Showing 110 of 110 results

Chapter: 41.1

Case Name: Progressive Casualty Ins. Co. v. FDIC, No. C12-4041-MWB, 2014 U.S. Dist. LEXIS 116909 (N.D. Iowa Aug. 22, 2014)
("Ordinary work product includes raw factual information and is not discoverable unless the party seeking discovery has a substantial need for those materials and cannot obtain the materials by other means. . . . Opinion work product consists of counsel's mental impressions, conclusions, opinions or legal theories and enjoy almost absolute immunity, making them discoverable in only very rare and extraordinary circumstances.")

Case Date Jurisidction State Cite Checked
2014-08-22 Federal IA

Chapter: 41.2

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 328 (M.D. Pa. 2013)
("Rule 26(b)(3) establishes two categories of protection: fact work product and opinion work product.")

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

Chapter: 41.3

Case Name: Abila v. Funk, No. CIV 14-1002 JB/SV, 2016 U.S. Dist. LEXIS 131121 (D.N.M. Sept. 20, 2016)
("The work-product doctrine does not protect documents or other items that do not reflect the attorney's mental impressions.")

Case Date Jurisidction State Cite Checked
2016-09-20 Federal NM

Chapter: 41.3

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 Jurisidction State Cite Checked
2016-03-22 Federal PA

Chapter: 41.3

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; not explaining why such interviews could not be fact work product even without reflecting a lawyer's mental process)

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

Chapter: 41.3

Case Name: Woodard v. Victory Records, Inc., No. 14 CV 1887, 2014 U.S. Dist. LEXIS 69512 (N.D. Ill. May 21, 2014)
("The court must also examine whether the sought-after documents convey an attorney's thought processes and mental impressions. . . . Documents created in the ordinary course of business or that would have been created irrespective of litigation are not entitled to work-product protection. . . . Documents that are not primarily legal in nature are also not protected under the work-product doctrine. . . . In other words, the 'primary motivating purpose behind the creation of a document' must be to aid in possible future litigation.")

Case Date Jurisidction State Cite Checked
2014-05-21 Federal IL

Chapter: 41.3

Case Name: Cal. Sportfishing Prot. Alliance v. Chico Scrap Metal, Inc., No. 2:10-cv-1207 GEB AC, 2014 U.S. Dist. LEXIS 20694, at *19 (E.D. Cal. Feb. 18, 2014)
("The remaining documents are either clearly unprotected by the work-product doctrine as they do not reveal the attorney's strategies or legal impressions or, to the extent some documents could potentially have been demonstrated to constitute work product, the undersigned finds that plaintiff failed to meet its burden to establish the application of the doctrine.")

Case Date Jurisidction State Cite Checked
2014-02-18 Federal CA B 7/14

Chapter: 41.3

Case Name: Toensing v. United States Dep't of Justice, Civ. A. No. 11-1215 (BAH), 2013 U.S. Dist. LEXIS 162158, at *15 (D.D.C. Nov. 14, 2013)
("Thus, '[a]ny part of [a document] prepared in anticipation of litigation, not just the portions concerning opinions, legal theories, and the like, is protected by the work product doctrine and falls under exemption 5.'" (citation omitted))

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

Chapter: 41.7

Case Name: United States v. Frostman, Crim No. 4:16cr55, 2016 U.S. Dist. LEXIS 147899 (E.D. Va. Oct. 25, 2016)
(holding that a criminal defendant's lawyer waived opinion work product protection by presenting the criminal defendant in pleading guilty, while declining to acknowledge that the lawyer provided all the necessary warnings to the client before the guilty plea; "While a plausible argument can be made that attorney opinion work product protection does not extend to shield defense counsel from answering the Court's limited 'meritorious defenses' and 'constitutional rights' questions, the Court finds that the better reasoned conclusion is that even though the Court only asks for a 'yes' or 'no' answer, the questions as posed ask counsel to reveal his opinion. . . . the Court concludes that the protection of the attorney opinion work product doctrine extends to such one-word conclusory statements, made in response to questions from the Court, seeking the attorney's mental impressions, conclusions, or opinions.")

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

Chapter: 41.7

Case Name: United States v. Frostman, Crim No. 4:16cr55, 2016 U.S. Dist. LEXIS 147899 (E.D. Va. Oct. 25, 2016)
(holding that a criminal defendant's lawyer waived opinion work product protection by presenting the criminal defendant in pleading guilty, while declining to acknowledge that the lawyer provided all the necessary warnings to the client before the guilty plea; explaining that the criminal defense lawyer answered as follows when the court asked the lawyer whether he was aware of "any constitutional claims to be made in this case in [the client's] defense: "'I don't believe I can answer that question without revealing attorney work product, Your Honor.'"; "Because Defendant wishes to plead guilty and waive his constitutional rights, the Court is required to determine whether Defendant's guilty plea is voluntary and the waiver of Defendant's constitutional rights is knowing and intelligent. . . . While Defense counsel answered 'yes' to the Court's question as to whether Defendant had been competent and able to cooperate with him in the case . . . Defense counsel then asserted attorney opinion work product protection in response to the Court's 'meritorious defenses' and 'constitutional violations' questions. Defense counsel later explained to the Court, in a hypothetical context, and as an example of why an attorney might assert attorney opinion work product, that when he sees a constitutional violation that may not result in suppression, he can discuss that with his client, and with the direction of his client, not pursue that claim. . . . Defense counsel further explained that, in such a hypothetical situation, 'the process of explaining my, how -- what legal issue I see, my analysis of the issue and what led to my conclusion not to raise that issue, is the heartland of opinion attorney work product. It's my legal analysis of a potential claim and of why I did or did not make a decision to raise that claim in this litigation."; "While it is true that an attorney can assert attorney opinion work product protection even if the client is not asserting the protection, such assertion must occur in the rarest of circumstances in a guilty plea context."; "For these reasons, the Court concludes that when, during a guilty plea hearing, a criminal defendant does not assert work product protection, but his defense attorney thereafter asserts attorney opinion work product protection in response to the Court's questions seeking to determine whether defendant is pleading weighty guilty voluntarily, considerations of knowingly, and public policy intelligently, and a proper administration of justice militate in favor of piercing attorney opinion work product protection. Such an invocation of the doctrine constitutes a rare and extraordinary circumstance justifying an exception to attorney opinion work product protection."; "Because the Court has concluded that an exception to the attorney opinion work product doctrine applies on these unique facts, the Court ORDERS that all parties appear before the Court once again in order to allow the Court to inquire of Defense counsel regarding the existence of potential meritorious defenses or constitutional violations related to Defendant's case.")

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

Chapter: 41.7

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

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

Chapter: 41.7

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

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

Chapter: 41.7

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

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

key case


Chapter: 41.8

Case Name: Newman v. Highland School Dist., 186 Wash. 2d 769, 381 P.3d 1188 (2016)
December 21, 2016 (PRIVILEGE POINT)

"Court Nixes Privilege Protection for Former Employee Interviews – Is This a Big Deal?: Part III"

The last two Privilege Points (Part I and Part II) described the Washington Supreme Court's 5-4 rejection of privilege protection for communications with former corporate employees (Newman v. Highland School Dist., 186 Wash. 2d 769, 381 P.3d 1188 (2016)), and three reasons why the decision should not frighten corporations' lawyers.

Newman alarmists often miss the fourth and perhaps most important reason why the decision should not cause panic. In the normal context for such communications (when the company is in or anticipates litigation), the work product doctrine usually can provide an entirely separate protection in most courts. That protection should cover lawyers' and former employees' notes of their communication, and even their intangible oral conversations. Although fact work product protection can be overcome, that seems unlikely if the former employee is available for the adversary to interview or depose. And focused questions from the corporation's lawyer might even deserve absolute opinion work product protection. Newman did not address that independently sufficient protection. A 2014 Privilege Point described a federal case in which litigants also inexplicably failed to timely claim work product protection in this context. Winthrop Res. Corp. v. CommScope, Inc., Civ. A. No. 5:11-CV-172, 2014 U.S. Dist. LEXIS 158413 (W.D.N.C. Nov. 7, 2014). All in all, careful lawyers should be able to work around Newman's adverse impact.

Ironically, Newman's extension of privilege only to current employees might prove a greater threat in a totally different direction. Most courts extend privilege protection to non-employees who are the "functional equivalent" of employees. In this age of outsourcing, the "functional equivalent" doctrine can be critically important. Newman's "bright line" privilege approach could threaten this protection.

Case Date Jurisidction State Cite Checked
2016-10-20 Federal WA
Comment:

key case


Chapter: 41.8

Case Name: Wellstar Health Sys., Inc. v. Jordan, 743 S.E.2d 375, 380 (Ga. 2013)
(holding that the work product doctrine protected transcripts of a party's interviews of non-party witness; "Under this well-established authority, the transcripts of non-party interviews conducted by Wellstar in the preparation of its defense clearly constitute attorney work product.")

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

Chapter: 41.401

Case Name: Hausman v. Holland America Line-U.S.A., Case No. 2:13-cv-00937-BJR, 2015 U.S. Dist. LEXIS 165179 (W.D. Wash. Dec. 9, 2015)
(holding that a paralegal's witness interview notes deserved opinion work product protection; "[E]ven if Ms. Mizeur's [Plaintiff's former employee, who had been interviewed by defendant's paralegal] prior statement was germane to the Motion to Vacate, Ms. Roberts' [Paralegal] written notes from Ms. Mizeur's pre-trial interview would constitute the exact type of opinion work-product that the Supreme Court has cautioned must be zealously protected.").

Case Date Jurisidction State Cite Checked
2015-12-09 Federal WA

Chapter: 41.402

Case Name: United States v. Frostman, Crim No. 4:16cr55, 2016 U.S. Dist. LEXIS 147899 (E.D. Va. Oct. 25, 2016)
(holding that a criminal defendant's lawyer waived opinion work product protection by presenting the criminal defendant in pleading guilty, while declining to acknowledge that the lawyer provided all the necessary warnings to the client before the guilty plea; "Fact work product consists of 'documents prepared by an attorney that do not contain the attorney's mental impressions,' while opinion work product 'contains th[e] fruits of an attorney's mental processes.'")

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

Chapter: 41.402

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)
("Because the protective spheres of the work-product doctrine and the attorney-client privilege are different, this result is not inconsistent with the Court's ruling above that the documents contain only fact work product. The strong protection afforded to opinion work product exists to protect an attorney's mental impressions about her client's case. Those mental impressions are not reflected, expressly or otherwise, in the charts, tables, and graphs that make up these documents. The documents contain only factual compilations and analyses, not legal judgments. Nevertheless, the attorney-client privilege protects even purely factual communications between attorney and client when those facts are gathered at the request of in-house counsel for the purpose -- or at least with a significant purpose -- of providing legal advice to the corporation. The Court finds that was the case here with regard to the PowerPoints and spreadsheets at issue.")

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

Chapter: 41.402

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 Jurisidction State Cite Checked
2016-09-27 Federal DC

Chapter: 41.402

Case Name: Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188, at *6 (R.I. Super. Ct. Nov. 6, 2013)
("Opinion work product, which consists of an attorney's mental impressions, conclusions, opinions, or legal theories, is absolutely immune from discovery.")

Case Date Jurisidction State Cite Checked
2013-11-06 State RI B 5/14

Chapter: 41.402

Case Name: Draggin' Y Cattle Co. v. Addink, 313 P.3d 451, 460 (Mont. 2013)
(holding that an insurance company was not an insurance defense lawyer's client, but that the privilege protected communications between the lawyer and the company; "Opinion work product relates to the mental impressions, opinions, conclusions or legal theories of counsel and is given additional protection.")

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

Chapter: 41.402

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 634 (D. Nev. 2013)
("Opinion work product, an attorney's mental impressions, conclusions, opinions or legal theories, is only discoverable when counsel's mental impressions are at issue and there is a compelling need for disclosure.")

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

Chapter: 41.403

Case Name: Lobel v. Woodland Golf Club of Auburndale, Civ. A. No. 15-13803-FDS, 2016 U.S. Dist. LEXIS 177423 (D. Mass. Dec. 22, 2016)
("Opinion work product reflecting the mental impressions, conclusions or legal theories of a party's attorney or representative receives heightened protection."; "Because document 54-57 depicts Attorney Denner's opinion work product, it is not subject to production.")

Case Date Jurisidction State Cite Checked
2016-12-22 Federal MA

Chapter: 41.403

Case Name: Tatung Company, Ltd. v. Shu Tze Hsu, Case No. SA CV 13-1743-DOC (ANx), 2016 U.S. Dist. LEXIS 22012 (C.D. Cal. Feb. 19, 2016)
(apparently concluding that only a lawyer's opinion can deserve opinion work product protection; "Here, Defendants generally assert that the mental impressions of Defendants Moore and Woo are protected under the attorney work product doctrine because Defendants Moore and Woo are attorneys. However, Defendants have not described the capacity in which Woo or Moore prepared the alleged work-product for WD or the scope of any 'threatened or anticipated litigation' relating to such protection. Moreover, as Tatung points out, although Woo is a licensed attorney, he was not counsel for WD, but rather served as WD's President at relevant times. The Court concludes Defendants have not made the necessary showing required to show that any documents created by Defendants Woo and Moore qualify as opinion work product.")

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

Chapter: 41.403

Case Name: Eagle Harbor Holdings, LLC v. Ford Motor Co., Case No. C11-5503 BHS, 2015 U.S. Dist. LEXIS 4535 (W.D. Wash. Jan. 14, 2015)
(inexplicably holding that opinion work product did not protect the clients' opinions; "While Mr. Preston and Mr. Marchand may have a joint business interest in patent litigation, their own personal opinions are not protected by the work-product privilege.")

Case Date Jurisidction State Cite Checked
2015-01-14 Federal WA

Chapter: 41.403

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 330-31 (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. 1 is an undated table or chart analyzing witness statements and conflicting evidence, described in the privilege log as 'Notes and chart for criminal case prepared with assistance of Attorney Becker and Attorney Simon.' The listed authors are Dempsey's parents, John and Shelley Dempsey, and his attorneys, Stephen Becker and Ted Simon. . . . [I]t is clear that the document itself constitutes opinion work product, prepared by Dempsey's parents acting as agents of his attorneys to assist in the defense of Dempsey against criminal charges, which unquestionably constitutes litigation.")

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

Chapter: 41.403

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 332-33 (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. 36 is an annotated transcript of a September 9, 2010, interview between a University public safety officer and K.S., with her attorney in attendance. According to the privilege log, the transcript was annotated by Dempsey's mother at the direction of Attorney Becker. . . . [I]t is clear that the document itself constitutes opinion work product, prepared by Dempsey's mother acting as an agent of his attorneys to assist in the defense of Dempsey against criminal charges, which unquestionably constitutes litigation.")

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

Chapter: 41.403

Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09 2051 MD ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *73 (S.D. Fla. Oct. 18, 2012)
("This conclusion is supported by the Affidavit of Donald L. Bjerke, Ph.D., a principal scientist in the Product Safety and Regulatory Affairs Department in the Beauty Care Division at P&G, which has been submitted to the undersigned on an ex parte basis. Dr. Bjerke's Affidavit makes clear that the email in question was generated as part of his completion of a task for the P&G legal department related to litigation. Thus, although the Plaintiffs are correct when they state that 'non-attorney impressions are not protected work product,'. . . the carrying out of tasks at the behest of legal counsel, or the summarization of legal advice, even if done by a non-attorney for purposes of disseminating that advice to other corporate employees[,] is clearly protected, as is the case of the document authored by Dr. Bjerke.")

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

Chapter: 41.403

Case Name: In re Grand Jury Proceedings, Thursday Special Grand Jury, Sept. Term, 33 F.3d 342, 348 (4th Cir. 1994)
(holding that opinion work product can be "claimed by the client or the attorney")

Case Date Jurisidction State Cite Checked
1994-01-01 Federal

Chapter: 41.501

Case Name: In re Grand Jury Subpoena, 463 F. Supp. 2d 573, 575-576 (W.D. Va. 2006)
("There are two types of work product material: opinion work product and fact work product. In re: Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994). Opinion work product includes the thoughts and mental impressions of an attorney. Id. (citing In re John Doe, 662 F.2d 1073, 1079-80 (4th Cir. 1981)). Therefore, it can only be discovered in 'extraordinary circumstances,' and the requesting party must demonstrate a 'compelling' need. In re John Doe, 662 F.2d at 1080.")

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

Chapter: 41.502

Case Name: Ellis v. City of Milwaukee, Case No. 14-C-0506, 2016 U.S. Dist. LEXIS 77189 (E.D. Wis. June 14, 2016)
(the work product protected during an interview prepared at the plaintiff's lawyer's request; holding that the defendant could not overcome the work product protection; "In moving to compel production of the diagram, the defendants first contend that the diagram is not protected by the work-product doctrine because the diagram is a 'purely factual document[] created wholly by a third-party witness.'. . . I disagree. Johnikin prepared the diagram at the request of the plaintiff's counsel during an interview that counsel conducted in anticipation of the present litigation. The diagram thus satisfies the three elements of the work-product doctrine: it is (1) a document or tangible thing, (2) prepared in anticipation of litigation or for trial, (3) by or for the opposing party or her attorney. The diagram would satisfy these elements, and thus be protected by the work-product doctrine, regardless of whether the plaintiff's attorney herself wrote on the diagram. Indeed, because Johnikin prepared the diagram in response to the attorney's questions, it may be possible to draw inferences about the attorney's thought processes from the diagram, even though the attorney herself did not write on the diagram.'. . . Here, however, the plaintiff's attorney herself wrote on the drawing and labeled parts of it, which increases the degree to which the diagram discloses the attorney's thought processes.")

Case Date Jurisidction State Cite Checked
2016-06-14 Federal WI

Chapter: 41.502

Case Name: Sperber v. Mercy Regional Health Center, Case No. 14-1331-EFM-GEB, 2016 U.S. Dist. LEXIS 22664 (D. Kansas Feb. 24, 2016)
(finding that defendant prepared a post-accident report about a slip and fall in the ordinary course of his business, so that the report did not deserve work product; allowing the redaction of one sentence; "Defendant argues counsel became involved only two hours after Plaintiff's fall and the Summary was not created until the following day. It claims the document was created under the direction of counsel, constitutes attorney work product, and must be protected from disclosure."; "Defendant has not satisfied its burden to demonstrate the work product protection applies to bar production of the entire Summary. Plaintiff cites the deposition testimony of Ms. Klaverweiden, the hospital employee who created the incident report, which demonstrates she prepared the report immediately after taking Plaintiff to the emergency room, before talking with a risk manager or attorney. Because 'materials prepared in the ordinary course of business or for nonlitigation purposes are not protected by work product doctrine,' and the evidence provided to the Court reveals Ms. Klaverweiden prepared her portion of the report in the usual course of business, the incident report itself does not constitute work product and the Summary is not entirely protected from disclosure by the work product privilege."; "At hearing, Defendant offered, and the Court accepted, the entire Summary for in camera review. In its review, the Court noted one instance on page 9 of the report which includes advice from Karen Vogt, Defendant's in-house counsel, and therefore constitutes attorney-client/work product information. That portion of the Summary is ordered redacted.")

Case Date Jurisidction State Cite Checked
2016-02-24 Federal KS

Chapter: 41.502

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

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

key case


Chapter: 41.502

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

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

key case


Chapter: 41.502

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)
("A lawyer's evaluation of a client's and its opponent's positions with respect to expected or ongoing settlement negotiations encompass both attorney-client privileged communications and attorney work product.").

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

Chapter: 41.502

Case Name: U.S. Equal Employment Opportunity Comm. v. Pioneer Hotel, Inc., Case No. 2:11-cv-01588-LRH-GWF, 2014 U.S. Dist. LEXIS 142735 (D. Nev. Oct. 6, 2014)
("[T]he attorney's or paralegal's interview notes are considered opinion work product which are entitled to almost absolute immunity from discovery.")

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

Chapter: 41.502

Case Name: Rauchfuss v. Schultz, M.D., Case No. CL1302754P-03, VLW 014-8-063 (7th Va. Cir. June 5, 2014)
(holding that various hospital risk manager documents either did not deserve work product protection or were discoverable because the plaintiff could establish "substantial need" for them; "A document referenced in the Supplemental Privilege Log as 3(a) 'Undated notes authored by Risk Manager Wendy Conner created on 12/11/12 and reflecting Wendy's mental impressions after separate conversations with Dr. Schultz and another treating provider on that same date.' ('Document No. 3(a)')"; "The medical chart printed contemporaneously with Document 3(a), containing the handwritten notes of Wendy Connor authored December 11, 2012, referenced in the Supplemental Privilege Log under the general heading of number 2. ('Document No. 2 [3(a)]')"; "A document referenced in the Supplemental Privilege Log as 3(b), 'Undated notes authored by Risk Manager Wendy Connor created on 3/12/13 and reflecting Wendy's mental impressions after a conversation with Dr. Schultz on that same date.' (Document No. 3(b)')"; "A document referenced in the Supplemental Privilege Log as 3(c), 'Notes dated 3/18/13 authored by Risk Manager Wendy Connor reflecting her mental impressions after conversations with Mr. Rauchfuss of that same date.' ('Document No. 3(c)')"; "The medical chart printed contemporaneously with Document No. 3(c), containing the handwritten notes of Wendy Connor authored March 18, 2013, referenced in the Supplemental Privilege Log under the general heading of number 2. ('Document No. 2[3(c)]')"; "The document referenced in the Supplemental Privilege Log as number 4, 'Witness statement Undated statement (postmarked 12/31/12) titled 'Witness Statement about my Care of Mr. George Rauchfuss Jr.' authored by Roger E. Schultz, M.D. reflecting his concern that litigation was likely to result.' (Document No. 4')"; explaining the documents had been redacted to remove any opinion work product)

Case Date Jurisidction State Cite Checked
2014-06-05 State VA

Chapter: 41.502

Case Name: Mosley v. Am. Home Assurance Co., Case No. 13-20259-CIV-KING/GARBER, 2013 U.S. Dist. LEXIS 168016, at *14 n.2 (S.D. Fla. Nov. 26, 2013)
(analyzing privilege protection in a first party insurance situation; "This applies only to fact work-product materials and not, of course, to attorney opinion work product, such as internal memoranda that might reflect an attorney's mental impressions.")

Case Date Jurisidction State Cite Checked
2013-11-26 Federal FL B 5/14

Chapter: 41.502

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; noting that documents that were not communicated to the client could nevertheless deserve work product protection; "Documents No. 41 and 46 are undated strategy notes composed by Dempsey's mother and father, respectively. Dempsey claims attorney-client privilege and work-product protection. With respect to these documents, Dempsey's objection to production shall be SUSTAINED. Based on the document descriptions in the privilege log and the Court's review of the document in camera, there is nothing to suggest that these documents themselves were communicated to Dempsey's counsel, nor that they contain references to any privileged communications within them. But, upon examination, it is clear that the documents themselves constitute opinion work product, prepared by Dempsey's parents acting as agents of his attorneys to assist in the defense of Dempsey against criminal charges, which unquestionably constitutes litigation.")

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

Chapter: 41.502

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 332-33 (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. 36 is an annotated transcript of a September 9, 2010, interview between a University public safety officer and K.S., with her attorney in attendance. According to the privilege log, the transcript was annotated by Dempsey's mother at the direction of Attorney Becker. . . . [I]t is clear that the document itself constitutes opinion work product, prepared by Dempsey's mother acting as an agent of his attorneys to assist in the defense of Dempsey against criminal charges, which unquestionably constitutes litigation.")

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

Chapter: 41.502

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 330-31 (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. 1 is an undated table or chart analyzing witness statements and conflicting evidence, described in the privilege log as 'Notes and chart for criminal case prepared with assistance of Attorney Becker and Attorney Simon.' The listed authors are Dempsey's parents, John and Shelley Dempsey, and his attorneys, Stephen Becker and Ted Simon. . . . [I]t is clear that the document itself constitutes opinion work product, prepared by Dempsey's parents acting as agents of his attorneys to assist in the defense of Dempsey against criminal charges, which unquestionably constitutes litigation.")

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

Chapter: 41.502

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 334 (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. 54 is a copy of a portion of Document No. 17, annotated by Chris Giovino, a private investigator who conducted a factual investigation in connection with Dempsey's legal defense. The annotations include comments and corrections to Dempsey's notes based on Giovino's recollection of witness interviews he personally conducted. . . . [I]t is clear that the annotations on this document constitute opinion work product, prepared by a private investigator acting as an agent of Dempsey's attorneys to assist in his defense to criminal charges, which unquestionably constitutes litigation.")

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

Chapter: 41.502

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 331 (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. 9 includes a partial draft letter from John Dempsey to the president of Bucknell University and notes for an anticipated meeting between the two. The document is undated but, based on its content, it was prepared in the period after Reed Dempsey's student conduct hearing, while his internal appeals remained pending at the University. The privilege log describes this document as having been ghostwritten or co-authored by Attorney Becker. . . . Moreover, upon examination, it is clear that the document itself constitutes opinion work product, prepared by his attorney to assist in the appeal of Dempsey's student conduct proceedings, which the Court has found to constitute litigation.")

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

Chapter: 41.502

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 331-32 (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; "Documents No. 17, 30, 32, 50, and 53 are notes prepared by or for Reed Dempsey outlining arguments, evidence, and litigation strategy with respect to his student conduct hearing and appeals. The privilege log describes these documents as having been prepared by Dempsey with the assistance of and in communication with his attorneys. Dempsey claims attorney-client privilege and work-product protection. With respect to these documents, Dempsey's objections to production are SUSTAINED. Based on the document descriptions in the privilege log and the Court's review of the documents in camera, the preparation of these documents involved confidential communication between Reed Dempsey and his attorneys for the purpose of providing legal assistance Dempsey. . . . Moreover, upon examination, it is clear that the documents themselves constitute opinion work product, prepared by Dempsey and his attorneys to assist him in student conduct proceedings, which the Court has found to constitute litigation in this case. The Bucknell University Defendants have failed to demonstrate any 'rare and exceptional circumstances' that would justify disclosure of these documents.")

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

Chapter: 41.502

Case Name: United States v. Watts, 934 F. Supp. 2d 451, 496 (E.D.N.Y. 2013)
("Defense counsels' notes, which include underlining, arrows, and circling, 'also reflect the mental impressions and thought processes of counsel, which entitles them to protection under the work product doctrine.'" (citation omitted))

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

Chapter: 41.502

Case Name: In re S<3> LTD., 252 B.R. 355, 363-64 (E.D. Va. 2000)
("Next, the Court must determine whether the report constitutes opinion or nonopinion work product. The Court's in camera review of the document leads the Court to believe that a great deal of the document consists of the mental impressions, conclusions, opinions, and legal theories that lead Vander Schaaf to conclude why MANCON's action may have constituted fraud. Consequently, most of the document constitutes opinion work product.")

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

key case


Chapter: 41.601

Case Name: Yeda Research & Dev. Co. v. Abbott GMBH & Co. KG, 292 F.R.D. 97, 106 (D.D.C. 2013)
("'The 'difficult matter' of deciding what 'degree of selection is necessary to transform facts into opinions' has yet to be resolved by the District of Columbia Circuit.'" (citation omitted))

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

Chapter: 41.602

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

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

Chapter: 41.602

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

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

key case


Chapter: 41.602

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

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

key case


Chapter: 41.602

Case Name: Hall v. L-3 Communications Corp., No. 2:15-cv-00231-SAB, 2017 U.S. Dist. LEXIS 7041 (E.D. Wash. Jan. 18, 2017)
("Federal courts of appeals have routinely held that documents and testimony pertaining to interviews by defendant's counsel with defendant's employees are protected opinion work product.")

Case Date Jurisidction State Cite Checked
2017-01-18 Federal WA

Chapter: 41.602

Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 105619 (N.D. Cal. Aug. 9, 2016)
(analyzing a fact and opinion work product protection for a lawyer's interview notes; "Attorney notes are protected by the work product doctrine. . . . Typically, notes taken by an attorney are treated as opinion, as opposed to fact, work product."; "However, even where opinion work product is concerned, if the facts being recorded by the attorney disclose 'concerns a layman would have as well as a lawyer in these particular circumstances, and in no way reveal anything worthy of the description 'legal theory,' disclosure may be warranted.")

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

Chapter: 41.602

Case Name: SFEG Corp. v. Blendtec, Inc., No. 3:15-0466, 2016 U.S. Dist. LEXIS 63738 (M.D. Tenn. May 13, 2016)
(holding that the work product doctrine protected an affidavit the plaintiff obtained from a former employee of defendant; concluding that the opinion work product doctrine applied, but then inexplicably addressing whether the defendant could overcome the work product protection covering the affidavits; ultimately concluding that the defendant did not do so; "The parties have cited no controlling authority in the Sixth Circuit on the question whether an affidavit of a nonparty witness prepared by counsel following an interview of the witness can be attorney work product. Moreover, there appears to be a split of authority among district courts on this issue. One line of cases, said to be the majority and relied upon by Blendtec, holds that a third party's affidavit, once signed by the affiant, is no longer attorney work product as a matter of law. . . . These cases hold that 'once a witness signs an affidavit the affidavit becomes a statement of facts within the personal knowledge of the witness, and not an expression of the opinion of counsel.'"; "Another line of cases take a different view. These cases hold that when a lawyer interviews a nonparty witness and, following the interview, prepares an affidavit for that witness based upon questions asked and responses given in the interview, the contents of that affidavit almost certainly will reveal 'the mental impressions, conclusions, opinions, or legal theories' of the lawyer, deserving of work product doctrine protection."; "The undersigned Magistrate Judge is persuaded by the reasoning of this latter line of cases. The affidavit sought by Blendtec in the present motion is the end product of a process initiated, carried forward, and completed by SFEG's trial counsel. Counsel conducted the interview of the witness, chose the topics for inquiry, and thereafter prepared notes from the interview. From these notes, counsel later drafted an affidavit for the witness. Counsel almost certainly included in this draft affidavit those facts that counsel deemed significant to the legal theories applicable to the case. Significantly, courts generally, including those that would deny work protection to a signed affidavit, have found that 'information relevant to the evolution of an affidavit, including but not limited to communication 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' are all protected by the work product doctrine.")

Case Date Jurisidction State Cite Checked
2016-05-13 Federal TN

Chapter: 41.602

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

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

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

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

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

key case


Chapter: 41.602

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

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

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

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

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

key case


Chapter: 41.602

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

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

Chapter: 41.602

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

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

Chapter: 41.602

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

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

Chapter: 41.602

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

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

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

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

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

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

key case


Chapter: 41.602

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

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

Chapter: 41.602

Case Name: Hausman v. Holland America Line-U.S.A., Case No. 2:13-cv-00937-BJR, 2015 U.S. Dist. LEXIS 165179 (W.D. Wash. Dec. 9, 2015)
(holding that a paralegal's witness interview notes deserved opinion work product protection; "[E]ven if Ms. Mizeur's [Plaintiff's former employee, who had been interviewed by defendant's paralegal] prior statement was germane to the Motion to Vacate, Ms. Roberts' [Paralegal] written notes from Ms. Mizeur's pre-trial interview would constitute the exact type of opinion work-product that the Supreme Court has cautioned must be zealously protected.").

Case Date Jurisidction State Cite Checked
2015-12-09 Federal WA

Chapter: 41.602

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

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

Chapter: 41.602

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

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

Chapter: 41.602

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

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

Chapter: 41.602

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

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

key case


Chapter: 41.602

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

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

key case


Chapter: 41.602

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

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

Chapter: 41.602

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

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

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

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

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

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

key case


Chapter: 41.602

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; "Despite Armstrong's arguments to the contrary, these affidavits make clear that the civil attorneys 'shape[d] the topics that were covered' and 'frame[d] the questions that were asked' in the interviews reflected in both Exhibits E and F as part of their efforts to determine whether to intervene in this litigation. . . . The Court therefore finds that these materials 'contain[] facts elicited in the course of a 'litigation-related investigation' that ''necessarily reflect[ ] a focus chosen by the lawyer,' and thus constitute opinion work product entitled to privilege.")

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

key case


Chapter: 41.602

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, In re Sealed Case, 124 F.3d at 236. Accordingly, courts in this district have held substantially verbatim witness statements contained in interview memoranda that have not been 'sharply focused or weeded' by an attorney to be fact rather than opinion work product.")

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

key case


Chapter: 41.602

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

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

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

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

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

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

key case


Chapter: 41.602

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

"Courts Analyze Work Product Protection for Final and Draft Affidavits"

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

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

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

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

key case


Chapter: 41.602

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

"Courts Analyze Work Product Protection for Final and Draft Affidavits"

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

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

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

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

key case


Chapter: 41.602

Case Name: Gruss v. Zwirn, No. 09 Civ. 6441 (PGG) (MHD), 2013 U.S. Dist. LEXIS 165211 (S.D.N.Y. Nov. 19, 2013)
January 22, 2014 (PRIVILEGE POINT)

"Who Owns Lawyers' Work Product?"

The attorney-client privilege clearly belongs to the client alone, although the client's lawyers must assert the privilege when they can. In contrast lawyers have at least some ownership interest in their work product – but few courts have applied that abstract principle to real-life situations.

In Gruss v. Zwirn, No. 09 Civ. 6441 (PGG) (MHD), 2013 U.S. Dist. LEXIS 165211 (S.D.N.Y. Nov. 19, 2013), defendants hired Gibson Dunn to conduct an internal investigation into financial irregularities, and present its findings to the SEC. The court held that the presentation waived any privilege and fact work product protection for Gibson Dunn's internal investigation-related documents. However, defendants responded to plaintiff's demand for some of those documents by arguing that they did "'not have the Gibson Dunn notes, and never have had access to those notes.'" Id. at *7 (internal citation omitted). Gibson Dunn also filed a pleading, contending that it could assert its own work product protection and withhold its internal documents from its clients. The court rejected these arguments – concluding that the defendant "has a presumptive right of access to Gibson Dunn's entire file, including the interview notes taken by Gibson Dunn attorneys." Id. at *12. The court ordered an in camera review to analyze any remaining opinion work product claims – bluntly labeling as "not credible" a Gibson Dunn lawyer's representation that "every word in the interview memos constitutes 'core opinion work product.'" Id. at *20 (citation omitted).

Because clients generally "control" privileged and work product material in their lawyers' possession, they normally cannot resist discovery of their lawyers' documents if a court has stripped away any privilege and work product protections.

Case Date Jurisidction State Cite Checked
2013-11-19 Federal NY
Comment:

key case


Chapter: 41.602

Case Name: Clemmons v. Acad. for Educ. Dev., Civ. A. No. 10-cv-911 (RC), 2013 U.S. Dist. LEXIS 161586, at *6 n.2 (D.D.C. Nov. 13, 2013)
(analyzing work product protection for draft witness declarations; ultimately finding opinion work product protection that the adversary could not overcome; "'And the draft declarations of, and communications with, any other unidentified potential witnesses for which a final declaration has not been produced are protected even more strongly by the work product doctrine because they would reveal plaintiffs counsel's mental impressions of which witnesses he considered using but decided against.'")

Case Date Jurisidction State Cite Checked
2013-11-13 Federal DC B 5/14

Chapter: 41.602

Case Name: United States v. Nosal, No. CR-08-0237 EMC, 2013 U.S. Dist. LEXIS 49745, at *6, *9 (N.D. Cal. Apr. 5, 2013)
("The Supreme Court has held that interview notes and summaries prepared by attorneys are generally afforded the higher level of protection given to opinion work product."; "Given the clear Supreme Court guidance on this matter, the Court finds that all of the documents that are the subject of this motion are opinion work product. As such, in order to compel discovery, Defendant must demonstrate that the attorneys' mental impressions are at issue in this case, and that his need for the material is compelling.")

Case Date Jurisidction State Cite Checked
2013-04-05 Federal CA B 3/14

Chapter: 41.602

Case Name: Walker v. N.H. Admin. Office of the Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *21 (D.N.H. Feb. 22, 2013)
(analyzing documents created during an investigation of a court clerk's suicide, allegedly caused by work place harassment; "The vast majority of documents for which defendants claim attorney-client privilege are emails wherein Attorney Moore [Outside lawyer] and/or Howe [court Human Resource Manager] are summarizing the testimony of various witnesses and keeping AOC [defendant] employees updated on the progress of the AOC investigation. Defendants' blanket assertion of attorney-client privilege does not suffice to demonstrate that these emails constitute communications made for the purpose of seeking or transmitting legal advice.")

Case Date Jurisidction State Cite Checked
2013-02-22 Federal NH B 3/14

Chapter: 41.602

Case Name: Manheim Auto. Fin. Servs. v. Oltmann (In re Oltmann), Ch. 7 Case No. 07-19488 HRT, Adv. No. 07-1753 HRT, 2013 Bankr. LEXIS 412, at *3 (D. Colo. Feb. 1, 2013)
("The investigator's reports are not verbatim statements from the interview subjects. Instead, they represent the investigator's summaries of those interviews. Frequently, this type of summary contains a substantial amount of opinion work product as they [sic] reveal lines of inquiry and the mental processes of an interviewer who is sifting information and selectively recording the elements of the conversation that, in his opinion, have relevance.")

Case Date Jurisidction State Cite Checked
2013-02-01 Federal CO B 1/14

Chapter: 41.602

Case Name: McCombs v. Paulsen, No. 3-12-0366, 2013 IL App (3d) 120366-U, ¶47
(in a medical malpractice case, holding that a lawyer's deposition summaries deserved privilege and work product protection, which was not waived when the lawyer shared the summaries with a testifying expert; "Our supreme court has held that counsel's notes and memoranda of witnesses' oral statements which are not verbatim and are not reviewed, altered, corrected, or signed by these individuals are protected work-product because, 'whether in the form of attorney's mental impressions or memoranda, these documents necessarily reveal in varying degrees the attorney's mental processes in evaluating the communications.'" (citation omitted))

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

Chapter: 41.602

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 329 (M.D. Pa. 2013)
("An attorney's notes or memoranda reflecting his or her recollection or impression of witness interviews constitute opinion work product, regardless of the factual content of the notes or memoranda.")

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

Chapter: 41.602

Case Name: Haga v. L.A.P. Care Servs., Inc., Case No. 1:01CV00105, 2002 U.S. Dist. LEXIS 1605 (W.D. Va. Feb. 1, 2002)
(agreeing with plaintiff that any record of interviews the plaintiff had with current or former employees at the defendant retirement home "necessarily contain[ed] theories and opinions formed in anticipation of litigation"; refusing to order plaintiff to reveal "the substance of the facts or opinions" obtained during plaintiff's counsel's ex parte interviews with present or former employees of defendant retirement home in a wrongful death case; finding that intangible work product could be protected under Hickman, although only tangible work product deserved protection under Fed. R. Civ. P. 26(b)(3); agreeing with plaintiff that any record of interviews the plaintiff had with current or former employees at the defendant retirement home "necessarily contained theories and opinions formed in anticipation of litigation"; refusing to order plaintiff to reveal "the substance of the facts or opinions" obtained during plaintiff's counsel's ex parte interviews with present or former employees of defendant retirement home in a wrongful death case; holding that the Fourth Circuit did not absolutely prohibit discovery of oral statements taken from witnesses, but allowed discovery of them only under "extraordinary circumstances"; explaining that "the fact that the defendant corporation is no longer in business or that these former employees may have negative feelings about the defendant adds little to the argument"; agreeing with plaintiff that any record of interviews the plaintiff had with current or former employees at the defendant retirement home "necessarily contained theories and opinions formed in anticipation of litigation"; refusing to order plaintiff to reveal "the substance of the facts or opinions" obtained during plaintiff's counsel's ex parte interviews with present or former employees of defendant retirement home in a wrongful death case)

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

Chapter: 41.602

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

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

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

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

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

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

key case


Chapter: 41.603

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

Case Date Jurisidction State Cite Checked
2017-04-11 Federal OH

Chapter: 41.603

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 work-product doctrine protects Endeavor's draft demand letters from disclosure. The control of the letters, as well as the comments and revisions made to them by Endeavor-affiliated individuals, establish that they were made in anticipation of litigation. The comments and revisions on the draft letters are classic forms of work-product, and much of the commentary reflects the type of information that is given near absolute protection from disclosure.")

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

Chapter: 41.603

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

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

Chapter: 41.603

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; "Defendant appears to argue that the Stone Oil fuel dock videotape is its counsel's work product because its attorney suspected that Stone Oil might have a videotape, inquired about it, learned that the videotape existed and then acquired it. However, this is clearly not the type of attorney thought process that the work product doctrine protects."; "Defendant has not explained (and could not conceivably explain) how disclosure of this third-party videotape would reveal its attorney's legal impressions and thought processes. I have reviewed the videotape and it depicts nothing that could conceivably be characterized as an attorney's core work product.")

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

Chapter: 41.603

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

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

key case


Chapter: 41.603

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 Jurisidction State Cite Checked
2015-12-23 Federal NV

Chapter: 41.603

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

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

Chapter: 41.603

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)
("[I]n the context of work product, an attorney's discussion of factual matters may reveal his or her tactical or strategic thoughts.")

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

key case


Chapter: 41.603

Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 12-5393, 2015 U.S. App. LEXIS 2559 (D.C. App. Feb. 20, 2015)
(analyzing work product protection for documents created in connection with the companies' litigation settlement that resulted in a "co-promotion agreement"; finding that the work product protection is a business arrangement that was part of a settlement, in remanding to the trial court to review post-settlement documents; rejecting work product protection for intrinsically unprotected documents; "When a factual document selected or requested by counsel exposes the attorney's thought processes and theories, it may be appropriate to treat the document as opinion work product, even though the document on its face contains only facts.")

Case Date Jurisidction State Cite Checked
2015-02-20 Federal DC

Chapter: 41.603

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; "The court concludes that the e-mail reveals a specific request for information made by in-house counsel for Systems apparently for potential use in the FSS patent infringement litigation, on the reasonable assumption that Systems would eventually be involved in the litigation. Although the information revealed is factual in nature, i.e., the location of specific documents, the nature of the request also reveals the in-house counsel's thought processes.")

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

Chapter: 41.603

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

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

Chapter: 41.603

Case Name: Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779, at *57, *58, *62-63, *65, *71, *71-72, *73, *73-74, *74, *75 (N.D. Ill. Jan. 6, 2014)
(analyzing the waiver effect of a company disclosing work product-protected documents to a litigation funding company; concluding that (1) the litigation funding arrangement was not unlawful champerty or maintenance; (2) the arrangement between the company and the litigation funding company was not relevant and therefore was not discoverable; (3) the company's estimate of its chance of success was not admissible because it was opinion work product; (4) the company waived privilege protection for any documents shared with a litigation funding company, because they did not share a common legal interest; and (5) the company waived work product protection by disclosing its work product to prospective funders with which the company did not have a confidentiality agreement; "While disclosure of a document to a third party waives attorney-client privilege unless the disclosure is necessary to further the goal of enabling the client to seek informed legal assistance, the same is not necessarily true of documents protected by the work product doctrine. This disparity in treatment flows from the very different goals the privileges are designed to effectuate. The attorney-client privilege promotes the attorney-client relationship, and, indirectly, the functioning of our legal system, by protecting the confidentiality of communications between clients and their attorneys. . . . In contrast, the work-product doctrine promotes the adversary system directly by protecting the confidentiality of papers prepared by or on behalf of attorneys in anticipation of litigation."; "Because the work-product doctrine serves to protect an attorney's work product from falling into the hands of an adversary, a disclosure to a third party does not automatically waive work-product protection."; "To avoid the risk of disclosure, Miller took precautions through confidentiality agreements with at least some prospective funders."; "In contrast to the attorney-client privilege, the party asserting work product immunity is not required to prove non-waiver. The party asserting waiver has the burden to show that a waiver occurred."; "It is a relevant inquiry in cases like this whether the disclosing party had a reasonable basis for believing that the recipient would keep the disclosed material confidential. . . . While a confidentiality agreement may provide that basis, its absence may not be fatal to a finding of non-waiver. Phrased differently, a confidentiality agreement may be a sufficient but not a necessary element of a finding of non-waiver in cases like this. With or without a confidentiality agreement, it could be argued that a prospective funder would hardly advance his business interests by gratuitously informing an applicant's adversary in litigation about funding inquiries from that company. To do so would announce to future litigants looking for funding this was a company not to be trusted." (footnote omitted); "[W]here Miller had an oral or written confidentiality agreement, they remain protected and are not discoverable. But what about those funders with which Miller had no agreement? All Miller has said is that the turnovers to funders did not increase the chances that Caterpillar would get the information."; "[O]n the present record, it appears that Miller took protective measure with some but perhaps not all prospective funders. On the present record and given the absence of any developed legal argument from Miller, Caterpillar has sufficiently shown that as to the latter group of funders a turnover of information substantially increased the risk of disclosure to Caterpillar and resulted in a waiver of the work product privilege. Miller must produce all damage summaries, damage estimates and spread sheets."; "There is a final aspect of the materials I reviewed in camera that warrants separate mention. Miller has redacted on a funding application a percentage estimate of the chances of success in the case. The percentage estimate, which it bears repeating is quite high, is unexplained. It is simply a number. The identical, unexplained, percentage estimate appears in a number of other documents -- many are duplicates -- that Miller has listed on its revised Privilege Log."; "A numerical estimate of the chances of success, even if unexplained, would appear to fall within that portion of Rule 26(b)(3)(B) that covers materials containing 'the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.'"; "Miller, quite obviously, could not use its own estimate at trial since it would be irrelevant and run afoul of the hearsay rule. And given the rosy estimate, Caterpillar would never try to use it as an admission. But even if it did, it would never be admitted: the lawyers certainly could not testify about the basis for the estimate. In fact, that would be error."; "In sum, even if Caterpillar were foolhardy enough to seek admission of Miller's high estimate of its chances of success on the theory that the estimate was an admission, it would inevitably be excluded under Rule 403. . . . Hence, any unexplained, percentage estimate of the chances of success made by Miller to a prospective funder need not be produced.")

Case Date Jurisidction State Cite Checked
2014-01-06 Federal IL B 6/14

Chapter: 41.603

Case Name: Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188, at *7, *9 (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; "Defendants argue that the photos and video footage they took at the Hoechst site inspection are opinion work product and, therefore, are subject to absolute immunity from discovery. Specifically, Defendants argue that sharing the photos and video with Plaintiff would reveal the mental impressions and legal theories that went into their decisions as to which items at the facility to record."; "Neither party suggests that, during the site inspection, Defendants attempted to conceal from Plaintiff's counsel which items they were photographing or recording. Thus, to the extent that Plaintiff's counsel could glean information pertaining to Defendants' counsel's mental impressions and legal theories from viewing the photos and video Defendants recorded at the site inspection, Plaintiff's counsel could have gleaned the same information by listening to the instructions given to the photographer and videographer during the site inspection and looking at which items they recorded. For this reason, the absolute immunity afforded to opinion work product cannot extend to the photos and video collected by Defendants.")

Case Date Jurisidction State Cite Checked
2013-11-06 State RI B 5/14

Chapter: 41.603

Case Name: Sher v. Barclays Capital, Inc., Civ. No. ELH-11-1982, 2013 U.S. Dist. LEXIS 89482, at *12 (D. Md. June 26, 2013)
(recognizing the "because of" standard for work product protection; "[T]he Petrush [debtor's employee] Spreadsheet is not simply a collection of facts, but rather a comprehensive opinion work product that evolved out of TMST's [debtor] specific choices and thought processes concerning litigation against Barclays.")

Case Date Jurisidction State Cite Checked
2013-06-26 Federal MD B 4/14

Chapter: 41.603

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

Chapter: 41.603

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 *14-15 (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 chart on pending litigation prepared by Elizabeth Francis, Corporate General Counset of J.T. Walker Industries. This chart is rife with strategic and evaluative thinking on the part of counsel, and it is clearly prepared in anticipation of litigation. The Defendant claims that the chart is protected by the privilege and that is less clear, because it does not seem to contain any confidential communications between attorney and client. But it is unquestionably protected opinion work product.")

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

Chapter: 41.603

Case Name: United States v. J-M Mfg. Co., Inc., Civ. A. No. 11-cv-01691-MSK-MJW, 2013 U.S. Dist. LEXIS 14800, at *11-13 (D. Colo. Feb. 4, 2013)
(holding that the opinion work product doctrine can protect the results of testing; "The Magistrate Judge correctly determined that, in large part, the test results themselves constitute non-opinion work product. The test results, of themselves, simply reflect matters of historical fact. However, the Court concludes that those portions of the report that describe the samples to be tested and the tests to be performed do reflect, to some degree, the mental impressions or opinions of the counsel involved. The selection of a particular test methodology or testing sample or set of samples to test could, in circumstances where the available choices are sufficiently numerous and distinct, permit one to draw inferences as to the reasons why one option was selected over another; those inferences, in turn, could reveal attorney opinions, theories, or strategies. . . . This, in turn, throws new light on the purely 'factual' test results -- the fact that a certain test produced results in a certain range, or using certain units of measurement might reveal the particular test or methodology that was selected over other potential tests, which, for the reasons discussed above, permits inferences as to matters of attorney opinion.")

Case Date Jurisidction State Cite Checked
2013-02-04 Federal CO B 2/14

Chapter: 41.603

Case Name: McCombs v. Paulsen, No. 3-12-0366, 2013 IL App (3d) 120366-U, ¶30
(in a medical malpractice case, holding that a lawyer's deposition summaries deserved privilege and work product protection, which was not waived when the lawyer shared the summaries with a testifying expert; "The next morning, after reviewing the summaries, the court found that the documents were prepared by Dr. Paulsen's attorneys and the facts detailed in the documents summarized what defense counsel felt were the most important parts of the other doctors' testimony. As such, the summaries represented defense counsels' mental impressions of the testimony and, consequently, were protected by both the attorney-client privilege and the work product privilege. The trial court denied plaintiffs' motion to compel.")

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

Chapter: 41.603

Case Name: Ashton v. Al Qaeda Islamic (In re Terrorist Attacks on September 11, 2001), 293 F.R.D. 539, 543-44 (S.D.N.Y. 2013)
(holding that plaintiffs' FOIA requests deserved work product protection, but the protection was waived when plaintiff sent the request to the government; explaining that the government was not an adversary, but providing the FOIA request to the government increased the chances that the defendants could obtain the request; "The Plaintiffs' FOIA Requests clearly are work product because they were created on the Plaintiffs' behalf by their lawyers as part of their factual investigation in connection with this litigation. Moreover, to the extent that the Requests are reflective of counsels' determinations about which subject matter, documents, or issues are important to their case, they provide a window into the Plaintiffs' confidential legal theories and strategies.")

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

Chapter: 41.603

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; noting that documents that were not communicated to the client could nevertheless deserve work product protection; "Documents No. 41 and 46 are undated strategy notes composed by Dempsey's mother and father, respectively. Dempsey claims attorney-client privilege and work-product protection. With respect to these documents, Dempsey's objection to production shall be SUSTAINED. Based on the document descriptions in the privilege log and the Court's review of the document in camera, there is nothing to suggest that these documents themselves were communicated to Dempsey's counsel, nor that they contain references to any privileged communications within them. But, upon examination, it is clear that the documents themselves constitute opinion work product, prepared by Dempsey's parents acting as agents of his attorneys to assist in the defense of Dempsey against criminal charges, which unquestionably constitutes litigation.")

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

Chapter: 41.603

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 332 (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. 18 is a draft letter from John Dempsey, addressed to the general counsel of Bucknell University, which apparently was never sent.")

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

Chapter: 41.603

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 335 (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. 68 is an undated set of notes composed by Dempsey's mother suggesting questions to be asked of various witnesses to the events underlying the criminal and student conduct proceedings against her son.")

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

Chapter: 41.603

Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 110 (D.D.C. 2012)
("The reports in question were prepared at the behest of BIPI attorneys, who requested that certain data be entered and manipulated to determine whether various settlement options were beneficial to BIPI. Revealing the data chosen for this analysis would necessarily reveal the attorneys' mental impressions, including, at a bare minimum, that the attorneys believed such analyses of that data was necessary or important to determining an appropriate settlement. Where the factual work product cannot reasonably be excised from the opinion work product, the claim of privilege must be upheld and the request for production denied.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 41.603

Case Name: In re Toyota Motor Corporation, No. 04 02 00588 CV, 2002 Tex. App. LEXIS 8693 (Tex. App. Dec. 11, 2002)
("PTM 0046 contains the results of several steer tests on different model cars. The privilege log identifies the document as three copies of data selected and organized by Toyota legal personnel. The first copy contains handwritten notes of Toyota's in-house counsel, noting the particular tests counsel identified for further review. The third copy is preceded by a fax cover sheet from Toyota's in-house counsel, indicating the test result was sent to outside counsel. Conti's uncontroverted affidavit states the test results were sent to counsel for the purpose of requesting or facilitating legal advice."; "In view of the uncontroverted affidavit, we conclude PTM 0046 consists of communictions from Toyota to its attorneys for the purpose of facilitating legal services. Although the communications contain material relevant facts, the plaintiffs must find another discovery approach to obtain those test results. See Caldwell, 861, S.W.2d at 425. Otherwise, Toyota would be reluctant to give its attorneys any factual information for fear that the entire communication would be subject to discovery. Id.")

Case Date Jurisidction State Cite Checked
2002-12-11 State TX

Chapter: 41.603

Case Name: Vardon Golf Company, Inc. v. BBMG Golf Ltd., No. 91 C 0349, 1994 U.S. Dist. LEXIS 15632 (N.D. Ill. July 18, 1994)
(holding that the opinion work product doctrine protected both the testing and related photographs of golf clubs; "Three production requests target club heads which, at the direction of defendant's counsel, have been cut open for inspection. . . . The defining characteristic of these production requests is that each request seeks materials developed at the request at Dunlop's attorneys, namely club heads which have been cut open, and documents regarding those club heads. This shared characteristic of the production request, we believe, brings the items sought within the scope of the work product privilege."; "In the instant case we know that Dunlop's attorneys, after the initiation of this litigation, directed that an inquiry be made into certain of Dunlop's metal-wood golf clubs. In this regard, it seems to us that this inquiry, which lead to a selection process in which certain of Dunlop's metal-wood clubs were chosen to be cut open, while others in its large inventory of clubs were not, represented discrete though processes and the mental impressions or opinions of the attorney."; "The selection of the clubs to be cut open is strongly indicative of the mental impressions, conclusions, opinions, or legal theories of Dunlop's attorneys, since Dunlop's club heads are not cut open during the ordinary course of business, and that each club head chosen to be cut open was done so at the direction of its attorneys in response to this litigation. Each particular club to be cut open for inspection was selected by Dunlop's counsel after the start of this litigation. The selection process involved thus clearly implicates the mental impressions, conclusions, opinions, or legal theories of the attorneys for Dunlop. What Vardon seeks in Request No. 2 of its Second Request for Production, and Requests 15 and 16 of its Fourth Request are not samples of all clubs manufactured, assembled, or sold during the infringement window, but a subset of those clubs i.e., clubs which have been selected by Dunlop to be cut open in a discrete way. If certain club heads were cut open, the pattern of selection by Dunlop's attorney may reveal a great deal about Dunlop's assessment of its own liability. For instance, it may indicate that Dunop believes that only clubs having a certain face size infringe on the Raymont patent. If all club lines were cut open, it may reveal that at one time Dunlop believed it possible that all of its club lines potentially infringed upon the Raymont patent."; "Further, the taking of photographs of the cut-open samples involves an additional layer of opinion work product. In selecting which club head to photograph, which features of the club heads to photograph, and what angle to take the photographs from, the attorney makes a number of decisions about which club heads and what features of the club heads potentially infringe upon the Raymont patent. Production of the photographs would reveal both layers of the attorney's thought processes, as such, the absolute privilege which is accorded these materials bars discovery of the items sought.")

Case Date Jurisidction State Cite Checked
1994-07-18 Federal IL

Chapter: 41.603

Case Name: Shoemaker v. GMC, No. 91-0990-CV-W-8, 1994 U.S. Dist. LEXIS 4368 (W.D. Mo. Feb. 28, 1994)
(holding that plaintiff lawyer would not be entitled to a test being conducted by General Motors, because it would invade General Motors' opinion work product protection; "This matter is before the Court on plaintiffs' motion to attend all litigation testing performed by defendant in relation to this cause of action."; "General Motors, in response, argues that the presence of plaintiffs' counsel at the tests will reveal protected attorney work product and consulting expert information. The Court agrees. The decision of what to test and how is essentially a working-out of the defendant's interpretation of facts and testing of its defenses. Those processes involve either the attorney's mental processes or the opinions of consulting experts. Both are protected."; "[T]he decision about what to test and how is the embodiment of the attorney's legal theories. Allowing plaintiffs' lawyers to be present at these tests would intrude impermissibly on the development of defendant's case."; "If the results of any of the tests are to be offered as evidence at trial, General Motors will provide plaintiffs, well in advance of trial, the opportunity to depose persons knowledgeable about the tests offered. The class of 'knowledgeable persons' shall include both testifying and non-testifying experts. Through this mechanism, plaintiffs may discover the nature of the test offered and the number of similar tests performed to reach a certain result.")

Case Date Jurisidction State Cite Checked
1994-02-28 Federal MO

Chapter: 41.604

Case Name: Gruss v. Zwirn, No. 09 Civ. 6441 (PGG) (MHD), 2013 U.S. Dist. LEXIS 165211 (S.D.N.Y. Nov. 19, 2013)
January 22, 2014 (PRIVILEGE POINT)

"Who Owns Lawyers' Work Product?"

The attorney-client privilege clearly belongs to the client alone, although the client's lawyers must assert the privilege when they can. In contrast lawyers have at least some ownership interest in their work product – but few courts have applied that abstract principle to real-life situations.

In Gruss v. Zwirn, No. 09 Civ. 6441 (PGG) (MHD), 2013 U.S. Dist. LEXIS 165211 (S.D.N.Y. Nov. 19, 2013), defendants hired Gibson Dunn to conduct an internal investigation into financial irregularities, and present its findings to the SEC. The court held that the presentation waived any privilege and fact work product protection for Gibson Dunn's internal investigation-related documents. However, defendants responded to plaintiff's demand for some of those documents by arguing that they did "'not have the Gibson Dunn notes, and never have had access to those notes.'" Id. at *7 (internal citation omitted). Gibson Dunn also filed a pleading, contending that it could assert its own work product protection and withhold its internal documents from its clients. The court rejected these arguments – concluding that the defendant "has a presumptive right of access to Gibson Dunn's entire file, including the interview notes taken by Gibson Dunn attorneys." Id. at *12. The court ordered an in camera review to analyze any remaining opinion work product claims – bluntly labeling as "not credible" a Gibson Dunn lawyer's representation that "every word in the interview memos constitutes 'core opinion work product.'" Id. at *20 (citation omitted).

Because clients generally "control" privileged and work product material in their lawyers' possession, they normally cannot resist discovery of their lawyers' documents if a court has stripped away any privilege and work product protections.

Case Date Jurisidction State Cite Checked
2013-11-19 Federal NY
Comment:

key case


Chapter: 41.703

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

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