked
2004-01-01 State VA

Chapter: 40.15

Case Name: Fender v. Norfolk S. Ry. Co., 55 Va. Cir. 344, 346 (Va. Cir. Ct. 2001)
("This Court rules that if there are surveillance videotapes of Defendant which will be used at any time during the trial of the instant case, that Defendant's counsel shall notify Plaintiff's counsel at least twenty days before the trial date of the existence of such videotapes and true copies of same shall be provided to counsel for Plaintiff by counsel for Defendant at least fifteen days prior to trial. If the time schedules set forth in the preceding sentence are not complied with, surveillance videotapes may not be utilized by Defendant at trial. In any event, before Defendant is required to provide the surveillance videotapes as required in the preceding paragraph, the deposition of the Plaintiff and responses to all interrogatories and other discovery materials as contemplated by the existing Scheduling Order will have been provided by Plaintiff to Defendant.")

Case Date Jurisidction State Cite Checked
2001-01-01 State VA

Chapter: 40.15

Case Name: Stanley v. Norfolk S. Ry., No. CL990662 (Va. Cir. Ct. (Alexandria) Aug. 30, 2000) (summary at Va. Law. Wkly. 002-8-213, at 4 (Feb. 5, 2001))
(holding that defendant's surveillance videotape of a plaintiff deserved work product protection, but that the plaintiff "has shown a substantial need to discover" the surveillance videotape; requiring defendant to produce the videotape after the plaintiff's deposition)

Case Date Jurisidction State Cite Checked
2000-08-30 State VA B 3/16
Comment:

key case


Chapter: 40.15

Case Name: Gutshall v. New Prime, Inc., 196 F.R.D. 43, 45 n.2 (W.D. Va. 2000)
("The work product doctrine is not a 'privilege,' but a sort of 'qualified immunity' from discovery."; finding that a surveillance tape of a personal injury plaintiff amounted to work product but that plaintiff had established sufficient "substantial need" to justify compelling the defendant to produce the videotape)

Case Date Jurisidction State Cite Checked
2000-07-19 Federal VA B 3/16
Comment:

key case


Chapter: 40.15

Case Name: Gutshall v. New Prime, Inc., No. 99-CV-23, 1999 WL 33103133, at *2, *3 (W.D. Va. July 19, 2000)
(noting that "[t]he Fourth Circuit has not addressed the issue of the discoverability of surveillance evidence in a civil case"; finding that the tape "falls within the broad scope of Rule 26(b)(1)" even though the defendant in a personal injury case only intended to use the surveillance videotape for impeachment purposes; concluding that the surveillance tape was work product but indicating that "a plaintiff alleging claims for personal injury has a substantial need for surveillance evidence in preparing his case for trial, due to the relevance and importance of such evidence, and the substantial impact it may have at trial. Further, it is impossible to procure the substantial equivalent of such evidence without undue hardship, as videotape 'fixes information available at a particular time and a particular place under particular circumstances, and therefore cannot be duplicated,'" (quoting Smith v. Diamond Offshore Drilling, Inc., 168 F.R.D. 582, 586 (S.D. Tex. 1996)); requiring that the defendant produce the surveillance videotape without explaining whether it should be produced before or after the plaintiff's deposition)

Case Date Jurisidction State Cite Checked
2000-07-18 Federal VA

Chapter: 40.15

Case Name: Runions v. Norfolk & W. Ry. Co., 51 Va. Cir. 341, 344 (Va. Cir. Ct. 2000)
("The court will therefore order that (1) the contents of surveillance movies, tape, and photographs must be disclosed if the materials will be used as evidence either substantively or for impeachment; and (2) the plaintiff and his attorneys must be afforded a reasonable opportunity, consistent with the needs expressed by the Court in Dodson, to observe these movies or photographs before their presentation as evidence. Within its discretion, however, the court will further order that the defendant has the right to depose the plaintiff before producing the contents of the surveillance information for inspection. Counsel will forthwith arrange for the plaintiff's deposition to be taken. As soon as Mr. Runions has signed the deposition transcript, or, if he waives signature, as soon as his deposition is concluded, NW's lawyers will produce the surveillance materials.")

Case Date Jurisidction State Cite Checked
2000-01-01 State VA B 3/16
Comment:

key case


Chapter: 40.15

Case Name: Runions v. Norfolk & W. Ry., 51 Va. Cir. 341, 344 (Va. Cir. Ct. 2000)
(assessing a personal injury plaintiff's attempt to discover a surveillance videotape taken by defendant; ordering that the surveillance tape "must be disclosed if the materials will be used as evidence either substantively or for impeachment"; relying on its discretion to "further order that the defendant has the right to depose the plaintiff before producing the contents of the surveillance information for inspection")

Case Date Jurisidction State Cite Checked
2000-01-01 State VA nsvb 2/23/04
Comment:

key case


Chapter: 40.15

Case Name: Gutshall v. 5 New Prime, Inc., 196 F.R.D. 43, 46 (W.D. Va. 2000)
("The court agrees with the majority of courts that considered the issue, and finds that a plaintiff alleging claims for personal injury has a substantial need for surveillance evidence in preparing his case for trial, due to the relevance and importance of such evidence, and the substantial impact it may have at trial. Further, it is impossible to procure the substantial equivalent of such evidence without undue hardship, as videotape 'fixes information available at a particular time and a particular place under particular circumstances, and therefore cannot be duplicated.' Smith, 168 F.R.D. at 586 [Smith v. Diamond Offshore Drilling, Inc., 168 F.R.D. 582 (S.D. Tex. 1996)] (citation omitted). Notwithstanding the work product status of the surveillance evidence, it therefore must be produced by New Prime pursuant to Federal Rule of Civil Procedure 26(e)(2). The plaintiff's motion to compel shall be granted.")

Case Date Jurisidction State Cite Checked
2000-01-01 Federal VA

Chapter: 40.15

Case Name: Gutshall v. 5 New Prime, Inc., 196 F.R.D. 43, 46 (W.D. Va. 2000)
("New Prime prepared, or commissioned the preparation of, the surveillance materials in anticipation of trial in this case. Consequently, those materials constitute 'work product' that New Prime ordinarily would not be compelled to produce. See Fed. R. Civ. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947).")

Case Date Jurisidction State Cite Checked
2000-01-01 Federal VA

Chapter: 40.15

Case Name: Larson v. McGuire, 42 Va. Cir. 40, 42, 44-45, 46 (Va. Cir. Ct. 1997)
(addressing work product protection for a surveillance videotape of plaintiff taken by defendant after an accident; "After litigation had commenced, the defendant caused a video to be taken of the plaintiff for possible use at trial. This video is unquestionably work product prepared in connection with the instant action. Defendant has agreed to make the video available for review by the plaintiff in the event she elects to make use of it at trial."; "[S]he has shown the videotape to have been prepared for possible use at the trial of the case. Counsel for the defendant has represented that he will make the tape available prior to trial in the event he elects to make use of it. Fairness would dictate that the videotape material be made available to the plaintiff in sufficient time for the plaintiff to take additional discovery as to its contents."; "Defendant need only produce the video in the event it is to be used at the trial of the case for any purpose. Plaintiff fails to demonstrate a substantial need unless it were to be so utilized. As counsel for Ms. McGuire has represented [that] they will make such video available should they elect to use it at trial, no further direction from the Court is necessary except to require production in sufficient time that plaintiff may engage in discovery with respect to the video.")

Case Date Jurisidction State Cite Checked
1997-01-01 State VA B 3/16
Comment:

key case


Chapter: 40.15

Case Name: Larson v. McGuire, 42 Va. Cir. 40, 42 (Va. Cir. Ct. 1997)
(ordering the defendant to produce a videotape of herself if she intended to use the tape at trial)

Case Date Jurisidction State Cite Checked
1997-01-01 State VA

Chapter: 40.15

Case Name: Smith v. Nat'l R.R. Passenger Corp., 22 Va. Cir. 348, 356 (Va. Cir. Ct. 1991)
(addressing work product protection for a surveillance videotape of a plaintiff prepared by a defendant railroad; concluding that the surveillance videotape deserved work product protection, which the plaintiff could not overcome; "If the diligence and industry of NRPC has revealed, through surveillance, evidence of exaggeration or outright lying on the part of Smith, this court will not strip it of the advantage gained without a showing which will meet the requirements of the rule to overcome the protected status of the material. This court finds that any facts learned by the surveillance is [sic] within the plaintiff's knowledge[;] he has the substantial equivalent of anything that has been learned by the defendant and has it without undue hardship. The rule does not require that he have it in the same form as does his adversary.")

Case Date Jurisidction State Cite Checked
1991-01-01 State VA B 3/16
Comment:

key case


Chapter: 40.15

Case Name: Moore v. CSX Transp., Inc., 22 Va. Cir. 97, 98 (Va. Cir. Ct. 1990)
(holding a surveillance film to be discoverable; "Because the parties do not question that the film was made for use at trial to impeach plaintiff and thereby provide a prophylactic effect against any possible perjury, the question is whether plaintiff cannot gather the substantial equivalent by other means. Certainly, no one knows plaintiff's activities and lifestyle better than plaintiff himself. When given the day and time of the surveillance, plaintiff would be caused to remember the occasion and would thereby have available through his own recollection the substantial equivalent of what defendant has captured on film. While remembering the occasion in this way would perhaps give plaintiff the equivalent, the film itself may fill in detail and give plaintiff a source for offering explanation that memory alone may not give. There is no way to film plaintiff's past activities because the same things defendant has recorded can no longer be filmed. I do not believe plaintiff can get a substantial equivalent of the tape without seeing the past recorded activities depicted on the tape itself."); not explaining whether the defendant could depose the plaintiff before disclosing the videotape)

Case Date Jurisidction State Cite Checked
1990-01-01 State VA

Chapter: 40.15

Case Name: McIntyre v. CSX Transp., Inc., 22 Va. Cir. 302 (Va. Cir. Ct. 1990)
(holding that a surveillance videotape was discoverable, but allowing defendant to depose plaintiff before notifying plaintiff of the videotape's existence or producing it)

Case Date Jurisidction State Cite Checked
1990-01-01 State VA

Chapter: 40.16

Case Name: RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case Nos. 2:14-cv-01232-APG-GWF, 2:15-cv-01446-APG-GWF, 2017 U.S. Dist. LEXIS 80436 (D. Nev. May 25, 2017)
("The discoverability of reserve information usually arises in insurance bad faith cases. In Dogra v. Liberty Mutual Fire Ins. Co., 2015 U.S. Dist. LEXIS 112405, 2015 WL 5086434, at *2 (D.Nev. Aug. 25, 2015), this Court held that reserve information is discoverable.")

Case Date Jurisidction State Cite Checked
2017-05-25 Federal NV

Chapter: 40.16

Case Name: Barge v. State Farm Mutual Automobile Ins. Co., Case No. C16-0249JLR, 2016 U.S. Dist. LEXIS 155066 (W.D.D. Wash. Nov. 8, 2016)
("But even if an insurer demonstrates that an attorney was not serving in a quasi-fiduciary role, an insured may still be able to pierce the insurer's assertion of attorney-client privilege. . . . If the insured asserts that the insurer has engaged 'in an act of bad faith tantamount to civil fraud' and makes 'a showing that a reasonable person would have a reasonable belief that an act of bad faith has occurred' or that an insurer has engaged in a 'bad faith attempt to defeat a meritorious claim,' then the insurer waives the privilege. . . . Something more than an honest disagreement between the insurer and the insured about coverage under the policy must be at play."; "In federal court, opinion work product 'is virtually undiscoverable.'. . . This court has previously agreed that 'reserve information that was created in anticipation of litigation is protected by the work product doctrine.'"; "Therefore, given State Farm's representations that the reserve amounts are based on the opinions and evaluation of State Farm personnel after State Farm reasonably contemplated litigation in this case, State Farm has properly withheld these documents under the work product doctrine.")

Case Date Jurisidction State Cite Checked
2016-11-08 Federal WA

Chapter: 40.16

Case Name: Lynk Labs, Inc. v. Juno Lighting LLC, No. 15 C 4833, 2016 U.S. Dist. LEXIS 145853 (N.D. Ill. Oct. 21, 2016)
(holding that the work product doctrine did not protect a litigant's price reduction, because that was not analogous to a reserve dollar amount; "Defendants contend that the amount of the purchase price reduction is protected by the work product doctrine."; "[T]he amount of the purchase price reduction agreed to by these entities does not reveal counsel's strategies, legal theories, or mental impressions. Furthermore, the work product doctrine does not protect bare facts."; "Moreover, Defendants have not established that the primary motivating purpose behind the purchase price reduction was to aid in this litigation."; "[C]ounsel is not seeking protection for his assessment of the potential exposure and cost of the current litigation; instead, the amount of the reduction was a business decision based not only on counsel's input but also on negotiations between the buyer and seller, Acuity and Schneider. Thus, the facts here are more comparable to those in Nat'l Union Fire Ins. Co. v. Cont'l Illinois Grp., No. 85 C 7080, 1988 U.S. Dist. LEXIS 7826, 1988 WL 79513, at *2 (N.D. Ill. July 22, 1988), where the court found no work product protection because the litigation reserve was established by company management with counsel input.")

Case Date Jurisidction State Cite Checked
2016-10-21 Federal IL

Chapter: 40.16

Case Name: Ingenco Holdings, LLC v. Ace American Insurance Co., Case No. C13-543RAJ, 2014 U.S. Dist. LEXIS 170357 (W.D. Wash. Dec. 8, 2015)
("[R]ather than demonstrate the relevance (or lack thereof) of evidence of ACE's loss reserves in this case, the parties argue about the categorical discoverability of loss reserves. Neither party persuades the court. Loss reserves can be relevant. For example, where an insured asserts that an insurer offered an unreasonably low sum to resolve a claim, evidence of loss reserves may help illuminate that assertion. But in other cases, such as where an insurer denies coverage based solely on its interpretation of its policy, loss reserves likely have no relevance. The court has no idea what relevance loss reserves might have in this case, because neither party has addressed that issue.")

Case Date Jurisidction State Cite Checked
2015-12-08 Federal WA

Chapter: 40.16

Case Name: Carlyle Investment Mgmt L.L.C. v. Moonmouth Co. S.A., C.A. No. 7841-VCP, 2015 Del. Ch. LEXIS 42 (Del. Ct. Ch. Feb. 24, 2015)
(holding that the funding agreement deserved work product protection under Delaware law; "[T]his Court previously has found litigation reserve numbers, as well as the process of setting them, to involve protected opinion work product because they 'reveal the mental impressions, thoughts, and conclusions of an attorney in evaluating a legal claim.")

Case Date Jurisidction State Cite Checked
2015-02-24 State DE

Chapter: 40.16

Case Name: National Union Fire Ins. Co. of Pittsburgh, Pa. v. Donaldson Co., Inc., Civil No. 10-4948 (JRT/JJG), 2014 U.S. Dist. LEXIS 85621, at *12-13 (D. Minn. June 24, 2014)
(analyzing work product issues in connection with a first-party insurance bad faith claim; "In light of this abundant precedent supporting discovery of reserve information in cases involving allegations of bad faith, the Court concludes that it was not clearly erroneous to compel the production of the reserve information. To the extent that Plaintiffs' reserve information includes considerations not relevant to their assessment of Donaldson's coverage, Donaldson's requests are aimed at relevant evidence for the purposes of discovery, not for the purposes of admissibility at trial, and the Court deems the information sufficiently relevant for discovery purposes. . . . [W]ithout any argument or showing by Plaintiffs that the reserve information was made in anticipation of litigation, the Court will not exclude the documents from the realm of discoverable material.")

Case Date Jurisidction State Cite Checked
2014-06-24 Federal MN

Chapter: 40.16

Case Name: Sandisk Corp. v. Round Rock Research LLC, Case Nos. 11-cv-05243- & 13-mc-80271-RS (JSC), 2014 U.S. Dist. LEXIS 22503, at *13-14, *14 (N.D. Cal. Feb. 21, 2014)
(holding that revenue projections did not deserve work product protection, even if they reflected a value of litigation; "Round Rock contends that its revenue projections per licensing target are protected work product because they were prepared by its CEO, Gerald deBlasi, who is also an attorney. In particular, it contends the projections reflect 'the 'mental impressions, conclusion, [and] opinions' of Mr. deBlasi regarding the value of Round Rock's legal claims for patent infringement.'. . . Mr. deBlasi has submitted a declaration in which he states, in a conclusory fashion, that the estimates would have been different if Round Rock were not in litigation or anticipating litigation."; "Round Rock's work product assertion, if accepted, would mean that any company's revenue projections would be protected work product so long as the projection included some valuation of actual or potential litigation. It is unsurprising then that Round Rock cites no case that supports its assertion. They are ordinary revenue projections that do not disclose any attorney impressions or opinion. Accordingly, the documents must be produced in unredacted form.")

Case Date Jurisidction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 40.16

Case Name: Progressive Cas. Ins. Co. v. FDIC, 298 F.R.D. 417, 426 (N.D. Iowa 2014)
("FDIC-R [receiver of closed bank] sent letters to the Bank's former officers and directors on May 7, 2010, demanding reimbursement in the amount of at least $82 million. Progressive, having issued a Policy that at least arguably might provide coverage for some part of that claim, retained counsel four days later to advise it concerning FDIC-R's claim. I find that it was easily foreseeable, at that point, that litigation would eventually ensue. Progressive, through the declaration of its counsel, has met its burden of showing that its internal reserve information created on or after May 11, 2010, was prepared in anticipation of that litigation and, thus, is protected from disclosure. However, to the extent that Progressive generated reserve information concerning FDIC-R's claims against the Bank's officers and directors prior to May 11, 2010, Progressive has not shown that any privilege would apply. As such, Progressive will be ordered to produce documents responsive to FDIC-R's document request numbers 21 and 22, but only to the extent that those documents were generated prior to May 11, 2010. Progressive shall produce any such documents on or before April 21, 2014.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal IA B 8/14

Chapter: 40.16

Case Name: Gronik v. Balthasar, Case Nos. 10-CV-954 & 11-CV-697, 2013 U.S. Dist. LEXIS 138349, at *14 (E.D. Wis. Sept. 24, 2013)
(analyzing a first party bad faith insurance case; "Chubb [defendant insurer] claims that its reserve information is privileged work product. I disagree. For the work-product privilege to apply, a document must have been prepared 'in anticipation of litigation.' Fed. R. Civ. P. 26(b)(3)(A). Plaintiffs are only seeking reserve information from before February 11, 2011, the date on which Chubb first adjusted plaintiffs' claims. Prior to that date, there was no identifiable dispute between the parties. Therefore, I find that the documents discussing the reserve were prepared in the ordinary course of business and not in anticipation of litigation.")

Case Date Jurisidction State Cite Checked
2013-09-24 Federal WI B 4/14

Chapter: 40.16

Case Name: JPMorgan Chase & Co. v. Am. Century Co., C.A. No. 6875-VCN, 2013 Del. Ch. LEXIS 101, at *9, *10 (Del. Ch. Apr. 18, 2013)
(finding that the work product doctrine protected JPMorgan's reserve figures, but that triggered an at issue waiver requiring production of the litigation reserve numbers; "The process of setting litigation reserve numbers (as well as the actual litigation reserve numbers themselves) 'reveal[s] the mental impressions, thoughts, and conclusions of an attorney in evaluating a legal claim.' . . . 'By their very nature [litigation reserve numbers] are prepared in anticipation of litigation and, consequently, they are protected from discovery as opinion work product.' Moreover, under Delaware law, which applies the 'because of litigation' test, 'work product protection is not precluded merely because the [document] may also serve a business function.'" (citation omitted); "J.P. Morgan worked collaboratively with its in-house and outside legal counsel to determine litigation reserve numbers for the arbitration claims asserted against it. It also avers that the litigation reserve numbers were not communicated to a third-party accountant or regulator. Consequently, the Court is persuaded that the litigation reserve numbers for the arbitration claims were created -- in large part -- because of litigation, and, therefore, are protected by the work product doctrine.")

Case Date Jurisidction State Cite Checked
2013-04-18 State DE B 3/14

Chapter: 40.16

Case Name: Woodruff v. Am. Family Mut. Ins. Co., 291 F.R.D. 239, 249-50 (S.D. Ind. 2013)
(analyzing a first party bad faith claim pursued by the trustee of a bankrupt insured; "American Family also seeks to withhold from production documents related to its reserves determination for the Hamilton Action. These reserve documents would not be protected from disclosure by the attorney-client privilege, and as stated above, cannot be withheld from Key [Defendant in the underlying case] on the basis of the work-product doctrine." (footnote omitted))

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

Chapter: 40.16

Case Name: Burke v. Ability Ins. Co. (In re Estate of Hermsen), 291 F.R.D. 343, 349-50 (D.S.D. 2013)
(holding that the work product doctrine did not protect data about a long term care insurance company's reserves; "The court does conclude, however, that evidence related to reserves in the aggregate is relevant, discoverable, and not protected by privilege because evidence suggests that they were prepared in the ordinary course of business.")

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

Chapter: 40.16

Case Name: Starr Indem. & Liab. Co. v. Cont'l Cement Comp., Case No. 4:11CV809 JAR, 2012 U.S. Dist. LEXIS 170988, at *10-11 (E.D. Mo. Dec. 3, 2012)