McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 245 of 245 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 Jurisdiction 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 Jurisdiction State Cite Checked
2005-11-08 Federal VA

Chapter: 40.4
Case Name: In re Domestic Airline Travel Antitrust Litig., MDL Dkt. No. 2656, Misc. No. 15-1404 (CKK), 2018 U.S. Dist. LEXIS 113795 (D.D.C. July 10, 2018)
(holding that various airline defendants could not discover plaintiffs' work product relating to its earlier settlement with Southwest Airlines; "Defendants' preparation of a defense in this case should not rely upon gaining insight into Plaintiffs' trial strategy; instead, Defendants may ascertain directly relevant factual information from Southwest, which it can then use either to bolster its defense or to challenge it."; "Accordingly, having determined that Defendants may obtain the factual information they seek directly from Southwest, which will avoid any infringement on Plaintiffs' attorney work product protection, this Court OVERRULES the Defendant's objections regarding Interrogatory No. 15 and FULLY ADOPTS the Special Master's Amended Report and Recommendation No. 4, and it is hereby this 10th day of July, 2018.")

Case Date Jurisdiction State Cite Checked
2018-07-10 Federal DC

Chapter: 40.4
Case Name: Carr v. Lake Cumberland Regional Hosp., Civ. A. No. 15-138-DLB-HAI, 2017 U.S. Dist. LEXIS 188865 (E.D. Ky. Nov. 15, 2017)
("The availability of facts through other discovery tools does not obviate the attorney-client privilege of a communication containing those facts. . . . Nor does it allow an adverse party to obtain discovery of those facts contrary to Rule 26(b)(3), the work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2017-11-15 Federal KY

Chapter: 40.4
Case Name: Bard v. Brown County, Case No. 1:15-cv-00643, 2017 U.S. Dist. LEXIS 114073 (S.D. Ohio July 21, 2017)
(holding that defendant could not overcome plaintiff's work product protection; "[T]he Court wants to make clear that insofar as defendants seek to obtain relevant factual information from any person, including Varnau, the work product doctrine does not prevent the discovery of the underlying facts of a particular dispute. . . Defendants may inquire about the relevant facts by deposing the appropriate witnesses or through other discovery vehicles. . . . it is likely that Varnau will be a fact witness in this case given his work as a volunteer assistant to his wife, Dr. Judith Varnau, at the time of Mr. Goldson's death and during the ensuing inquiry into the cause of his death. Relevant factual information Varnau may have learned while working as an unpaid assistant to the Brown County coroner and then shared with counsel would not be entitled to work product protection. Thus, to the extent defendants may seek documents or deposition testimony from Varnau about the facts underlying the death of Mr. Goldson, such facts must be disclosed. However, because plaintiff's privilege log documents consist of the mental impressions and legal strategy of counsel and Varnau, those documents are not discoverable.")

Case Date Jurisdiction State Cite Checked
2017-07-21 Federal OH

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
1992-01-01 Federal

Chapter: 40.7
Case Name: Polk v. Sherwin-Williams Co., Case No. 3:16cv1491 (MPS), 2018 U.S. Dist. LEXIS 93201 (D. Conn. June 4, 2018)
(holding that plaintiff's argument that his former lawyer lacked authority to settle a case triggered an implied waiver; "Plaintiff withheld eight pages of undated notes prepared by Attorney Katie Roy of Fortgang regarding damage calculations, plaintiff's commissions, and the contents of his personnel file (documents Bates numbered 1-8). These documents do not appear to relate to discussions regarding settlement or settlement authority. Rather, they appear to be a summary of information obtained from plaintiff in order to formulate a case strategy, as well as Attorney Roy's thoughts. . . . As such, the documents Bates numbered 1-8 are protected by the attorney-client and/or attorney work product privileges, and the objection to their production is sustained.")

Case Date Jurisdiction State Cite Checked
2018-06-04 Federal CT

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2012-10-11 Federal WV B 12/13

Chapter: 40.11
Case Name: Matter of Peerenboom v. Marvel Entertainment, LLC, 6232N, 162152/15, 2018 N.Y. App. Div. LEXIS 2364 (N.Y. Sup. Ct. April 5, 2018)
(holding that a litigation-related legal bill deserved work product protection; also holding that documents created by an investigation firm deserved work product protection; "The detailed invoices prepared by Perlmutter's attorneys are also protected as work product since they contain summaries of their 'legal research, analysis, conclusions, legal theory or strategy.'")

Case Date Jurisdiction State Cite Checked
2018-04-05 State NY

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2014-12-05 Federal OH

Chapter: 40.12
Case Name: Booth v. Galveston Cty., Civ. A. No. 3:18-CV-00104, 2018 U.S. Dist. LEXIS 181063 (S.D. Tex. Oct. 10, 2018)
December 12, 2018 (PRIVILEGE POINT)

Privilege and Work Protection For Lawyers' Communications With Third Parties and Reports of Those Communications: Part I

Lawyers' communications with the third parties generally cannot deserve privilege protection, but what about work product protection?

In Booth v. Galveston Cty., Civ. A. No. 3:18-CV-00104, 2018 U.S. Dist. LEXIS 181063 (S.D. Tex. Oct. 10, 2018), the court addressed work product protection for emails between plaintiffs' lawyer and two fact witnesses. The court acknowledged that "[a]t first blush, it might be inconceivable how documents exchanged with a third-party can fall within the sphere of privileged status." But then the court explained that "[i]f a written statement made by a third-party witness is covered by the work-product privilege, it is hard to imagine why an email exchange between counsel and a third-party witness providing the same information would not be protected by the same privilege." The court therefore protected the emails as work product, because they were "created for litigation purposes."

Most courts would also protect the "intangible" work product reflected in any similar oral communications between lawyers and fact witnesses. Next week's Privilege Point will address possible privilege and work product protection for lawyers' reports to their clients about such third party communications.

Case Date Jurisdiction State Cite Checked
2018-10-10 Federal

Chapter: 40.12
Case Name: Hobart Corporation v. The Dayton Power & Light Co., Case No. 3:13-cv-115, 2017 U.S. Dist. LEXIS 136682 (S.D. Ohio Aug. 24, 2017)
("Robert Bleazard was Plaintiff Kelsey-Hayes' 30(13)(6) designee. In preparation for his April 27, 2017, deposition, he made certain interview notes. He also took notes when he and his attorney interviewed Jack Wantz."; "Plaintiffs maintain that, because these notes were prepared in anticipation of litigation by an agent of Kelsey-Hayes, they are protected from disclosure by the work product doctrine and, because both Bleazard and Wantz have already been deposed in the context of this litigation, Defendants cannot show a substantial need for Bleazard's notes. The Court agrees. Accordingly, Plaintiffs need not produce them."; "'Bleazard's notes also contain one statement that is subject to the attorney-client privilege and constitutes core work product.'")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal OH

Chapter: 40.12
Case Name: Hobart Corporation v. The Dayton Power & Light Co., Case No. 3:13-cv-115, 2017 U.S. Dist. LEXIS 136682 (S.D. Ohio Aug. 24, 2017)
("Larry Strayer was a paralegal in NCR's Legal Department. At the request of NCR's legal counsel, he interviewed four then-current NCR employees and two retired NCR employees concerning NCR's waste disposal at the Cardington Road Landfill in the 1950s and 1960s. After those interviews, he drafted two confidential memos to the file. One is dated August 15, 1989; the other is dated August 18, 1989. There are also certain maps attached to the August 18, 1989, memo, on which the interviewees marked the locations of the dumping sites they discussed in their interviews."; "Based on the holding in Upjohn, the Court finds that NCR's interview summaries are protected in their entirety by the attorney-client privilege and the work product doctrine. To the extent that the summaries record communications between the NCR employees and Strayer, made in confidence at the direction of corporate counsel in order to secure legal advice, the responses to Strayer's questions are protected from disclosure by the attorney-client privilege, regardless of Defendants' need for this information."; "In addition, to the extent that the interview summaries also contain Strayer's mental impressions, opinions and conclusions concerning the responses to his questions, these statements are protected as core work product and 'cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship.'. . . This is true even though the summaries were prepared in anticipation of different litigation involving the Cardington Road Landfill.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal OH

Chapter: 40.12
Case Name: Hobart Corporation v. The Dayton Power & Light Co., Case No. 3:13-cv-115, 2017 U.S. Dist. LEXIS 136682 (S.D. Ohio Aug. 24, 2017)
("Given that Lowe [former NCR employee] and Trimbach [former NCR employee] are both now deceased, Defendants argue that they have a substantial need for the factual information contained in the interview summaries."; "Citing Upjohn, Plaintiffs again argue that these memoranda are protected in their entirety by the attorney-client privilege, regardless of need. In the alternative, they argue that portions of the memoranda are core work product and are protected because they contain the attorneys' mental impressions. For the reasons cited above, the Court agrees."; "To the extent that these interview summaries reflect responses of former NCR employees to the attorneys' interview questions, and the communications were made for the purpose of securing legal advice, they are protected by the attorney-client privilege. In addition, to the extent that the interview summaries also contain the attorney's mental impressions of the interviewees' statements, they are protected as core work product. Accordingly, Plaintiffs need not produce these documents.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal OH

Chapter: 40.12
Case Name: In the Matter of Harold Peerenboom v. Marvel Entertainment, LLC, 162152/2015, 2017 N.Y. Misc. LEXIS 3103 (N.Y. Sup. Ct. Aug. 15, 2017)
(after a remand, analyzing possible work product protection for a communications between Marvel's CEO and his personal defamation lawyer conducted on Marvel's computer system; finding that some documents deserved work product protection and some did not; "[T]he mere fact that a narrative witness statement is transcribed by an attorney is not sufficient to render the statement work product,' particularly where a lay person could have transcribed the statement.")

Case Date Jurisdiction State Cite Checked
2017-08-15 State NY

Chapter: 40.12
Case Name: Estate of Joseph Paterno v. National Collegiate Athletic Assoc., No. 877 MDA 2015, No. 1709 MDA 2014, No. 878 MDA 2015, 2017 Pa. Super. LEXIS 570, 2017 Pa. 247 (Pa. July 25, 2017)
(holding that a Task Force rather than Penn State itself was the client in connection with the investigation into the Sandusky sexual misconduct scandal conducted by Freeh; holding that the investigation-related interview notes and summaries necessarily reflected lawyers' opinions; noting that Pennsylvania Rules the work product doctrine could extend to documents without anticipated litigation; "While Upjohn is not binding on this Court, we find its analysis persuasive and in accord with the text of Rule 4003.3 and its explanatory comment. Indeed, Rule 4003.3 explicitly identifies memoranda and notes as worthy of protection because, as Upjohn explains, notes and memoranda are highly likely to reflect an attorney's mental impressions, opinions, and conclusions -- the other items explicitly protected by the Rule. A contrary result would discourage written notes and summaries such as those presently at issue. The trial court erred in ordering Appellants to produce redacted copies of FSS attorney interview notes and summaries. Work product doctrine protects those documents in their entirety."; "The same result does not obtain for the notes of FGIS investigators. Concerning representatives other than the party's attorney, the Rule protects only 'representative's disclosure of his mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.' Pa.R.C.P. No. 4003.3. The explanatory comment clarifies, '[m]emoranda or notes made by the representative are not protected.' Pa.R.C.P. No. 4003.3, explanatory comment. Thus, Rule 4003.3 protects FGIS investigator notes only to the extent that those notes reflect 'mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.' Pa.R.C.P. No. 4003.3.")

Case Date Jurisdiction State Cite Checked
2017-07-25 State PA

Chapter: 40.12
Case Name: Martinez v. Kleinfeld Bridal Corp., 16-CV-348 (RA) (JLC), 2017 U.S. Dist. LEXIS 103261 (S.D.N.Y. June 30, 2017)
(holding that notes prepared by Littler Mendelson of an incident involving plaintiff deserved privilege and work product protection; noting that the court's in camera review of notes showed that Littler was acting in a legal capacity rather than just investigators; "In addition, the Court finds that the notes taken at the May 7 meeting are also protected by the work product doctrine. These notes memorialize a discussion of Martinez's refusal to sign a release waiver and defendant's concern that Martinez would sue. The notes were taken on the day of Martinez's termination and after he had been terminated. Both the timing and the text of the notes suggest that they were prepared in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal NY

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2017-03-30 Federal PA
Comment:

key 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2012-06-28 Federal VA

Chapter: 40.12
Case Name: Sandra T.E. v. S. Berwyn Sch. Dist. 100, No. 08-3344, 2009 U.S. App. LEXIS 28983 (7th Cir. App. Feb. 25, 2009)
(reversing the lower court's denial of privilege protection, and holding that Sidley Austin lawyers were hired as legal advisors to conduct an investigation into possible sexual abuse at the school – so their investigation-related documents deserved privilege and work product protection; also finding the work product doctrine applicable; "The work-product doctrine also protects the materials at issue here from disclosure; and to the extent some of the witnesses interviewed by Sidley attorneys were not district employees; this is an independent rather than a duplicate source of protection."; "[T]he work-product doctrine would protect any notes from interviews with former employees as equally as it protects notes from interviews with third parties who never worked for the School District."; "The plaintiffs maintain that the Sidley investigation was only designed to quell public outrage and prevent similar occurrences in the future, but the record simply does not support that conclusion. The chronology of events confirms that Sidley was hired to conduct the District 100 investigation not merely in anticipation of likely litigation but in response to the actual filing of this lawsuit. True, the Board had other motivations as well – it was responding to the public distress about the allegations, the possible complicity of the school principal, and the urgent need to implement prospective protective measures – but this does not remove the investigation from the protection of the work-product doctrine. That Sidley was not the District's litigation counsel is not dispositive. Sidley's witness-interview notes and memoranda were plainly prepared 'with an eye toward' this pending litigation and therefore qualify for work-product protection.")

Case Date Jurisdiction State Cite Checked
2009-02-25 Federal
Comment:

key case


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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
1997-01-01 Federal
Comment:

key case


Chapter: 40.13
Case Name: Booth v. Galveston Cty., Civ. A. No. 3:18-CV-00104, 2018 U.S. Dist. LEXIS 181063 (S.D. Tex. Oct. 10, 2018)
December 12, 2018 (PRIVILEGE POINT)

Privilege and Work Protection For Lawyers' Communications With Third Parties and Reports of Those Communications: Part I

Lawyers' communications with the third parties generally cannot deserve privilege protection, but what about work product protection?

In Booth v. Galveston Cty., Civ. A. No. 3:18-CV-00104, 2018 U.S. Dist. LEXIS 181063 (S.D. Tex. Oct. 10, 2018), the court addressed work product protection for emails between plaintiffs' lawyer and two fact witnesses. The court acknowledged that "[a]t first blush, it might be inconceivable how documents exchanged with a third-party can fall within the sphere of privileged status." But then the court explained that "[i]f a written statement made by a third-party witness is covered by the work-product privilege, it is hard to imagine why an email exchange between counsel and a third-party witness providing the same information would not be protected by the same privilege." The court therefore protected the emails as work product, because they were "created for litigation purposes."

Most courts would also protect the "intangible" work product reflected in any similar oral communications between lawyers and fact witnesses. Next week's Privilege Point will address possible privilege and work product protection for lawyers' reports to their clients about such third party communications.

Case Date Jurisdiction State Cite Checked
2018-10-10 Federal

Chapter: 40.13
Case Name: United States v. SuperValu, Inc., No. 11-3290, 2018 U.S. Dist. LEXIS 115976 (C.D. Ill. July 12, 2018)
(analyzing protection for communications between the relator and defendant's employees; "If the documents are simply paper or electronic records of statements made by employees of SuperValu and other Defendants, the Court fails to see how such documents could possibly constitute the Relators' work product. Accordingly, those documents should have been turned over by the Relators to the Defendants upon request, pursuant to Rule 26(b)(3)(C)(ii).")

Case Date Jurisdiction State Cite Checked
2018-07-12 Federal IL

Chapter: 40.13
Case Name: Meyer v. NCL (Bahamas), Ltd., Case No. 16-23238-CIV-WILLIAMS/SIMONTON, 2017 U.S. Dist. LEXIS 125045 (S.D. Fla. Aug. 8, 2017)
(holding that an investigation following a physical assault on a cruise ship deserved work product protection; also holding that the cruise line did not waive that work product protection by providing witness statements to the FBI; "Because the incident report was prepared at the direction of counsel in anticipation of litigation, the undersigned finds that the incident report is protected by the work product doctrine. . . . Additionally, an in camera review of the documents indicates that the incident report in particular was a collection of information that is geared towards the defense of litigation. Such reports are protected by the work product doctrine. . . . because the incident report was not provided to the FBI or any other third party, it is not necessary to determine whether the protection was waived."; "Similarly, the undersigned finds that the notes completed by security officers Herring and Shrestha are protected under the work product doctrine. The undersigned finds the Defendant's assertion that the notes were compiled as part of the Defendant's procedures in anticipation of litigation persuasive, and the Plaintiff has not met her burden to show that she has substantial need or undue burden regarding the notes."; "An in camera review of the witness statements gives credence to the Defendant's assertion that the witnesses statements were taken in anticipation of litigation. . . . The witnesses statements are written on a prepared form provided by the Defendant and indicate that the statements were taken by the Defendant's personnel. As other courts have done previously, the undersigned finds that such documents were prepared in anticipation of litigation and are therefore protected by the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2017-08-08 Federal FL
Comment:

key case


Chapter: 40.13
Case Name: Meyer v. NCL (Bahamas), Ltd., Case No. 16-23238-CIV-WILLIAMS/SIMONTON, 2017 U.S. Dist. LEXIS 125045 (S.D. Fla. Aug. 8, 2017)
(holding that an investigation following a physical assault on a cruise ship deserved work product protection; also holding that the cruise line did not waive that work product protection by providing witness statements to the FBI; "Because the incident report was prepared at the direction of counsel in anticipation of litigation, the undersigned finds that the incident report is protected by the work product doctrine. . . . Additionally, an in camera review of the documents indicates that the incident report in particular was a collection of information that is geared towards the defense of litigation. Such reports are protected by the work product doctrine. . . . because the incident report was not provided to the FBI or any other third party, it is not necessary to determine whether the protection was waived."; "Similarly, the undersigned finds that the notes completed by security officers Herring and Shrestha are protected under the work product doctrine. The undersigned finds the Defendant's assertion that the notes were compiled as part of the Defendant's procedures in anticipation of litigation persuasive, and the Plaintiff has not met her burden to show that she has substantial need or undue burden regarding the notes."; "An in camera review of the witness statements gives credence to the Defendant's assertion that the witnesses statements were taken in anticipation of litigation. . . . The witnesses statements are written on a prepared form provided by the Defendant and indicate that the statements were taken by the Defendant's personnel. As other courts have done previously, the undersigned finds that such documents were prepared in anticipation of litigation and are therefore protected by the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2017-08-08 Federal FL
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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
1995-01-01 State VA

Chapter: 40.14
Case Name: Leakey v. The Setai Group LLC, 151298/2014, 2017 N.Y Misc. LEXIS 3215, 2017 NY Slip Op 31806(U) (N.Y. Sup. Ct. Aug. 28, 2018)
(holding that a non-party witnesses affidavit deserved fact rather than opinion work product protection; "Defendants oppose production of these affidavits and argue that these non-party witness affidavits are privileged as attorney work product. However, these affidavits are not the product of counsel's professional skills, such as those reflecting an attorney's legal research, analysis, conclusions, legal theory or strategy. As such, these non-party witness affidavits are not subject to absolute attorney work product privilege, but are conditionally privileged because they qualify as trial preparation materials.")

Case Date Jurisdiction State Cite Checked
2018-08-28 State NY

Chapter: 40.14
Case Name: Leakey v. The Setai Group LLC, 151298/2014, 2017 N.Y Misc. LEXIS 3215, 2017 NY Slip Op 31806(U) (N.Y. Sup. Ct. Aug. 28, 2018)
(holding that a non-party witnesses affidavit deserved fact rather than opinion work product protection; "Defendants oppose production of these affidavits and argue that these non-party witness affidavits are privileged as attorney work product. However, these affidavits are not the product of counsel's professional skills, such as those reflecting an attorney's legal research, analysis, conclusions, legal theory or strategy. As such, these non-party witness affidavits are not subject to absolute attorney work product privilege, but are conditionally privileged because they qualify as trial preparation materials.")

Case Date Jurisdiction State Cite Checked
2018-08-28 State NY

Chapter: 40.14
Case Name: Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, Adv. Proc. No. 08-01789 (SMB), Adv. Proc. No. 10-04292 (SMB), 2017 Bankr. LEXIS 3638 (S.D.N.Y. Oct. 17, 2017)
(in a case arising from Bernie Madoff's fraud, holding that drafts of Madoff's declaration deserved work product protection; "The drafts of the Madoff Declaration prepared by Chaitman [Lawyer for Madoff's sister-in-law's husband] are protected work product."; "Madoff's edits present a closer question that was not directly decided in PETA. The Trustee maintains that communications from Madoff to Roman [Bernie Madoff's sister-in-law's husband] fall outside the scope of the work-product doctrine. . . . On the one hand, communications from non-parties to counsel for parties in a lawsuit do not generally qualify as work product. . . . On the other hand, the work product protection generally extends to an attorney's communications with a third party witness relating to the party's completion of the affidavit."; "Chaitman's drafts and Madoff's edits constitute communications between a party's attorney and a non-party witness relating to the completion of the Madoff Declaration. Moreover, his edits are intertwined with the drafts prepared by Chaitman that are her work product. Except for a couple of interlineations, his edits simply struck Chaitman's language and cannot be viewed in isolation from the language he struck. Finally, the Trustee questioned Madoff at length about the draft declaration and his edits."; "Accordingly, the drafts of the Madoff Declaration and Madoff's edits to the drafts are work product."; "[T]he Trustee was free to question Madoff about the circumstances and communications surrounding the execution of the Madoff Declaration. The Trustee did so, without objection, asking Madoff about the substance of the Madoff Declaration as well as the changes he made to an earlier draft and his communications with opposing counsel. Under PETA, however, a draft declaration sent to a third party witness retains its privilege, and as discussed, communications relating to the preparation and execution of the declaration are also protected by the work product privilege. Consequently, the privilege was not waived by the exchange of drafts, including drafts containing Madoff's edits, between Chaitman and Madoff through the Romans, Chaitman's agents.")

Case Date Jurisdiction State Cite Checked
2017-10-17 Federal NY

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2012-12-11 Federal DE B 9/13

Chapter: 40.15
Case Name: Kohl v. Werner Co., Case No. 16-CV-1021, 2018 U.S. Dist. LEXIS 65774 (E.D. Wis. April 19, 2018)
(holding that plaintiff could not claim work product for his video tape of defendant's lawyer and consulting expert inspecting property; "During the course of the inspection, defense counsel learned that an investigator for the plaintiff was videotaping and surveilling defense counsel and the defense expert while they were performing the inspection. . . . The defendants argue the plaintiff improperly infringed on the defense counsel's work product and seeks an order requiring the plaintiff to produce the videotape. . . . The defendants previously asked that they be granted leave to return to conduct the inspection without interference from the plaintiff and for the plaintiff to bear the costs of the inspection, but have since withdrawn those requests."; "The plaintiff opposes the motion, arguing that no part of the incident location is private and that the inspection could be viewed by any individual walking on the sidewalk, neighbors, individuals in parked cars, anyone driving on the street, or even the plaintiff himself, who lives three houses away."; "Even considering Wisconsin law, the plaintiff attempts to liken its surveillance of defense counsel to situations where a plaintiff is surveilled as he goes about his daily life. . . . This often occurs in situations where the plaintiff allegedly suffered disabling injuries and the defense seeks to use surveillance to prove that the plaintiff's physical limitations are not as great as those alleged in the lawsuit."; "That is a far cry from what happened here. It was the defense counsel and his expert that were surveilled, not the client. The plaintiff now argues that his surveillance of defense counsel's work product (which plaintiff's counsel neither admits nor denies) has itself become protected work product; thus, he need not produce the videotape. I disagree. While it would have been appropriate for plaintiff's counsel and his agent to be present when defense counsel inspected the premises, this was something wholly different. Plaintiff's investigator surreptitiously surveilled and videotaped defense counsel. Plaintiff has presented no authority or persuasive argument which supports such conduct. Accordingly, plaintiff must produce a copy of the videotape to the defendants. Whether this videotape will be admissible at trial as the defendants request, however, is a question for another day.")

Case Date Jurisdiction State Cite Checked
2018-04-19 Federal WI

Chapter: 40.15
Case Name: Hunt v. Lightfoot, No. 1D17-3938, 2018 Fla. App. LEXIS 2047 (Fla. App. 1d Feb. 9, 2018)
(holding that a surveillance videotape was discoverable only if a litigant would use it at trial; "It is well-established that surveillance videos and other materials prepared by a party's investigator in anticipation of or in connection with litigation are attorney work product. . . . It is also well-established that although the existence of the surveillance must be disclosed upon request whether or not it will be used at trial, the content of the surveillance is discoverable only if it will be used at trial."; "Here, it is undisputed that Hunt does not intend to use the 2016 surveillance video at trial. Thus, the content of the video is not discoverable absent a showing of extraordinary circumstances."; "We have not overlooked Respondent's argument that because Hunt intends to use the 2014 surveillance video at trial, the 2016 video must also be produced in discovery. However, under the circumstances of this case, we do not find this argument -- or the federal cases on which it is based -- persuasive because the videos at issue in this case do not depict a continuous period of surveillance such that principles of fairness and completeness require the production of the later video in conjunction with the earlier video. Rather, the videos involve entirely separate periods of surveillance that were two years apart and were conducted by different companies.")

Case Date Jurisdiction State Cite Checked
2018-02-09 Federal FL

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
1990-01-01 State VA

Chapter: 40.16
Case Name: Brown v. Nationwide Affinity Ins. Co. of America, 4:17-CV-04176-LLP, 2018 U.S. Dist. LEXIS 109115 (D.S.D. June 29, 2018)
(holding that an insurance company's reserve figure did not deserve work product protection; "Nationwide set forth its position that the reserve information might be discoverable in a third-party bad faith action, but was not discoverable in a first-party bad faith claim."; "While this sentence is lacking somewhat in clarity, it can be read as a concession by Nationwide that the reserve information was not created in anticipation of litigation. At the very least, it is clear that Nationwide did not affirmatively assert that reserve information was created in anticipation of litigation."; "After plaintiffs filed their motion to compel, Nationwide then asserted the work product doctrine in resistance to the motion. . . . . But in that pleading, Nationwide simply makes a bare-bones assertion that the reserves were set in plaintiffs' case in anticipation of litigation. Id. at p. 5. Nationwide provides no affidavit or other support for this factual assertion. Nationwide does not explain who set the reserve or when the reserve was set or subsequently altered or provide any other information about this allegedly protected information."; "Nationwide fails to assert the facts required to (1) establish that the reserves were set in anticipation of litigation and (2) to establish the facts required by Rule 26 to allow the plaintiffs and the court to evaluate its assertion of work product doctrine as a shield to discovery.")

Case Date Jurisdiction State Cite Checked
2018-06-29 Federal SD

Chapter: 40.16
Case Name:


Case Date Jurisdiction State Cite Checked
2017-07-14

Chapter: 40.16
Case Name: In re Residential Capital, LLC v. Certain Underwriters at Lloyd's of London, Ch. 11, Case No. 12-12020 (MG), Jointly Administered, Adv. No. 15-01025 (SHL), 2017 Bankr. LEXIS 1951 (S.D.N.Y. July 14, 2017)
(using reserve information for a third party insurance carrier; "Even if relevant, reserve information may be protected by the attorney-client and work product privileges.")

Case Date Jurisdiction State Cite Checked
2017-07-14 Federal NY

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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)
(analyzing privilege and work product issues in a first party insurance context; "The Court finds that the actual amount of reserves set by Starr is not subject to the work product doctrine and is discoverable. . . . The Court, however, finds that 'the work-product doctrine covers information about the process of setting reserves -- how and why they were set -- [Starr] is not required to answer questions that seek this type of information.'. . . Therefore, Starr shall provide the reserves amount set but is not required to answer any questions or provide any documents regarding the process of setting reserves. . . . Moreover, the Court does not believe that Continental has demonstrated any substantial need for the documentation regarding the process of setting reserves.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal MO B 9/13

Chapter: 40.18
Case Name: Fangman v. Genuine Title, LLC, Civ. A. No. RDB-14-0081, 2016 U.S. Dist. LEXIS 79166 (D. Md. June 17, 2016)
(holding that the attorney-client privilege did not protect a law firm's solicitation communications; also holding that the communications deserved ordinary work product protection that could be overcome; "While Plaintiffs' counsel object that these cases dealt with the attorney-client privilege as opposed to the work-product doctrine, they have failed to cite a single case holding that solicitation materials are shielded from discovery by the work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2016-06-17 Federal MD

Chapter: 40.18
Case Name: Halley v. Oklahoma, Case No. 14-CV-562-JHP, 2016 U.S. Dist. LEXIS 74567 (E.D. Okla. June 8, 2016)
(holding that plaintiff's investigator's interviews of witnesses in Oklahoma did not deserve work product protection because he was not licensed to be a private investigator in Oklahoma; "Here, it is clear that work product protection never attached to the investigative report Williams prepared regarding the interviews he conducted in Oklahoma, because Williams was unlicensed to act as a private investigator in Oklahoma. Under Oklahoma law, a private investigator must obtain an Oklahoma license to practice in this State. . . . Violation of this provision is a misdemeanor subject to punishment of imprisonment for not more than 60 days and/or a fine of not more than $2,000. . . . Because Williams was acting illegally in conducting interviews in Oklahoma, such illegally-collected information does not obtain the benefit of work-product protection."; "The Court concludes Williams was acting illegally when he traveled to Oklahoma to interview witnesses to the events of this case. Granting work-product protection over such illegally obtained information would be antithetical to the integrity of the adversary process. Accordingly Williams' investigative report prepared regarding those interviews enjoys no work product protection and must be disclosed to Defendants.")

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

Chapter: 40.18
Case Name: Brown v. Greyhound Lines, Inc., No. 1167 EDA 2015, No. 1169 EDA 2015, No. 1174 EDA 2015, No. 1602 EDA 2015, No. 1866 EDA 2015, No. 1879 EDA 2015, No. 1931 EDA 2015, No. 1932 EDA 2015, 2016 Pa. Super. LEXIS 288 (Pa. Super. May 24, 2016)
(holding that under Pennsylvania's work product rule, the protection does not extend to a mock deposition; "The fourth order appealed relates to Passengers' motion seeking production of a video of a practice deposition, a/k/a a 'mock deposition,' of Bus Driver that the trial court previously had ordered to be produced in the April 1, 2015 order. The videotaped mock deposition of Bus Driver had never been disclosed on any privilege log."; explaining that the Pennsylvania work product rule covers lawyers' opinion but not other litigation-related material; "Passengers maintain that Bus Driver's videotaped statement is akin to Appellants taking a statement at the scene. . . . They assert that Appellants do not dispute the proposition that the videotaped statement is a 'statement.'. . . The mock deposition was conducted so that Bus Driver's counsel would know what Bus Driver would say at her deposition. As Passengers note, the entire exercise 'was to elicit information that was intended to be disclosed to other parties.'. . . Passengers posit that the information conveyed by Bus Driver 'was never intended to be confidential.'. . . We agree."; "[A]s Passengers urge, and in the absence of an affidavit, statement, or testimony in support of the circumstances, Greyhound has not demonstrated that Bus Driver had a reasonable expectation that the videotaped statement would remain confidential. . . . Therefore, even if we could find sufficient particularity in Greyhound's brief regarding this issue to avoid waiver, we would conclude that it failed to sustain its burden of proof regarding the assertion of privilege as to the mock deposition tape.")

Case Date Jurisdiction State Cite Checked
2016-05-24 Federal PA

Chapter: 40.18
Case Name: Weinrib v. Winthrop-University Hospital, CV 14-953 (JFB) (AKT), 2016 U.S. Dist. LEXIS 37102 (E.D.N.Y. March 22, 2016)
(holding that a hospital's complaint filed did not deserve work product protection; "The complaint file itself, based upon a straightforward reading of the deposition transcript, falls outside the ambit of the work product privilege. Specifically, the transcript reflects that this complaint file or database was kept by Zebroski on behalf of Winthrop Hospital in the ordinary course of the hospital's business. Indeed, a hospital may have multiple purposes for preparing a complaint database (i.e. to ensure efficient operations, patient satisfaction, quality control and proper compliance with statutory and regulatory requirements), separate and apart from any particular litigation. There is no indication that this complaint file was prepared by or at counsel's direction in anticipation of the instant litigation or was otherwise the product of investigative or analytical tasks to aid counsel in preparing for litigation. As such, the work product privilege is inapplicable and Winthrop's objection is without merit.")

Case Date Jurisdiction State Cite Checked
2016-03-22 Federal NY

Chapter: 40.18
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 1, pages 4-29 are photographs taken by Hunter [Employee] of the accident site as well as the machine after the accident. The court finds that none of the photographs are protected by the attorney-client privilege or the work-product doctrine. They do not contain any notes or comments. Nor do they depict any mental processes of attorney Michael. Simply because the photographs are part of the investigation report does not entitle them to protection under either the attorney-client privilege or the work-product doctrine. As such, Letica is directed to produce all of the photographs to the parties.")

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

Chapter: 40.18
Case Name: LifeVantage v. Domingo, Case No. 2:13-CV-01037-DB-PMW, 2015 U.S. Dist. LEXIS 131731 (D. Utah Sept. 29, 2015)
(finding that a public relations firm retained by a lawyer was not within privilege protection; also finding that the work product doctrine did not protect materials created by the public relations firm; "'[A]s a general matter[,] public relations advice, even if it bears on anticipated litigation, falls outside the ambit of protection of the so-called 'work product' doctrine.' McNamee [McNamee v. Clemens, No. 09 CV 1647, 2013 WL 6572899, *5 (E.D.N.Y., Sept. 18, 2013)], 2013 WL 6572899 at *3 (quoting Calvin Klein [Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53, 54-56 (S.D.N.Y. 2000)], 198 F.R.D. at 55).").

Case Date Jurisdiction State Cite Checked
2015-09-29 Federal UT

Chapter: 40.18
Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *10 (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; "Communications between either Astellas [defendant] or outside counsel and employees of public relations firms Hill & Knowlton and Fleishman-Hillard are neither privileged nor protected work product. Astellas has not shown that communications with either firm were necessary, or at least highly useful, for the rendering of legal advice. Cavallaro v. United States, 284 F.3d 236, 247 (1st Cir. 2002). Rather, it appears that both Hill & Knowlton and Fleishman-Hillard provided Astellas with standard public relations services related to the filing and outcome of the citizen petition and any subsequent business or media fallout. Moreover, even if the firms provided public relations advice or documents bearing upon potential litigation over the citizen petition, such materials fall outside the scope of work-product protection, which is intended 'to provide a zone of privacy for strategizing about the conduct of litigation itself, not for strategizing about the effects of the litigation on the client's customers, the media, or on the public generally.' Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53, 55 (S.D.N.Y. 2000).")

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

Chapter: 40.18
Case Name: Dudley v. Cash, 82 Va. Cir. 1, 19 n.9 (Va. Cir. Ct. 2010)
("[A] letter dated June 12, 2006, from Reid to Mr. Graves with reports fron state and local law enforcement authorities: The letter clearly is privileged. The reports from state and local law enforcement authorities are not, nor are they work product, and they should be produced.")

Case Date Jurisdiction State Cite Checked
2010-01-01 State VA

Chapter: 40.18
Case Name: Congregation Sha'are Shalom v. Tully Int'l, Inc., 78 Va. Cir. 188, 189 (Va. Cir. Ct. 2009)
("Therefore, it appears to me that the only documents that the Congregation needs are the ones relevant to the premiums charged and paid for the errors and omissions policy. I do not think that attorney work product or attorney-client privilege would protect these documents from production.")

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

Chapter: 40.18
Case Name: Economos v. K Mart Corp., 33 Va. Cir. 55, 55-56, 56 (Vir. Cir. Ct. 1993)
(analyzing work product protection for a K Mart document containing instructions about how K Mart employees should prepare post-accident incident reports; "The second aspect of the motion to compel relates to K Mart manuals that purport to instruct employees how to complete the incident form and how to conduct an investigation of an accident that occurs in a K Mart store. K Mart represents that the policy manual was also prepared in anticipation of litigation. In contrast to the incident report which is prepared following a particular accident, the litigation that K Mart anticipates in the context of the manuals is litigation of a general nature that may arise out of accidents that occur in K Mart stores."; "I do not see a valid distinction to draw between the preparation of a specific incident report and a policy manual that is prepared in anticipation of law suits [sic] and instructs K Mart store employees on how to conduct accident investigations and how to prepare an incident report. Thus, to extent that the policy manual(s) instructs managers on how to investigate accidents in anticipation of litigation, then the policy manual need not be produced in the absence of a showing by the plaintiff that he has a substantial need of the manuals and that he is unable without undue hardship to obtain their equivalent."; "To the extent that portions of the manual(s) in question do not relate to instructions on preparation of the incident report or how to investigate accidents, then the other portions should be produced if they come within the parameters of the plaintiff's motion to request production of documents.") [Swett, J.]

Case Date Jurisdiction State Cite Checked
1993-01-01 State VA B 12/09

Chapter: 40.502
Case Name: Cormack v. United States, No. 13-232C, 2014 U.S. Claims LEXIS 664 (Fed. Cl. July 18, 2014)
(analyzing discovery about discovery; holding that an email relaying information about the location of documents did not deserve privilege protection, but did deserve work product protection; "In the e-mail in question, the employee provided the in-house counsel with information regarding the location of certain documents at the apparent request of counsel. . . . This is hardly a communication conveying information for the purpose of obtaining legal advice. The e-mail relayed only the physical location of certain documents, information that in-house counsel could not directly use to form the basis of her legal advice for the company. Consequently, the e-mail in question does not fall under the protection of the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-07-18 Federal Other

Chapter: 40.502
Case Name: Cahaly v. Benistar Property Exchange Trust Co., Inc., No. 12-P-956, 2014 Mass. App. LEXIS 62, at *8, *15, *16, *18 (Mass. App. Ct. June 6, 2014)
(reversing a ruling in favor of the law firm of Bingham McCutchen that exonerated the law firm of any wrongdoing in withholding work product documents, and remanding for a further proceeding; "On June 19, 2002, the trial judge granted the plaintiffs' emergency motion to compel evidence of visits by Merrill employees to the Benistar Web site. Merrill responded that no nonprivileged documents had been found."; "[W]e conclude that Snyder lacked an adequate basis in law to support his decision to withhold, as protected work product, the significant facts that Malia visited the § 1031 pages on the Benistar Web site on September 20, 2000, and then sent those pages by fax to Rasmussen. 'Simply identifying what documents an attorney reviewed, what documents were provided by a consultant, or what documents were provided to the client, in each instance without any requirement to describe content, reveals nothing about the attorney's (or the consultant's or the client's) opinion or impression of any of the documents, or any conclusions the attorney (or consultant or client) drew from them.'"; "Even assuming, without deciding, that Snyder was reasonable in his belief that Malia's visit to the § 1031 Web site pages, and Malia's fax to Rasmussen containing those pages, revealed Malia's mental impressions, we discern no adequate basis in the law for Snyder's belief that he could withhold the information and still assert a defense claiming just the opposite."; "The fact that a Merrill employee, lawyer or nonlawyer, knew that Benistar's business was as an intermediary for third-party funds was significant to the plaintiffs in making out their claim for aiding and abetting against Merrill. Moreover, the evidence of Malia's visit to the § 1031 pages of the Benistar Web site on September 20, 2000, and his transmission of those pages by fax to Rasmussen, ran directly counter to the heart of Merrill's defense that it had no such knowledge.")

Case Date Jurisdiction State Cite Checked
2014-06-06 State MA

Chapter: 40.502
Case Name: Cahaly v. Benistar Property Exchange Trust Co., Inc., No. 12-P-956, 2014 Mass. App. LEXIS 62, at *1-2 (Mass. App. Ct. June 6, 2014)
(reversing a ruling in favor of the law firm of Bingham McCutchen that exonerated the law firm of any wrongdoing in withholding work product documents, and remanding for a further proceeding; "We hold that Bingham lacked an adequate legal basis, under the guise of the work product doctrine, for its decisions to withhold information that Merrill employees had viewed certain Benistar Web pages describing its business as an intermediary for third-party funds and then to present a defense claiming that no Merrill employees had viewed the very same Web pages. As a result, we vacate that portion of the final judgment entering judgment in favor of Bingham on the plaintiffs' motion for sanctions. As explained below, there remain certain issues that require resolution by a fact finder, and thus, we remand for further proceedings consistent with this opinion." (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2014-06-06 State MA

Chapter: 40.502
Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09 2051 MD ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *40-41 (S.D. Fla. Oct. 18, 2012)
("[T]he work product doctrine does not protect facts contained in documents prepared in anticipation of litigation.")

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

Chapter: 40.502
Case Name: Haga v. L.A.P. Care Servs., Inc., Case No. 1:01CV00105, 2002 U.S. Dist. LEXIS 1605, at *5 (W.D. Va. Feb. 1, 2002)
(assessing a retirement home's effort to obtain discovery of the substance of interviews taken by plaintiff's lawyer of former retirement home employees; rejecting the analogy to the federal rule requiring disclosure of the names and addresses of individuals with knowledge; noting that "[t]here is no requirement for disclosure of interviewees' statements" and that "[n]othing in the rules requires disclosure of facts and opinions learned during oral interviews by counsel in the preparation of the case")

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

key case


Chapter: 40.503
Case Name: Gueniot Kornegay v. Blitz U.S.A., No. 3:10CV429 TSL MTP, 2012 U.S. Dist. LEXIS 172468, at *9-10 (S.D. Miss. Dec. 5, 2012)
(analyzing a Rule 30(b)(6) deposition of a Wal-Mart employee; "Wal-Mart's attorney instructed Mr. Underwood not to disclose anything about what was received in litigation when he was asked when Wal-Mart received videos of tests showing gas cans exploding conducted by a plaintiff's expert in a prior case. . . . As stated above, facts are not protected by the attorney-client privilege or the work-product doctrine, and the underlying facts are not privileged strictly because they were provided to the deponent by counsel. . . . Wal-Mart's objection to this question is generally overruled. Wal-Mart shall produce a copy of all videos of gas cans exploding it received from a third-party or from plaintiffs in another lawsuit, limited in time from January 1, 2000 to April 1, 2010, along with a written statement, under oath, as to when it received the videos.")

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

Chapter: 40.503
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 Jurisdiction State Cite Checked
2008-01-07 State VA

Chapter: 40.503
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; "Although generally the work product doctrine does not shield against discovery the facts that the adverse party's lawyer or representative has learned, a party may not inquire into the identity of persons that the opposing party's lawyer or representative has interviewed. See, e.g., Bd. Of Educ. v. Admiral Heating & Ventilating Inc., 104 F.R.D. 23, 32 (E.D. Ill. 1984).")

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

Chapter: 40.504
Case Name: Haga v. L.A.P. Care Servs., Inc., Case No. 1:01CV00105, 2002 U.S. Dist. LEXIS 1605, at *5 (W.D. Va. Feb. 1, 2002)
(assessing a retirement home's effort to obtain discovery of the substance of interviews taken by plaintiff's lawyer of former retirement home employees; rejecting the analogy to the federal rule requiring disclosure of the names and addresses of individuals with knowledge; noting that "[t]here is no requirement for disclosure of interviewees' statements" and that "[n]othing in the rules requires disclosure of facts and opinions learned during oral interviews by counsel in the preparation of the case").

Case Date Jurisdiction State Cite Checked
2016-05-11 Federal VA B 5/16

Chapter: 40.504
Case Name: Abbo-Bradley v. City of Niagara Falls, 293 F.R.D. 401, 408 (W.D.N.Y. 2013)
("[T]he work product doctrine does not immunize litigants or their consultants from disclosing the underlying facts obtained during the course of their investigations. Under these principles, the facts relating to the chemical composition of the materials obtained as the result of environmental sampling in the neighborhood surrounding the Love Canal Landfill site, as well as the location, manner, and timing of the sampling activity, are discoverable, potentially relevant, and not protected from disclosure by the work product doctrine.")

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

Chapter: 40.505
Case Name: Cahaly v. Benistar Property Exchange Trust Co., Inc., No. 12-P-956, 2014 Mass. App. LEXIS 62, at *7-8 (Mass. App. Ct. June 6, 2014)
(reversing a ruling in favor of the law firm of Bingham McCutchen that exonerated the law firm of any wrongdoing in withholding work product documents, and remanding for a further proceeding; "Snyder [a Bingham partner] discussed with Merrill's in-house lawyers whether the Malia file was protected from disclosure under the work product doctrine. They considered that Malia ["an options specialist in Merrill's compliance department"] operated under the umbrella of the office of general counsel, that he acted on occasion when litigation was anticipated, and that he was generally under the direction of attorneys. Pash determined that the documents were protected work product, and Snyder agreed." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2014-06-06 State MA

Chapter: 40.505
Case Name: Scentsy, Inc. v. B.R. Chase, L.L.C., Case No. 1:11-cv-00249-BLW, 2012 U.S. Dist. LEXIS 143633, at *10 (D. Idaho Oct. 2, 2012)
("Rule 26(b)(3) does not shield from discovery documents 'located' by a company employee. Accordingly, the email and attachments are not covered by the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2012-10-02 Federal ID B 12/13

Chapter: 40.506
Case Name: McKenzie v. Walgreen Co., No. 2:12-cv-0044-KJD-NJK, 2013 U.S. Dist. LEXIS 22963, at *10-11 (D. Nev. Feb. 19, 2013)
(finding that defendant Walgreen reasonably anticipated litigation after a serious slip and fall, and that the work product doctrine protected documents created during Walgreen's investigation of the accident; "McKenzie next argues that claims notes, including factual summaries and instructions from supervisors of Sedgwick [Walgreen's third-party investigator], and separate correspondence listed in the privilege log are not work product to the extent that they contain purely factual information. Walgreens admits that the summaries at issue here are 'purely factual in nature' but contends that they are still work product because they represent the attorney's labor and McKenzie should not be permitted to take advantage of that labor.")

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal NV B 2/14

Chapter: 40.506
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *163 (S.D. Ohio Nov. 13, 2012)
("[W]hile the Court reaffirms the principle that the attorney-client privilege and work product doctrine do not protect underlying facts, the Court will compel no further production or redaction of the withheld documents to unearth any potential underlying facts. Plaintiffs may inquire about the relevant facts by deposing the appropriate witnesses or through other discovery vehicles.")

Case Date Jurisdiction State Cite Checked
2012-11-13 Federal OH B 7/13

Chapter: 40.506
Case Name: Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680, 687 (N.D. Ga. 2012)
("Pike is correct that it may discover facts that support its counterclaims or defenses. . . . Here, Pike seeks fact work product protected under Rule 26(b) to the extent that Pike requests documents generated in the course of Spirit's investigation into the condition of the property by its consulting experts Ramos and Hercules that summarize or otherwise purport to relate factual information obtained during the investigation. Such information differs from mere facts, which are not protected by the work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal GA B 7/13

Chapter: 40.506
Case Name: Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680, 687 (N.D. Ga. 2012)
("The work product doctrine does not protect factual information from disclosure. Rather, it protects a party only from disclosing particular documents containing the information. To accommodate these principles, a party may propound interrogatories and take depositions to obtain the sought-after factual information.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal GA B 7/13

Chapter: 40.602
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 Jurisdiction State Cite Checked
2008-01-07 State VA

Chapter: 40.604
Case Name: Booth v. Galveston Cty., Civ. A. No. 3:18-CV-00104, 2018 U.S. Dist. LEXIS 181063 (S.D. Tex. Oct. 10, 2018)
December 12, 2018 (PRIVILEGE POINT)

Privilege and Work Protection For Lawyers' Communications With Third Parties and Reports of Those Communications: Part I

Lawyers' communications with the third parties generally cannot deserve privilege protection, but what about work product protection?

In Booth v. Galveston Cty., Civ. A. No. 3:18-CV-00104, 2018 U.S. Dist. LEXIS 181063 (S.D. Tex. Oct. 10, 2018), the court addressed work product protection for emails between plaintiffs' lawyer and two fact witnesses. The court acknowledged that "[a]t first blush, it might be inconceivable how documents exchanged with a third-party can fall within the sphere of privileged status." But then the court explained that "[i]f a written statement made by a third-party witness is covered by the work-product privilege, it is hard to imagine why an email exchange between counsel and a third-party witness providing the same information would not be protected by the same privilege." The court therefore protected the emails as work product, because they were "created for litigation purposes."

Most courts would also protect the "intangible" work product reflected in any similar oral communications between lawyers and fact witnesses. Next week's Privilege Point will address possible privilege and work product protection for lawyers' reports to their clients about such third party communications.

Case Date Jurisdiction State Cite Checked
2018-10-10 Federal

Chapter: 40.604
Case Name: Rejdak v. Worthington Cylinders Wisconsin, LLC, No. 15 CV 9373, 2016 U.S. Dist. LEXIS 148060 (N.D. Ill. Oct. 26, 2016)
(holding a plaintiff must prepare at least a general log describing from documents obtained from similarly situated plaintiff's lawyers; "In their motion for protective order, Plaintiffs first object to what they characterize as the overly broad nature of Request 14, which seeks the following information: 'Any document You obtained from, or to which You have access through, any litigation clearinghouse, or any other association, organization group or individual, including without limitation any one operated by the American Trial Lawyers Associations or the Attorney's Information Exchange Group, that concerns, involves or in any way related to Newell; the Product; the Cylinder; the Torch; any product or exemplar designed, tested, created, manufactured, assembled, sold, or distributed by Newell; or any product or exemplar that you contend is the same or similar model as the Product, Cylinder, or Torch.'"; "With respect to Plaintiffs' initial objection that Request 14 is overly broad, the hyperbolic language they employ in support of that objection does not meet the good-cause threshold. According to Plaintiffs, 'Request 14 covers every document created in the history of mankind.'. . . They double down on that argument in their reply, where they assert that 'there is not a document on Earth which is not covered by Request 14.'. . . It is hard to take such assertions seriously. Surely, newly minted Nobel Laureate Bob Dylan's songbook would not be responsive to Request 14, nor would, say, a tourist's map of Chicago or a recipe for chocolate chip cookies. It may be that Plaintiffs have legitimately objected to Request 14 as being overly broad, but it is unreasonable to suggest that a request clearly aimed at documents concerning Newell and certain specific products can be read to encompass the totality of humanity's written record."; "Recognizing that the rule targets documents that are prepared by a party or its attorneys, Plaintiffs point to a number of out-of-circuit cases to support their argument that documents prepared by third parties and that otherwise would not be protected become work product when selected and compiled by an attorney. But in cases like Omaha Public Power and James Julian, the parties seeking discovery went after subsets of documents that had already been produced, consisting of documents segregated from the production by their attorneys to prepare a witness for deposition. See Omaha Pub. Power Dist. v. Foster Wheeler Corp., 109 F.R.D. 615, 616 (D. Neb. 1986); James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982). In both of those cases, the court considered the subsets of previously disclosed documents to be work product because the purpose of the request was to scrutinize the attorneys' document-selection process for preparing witnesses for depositions."; "The reason this court is unable to fully evaluate the work product objection is because Plaintiffs seek to be absolved of the obligation to produce a privilege log, arguing that even broadly characterizing the responsive documents will reveal their attorneys' strategies. . . . As an initial matter, they reiterate their hyperbolic over-breadth objection, arguing that were they required to submit a privilege log it would consist of one word that says, 'Everything.'. . . That argument actually undercuts their privilege assertion, because certainly they can't mean that every document in the history of mankind is subject to the work product privilege simply because it might pass through their attorneys' hands."; "In arguing that a privilege log necessarily would disclose protected information, Plaintiffs overlook the mandatory language in Rule 26(b)(5), and point to several out-of-circuit cases that are factually distinct from the current situation. For example, in Schwarzkopf Technologies Corporation v. Ingersoll Cutting Tool Company, 142 F.R.D. 420, 422-23 (D. Del. 1992), the party responding to discovery produced a privilege log listing 'collections' of documents but not identifying the documents individually. The court declined to compel the plaintiff to provide a more detailed log, in order to protect the plaintiff's attorney's understanding of the case. Id. None of the cases Plaintiffs cite entirely absolve a party of submitting a privilege log. Here, even if the documents Plaintiffs withhold based on the work product doctrine are compilations, Plaintiffs have not shown that there is good cause to justify absolving them of the Rule 26(b)(5) requirement. Accordingly, they must produce a privilege log giving at least a general description of the withheld materials. See Fed. R. Civ. P. 26(b)(5).")

Case Date Jurisdiction State Cite Checked
2016-10-26 Federal IL
Comment:

key case


Chapter: 40.604
Case Name: United States SEC v. Commonwealth Advisors, Inc., Civ. A. No. 3:12-00700-JWD-EWD, 2016 U.S. Dist. LEXIS 46438, at *31 (M.D. La. Apr. 6, 2016)
("Finally, Rule 26 mandates that a party consistently update disclosures. FED. R. CIV. P. 26(e). That the Defendants did not have materials that should be disclosed in their possession does not change their obligation to surrender those documents once such possession was gained.")

Case Date Jurisdiction State Cite Checked
2016-04-06 Federal LA B 8/16

Chapter: 40.903
Case Name: Booth v. Galveston Cty., Civ. A. No. 3:18-CV-00104, 2018 U.S. Dist. LEXIS 181063 (S.D. Tex. Oct. 10, 2018)
December 12, 2018 (PRIVILEGE POINT)

Privilege and Work Protection For Lawyers' Communications With Third Parties and Reports of Those Communications: Part I

Lawyers' communications with the third parties generally cannot deserve privilege protection, but what about work product protection?

In Booth v. Galveston Cty., Civ. A. No. 3:18-CV-00104, 2018 U.S. Dist. LEXIS 181063 (S.D. Tex. Oct. 10, 2018), the court addressed work product protection for emails between plaintiffs' lawyer and two fact witnesses. The court acknowledged that "[a]t first blush, it might be inconceivable how documents exchanged with a third-party can fall within the sphere of privileged status." But then the court explained that "[i]f a written statement made by a third-party witness is covered by the work-product privilege, it is hard to imagine why an email exchange between counsel and a third-party witness providing the same information would not be protected by the same privilege." The court therefore protected the emails as work product, because they were "created for litigation purposes."

Most courts would also protect the "intangible" work product reflected in any similar oral communications between lawyers and fact witnesses. Next week's Privilege Point will address possible privilege and work product protection for lawyers' reports to their clients about such third party communications.

Case Date Jurisdiction State Cite Checked
2018-10-10 Federal

Chapter: 40.903
Case Name: Theidon v. Harvard Univ., Civ. A. No. 15-cv-10809-LTS, 2017 U.S. Dist. LEXIS 82085 (D. Mass. May 30, 2017)
(analyzing a former Harvard professor's lawsuit against Harvard; noting that the plaintiff claimed to have prepared notes of a meeting with another professor to discuss tenure, but that she no longer possessed the original notes – instead having incorporated the notes into a memorandum to her lawyer; holding that Harvard could overcome any work product protection for the notes because they were near-contemporaneous, but ordering an in camera review to assess any privilege protection; "Theidon states that she 'created a document of her experiences working with Defendant for the purpose of seeking legal advice and in anticipation of litigation against Defendant regarding her tenure denial. When she created the document, she was represented by counsel in this case and at the time, marked the document 'Document Protected under Attorney-Client Privilege.'"; "Theidon has met her burden to establish that the quarter-page summary contained within the seventeen page chronology was prepared in anticipation of litigation and thus is protected by the work product privilege.")

Case Date Jurisdiction State Cite Checked
2017-05-30 Federal MA

Chapter: 40.903
Case Name: Wright v. N.Y State Dept. of Corrections and Community Supervision, 9:13-CV-0564 (MAD/ATB), 2017 U.S. Dist. LEXIS 18855) (N.D.N.Y. Feb. 10, 2017)
("A document prepared by an employee of a party to existing litigation, containing an evaluation of the allegations made and the issues to be resolved in that litigation, as well as a specific plan as to litigation strategy going forward is protected by the privilege.")

Case Date Jurisdiction State Cite Checked
2017-02-10 Federal NY

Chapter: 40.903
Case Name: Ellis v. J.P. Morgan Chase & Co., Case No. 12-cv-03897-YGR (JCS), 2014 U.S. Dist. LEXIS 45681 (N.D. Cal. April 1, 2014)
("The 12/18 Letter is a communication that explains the status of the litigation; specifically, the status of the parties' discussions regarding the scope of the subpoenas, as well as Chase's plan regarding the subpoenas.")

Case Date Jurisdiction State Cite Checked
2014-04-01 Federal CA

Chapter: 40.903
Case Name: In re MI Windows & Doors, Inc. Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *8-9, *9 (D.S.C. May 1, 2013)
(holding that a paralegal's list of earlier cases involving the company was work product, and that the lawyer's list of important earlier cases deserved opinion work product protection; "This is a case list prepared by Chris Risberg, a paralegal working for outside counsel. It basically sets out the name of the case, the state in which the case is brought, the building type, and the product or claim at issue in each case. The Defendant claims privilege but that claim fails, because there is no communication between attorney and client reflected in this list. It is, rather, just a factual description of the extant cases. The attorney-client privilege does not protect underlying facts."; "The Defendant claims work product, and while there does not seem to be much though process going on in the preparation of the list, it is apparent that the list is prepared for litigation purposes and it would be of some assistance to MIWD's lawyer. As such, it is granted the qualified immunity of fact work product.")

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

Chapter: 40.1702
Case Name: Barba v. Shire US, Inc., Case No. 13-21158-CIV-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 65859 (S.D. Fla. May 20, 2015)
("While the Court accepts Shire's position that scripts prepared by or with the advice of counsel may be attorney work product . . . Close review of the document at issue here finds only one specific reference to the advice of counsel. Shire states broadly that the non-attorney negotiator who prepared this script for use in negotiations was advised by counsel, but nothing more is offered to substantiate this.")

Case Date Jurisdiction State Cite Checked
2015-05-20 Federal FL

Chapter: 40.1703
Case Name: Fint v. Brayman Construction Corp., Case No. 5:17-cv-04043, 2018 U.S. Dist. LEXIS 103772 (S.D.W. Va. June 21, 2018)
(analyzing work product protection for an investigation into a worker's injury; holding that the plaintiff cannot overcome the defendant's work product protection for accident scene photographs because the scene had already been changed before the defendants took their pictures; "In this case, the insurance adjuster took the photographs at issue when she accompanied defense counsel to the work site. Defense counsel has represented that the purpose of the site visit was to investigate the merits of Plaintiff's anticipated claim. Defense counsel and Brayman's President, Frank Piedimonte, emphasize that Fint's accident was not a run-of-the-mill event for the company and, for that reason, they expected from the outset that it would lead to litigation. Accordingly, the record indicates that the photographs taken by the insurance adjuster were not part of a routine investigation, but were taken with an eye toward litigation. Thus, for the same reasons previously stated, the undersigned finds that these photographs constitute work product.")

Case Date Jurisdiction State Cite Checked
2018-06-21 Federal WV

Chapter: 40.1703
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; "In those instances where a claim cannot proceed without third-party financing, one element of preparing a client's case for trial will be securing the requisite funding, which probably will require discussions of a case's merits in an effort to convince the third party to supply the needed funds. No persuasive reason has been advanced in this case why litigants should lose work product protection simply because they lack the financial means to press their claims on their own dime. Allowing work product protection for documents and communications relating to third-party funding places those parties that require outside funding on the same footing as those who do not and maintains a level of playing field among adversaries in litigation. Thus, even though claim funding is the business of financing lawsuits, which means the Discovery Documents serve a business purpose, those documents simultaneously also are litigation documents and work product protection is appropriate.")

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

Chapter: 40.1703
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; "Delaware has not ruled on the applicability of work product privilege to funding agreements. In fact, only a handful of American courts have addressed privilege claims in the context of litigation funding agreements. Of these, few contain in-depth analyses, and the cases disagree on the appropriate outcome. As to work product, four cases found the privilege applicable to funding agreements and one case found it inapplicable. In general, with the exception of Miller UK Ltd. V. Caterpillar, Inc. [17 F. Supp. 3d 711, 731-38 (N.D. Ill. 2014)], the cases so not analyze the work product issue thoroughly. In contrast, a relatively robust discussion has developed in the scholarly literature. Excluding those articles debating the wisdom of whether claim funding should be allowed at all, many authors favor extending work privilege to discussions and negotiations with claim funders as well as related documents.")

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

Chapter: 40.1703
Case Name: Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188, at *10 (R.I. Super. Ct. Nov. 6, 2013)
(analyzing work product protection for photos and video prepared when defendant and plaintiff jointly visited an asbestos site, after which plaintiff sought defendants' photos and video because plaintiff's lawyer's cameras did not work properly during the visit; "Plaintiff does not dispute that Defendants developed these records in anticipation of litigation, and, indeed, this point seems beyond contention, given that Defendants attended the site inspection at the behest of Plaintiff's counsel after Plaintiff had filed suit against them. Furthermore, Defendants would have had no reason other than impending litigation to photograph the Hoechst property.")

Case Date Jurisdiction State Cite Checked
2013-11-06 State RI B 5.14

Chapter: 40.1703
Case Name: Bahrami v. Maxie Price Chevrolet-Oldsmobile, Inc., Civ. A. File No. 1:11-CV-4483-SCJ-AJB, 2013 U.S. Dist. LEXIS 104040, at *17-18, *18, *20 (N.D. Ga. July 19, 2013)
(holding that a secret tape recording can be protected work product, after the ABA issued an opinion finding that such tape recording was not unethical; "Plaintiff has provided a declaration stating that after his termination on May 12, 2010, he decided to pursue legal action against Defendant."; "Defendant argues that because Plaintiff made the recordings before he filed an EEOC charge, the recordings could not have been made in anticipation of litigation."; "The Court concludes that the recordings by Plaintiff were made in anticipation of litigation, and thus are protected work product.")

Case Date Jurisdiction State Cite Checked
2013-07-19 Federal GA B 4/14

Chapter: 40.1703
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 92089, at *3-4 (S.D.N.Y. June 28, 2013)
(analyzing work product protection for materials created by a private investigator and communications with a public relations firm; "[I]t is important to bear in mind that the work product doctrine protects the confidentiality of documents and other materials prepared in anticipation of litigation except in limited circumstances. It rests in part on the premise that each party to a lawsuit should do its own work, including its own investigation of the facts, without intruding into and benefitting from the efforts of its adversary. And it extends to work prepared by a private investigator in anticipation of litigation, at least where the investigator is working at the direction of an attorney. Accordingly, in the absence of a more particular showing as to particular documents that the requisites of work product protection have not been made out by Chevron's privilege log -- and there is none -- the suggestion that none of the investigative materials have any protection to begin with fails. In particular, the suggestion that surveillance videos and photos taken by investigators in the context of a litigation such as this, and documents relating to such activities, 'are not protected to begin with' is frivolous. They quite obviously are materials prepared in anticipation of litigation and therefore protected by Fed. R. Civ. P. 26(b)(3)." (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2013-06-28 Federal NY B 4/14

Chapter: 40.1703
Case Name: In re MI Windows & Doors, Inc. Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *8-9, *9 (D.S.C. May 1, 2013)
(holding that a paralegal's list of earlier cases involving the company was work product, and that the lawyer's list of important earlier cases deserved opinion work product protection; "This is a case list prepared by Chris Risberg, a paralegal working for outside counsel. It basically sets out the name of the case, the state in which the case is brought, the building type, and the product or claim at issue in each case. The Defendant claims privilege but that claim fails, because there is no communication between attorney and client reflected in this list. It is, rather, just a factual description of the extant cases. The attorney-client privilege does not protect underlying facts."; "The Defendant claims work product, and while there does not seem to be much though process going on in the preparation of the list, it is apparent that the list is prepared for litigation purposes and it would be of some assistance to MIWD's lawyer. As such, it is granted the qualified immunity of fact work product.")

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

Chapter: 40.1703
Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 333 (M.D. Pa. 2013)
(analyzing issues in connection with a student's criminal prosecution for an alleged sexual assault, which apparently was dropped; concluding that the student's parents were within the privilege as the student's lawyer's agent and as joint clients, but that the student adviser was outside the privilege and the work product protection; "Document No. 43 is an undated transcript of an interview of K.S. [student accusing plaintiff] by local police and University public safety officers, apparently conducted in the presence of another student and a University official. Portions of the transcript are highlighted. According to the privilege log, the highlighted portions are relevant to Dempsey's criminal case, and the highlighting was performed by Dempsey's father at the direction of Attorney Becker. . . . [I]t is clear that the document itself constitutes opinion work product, prepared by Dempsey's father acting as an agent of his attorneys to assist in the defense of Dempsey against criminal charges, which unquestionably constitutes litigation.")

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

Chapter: 40.1703
Case Name: Sorrels v. NCL (Bah.) Ltd., 291 F.R.D. 682, 683 (S.D. Fla. 2013)
(holding that a plaintiff injured on a cruise line could overcome the cruise line's work product protection; "While engaging in discovery, Plaintiffs were informed that Defendant possessed four photographs of the incident scene that had been taken by the ship's security officer approximately 35 minutes after Plaintiff Teresita Sorrels fell on April 13, 2012. Plaintiff now moves the Court to compel Defendant to produce these four photographs."; "[E]ven if the requested materials constitute attorney work product, Plaintiff has demonstrated that she has a substantial need for these materials and cannot obtain their substantial equivalent by other means. Plaintiff seeks these photographs to determine whether there 'were any signs or warnings at the time of the accident.' . . . Because Plaintiff Teresita Sorrels was taken directly to the ship's medical facility after she fell, she had no opportunity to take her own contemporaneous photographs of the scene.")

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

Chapter: 40.1703
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 Jurisdiction State Cite Checked
2012-12-14 Federal VA B 9/13

Chapter: 40.1703
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 Jurisdiction State Cite Checked
2012-12-14 Federal VA B 9/13

Chapter: 40.1703
Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *19-20 (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. See, e.g., Bush Dev. Corp. v. Harbour Place Assoc., 632 F.Supp. 1359, 1363 (E.D. Va. 1986) (holding that a 'draft complaint' was 'certainly prepared in anticipation of litigation and is thus entitled to at least the qualified immunity of Rule 26(b)(3)'); see also McKinley v. FDIC, 744 F. Supp. 2d 128, 141-42 (D.D.C. 2010) (finding that a draft affidavit was subject to work product protection); In re: New York Renu with Moistureloc Product Liability Litigation, No. 2:06-MN-77777-DC, 2009 WL 2842745 at *13 (D.S.C. July 6, 2006) (same); A.F.L. Falck, S.p.A. v. E.A. Karay Co., 131 F.R.D. 46, 49 (S.D.N.Y. 1990) (same). The leading case on the question appears to be Randleman v. Fidelity Nat. Title Ins. Co., 251 F.R.D. 281 (N.D. Ohio 2008), which dealt with drafts of affidavits that were subsequently filed with the court.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal VA

Chapter: 40.1703
Case Name: United States v. Halliburton, 266 F.R.D. 130, 132, 133 (E.D. Va. 2010)
(finding that a relator's disclosure statement to the government deserved ordinary work product protection acknowledging "the disagreement of various jurisdictions on the appropriate classification of disclosure statement[s]"; ultimately concluding that the statement deserved ordinary work product; finding that defendant could not overcome the work product protection either because they needed to impeach the relator or because they could obtain a substantial equivalent information elsewhere; "Defendants first argued that they had a 'substantial need' for the Statement to impeach Relator and that they could not obtain 'substantial[ly] equivalent' information elsewhere. In this District, 'the mere surmise that production might reveal impeaching matter [is] not sufficient to justify production' and the seeking 'party must present more than speculative or conclusory statements.'"; "Defendants had ample opportunity examine the Relator regarding the origins of his 'time sheet' allegations, his knowledge regarding the alleged falsification of time sheets, to whom he reported those allegations prior to filing the original Complaint, elicited the names of additional individuals who might have knowledge of any potential fabrication on the part of Relator, and asked a number of other questions in an effort to impeach his credibility. For example, Relator testified that prior to filing his Complaint he spoke with Senate employee named Neil Higgins . . . as well as Dina Rasor and Bob Bauman . . . . These individuals could be deposed regarding the origins of Relator's claims. In light of this, Defendants have not demonstrated both a 'substantial need' for the Statement or an inability to obtain 'substantially equivalent' information contained therein for purposes of impeachment. The ordinary work product protection thus bars discovery of the Statement unless Defendants other arguments prevail.")

Case Date Jurisdiction State Cite Checked
2010-01-01 Federal VA

Chapter: 40.1703
Case Name: DeHart v. Wal-Mart Stores, E., L.P., Case No. 4:05cv00061, 2006 U.S. Dist. LEXIS 599, at *1, *2-3, *3 (W.D. Va. Jan. 9, 2006)
(in a third-party insurance context, analyzing work product protection for what the court called a "a computer generated diary of the investigation of this incident by Claim Management, Inc., the adjusting company for defendant."; finding the work product doctrine applicable; "Upon review of the document, it appears that application of the work product doctrine is appropriate. The bulk of the entries on the document consist of communications with counsel for plaintiff regarding the claim, and the adjusting company's opinion and evaluation of the claim. As such, application of the work product doctrine appears appropriate."; also finding that plaintiff could not overcome the work product doctrine protection; noting that "defendant already had produced an incident report and witness statement, " and that "plaintiff may revisit the issue if statements by the plaintiff or Harry Wade [Wal-Mart employee] are not contained in that discovery")

Case Date Jurisdiction State Cite Checked
2006-01-09 Federal VA

Chapter: 40.1703
Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267 (E.D. Va. 2006)
(assessing the privilege and work product protection for a letter that a City Attorney sent to the City Council, the City Manager and other officials; finding that the letter was privileged, but that the City had waived the privilege because: the City Attorney sent the letter in an envelope that was not marked confidential or sealed; the City Attorney might have faxed the letter to a City Council Member's home where his family could have intercepted it; the City did not have a training program or guidelines on the handling and disposal of privileged documents; neither the City Attorney nor any of the recipients objected when one of the City Council Members revealed some of the letter's content at a City Council Meeting; nevertheless finding that the letter also deserved work product protection, which had not been waived; finding that the letter itself was marked "Confidential" and "Attorney-Client Privilege," but that it was delivered to the recipient in a plain envelope that was not marked as privileged or confidential, and that was sealed with a clasp instead of with tape or glue; "From the outside, this letter looked like and was handled like any other mail that would be delivered, privileged or not. While the document itself was marked for privilege, a person would not know this unless he or she first opened the envelope, which was sealed with a reusable clasp, and read the document. The envelope was not marked confidential or privileged. . . . The envelope was not even sealed using tape or glue. . . . Any person could have opened the envelope, discovered its contents, and re-clasped the envelope without notice. The procedures for handling documents need only be reasonable. . . . Although requiring encoded documents or secret drop boxes would certainly strain the bounds of reasonableness, it is safe to say that moistening an envelope's flap and writing 'confidential' on its exterior are reasonable steps that should have been taken to deter illicit observation and warn the receiver and intermediate handlers of the presence of sensitive information. The method of delivery, that is, leaving the envelopes in what have been variously described as cabinets, drawers, or mail slots after delivery to the clerk was a reasonable method of maintaining privilege. It would have been a different question if, for example, the letters were left in open baskets or inboxes, where the general public, the cleaning staff, or other persons may have had access to them."; finding that the City did not treat the letter carefully enough to protect the privilege, but that the letter deserved work product protection)

Case Date Jurisdiction State Cite Checked
2006-01-01 Federal VA

Chapter: 40.1703
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 Jurisdiction State Cite Checked
2005-01-01 State VA

Chapter: 40.1703
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 Jurisdiction State Cite Checked
2004-01-01 State VA

Chapter: 40.1703
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 Jurisdiction State Cite Checked
2003-01-01 State VA

Chapter: 40.1703
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 200, 202, 205 (Va. Cir. Ct. 2003)
(holding that a loss activity report about plaintiff's claim history collected by defendant's liability insurance company deserved work product protection because the insurance company collected the information in anticipation of litigation; holding that "a party may not inquire into the identity of persons that the opposing party's lawyer or representative has interviewed"; noting the debate among Virginia's Circuit Court about the work product protection given materials collected by an insurance company during claims investigations; rejecting a bright-line rule in favor of a "case-by-case analysis"; finding that the work product protection applied to "the identity of specific sources of information that an opposing party may have consulted")

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

Chapter: 40.1703
Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 456, 468 (E.D. Va. 1998)
("It is the Court's opinion that unlike the facts in Allen, the tabular data in Document 1 does not reflect a special arrangement of data by counsel, nor does it divulge thought processes or theories regarding the litigation. Further, there is no evidence or assertion in the record that the attorneys for the CBN or Coopers separated out the specific tabular data from a larger data bank in anticipation of the IRS litigation. Like the courts in San Juan and Bohannon, this Court agrees with Judge Miller that the tabular data attached to Document 1 is merely a factual recitation of certain financial dealings of the TCC, and does not reveal the attorney's litigation strategy, thoughts or mental impressions. Therefore, Judge Miller's finding that the tabular data constitutes non-opinion work product is not clearly erroneous or contrary to law." (citations omitted))

Case Date Jurisdiction State Cite Checked
1998-01-01 Federal VA

Chapter: 40.1703
Case Name: Wyland v. White, 60 Va. Cir. 454, 455 (Va. Cir. Ct. 1998)
("As to document number 78, White's document log indicates that documemt number 78 is a draft of a proposed letter from Edmund Walton to Robert Hall. However, the documemt itself indicates that it is a file copy. If the letter was sent, then no privilege attaches. However, if the document is a draft which was not sent, then it is protected under the work product doctrine as related to both the Arizona and the Virginia litigation.")

Case Date Jurisdiction State Cite Checked
1998-01-01 State VA

Chapter: 40.1703
Case Name: Taylor v. McCallister, 40 Va. Cir. 327, 327-28 (Va. Cir. Ct. 1996)
(in a civil case arising from a traffic accident, ordering the plaintiff to make a transcript of the traffic court proceedings the plaintiff had ordered prepared available to defendant (in return for payment of duplications costs) because "defendant also has a substantial need for the material in preparation of the case," although agreeing with the plaintiff that the defendant could also have arranged to have a transcript prepared)

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA

Chapter: 40.1703
Case Name: A.H. Robins Co. v. Aetna Cas. & Sur. Co., No. G 3321-2, 1981 WL 180501, at *7-8 (Va. Cir. Ct. Feb. 19, 1981)
(emphasizing that the delay a party would face in obtaining the substantial equivalent is more important in the analysis than the money that would be required; ordering production of an insurance carrier's computer database of documents and computer model after redaction of opinion work product)

Case Date Jurisdiction State Cite Checked
1981-02-19 State VA

Chapter: 40.1704
Case Name: Booth v. Galveston Cty., Civ. A. No. 3:18-CV-00104, 2018 U.S. Dist. LEXIS 181063 (S.D. Tex. Oct. 10, 2018)
December 12, 2018 (PRIVILEGE POINT)

Privilege and Work Protection For Lawyers' Communications With Third Parties and Reports of Those Communications: Part I

Lawyers' communications with the third parties generally cannot deserve privilege protection, but what about work product protection?

In Booth v. Galveston Cty., Civ. A. No. 3:18-CV-00104, 2018 U.S. Dist. LEXIS 181063 (S.D. Tex. Oct. 10, 2018), the court addressed work product protection for emails between plaintiffs' lawyer and two fact witnesses. The court acknowledged that "[a]t first blush, it might be inconceivable how documents exchanged with a third-party can fall within the sphere of privileged status." But then the court explained that "[i]f a written statement made by a third-party witness is covered by the work-product privilege, it is hard to imagine why an email exchange between counsel and a third-party witness providing the same information would not be protected by the same privilege." The court therefore protected the emails as work product, because they were "created for litigation purposes."

Most courts would also protect the "intangible" work product reflected in any similar oral communications between lawyers and fact witnesses. Next week's Privilege Point will address possible privilege and work product protection for lawyers' reports to their clients about such third party communications.

Case Date Jurisdiction State Cite Checked
2018-10-10 Federal

Chapter: 40.1704
Case Name: BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Co., 14-CV-09367 (JMF) (SN), 2018 U.S. Dist. LEXIS 124631 (S.D.N.Y. July 23, 2018)
(analyzing common interest, work product and privilege log issues against defendant Deutsche Bank; focusing among other things on communications between Deutsche Bank as indenture trustee and as loan servicer; "Deutsche Bank properly withheld ICN CAB 006 1 00000036-13219-1. This communication is a draft affidavit prepared by Brown & Camp, LLC, counsel for Deutsche Bank in a foreclosure action, and is therefore protected work product. Work product protection is extended where it is shared 'between codefendants, coplaintiffs, or persons who reasonably anticipate that they will become colitigants.' Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 628, 36 N.Y.S.3d 838, 57 N.E.3d 30 (2016). This document was shared with Deutsche Bank's Servicer, Title Insurer, and the Title Insurer's counsel, who are all colitigants and share a common interest with Deutsche Bank. Accordingly, this document is protected by the common interest privilege and should not be produced.")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal NY

Chapter: 40.1704
Case Name: Lassiter v. Hidalgo Medical Services, No. 17-cv-0850 JCH/SMV, 2018 U.S. Dist. LEXIS 64972 (D.N.M. April 18, 2018)
(analyzing work product protection for defendant's investigation into sexual harassment claims; "The contents of the Maynes [Lawyer who acted as an investigator rather than a legal advisor] reports that Plaintiff seeks, i.e. the factual summaries of the information she learned in the course of her investigations, are fact work product. Defendant has established that the reports are documents prepared by a representative of Defendant in anticipation of litigation. Thus, the reports are discoverable only if (1) Plaintiff shows a substantial need for the materials and an inability to obtain their equivalent through other means absent undue hardship, or (2) Defendant waived the protection.")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal NM

Chapter: 40.1704
Case Name: Matter of Peerenboom v. Marvel Entertainment, LLC, 6232N, 162152/15, 2018 N.Y. App. Div. LEXIS 2364 (N.Y. Sup. Ct. April 5, 2018)
("Some of the disputed documents contain draft pleadings or emails discussing changes to such pleadings, which constitute material protected by the work product privilege.")

Case Date Jurisdiction State Cite Checked
2018-04-05 State NY

Chapter: 40.1704
Case Name: Jones v. U.S. Border Patrol Agent Hernandez, Case No. 16-CV-1986-W (WVG), 2017 U.S. Dist. LEXIS 130807 (S.D. Cal. Aug. 16, 2017)
(holding that the work product doctrine protected an annotated map; "As an initial matter, the Court finds that the annotated map is the type of document that ordinarily could qualify as work product. Plaintiff and one of his attorneys made the annotations as they met and discussed future litigation.")

Case Date Jurisdiction State Cite Checked
2017-08-16 Federal CA

Chapter: 40.1704
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 Jurisdiction State Cite Checked
2017-03-23 Federal IL

Chapter: 40.1704
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., Case No. 09-mc-564 (GMH), 2016 U.S. Dist. LEXIS 131682 (D.C. Sept. 27, 2016)
("The Court holds that the vast majority of the documents at issue on remand constitute fact work product. Many of the log entries are PowerPoint presentations, charts, graphs, and tables analyzing possible factual scenarios affecting the Boehringer-Barr settlement and the co-promotion agreement. These charts, even assuming they were created at Persky's [Defendant's Senior Vice President, General Counsel, and Secretary] behest and analyze variables she identified, do not sufficiently reflect her mental impressions regarding which scenarios were legally feasible or desirable. Instead, they reflect a broad-ranging factual analysis of many possible litigation and settlement outcomes. Persky avers that she took these analyses and then presented the ones she thought best to her client in order to frame their settlement strategy. . . . ('I used this and other financial analyses of proposed settlement terms that were prepared at my request as settlement discussions progressed to assist me in providing legal advice to my clients.'). But the charts themselves do not reflect this analysis. Instead, as explained below, if legal analysis is to be found anywhere in these documents, it is in the emails transmitting the charts, graphs, and spreadsheets."; "Moreover, Persky's mere selection of variables for Boehringer staff to analyze does not rise to the level of reflecting her mental impressions regarding the case; instead, those variables are ones which any reasonable businessperson in her position would analyze in this situation. For fact work product to rise to the level of opinion work product, the attorney must have meaningful involvement in the selection of the data that goes into the work product. Boehringer II, 778 F.3d at 151. And, even if this is true, there must also be a risk that revealing the data will reveal the attorney's mental impressions. Id. There is nothing in the documents themselves that reveals Persky's analysis of the legal issues at hand, even if she used those documents in her ultimate analysis. Persky's due diligence as a data analyst for her client does not mean that every piece of data she touched becomes opinion work-product.")

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal DC

Chapter: 40.1704
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 Jurisdiction State Cite Checked
2016-05-06 Federal CA

Chapter: 40.1704
Case Name: United States v. Homeward Residential, Inc., Case No. 4:12-CV-461, 2015 U.S. Dist. LEXIS 100109 (E.D. Tex. July 31, 2015)
(holding that a relator's disclosure statement to the government deserved at least fact work product protection; noting that the Fifth Circuit had not decided whether the opinion work product doctrine applied as well; "The Court finds that the disclosure statements submitted to the Government by Relators pursuant to 31 U.S.C. § 3730(b)(2) constitute at least ordinary work product for the purposes of the work product doctrine. Public policy favors the full and frank communication between Relators and the Government concerning the prosecution of the case, and as such, the communications must be protected from disclosure. Therefore, protection was not waived when Relators disclosed the information to the Government as the common-interest doctrine applies.")

Case Date Jurisdiction State Cite Checked
2015-07-31 Federal TX

Chapter: 40.1704
Case Name: National Immigration Proj. of the National Lawyers Guild v. United States Dept. of Homeland Sec., 11-cv-3235 (JSR), 2014 U.S. Dist. LEXIS 171669 (S.D.N.Y. Dec. 3, 2014)
("In this case, the materials in dispute are plainly 'documents . . . Prepared in anticipation of litigation,' as they consist of marked-up drafts and discussions among attorneys at various agencies regarding the government's response to the Ninth Circuit's post-argument order. Indeed, plaintiffs do not seriously dispute that the documents are work product, arguing instead that the documents should be released either under the crime-fraud exception to the work-product doctrine or pursuant to the so-called 'fairness doctrine.'")

Case Date Jurisdiction State Cite Checked
2014-12-03 Federal NY

Chapter: 40.1704
Case Name: ePlus Inc. v. Lawson Software, Inc., 2012 U.S. Dist. LEXIS 177616, 2012 WL 6562735, Civ. A. No. 3:09cv620 (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. See, e.g., Bush Dev. Corp. v. Harbour Place Assoc., 632 F. Supp. 1359, 1363 (E.D. Va. 1986) (holding that a 'draft complaint' was 'certainly prepared in anticipation of litigation and is thus entitled to at least the qualified immunity of Rule 26(b)(3)'); see also McKinley v. FDIC, 744 F. Supp. 2d 128, 141-42 (D.D.C. 2010) (finding that a draft affidavit was subject to work product protection); In re New York Renu with Moisturelock Product Liability Litigation, No. 2:06-MN-77777-DC, 2009 U.S. Dist. LEXIS 80446, 2009 WL 2842745 at *13 (D.S.C. July 6, 2009) (same); A.F.L. Falck, S.p.A. v. E.A. Karay Co., 131 F.R.D. 46, 49 (S.D.N.Y. 1990) (same). The leading case on the question appears to be Randleman v. Fidelity Nat. Title Ins. Co., 251 F.R.D. 281 (N.D. Ohio 2008), which dealt with drafts of affidavits that were subsequently filed with the court. There, the court found that '[T]he work product doctrine does protect information relevant to the evolution of an affidavit, including but not limited to communications with the counsel relating to the affidavit, prior drafts of the affidavit, and any notes made by counsel while engaging in the process of drafting the affidavit.'"; "Id. at 285 (quoting Tuttle v. Tyco Electronics Installations Services, 2007 U.S. Dist. LEXIS 95527, 2007 WL 4561530 at *2 (S.D. Ohio Dec. 21, 2007). The court further found that the public filing of the final draft of the affidavit did not waive the work product protection as to the drafts. Randleman, 251 F.R.D. at 286. Indeed, the court found that the drafts constituted opinion work product and not simply factual work product, which is afforded a lower degree of protection. Id. at 287. The court observed that 'disclosure of the drafts could reveal the attorneys' thought processes about the case. Whatever an attorney writes at the outset will reflect his approach to whatever issues that affidavit is to speak to.' Id. Although not binding, these decisions are persuasive and persuading. 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."; "Of course, the production of the final draft of a document waives work product protection as to that draft. Nevertheless, this does not lead to the waiver of work product protection for the earlier drafts of the document. This position is in line with the general view that the waiver of the work product protection as to the final draft of a document does not constitute a waiver of the earlier versions of the draft. See In re New York Renu, 2009 WL 2842745 at *12 (noting that the 'better view, and modern trend, is to hold that waiver by disclosure of a final document does not operate as a waiver of the drafts that are work product')."; "This rule serves to protect from disclosure earlier drafts of the declarations and affidavits that were ultimately filed with the Court. For example, Lawson's privilege log is replete with earlier drafts of the declarations that were submitted as exhibits to its OPPOSITION TO EPLUS' MOTION TO SHOW CAUSE (Docket No. 804). The factual communications underlying those drafts are not privileged as attorney-client communications since they are prepared with the intention of being disclosed to third parties. However, the earlier drafts retain work product protection, presuming that the log claims them as such. The logic underlying this principle applies with the equal force to the inadvertent disclosure of an earlier draft of the Declaration of Todd Dooner, the final draft of which was Exhibit 1 to Lawson's Opposition and the disclosure of which was discussed at the hearing. . . . Accordingly, while Lawson has certainly waived privilege to that particular draft by producing it and failing to follow the procedures to attempt a 'clawback,' there is no broader subject-matter waiver of the work product doctrine that would require it to produce the other drafts of the document. Therefore, the Court finds that the drafts of the Dooner Declaration are properly withheld, notwithstanding Lawson's production of one of those drafts.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal VA
Comment:

key case


Chapter: 40.1705
Case Name: Endeavor Energy Resources, L.P. v. Gatto & Reitz, LLC, 2:13cv542, 2017 U.S. Dist. LEXIS 48715 (W.D. Pa. March 31, 2017)
("The two maps of the RIDEC property Estill created are shielded from discovery by the work-product doctrine. Considering that Estill suggested edits to an Endeavor letter that was made in anticipation of litigation on February 24, 2013, it is clear that the maps produced directly thereafter at Endeavor's direction also were made in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2017-03-31 Federal PA

Chapter: 40.1705
Case Name: Carlin v. Dairy America, Case No. 1:09-cv-430 AWI-EPG, 2016 U.S. Dist. LEXIS 108737 (E.D. Cal. Aug. 16, 2016)
(holding that defendant's spreadsheet about possible damages was not privileged, but deserved work product protection which the plaintiff could overcome; declining to allow the inadvertently produced spreadsheet to be clawed-back by the defendant; "[T]he Court finds that the information contained in the spread sheet is protected by the attorney work product doctrine because the document was created after Dairy America had been notified of the possibility of litigation, counsel was consulted to aid in potential litigation, and the creation of the spreadsheet was based on counsel's request for certain data to evaluate potential liability, as well as to assess damages.")

Case Date Jurisdiction State Cite Checked
2016-08-16 Federal CA

Chapter: 40.1705
Case Name: United States v. Ormat Industries, Ltd., 3:14-cv-00325-RCJ-VPC, 2015 U.S. Dist. LEXIS 171802 (D. Nev. Dec. 23, 2015)
("The FCA [False Claims Act] does not explicitly address discovery of disclosure statements. . . . There is little debate, however, that statements prepared pursuant to 31 U.S.C. § 3730(b)(2) are done so 'in anticipation of litigation,' and therefore may be protected by the work product doctrine."; "Federal courts disagree as to whether disclosure statements are entirely fact work product, entirely opinion work product, or a combination of the two."; "In subsequent decisions, courts have hesitated to adopt Bagley's broad interpretation of opinion work product, but have readily found that disclosure statements are more than a mere recitation of facts. In so doing, the majority of courts have taken one of two approaches: (1) following an in camera review, order that the disclosure statement be produced with the opinion work product redacted, see, e.g., United States ex rel. Yannacopoulos v. General Dynamics, 231 F.R.D. 378, 384 (N.D. Ill. 2005); or (2) assume the disclosure statement contains at least fact work product, and deny discovery if the defendant fails to show a substantial need or undue hardship."; "Under the circumstances at bar, the court adopts the second of these approaches. Because Ormat has not shown it is entitled to discover even fact work product, the court need not characterize Relator's disclosure statements or review them in camera.").

Case Date Jurisdiction State Cite Checked
2015-12-23 Federal NV

Chapter: 40.1705
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., 778 F.3d 142 (D.C. Cir. 2015)
April 22, 2015 (PRIVILEGE POINT)

“District of Columbia Circuit Provides Good News and Bad News in a Work Product Case”

Ironically, federal courts applying the federal work product rule take widely varying positions on a number of key elements, including the protection's duration; its applicability to litigation-related business documents; and the standard under which adversaries can overcome a work product claim.

In FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., 778 F.3d 142 (D.C. Cir. 2015), the D.C. Circuit held that: (1) work product "prepared. . . for one lawsuit will retain its protected status even in subsequent, unrelated litigation" (id. at 149); (2) the work product doctrine could protect documents memorializing a business arrangement included as part of adverse companies' litigation settlement agreement, even if the arrangement "has some independent economic value to both parties" — if it was "nonetheless crafted for the purpose of settling litigation" ( id. at 150); and (3) an adversary can satisfy the "substantial need" element for overcoming a litigant's work product by demonstrating that the withheld materials "are relevant to the case" and "have a unique value apart from those already in the [adversary's] possession" — without showing "that the requested documents are critical to, or dispositive of, the issues to be litigated." (Id. at 155-56.) The first two holdings represent a broad view of the work product protection, but the third holding makes it easier for adversaries to overcome a company's work product protection.

Other courts take different approaches to all of these issues. Unfortunately, defendant companies often do not know where they will be sued, and therefore will not know in advance what work product standards will apply to documents they may have already created.

Case Date Jurisdiction State Cite Checked
2015-01-01 Federal
Comment:

key case


Chapter: 40.1705
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 Jurisdiction State Cite Checked
2014-11-21 Federal CA

Chapter: 40.1705
Case Name: Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188 (R.I. Super. Ct. Nov. 6, 2013)
January 15, 2014 (PRIVILEGE POINT)

"Rhode Island State Court Sorts Through Work Product Issues"

Some factual settings give courts the opportunity to carefully and logically apply work product principles. A Rhode Island court confronted such a situation in Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188 (R.I. Super. Ct. Nov. 6, 2013).

An asbestos plaintiff's lawyer and the defendants' lawyers jointly toured the site where plaintiff's late husband had worked. All the lawyers came equipped with cameras, but the plaintiff's lawyer's camera stopped working – so he took pictures on his cell phone. Defendants refused to turn over their pictures and video footage. The court held as follows: (1) defendants' pictures and videos deserved fact work product protection; (2) defendants could not successfully claim that their pictures and videos deserved the higher opinion work product protection, although the defense lawyers specifically directed their photographer and videographer to record specific items – because plaintiff's lawyer "could have gleaned the same information by listening to the instructions given to the photographer and videographer"; (3) plaintiff could establish "substantial need" for pictures of the worksite, because the "depiction of [the] photos of the asbestos-containing items . . . Is key to one of the essential elements of Plaintiff's prima facie case"; (4) plaintiff could not obtain the "substantial equivalent" of the defense lawyers' pictures, because the cell phone picture's quality was "so poor that it is impossible to read some of the labels on the items photographed"; (5) plaintiff would face an "undue hardship" in attempting to obtain the "substantial equivalent" – because the property had been sold after the tour, and "many of the items the parties photographed are no longer there." Id. At *9, *11, *14, *13.

Courts describe the work product doctrine protection as "intensely practical," and decisions like this highlight that principle.

Case Date Jurisdiction State Cite Checked
2013-11-06 State RI
Comment:

key case


Chapter: 40.1705
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 92089, at *13-14 (S.D.N.Y. June 28, 2013)
(analyzing work product protection for materials created by a private investigator and communications with a public relations firm; "[T]here is not the slightest reason why communications between Chevron employees and PR firms cannot qualify at least as ordinary work product. If a document is prepared in anticipation of litigation, it qualifies. The questions that then matter are whether the document is responsive to a proper request and whether the showing necessary to overcome 'ordinary' work product protection has been made." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-06-28 Federal NY B 4/14

Chapter: 40.1705
Case Name: In re Terrorist Attacks on September 11, 2001, No. 03 MDL 1570 (GBD) (FM), 2013 U.S. Dist. LEXIS 84028, at *130 (S.D.N.Y. June 12, 2013)
August 28, 2013 (PRIVILEGE POINT)

"Court Handling the September 11 Terrorist Attack Case Addresses Work Product Waiver"

One dramatic difference between the work product doctrine and the attorney-client privilege involves the former's more robust protection -- which normally survives disclosure to friendly third parties. Numerous cases hold that disclosure to accountants, investment bankers, consultants, family members, etc. normally waives privilege protection -- but not work product protection.

However, even disclosure to a friendly third party can sometimes waive work product protection – if the disclosure increases the likelihood that an adversary can obtain it. In In re Terrorist Attacks on September 11, 2001, the court acknowledged that plaintiffs' FOIA requests were "clearly" work product, because plaintiffs and their lawyers prepared them in connection with the litigation. No. 03 MDL 1570 (GBD) (FM), 2013 U.S. Dist. LEXIS 84028, at *130 (S.D.N.Y. June 12, 2013). Plaintiffs also argued that "their sharing of work product information with various government agencies should not lead to any waiver because the government is not their adversary in this or any related proceeding." Id. At *131. The court nevertheless found a waiver – noting that defendants could themselves file FOIA requests, and that "even disclosure to non-adversaries waives work product protection if it materially increases the likelihood that an adversary can gain access to that information." Id.

Although most work product waiver cases involve disclosure to adversaries, even disclosure to non-adversaries can trigger a waiver in certain circumstances.

Case Date Jurisdiction State Cite Checked
2013-06-12 Federal NY
Comment:

key case


Chapter: 40.1705
Case Name: In re McDaniel, No. 14-13-00127-CV, 2013 Tex. App. LEXIS 4052, at *6 (Tex. App. Mar. 28, 2013)
(holding that tests conducted on a product deserved work product protection; "'Core work product' concerns an attorney's mental processes and is not discoverable. See Tex. R. Civ. P. 192.5(b)(1). 'Other' or 'non-core' work product 'is discoverable only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the material by other means.'" Id. at 192.5(b)(2))

Case Date Jurisdiction State Cite Checked
2013-03-28 State TX B 3/14

Chapter: 40.1705
Case Name: State v. Lead Indus. Assoc., 64 A.3d 1183, 1194 (R.I. 2013)
(holding that a Sherwin-Williams PowerPoint presentation to its board of directors about available insurance coverage deserved fact work product protection; "The record is uncontroverted that exhibit no. 16 was prepared at the request of the board of directors during its quest for advice about the insurance coverage that was available to the company for the pending lead-paint litigation. . . . Nothing in the record suggests that general counsel previously had commissioned this sort of investigation, nor is there any indication that this investigation was solicited for any reason other than for the pending lead-paint litigation."; finding that it did not deserve opinion work product protection; "In our opinion, exhibit no. 16 cannot be considered to be opinion work product because it does not reflect the thoughts, opinions, or conclusions of general counsel. On its face, exhibit no. 16 seems merely to provide updates on insurance considerations for the ongoing lead paint litigation. There appears to be nothing that is reflective of legal advice or legal issues, nor do the slides reveal any confidential communications made by the board of directors or management to general counsel. Accordingly, there is no reason to conclude that exhibit no. 16 itself--as distinguished from whatever oral advice may have been given by the attorneys to the client during the course of the meeting--constitutes legal advice.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State RI B 3/14

Chapter: 40.1705
Case Name: Shionogi & Co. v. Intermune Inc., No. C-12-03495 EDL, 2012 U.S. Dist. LEXIS 173452, at *1 (N.D. Cal. Dec. 5, 2012)
February 27, 2013 (PRIVILEGE POINT)

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

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

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

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

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

key case


Chapter: 40.1706
Case Name: Global Oil Tools, Inc. v. Barnhill, Civ. A. No. 12-1507 SECTION "J" (4), 2013 U.S. Dist. LEXIS 48226, at *14, *27 (E. D. La. Apr. 3, 2013)
(finding that neither the attorney-client privilege nor the work product doctrine protected a report prepared after a forensic accounting firm's investigation into the possible theft of tools; noting that the corporate secretary filed an declaration, but also noting that the court had found that the declaration "contained merely conclusory statements, which were insufficient for Global Oil to meet its burden to show that the work-product doctrine applied."; ultimately concluding that the report did not deserve privilege or work product protection; "The McGovern Report makes no reference to Bailey [lawyer], nor does it reference either the attorney-client privilege or work-product doctrine. In fact, it does not mention the possibility of civil litigation at all.")

Case Date Jurisdiction State Cite Checked
2013-04-03 Federal LA B 3/14

Chapter: 40.1706
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 Jurisdiction State Cite Checked
2013-01-01 State VA B 9/13, 3/14