Showing 105 of 105 results

Chapter: 42.6

Case Name: Pellegrino v. United States Trans. Sec. Administration, Civ. A. No. 09-5505, 2015 U.S. Dist. 59096 (E.D. Pa. May 6, 2015)
("The TSA's reliance on Sporck [Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985)] is misplaced. In that case, the individual documents themselves were not work product and had already been released as part of a larger document production. . . . Thus the production of the folder would have only served to reveal what documents (from among the thousands produced in the matter) the attorney found to be particularly important. Id. Such a production would have invariably run afoul of the underlying purposes of the work product doctrine."; "Here, the documents in question are essentially from a TSA attorney's case file for this matter. Unlike Sporck, none of these documents has been produced, and most have independent bases for FOIA exemptions. Additionally, there is no indication -- from either the TSA's briefing or our review of the documents -- that anything about the selection or grouping of these documents would reveal that attorney's mental processes.2 Instead, this appears to just be a collection of documents that happened to be in the possession of an attorney. The mere fact that an attorney holds a document cannot, by itself, be the basis for a valid work product claim. . . . Thus we reject the TSA's global assertion of work product protection over the documents.")

Case Date Jurisidction State Cite Checked
2015-05-06 Federal PA
Comment:

key case


Chapter: 42.7

Case Name: Diamond Consortium, Inc. v. Manookian, Civ. A. No. 4:16-CV-00094, 2017 U.S. Dist. LEXIS 83252 (E.D. Tex. May 31, 2017)
(allowing deposition of an adverse party's paralegal; "The Federal Rules of Civil Procedure do not specifically prohibit deposing an opposing party's paralegals."; "Here, Plaintiffs allege Defendants created public websites and advertisements accusing Plaintiffs of cheating customers and selling over graded diamonds. Plaintiffs allege Rice and Pepe may have knowledge about the creation of these allegedly negative websites and advertisements. Defendants generally respond that any work Rice and Pepe completed was in anticipation of litigation or at the direction of attorneys. Defendants do not explain how the attorney-client and work-product privilege apply to public websites and advertisements that were not for the purpose of obtaining or rendering legal advice. Defendants thus have not met their burden of showing an applicable privilege for the categories of information Plaintiffs seek from Rice and Pepe.")

Case Date Jurisidction State Cite Checked
2017-05-31 Federal TX

Chapter: 42.7

Case Name: Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 U.S. Dist. LEXIS 12420 (S.D. Cal. Feb. 2, 2016)
(analyzing defendant's instructions to various witnesses not to answer deposition questions; finding that a Sporck doctrine protected the identity of deposition preparation documents defendant's lawyer selected, but not the documents the witness selected; "Plaintiffs fail to persuade the Court it should not rely on Sporck here. See Sporck, 759 F.2d at 316 (holding 'the selection and compilation of documents by counsel . . . In preparation for pretrial discovery falls within the highly-protected category of opinion work product'). Although it is true the Ninth Circuit has never cited Sporck in a published opinion, this means it is also true the Ninth Circuit has never explicitly disagreed with the case or declined to follow it in a published opinion."; "The Court does not agree attorney work product protection should not apply to an attorney's selection of documents when the attorney 'gratuitously disclosed' the documents a deponent reviewed were selected by counsel. It is well known by attorneys that it is common practice for counsel to prepare their clients and their clients' witnesses for depositions. Such attorney preparation necessarily includes hand-selecting documents relevant to a case to review with the witnesses. As such, there is an implicit presumption that some, if not all, of the documents reviewed by a deponent were selected for review by his counsel, and therefore the Court does not agree that there would not be 'any risk of revealing attorney-work product' if opposing counsel is prohibited from asking, and defending counsel is prohibited from offering, who selected the documents reviewed by the deponent."; "On the other hand, the Court recognizes Plaintiffs' questions at issue seek not only the disclosure of documents that Defendant's counsel selected for the witnesses to review but also the disclosure of documents the witnesses may have chosen to review on their own, outside the presence of counsel. . . . The work product doctrine does not protect documents selected and reviewed by fact witnesses outside the presence of counsel, as no attorney mental impressions, conclusions, or opinions attach to the selection. . . . Therefore, to the extent Plaintiffs' questions sought the disclosure of documents that each witness selected and reviewed on his own, outside the presence of counsel, in preparation for his deposition, Plaintiffs' Motion is GRANTED."; "Accordingly, Defendant is directed that, on or before February 8, 2016, it shall provide Plaintiffs written declarations of Mr. Bailey, Mr. Grubbs, and Mr. McElmon verifying whether or not the only documents, including any source code, each witness personally reviewed in preparation for his deposition were the documents selected for his review by Defendant's counsel.")

Case Date Jurisidction State Cite Checked
2016-02-02 Federal CA
Comment:

key case


Chapter: 42.7

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)
March 16, 2016 (PRIVILEGE POINT)

"Distinguishing Between "Facts" and Lawyers' "Opinions"

Although the attorney-client privilege does not protect historical facts, any facts "created" during or in anticipation of litigation can present a difficult analysis.

In 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), the court handling a patent case assessed defendant's opinion work product claim for the results of an experiment a scientist undertook with a protocol provided by its subsidiary's scientist (and also its lawyer). Plaintiff argued that "it seeks discovery 'only into the scientific facts surrounding the development of the protocol,'" rather than defendant's subsidiary's scientist/lawyer's "legal opinions, thought processes or legal explanations for his actions regarding the protocol." Id. At *12-13 (internal citation omitted). But the court denied plaintiff's discovery request, concluding that "adjustments [the scientist/lawyer] made to the protocol would necessarily have been done in consideration of its purpose in countering [the plaintiff's] litigation position." Id. At *13. The court then drove the point home again: "the scientific instruction necessarily reflects the attorney's strategic thinking about issues likely to arise down the road in litigation . . . [and the results therefore] remain protected opinion work product because the non-legal and legal thinking are inextricably intertwined in service of the litigation." Id. At *14-15.

Lawyers should be prepared to rebut an adversary's argument that it merely seeks "facts" that are created in connection with litigation.

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

key case


Chapter: 42.7

Case Name: Pellegrino v. United States Trans. Sec. Administration, Civ. A. No. 09-5505, 2015 U.S. Dist. 59096 (E.D. Pa. May 6, 2015)
("The TSA's reliance on Sporck [Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985)] is misplaced. In that case, the individual documents themselves were not work product and had already been released as part of a larger document production. . . . Thus the production of the folder would have only served to reveal what documents (from among the thousands produced in the matter) the attorney found to be particularly important. Id. Such a production would have invariably run afoul of the underlying purposes of the work product doctrine."; "Here, the documents in question are essentially from a TSA attorney's case file for this matter. Unlike Sporck, none of these documents has been produced, and most have independent bases for FOIA exemptions. Additionally, there is no indication -- from either the TSA's briefing or our review of the documents -- that anything about the selection or grouping of these documents would reveal that attorney's mental processes.2 Instead, this appears to just be a collection of documents that happened to be in the possession of an attorney. The mere fact that an attorney holds a document cannot, by itself, be the basis for a valid work product claim. . . . Thus we reject the TSA's global assertion of work product protection over the documents.")

Case Date Jurisidction State Cite Checked
2015-05-06 Federal PA
Comment:

key case


Chapter: 42.7

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; "In many documents, the only mental impression that can be discerned is counsel's general interest in the financials of the deal. But such interest reveals nothing at all: anyone familiar with such settlements would expect a competent negotiator to request financial analyses like those performed here, and Boehringer does not attempt to hide this interest in its briefs. There is no 'real, nonspeculative danger of revealing the lawyer's thoughts' when the thoughts are already well-known.")

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

Chapter: 42.7

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; "Opinion work product protection is warranted only if the selection or request reflects the attorney's focus in a meaningful way.")

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

Chapter: 42.7

Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., 778 F.3d 142 (D.C. Cir. 2015)
("The FTC argues that the District Court applied an overly broad definition of opinion work product. After carefully reviewing the materials submitted in camera and the record as a whole, we agree."; "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."; "In holding to the contrary, the District Court implied that an attorney's mere request for a document was sufficient to warrant opinion work product protection. In discussing financial reports, the court noted that the reports were 'prepared at the behest of [Boehringer] attorneys,' who requested the use of 'certain data.' [FTC v.] Boehringer [Ingelheim Pharms., Inc.], 286 F.R.D. 101,] 110 [(D.D.C. 2012)]. The District Court further noted that '[r]evealing 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 [sic] necessary or important to determining an appropriate settlement.' Id."; "As is plain from the District Court's decision, the materials in the joint appendix, and Boehringer's in camera submissions, however, counsel's requests were often general and routine. And indeed, the District Court noted that the documents requested by the FTC are 'the sort of financial analyses one would expect a company exercising due diligence to prepare when contemplating settlement options.' . . . In many documents, the only mental impression that can be discerned is counsel's general interest in the financials of the deal. But such interest reveals nothing at all: anyone familiar with such settlements would expect a competent negotiator to request financial analyses like those performed here, and Boehringer does not attempt to hide this interest in its briefs. There is no 'real, nonspeculative danger of revealing the lawyer's thoughts' when the thoughts are already well-known." (citation omitted); "Where it appears that the focus of framework provided by counsel is obvious or non-legal in nature, it is incumbent upon the party claiming opinion work product protection to explain specifically how disclosure would reveal the attorney's legal impressions and thought processes. The District Court failed to demand such a showing from Boehringer and instead concluded categorically that the contest documents were highly protected opinion work product. This was an error."; "The District Court's error matters because, as noted, a party's ability to discover work product often turns on whether the withheld materials are fact work product or opinion work product. A party generally must make an 'extraordinary showing of necessity' to obtain opinion work product." (citation omitted); "We therefore will remand to the District Court to revisit the financial documents in light of the correct legal standards, as clarified above. The District Court should determine which of the sampled documents may be produced, in full or in redacted form, as factual work product. To the extent that any such documents were withheld in whole or in part on the alternative basis of attorney-client privilege, the District Court will have to determine whether this privilege independently bars discovery.")

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

Chapter: 42.7

Case Name: Lee v. Chicago Youth Centers, No. 12 C 9245, 2014 U.S. Dist. LEXIS, *21-22 n.7 (N.D. Ill. June 10, 2014)
("[C]ommunications from counsel do not become automatically immune from discovery as work product on the theory that the selection and compilation of documents would show counsel's theories. It is only when there is 'a real, rather than speculative, concern that counsel's thought processes in relation to pending or anticipated litigation will be exposed through disclosure of the compiled documents' that the communication becomes protected work product.")

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

Chapter: 42.7

Case Name: Anderson v. E. CT Health Network, Inc., Case No. 3:12CV785(RNC), 2014 U.S. Dist. LEXIS 2970, at *3, *4, *5, *14 (D. Conn. Jan. 10, 2014)
(inexplicably finding that the following questions were improper, because they involved protected work product; "'(1) Who spoke at the May 31 meeting?"; "'(2) Who made a recommendation at the May 31 meeting, such as whether Dr. Anderson should be continued?'"; "'(3) Did anyone make a presentation of the facts at the May 31 meeting?'"; "'(4) Did Lisa Boyle convey the contents of a May 31 email from plaintiff's lawyer Mary Alice Moore Leonhardt?'"; "'(5) Were the following subjects discussed at the May 31 meeting?'"; "'(6) Were David Neuhaus or Deborah Gogliettino consulted about defendants' answer to plaintiff's allegation at ¶ 18 of his CHRO affidavit?'"; "'(7) Was it Gogliettino's or Dr. Neuhaus's idea to use the words 'essential functions' in a letter signed by Dr. Neuhaus?'"; "'(8) Why did Attorney Boyle ask Deborah Gogliettino to attend a meeting with Maureen Dinnan from HAVEN concerning plaintiff?'"; "Plaintiff seeks to discover which executives counsel consulted in formulating defendants' response to plaintiff's CHRO charge (Question 6) and why counsel asked a particular executive to attend a particular meeting (Question 8). These questions seek to elicit the thought process of counsel in relation to anticipated litigation, and plaintiff has made no showing of substantial need for this privileged work product.")

Case Date Jurisidction State Cite Checked
2014-01-10 Federal CT B 6/14

Chapter: 42.7

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: 42.7

Case Name: In re Weatherford Int'l Secs. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 110928, at *15 (S.D.N.Y. Aug. 5, 2013)
(in an opinion by Magistrate Judge James Francis, analyzing a topic for a Rule 30(b)(6) deposition; "Question 27, 30, and 31 ask about the number of custodians from whom documents were collected in connection with Weatherford's internal investigations, SEC subpoenas, and negotiations with the SEC and also whether e-mails from a particular person was [sic] produced to the SEC. These questions do not seek the substance of any communication or documents, thus work product protection does not apply. . . . [F]or a party to assert that the 'selection and compilation' privilege applies, it must demonstrate '"a real, rather than speculative, concern that counsel's thought processes in relation to pending or anticipated litigation will be exposed through disclosure of the compiled documents."'" (citation omitted))

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

Chapter: 42.7

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

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

Chapter: 42.7

Case Name: Sporck v. Peil, 759 F.2d 312, 315 (3d Cir. 1985)
May 4, 2016 (PRIVILEGE POINT)

"Does the Opinion Work Product Doctrine Protect the Identity of Documents a Litigant Obtains from a Third Party?"

Many courts extend opinion work product protection to a lawyer's selection of intrinsically unprotected documents used to prepare a deponent, the identity of witnesses important enough to interview, etc. This approach is frequently called the Sporck doctrine, after a Third Circuit case. Sporck v. Peil, 759 F.2d 312, 315 (3d Cir. 1985).

In McClurg v. Mallinckrodt, Inc., No. 4:12-CV-00361-AGF, 2016 U.S. Dist. LEXIS 29230 (E.D. Mo. Mar. 8, 2016), defendants' lawyers collected documents from Missouri's Historical Society and from the government through FOIA requests. Plaintiff filed discovery requests seeking the identity of those documents. The court concluded that the documents defendants had obtained from the Historical Society were not responsive. After reminding defendants that they must produce all responsive documents they had obtained from any source, the court also denied plaintiffs' request to identify the specific documents defendant had obtained through FOIA — concluding that forcing defendants to re-produce those documents as a "supplemental production" would "reveal their opinion work product." Id. At *12.

Lawyers should keep in mind that their selection of even intrinsically unprotected documents can reflect their opinion, thus justifying withholding those documents' identity. However the Sporck doctrine only protects the documents' identity — and applies only if the adversary also has the documents themselves.

Case Date Jurisidction State Cite Checked
1985-01-01 Federal
Comment:

key case


Chapter: 42.11

Case Name: Graham v. San Antonio Zoological Society, Civ. A. No. SA-15-CV-1054-XR, 2017 U.S. Dist. LEXIS 58740 (W.D. Tex. April 18, 2017)
(finding that the Sporck doctrine did not protect a zoo's record of an elephant's health issues; "Defendant admits that the underlying records in the Report were not created with the primary purpose of assisting in future litigation. . . . The Zoo's veterinarians created the documents to track Lucky's medical history, reflect 'Lucky's various ailments and health complications suffered at the Zoo,' and 'track[ed] the detail of dozens of veterinary checkups on a regular basis over the years.' Id."; "However, the Zoo argues that because these Lucky-specific veterinary records were compiled after the inception of litigation, the February 11 Report was created in anticipation of litigation."; "[N]ot every compilation of documents is protected -- the crucial factor is whether the attorney's selection of the documents or contents could reveal or provide insights into the mental processes of the attorney in the analysis and preparation of the client's case. . . . Although the Zoo contends that the search criteria were developed by counsel, the Report appears to be merely a compilation of all entries related to Lucky, and neither the email nor the records themselves reveal the mental process of the Defendant's attorneys. The Zoo voluntarily produced these same records for a limited time span of two years, and it fails to show that a compilation of all the records reveals its attorney's mental impressions or legal strategy. Therefore, the Zoo fails to prove that the Report is protected work product.")

Case Date Jurisidction State Cite Checked
2017-04-18 Federal TX

Chapter: 42.11

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: 42.11

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: 42.11

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: 42.11

Case Name: Fields v. City of Chi., Case No. 10 C 1168, 2012 U.S. Dist. LEXIS 181642, at *9 (N.D. Ill. Dec. 26, 2012)
("The City contends that the information Fields seeks is protected by the work product doctrine because its attorney Noland [City Attorney] gathered the information, presumably together with paralegal Majka [City Paralegal]. The Court doubts whether a party can shield relevant evidence (in this case, where and by whom undisclosed information significant to the underlying criminal case was kept) by having its attorney collect that evidence. But assuming for present purposes that Noland's efforts and the information he gathered are covered by the work product doctrine, that privilege is not absolute.")

Case Date Jurisidction State Cite Checked
2012-12-26 Federal IL B 9/13

Chapter: 42.11

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: 42.13

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)
March 16, 2016 (PRIVILEGE POINT)

"Distinguishing Between "Facts" and Lawyers' "Opinions"

Although the attorney-client privilege does not protect historical facts, any facts "created" during or in anticipation of litigation can present a difficult analysis.

In 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), the court handling a patent case assessed defendant's opinion work product claim for the results of an experiment a scientist undertook with a protocol provided by its subsidiary's scientist (and also its lawyer). Plaintiff argued that "it seeks discovery 'only into the scientific facts surrounding the development of the protocol,'" rather than defendant's subsidiary's scientist/lawyer's "legal opinions, thought processes or legal explanations for his actions regarding the protocol." Id. At *12-13 (internal citation omitted). But the court denied plaintiff's discovery request, concluding that "adjustments [the scientist/lawyer] made to the protocol would necessarily have been done in consideration of its purpose in countering [the plaintiff's] litigation position." Id. At *13. The court then drove the point home again: "the scientific instruction necessarily reflects the attorney's strategic thinking about issues likely to arise down the road in litigation . . . [and the results therefore] remain protected opinion work product because the non-legal and legal thinking are inextricably intertwined in service of the litigation." Id. At *14-15.

Lawyers should be prepared to rebut an adversary's argument that it merely seeks "facts" that are created in connection with litigation.

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

key case


Chapter: 42.13

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: 42.13

Case Name: Vazquez v. City of New York, 10-CV-6277 (JMF), 2014 U.S. Dist. LEXIS 160270 (S.D.N.Y. Nov. 14, 2014)
(analyzing work product protection for witness interview statements; "Defendants need not disclose, as the document -- a list of questions and a list of items that the interviewer significant -- constitutes core work product in its entirety.")

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

Chapter: 42.13

Case Name: Estate of Jaquez v. City of New York, No. 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717 (S.D.N.Y. Oct. 10, 2014)
November 26, 2014 (PRIVILEGE POINT)

“Courts Address "Discovery about Discovery": Part I”

Plaintiffs sometimes try to generate a litigation "side show" by challenging corporate defendants' steps in preparing their discovery responses. Courts' reactions to such efforts highlight disagreements about the work product doctrine's application in that context.

In Estate of Jaquez v. City of New York, No. 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717 (S.D.N.Y. Oct. 10, 2014), Judge Forrest addressed plaintiff's effort to learn what deposition transcripts a defense witness had reviewed before testifying. The court acknowledged that a lawyer's "general selection of materials to be covered during a preparation session are [sic] usually protected from an omnibus request for disclosure." Id. at *4. However, the court held that the plaintiff could ask a witness whether his or her recollection "was refreshed by a specific document shown during the preparation — and to identify such a document." Id. at *5. The court then added another more subtle principle — holding that a defense lawyer who had "shared the substance" of another witness's testimony with a deponent could not avoid disclosure under this refreshment rule "simply by reading or summarizing it to the witness instead of having the witness read it him or herself." Id. at *8. As the court bluntly put it "in for a penny, in for a pound." Id.

If a lawyer preparing a witness simply discusses historical facts (without attributing them to another deposition witness), it is difficult to imagine how this process would work. Next week's Privilege Point addresses two other decisions issued just a few days later, also focusing on what could be called "discovery about discovery."

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

key case


Chapter: 42.13

Case Name: Anderson v. E. CT Health Network, Inc., Case No. 3:12CV785(RNC), 2014 U.S. Dist. LEXIS 2970, at *3, *4, *5, *14 (D. Conn. Jan. 10, 2014)
(inexplicably finding that the following questions were improper, because they involved protected work product; "'(1) Who spoke at the May 31 meeting?"; "'(2) Who made a recommendation at the May 31 meeting, such as whether Dr. Anderson should be continued?'"; "'(3) Did anyone make a presentation of the facts at the May 31 meeting?'"; "'(4) Did Lisa Boyle convey the contents of a May 31 email from plaintiff's lawyer Mary Alice Moore Leonhardt?'"; "'(5) Were the following subjects discussed at the May 31 meeting?'"; "'(6) Were David Neuhaus or Deborah Gogliettino consulted about defendants' answer to plaintiff's allegation at ¶ 18 of his CHRO affidavit?'"; "'(7) Was it Gogliettino's or Dr. Neuhaus's idea to use the words 'essential functions' in a letter signed by Dr. Neuhaus?'"; "'(8) Why did Attorney Boyle ask Deborah Gogliettino to attend a meeting with Maureen Dinnan from HAVEN concerning plaintiff?'"; "Plaintiff seeks to discover which executives counsel consulted in formulating defendants' response to plaintiff's CHRO charge (Question 6) and why counsel asked a particular executive to attend a particular meeting (Question 8). These questions seek to elicit the thought process of counsel in relation to anticipated litigation, and plaintiff has made no showing of substantial need for this privileged work product.")

Case Date Jurisidction State Cite Checked
2014-01-10 Federal CT B 6/14

Chapter: 42.13

Case Name: United States v. J-M Manufacturing Co., Civ. A. No. 11-cv-01691-MSK-MJW, 2013 U.S. Dist. LEXIS 14800 (D. Colo. Feb. 4, 2013)
May 1, 2013 (PRIVILEGE POINT)

"In Some Situations, Facts Can Deserve Work Product Protection"

The attorney-client privilege protects only communications, not historical facts. But as in so many other areas, the work product doctrine presents a more complicated picture.

In United States v. J-M Manufacturing Co., Civ. A. No. 11-cv-01691-MSK-MJW, 2013 U.S. Dist. LEXIS 14800 (D. Colo. Feb. 4, 2013), the court dealt with the results of defendant's tests conducted on PVC plastic pipe. The court acknowledged that "[t]est results, of themselves, simply reflect matters of historical fact." Id. At *11-12. However, the court also explained that "[t]he selection of a particular test methodology or testing sample or set of samples to test could . . . 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." Id. At *12. The court further explained that "[t]his, in turn, throws new light on the purely 'factual' test results" – thus justifying withholding of the results as work product. Id.

Unlike the attorney-client privilege, the work product can protect such disparate things as attorney-client communications, accident scene photographs, transcripts of public meetings, a pile of newspaper clippings, and even facts.

Case Date Jurisidction State Cite Checked
2013-02-04 Federal CO
Comment:

key case


Chapter: 42.404

Case Name: In re Park Cities Bank, 409 S.W.3d 859, 867 (Tex. Ct. App. 2013)
("It covers more than just documents, extending to an attorney's mental impressions, opinion, conclusions, and legal theories. . . . It also includes the selection and ordering of documents.")

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

Chapter: 42.901

Case Name: Shanholtzer v. Dean, 51 Va. Cir. 493, 493-94 (Va. Cir. Ct. 2000)
("Because all the items Dean reviewed prior to her deposition have already been turned over to opposing counsel in discovery, forcing Dean to identify what specific items she looked over would only serve to invade defense counsel's work product. Once all documents have been turned over in discovery, answering a question such as this would reveal defense counsel's trial tactics and thoughts by way of showing Plaintiff exactly what the Defendant feels is and is not important to his or her case."; denying Plaintiff's Motion to Compel Defendant to identify all items that she "reviewed and relied upon in preparation for her deposition")

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

key case


Chapter: 42.901

Case Name: Mills v. MCC Behavioral Care, Inc., 37 Va. Cir. 225, 226 (Va. Cir. Ct. 1995)
(upholding a party's instruction to a deposition witness not to identify documents the witness had reviewed with counsel; "Identifying documents that deponents reviewed with counsel in preparation for their depositions is attorney work product. By revealing the identity of particular documents out of the array of all documents pertaining to the case the thought processes of counsel in selecting those documents for use with the witnesses in preparing for their testimony would also be revealed.")

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

key case


Chapter: 42.902

Case Name: Boston Scientific Corp. v. Edwards Lifesciences Corp., Civ. A. No. 16-275-SLR-SRF, 2016 U.S. Dist. LEXIS 178515 (D. Del. Dec. 27, 2016)
(holding that a proposed protective order provision requiring parties to identify documents they give to foreign lawyers would disclose their opinion work product; "[D]uring the meet and confer, Edwards proposed the addition of Paragraph 7.5(b), which the parties now dispute: 'Prior to disclosure of Protected Material to Designated Foreign Counsel, the Party seeking disclosure shall provide written notice to the Producing Party identifying (i) the names of the Designated Foreign Counsel and (ii) the specific Protected Material sought to be disclosed to the Designated Foreign Counsel. If the Producing Party objects to the disclosure of Protected Material to the Designated Foreign Counsel, the Producing Party shall object, in writing, within five (5) business days of receipt of the written notice, and state the basis for its objection. Within five (5) business days of the written objection, the parties shall meet and confer. If the parties do not reach resolution, the party seeking disclosure shall follow the procedures set forth by the Court for raising discovery disputes with the Court.'"; "The procedure described in Paragraph 7.5(b) would reveal which documents are important to Plaintiffs, and therefore disclose information that is considered work product.")

Case Date Jurisidction State Cite Checked
2016-12-27 Federal DE
Comment:

key case


Chapter: 42.902

Case Name: In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 314 F.R.D. 397, 407, 408, 408-09, 409 (E.D. La. 2016)
("The PSC [Plaintiffs' Steering Committee] seeks the production of lists of documents reviewed prior to depositions. Because this is a discovery request, the foundational requirements of Rule 612 are inapplicable at this point, and the Court must apply Rule 26."; "[T]he Court finds that Rule 612 is inapplicable to the scope of discovery, because Rule 612 is contained in the Federal Rules of Evidence."; "[T]he Court finds that Rule 26(b) is the applicable rule for determining whether documents, including memory refreshment documents sought under Rule 612, fall within the scope of discovery. Since Rule 26(b) limits discovery to nonprivileged items, the Court must examine whether a list of documents reviewed by a deponent in preparation for a deposition is discoverable under Rule 26(b)."; "Simply put, the PSC requests leave to ask a witness, 'What documents did you review in preparation for this deposition.' This is a textbook deposition question. . . . It is beyond dispute that the list of materials reviewed by a witness in preparation for a deposition contains material relevant to claims or defenses. The only potential obstacle is Rule 26(b)(1)'s restriction of discovery to 'nonprivileged matter[s].'"; "In the present case, millions of documents have been produced by the parties. It would encroach on the work-product doctrine to ask a witness what documents were given to him or her by counsel for review before the deposition. . . . The answer could reveal the thought process or opinion of counsel as to which documents counsel considered important."; "However, either party should know what documents or material the witness reviewed before the deposition so that counsel can be prepared to efficiently examine the witness on these documents. Otherwise, the witness would have to be shown one document at a time, and asked if he or she reviewed Document 1, Document 2, and so on until reaching the vicinity of Document 3,000,000. This is impractical and unworkable."; "Furthermore, in the non-MDL world it is routine to ask a witness what they reviewed in preparation for the deposition. This is particularly true with expert witnesses who must usually disclose in their report the material reviewed in formulating their opinion. The fact that an MDL case involves millions of documents rather than a handful should not require discarding well-established litigation practices. Of course, neither party will be permitted to inquire which, if any, of the documents reviewed were selected by counsel."; "In short, a list of documents reviewed by a witness in preparation for a deposition is discoverable under Rule 26(b), because the list is relevant, proportional to the needs of the case, and not privileged.")

Case Date Jurisidction State Cite Checked
2016-04-08 Federal LA B 8/16

Chapter: 42.902

Case Name: In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 314 F.R.D. 397, 407, 408, 408-09, 409 (E.D. La. 2016)
("The PSC [Plaintiffs' Steering Committee] seeks the production of lists of documents reviewed prior to depositions. Because this is a discovery request, the foundational requirements of Rule 612 are inapplicable at this point, and the Court must apply Rule 26."; "[T]he Court finds that Rule 612 is inapplicable to the scope of discovery, because Rule 612 is contained in the Federal Rules of Evidence."; "[T]he Court finds that Rule 26(b) is the applicable rule for determining whether documents, including memory refreshment documents sought under Rule 612, fall within the scope of discovery. Since Rule 26(b) limits discovery to nonprivileged items, the Court must examine whether a list of documents reviewed by a deponent in preparation for a deposition is discoverable under Rule 26(b)."; "Simply put, the PSC requests leave to ask a witness, 'What documents did you review in preparation for this deposition.' This is a textbook deposition question. . . . It is beyond dispute that the list of materials reviewed by a witness in preparation for a deposition contains material relevant to claims or defenses. The only potential obstacle is Rule 26(b)(1)'s restriction of discovery to 'nonprivileged matter[s].'"; "In the present case, millions of documents have been produced by the parties. It would encroach on the work-product doctrine to ask a witness what documents were given to him or her by counsel for review before the deposition. . . . The answer could reveal the thought process or opinion of counsel as to which documents counsel considered important."; "However, either party should know what documents or material the witness reviewed before the deposition so that counsel can be prepared to efficiently examine the witness on these documents. Otherwise, the witness would have to be shown one document at a time, and asked if he or she reviewed Document 1, Document 2, and so on until reaching the vicinity of Document 3,000,000. This is impractical and unworkable."; "Furthermore, in the non-MDL world it is routine to ask a witness what they reviewed in preparation for the deposition. This is particularly true with expert witnesses who must usually disclose in their report the material reviewed in formulating their opinion. The fact that an MDL case involves millions of documents rather than a handful should not require discarding well-established litigation practices. Of course, neither party will be permitted to inquire which, if any, of the documents reviewed were selected by counsel."; "In short, a list of documents reviewed by a witness in preparation for a deposition is discoverable under Rule 26(b), because the list is relevant, proportional to the needs of the case, and not privileged.")

Case Date Jurisidction State Cite Checked
2016-04-08 Federal LA B 8/16

Chapter: 42.902

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

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

key case


Chapter: 42.902

Case Name: Vazquez v. City of New York, 10-CV-6277 (JMF), 2014 U.S. Dist. LEXIS 160270 (S.D.N.Y. Nov. 14, 2014)
(analyzing work product protection for witness interview statements; "Defendants need not disclose, as the document -- a list of questions and a list of items that the interviewer significant -- constitutes core work product in its entirety.")

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

Chapter: 42.902

Case Name: Pate v. Winn-Dixie Stores, Inc., Civ. A. No. CV213-166, 2014 U.S. Dist. LEXIS 148764, at *13 (S.D. Ga. Oct. 20, 2014)
December 3, 2014 (PRIVILEGE POINT)

“Courts Address "Discovery about Discovery": Part II”

Last week's Privilege Point described a court's complicated approach to lawyers' deposition preparation sessions and adversaries' efforts to determine if the preparation refreshed a witness's recollection. That court acknowledged that the work product doctrine generally protects lawyers' "selection of materials to be covered during a preparation session." Estate of Jaquez v. City of New York, No. 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717, at *4 (S.D.N.Y. Oct. 10, 2014).

Three days later, however, a North Carolina state court dealt with an adversary's interrogatory asking that litigants "identify all documents that [they] reviewed and/or relied upon in responding to the . . . interrogatories." Nat’l Fin. Partners Corp. v. Ray, 2014 NCBC 49 ¶ 41 (N.C. Super. Ct. Oct. 13, 2014). The court held that "in merely seeking identification of documents, [the interrogatory] requests only factual information" that did not deserve protection under either the attorney-client privilege or the work product doctrine. Id. ¶ 43. A week after that, a federal court addressed defendant Winn-Dixie's argument that the attorney-client privilege protected its "methods of preparing for deposition." Pate v. Winn-Dixie Stores, Inc., Civ. A. No. CV213-166, 2014 U.S. Dist. LEXIS 148764, at *13 (S.D. Ga. Oct. 20, 2014). Although concluding that it needed more information, the court warned that "[b]ecause preparation for deposition often requires investigating numerous sources of information, it is unlikely that all efforts to prepare for the deposition in this case constitute privileged communications." Id.

Although courts disagree about both the attorney-client privilege's and the work product doctrine's application to the process of preparing discovery responses, companies should not assume that their lawyers' involvement in those efforts automatically assures either protection.

Case Date Jurisidction State Cite Checked
2014-10-20 Federal GA
Comment:

key case


Chapter: 42.902

Case Name: Nat’l Fin. Partners Corp. v. Ray, 2014 NCBC 49 ¶ 41 (N.C. Super. Ct. Oct. 13, 2014)
December 3, 2014 (PRIVILEGE POINT)

“Courts Address "Discovery about Discovery": Part II”

Last week's Privilege Point described a court's complicated approach to lawyers' deposition preparation sessions and adversaries' efforts to determine if the preparation refreshed a witness's recollection. That court acknowledged that the work product doctrine generally protects lawyers' "selection of materials to be covered during a preparation session." Estate of Jaquez v. City of New York, No. 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717, at *4 (S.D.N.Y. Oct. 10, 2014).

Three days later, however, a North Carolina state court dealt with an adversary's interrogatory asking that litigants "identify all documents that [they] reviewed and/or relied upon in responding to the . . . interrogatories." Nat’l Fin. Partners Corp. v. Ray, 2014 NCBC 49 ¶ 41 (N.C. Super. Ct. Oct. 13, 2014). The court held that "in merely seeking identification of documents, [the interrogatory] requests only factual information" that did not deserve protection under either the attorney-client privilege or the work product doctrine. Id. ¶ 43. A week after that, a federal court addressed defendant Winn-Dixie's argument that the attorney-client privilege protected its "methods of preparing for deposition." Pate v. Winn-Dixie Stores, Inc., Civ. A. No. CV213-166, 2014 U.S. Dist. LEXIS 148764, at *13 (S.D. Ga. Oct. 20, 2014). Although concluding that it needed more information, the court warned that "[b]ecause preparation for deposition often requires investigating numerous sources of information, it is unlikely that all efforts to prepare for the deposition in this case constitute privileged communications." Id.

Although courts disagree about both the attorney-client privilege's and the work product doctrine's application to the process of preparing discovery responses, companies should not assume that their lawyers' involvement in those efforts automatically assures either protection.

Case Date Jurisidction State Cite Checked
2014-10-13 State NC
Comment:

key case


Chapter: 42.902

Case Name: Estate of Jaquez v. City of New York, No. 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717, at *4 (S.D.N.Y. Oct. 10, 2014)
December 3, 2014 (PRIVILEGE POINT)

“Courts Address "Discovery about Discovery": Part II”

Last week's Privilege Point described a court's complicated approach to lawyers' deposition preparation sessions and adversaries' efforts to determine if the preparation refreshed a witness's recollection. That court acknowledged that the work product doctrine generally protects lawyers' "selection of materials to be covered during a preparation session." Estate of Jaquez v. City of New York, No. 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717, at *4 (S.D.N.Y. Oct. 10, 2014).

Three days later, however, a North Carolina state court dealt with an adversary's interrogatory asking that litigants "identify all documents that [they] reviewed and/or relied upon in responding to the . . . interrogatories." Nat’l Fin. Partners Corp. v. Ray, 2014 NCBC 49 ¶ 41 (N.C. Super. Ct. Oct. 13, 2014). The court held that "in merely seeking identification of documents, [the interrogatory] requests only factual information" that did not deserve protection under either the attorney-client privilege or the work product doctrine. Id. ¶ 43. A week after that, a federal court addressed defendant Winn-Dixie's argument that the attorney-client privilege protected its "methods of preparing for deposition." Pate v. Winn-Dixie Stores, Inc., Civ. A. No. CV213-166, 2014 U.S. Dist. LEXIS 148764, at *13 (S.D. Ga. Oct. 20, 2014). Although concluding that it needed more information, the court warned that "[b]ecause preparation for deposition often requires investigating numerous sources of information, it is unlikely that all efforts to prepare for the deposition in this case constitute privileged communications." Id.

Although courts disagree about both the attorney-client privilege's and the work product doctrine's application to the process of preparing discovery responses, companies should not assume that their lawyers' involvement in those efforts automatically assures either protection.

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

key case


Chapter: 42.902

Case Name: Estate of Jaquez v. City of New York, No. 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717 (S.D.N.Y. Oct. 10, 2014)
November 26, 2014 (PRIVILEGE POINT)

“Courts Address "Discovery about Discovery": Part I”

Plaintiffs sometimes try to generate a litigation "side show" by challenging corporate defendants' steps in preparing their discovery responses. Courts' reactions to such efforts highlight disagreements about the work product doctrine's application in that context.

In Estate of Jaquez v. City of New York, No. 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717 (S.D.N.Y. Oct. 10, 2014), Judge Forrest addressed plaintiff's effort to learn what deposition transcripts a defense witness had reviewed before testifying. The court acknowledged that a lawyer's "general selection of materials to be covered during a preparation session are [sic] usually protected from an omnibus request for disclosure." Id. at *4. However, the court held that the plaintiff could ask a witness whether his or her recollection "was refreshed by a specific document shown during the preparation — and to identify such a document." Id. at *5. The court then added another more subtle principle — holding that a defense lawyer who had "shared the substance" of another witness's testimony with a deponent could not avoid disclosure under this refreshment rule "simply by reading or summarizing it to the witness instead of having the witness read it him or herself." Id. at *8. As the court bluntly put it "in for a penny, in for a pound." Id.

If a lawyer preparing a witness simply discusses historical facts (without attributing them to another deposition witness), it is difficult to imagine how this process would work. Next week's Privilege Point addresses two other decisions issued just a few days later, also focusing on what could be called "discovery about discovery."

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

key case


Chapter: 42.902

Case Name: Paice, LLC v. Hyundai Motor Co., Civ. No. WDQ-12-0499, 2014 U.S. Dist. LEXIS 95046 (D. Md. July 11, 2014)
(applying the work product protection to a defendant employee's selection of documents; "[T]he Court concludes that the subject documents constitute opinion work-product. First, Defendants' in camera submissions demonstrate that the documents in question respond, or at least relate, to questions posed by defense counsel for the purpose of defending this litigation. Moreover, the 'technical' subject documents . . . Synthesize and summarize the highly complex operation of the accused vehicles into 'high-level' narrative explanations. A 'summary' is defined as 'covering the main points succinctly.' Webster's New Collegiate Dictionary (1980). 'Synthesis' is defined as 'the composition or combination of parts or elements as to form a whole.' Id. Both of these processes involve judgment and discrimination. In a summary the 'main points' must be identified. In a synthesis, there is obviously discretion in composing or combining of parts. Said another way, these documents do not represent raw facts, but embody the mental 'sorting,' selection, and analysis of the Hyundai and Kia employees."; "Similarly, just like the spreadsheet at issue in Sher [Sher v. Barclays Capital Inc., ELH-11-1982, 2013 U.S. Dist. LEXIS 89482, 2013 WL 3279801, at *4 (D. Md. June 26, 2013)], the 'financial' subject documents . . . Compile lists of features and other information pertaining to the hybrid vehicles offered by Defendants' competitors. This choice and arrangement of products and features likewise reveals Defendants thought processes and theories regarding this litigation, and accordingly warrants protection under Rule 26(b)(3)(A).")

Case Date Jurisidction State Cite Checked
2014-07-11 Federal MD

Chapter: 42.902

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

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

Chapter: 42.902

Case Name: U.S. Ethernet Innovations LLC v. Acer, Inc., No. C 10-03724 CW (LB), 2013 U.S. Dist. LEXIS 142896, at *19, *20 (N.D. Cal. Sept. 25, 2013)
(analyzing work product protection for documents created by a former HP consultant, now working with K&L Gates as a consultant; finding that the work product doctrine protected the consultant's documents; "As to the documents, HP [defendant] responds that they fall into two categories: (1) work-product documents prepared as a result of this litigation, and (2) work-product documents selected and compiled for this litigation from its larger production (estimated at over 900,000 documents)"; "On this record, the communications under the consulting agreement and both document categories arguably are protected work product.")

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

Chapter: 42.902

Case Name: U.S. Ethernet Innovations LLC v. Acer, Inc., No. C 10-03724 CW (LB), 2013 U.S. Dist. LEXIS 142896, at *22 (N.D. Cal. Sept. 25, 2013)
(analyzing work product protection for documents created by a former HP consultant, now working with K&L Gates as a consultant; finding that the work product doctrine protected the consultant's documents; "As to category 2, the documents culled from the larger corpus, HP estimated the number at issue as small, between a few hundred to a thousand. Culled documents can be work product.")

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

Chapter: 42.902

Case Name: In re Weatherford Int'l Secs. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 110928, at *15 (S.D.N.Y. Aug. 5, 2013)
(in an opinion by Magistrate Judge James Francis, analyzing a topic for a Rule 30(b)(6) deposition; "Question 27, 30, and 31 ask about the number of custodians from whom documents were collected in connection with Weatherford's internal investigations, SEC subpoenas, and negotiations with the SEC and also whether e-mails from a particular person was [sic] produced to the SEC. These questions do not seek the substance of any communication or documents, thus work product protection does not apply. . . . [F]or a party to assert that the 'selection and compilation' privilege applies, it must demonstrate '"a real, rather than speculative, concern that counsel's thought processes in relation to pending or anticipated litigation will be exposed through disclosure of the compiled documents."'" (citation omitted))

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

Chapter: 42.902

Case Name: In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., MDL No. 2385, No. 3:12-md-02385-DRH-SCW, 2013 U.S. Dist. LEXIS 59164, at *8-9, *11 (S.D. Ill. Apr. 25, 2013)
(holding that a party could ask a deposition witness what documents he or she reviewed before testifying, but not what documents the witness's lawyer had selected; "The Court [in In re Yasmin & Yaz (Drospirenone) Mktg., Sales Practices & Prods. Liab. Litig., No. 3:09-md-02100, 2011 U.S. Dist. LEXIS 69711 (S.D. Ill. June 29, 2011)] further concluded that identification of the documents or materials that a witness reviewed prior to his or her deposition -- without designating which, if any, of the documents were selected by counsel, did not implicate the same work-product concerns. Accordingly, the undersigned judge allowed the plaintiffs to obtain a complete list of documents and materials the witness reviewed prior to and in preparation for the deposition."; "Either party should be allowed to know what documents a witness reviewed prior to a deposition for purposes of efficacy. Neither side will be permitted to ask which, if any, of the documents reviewed were selected by counsel. To the extent that the defendants' voluntary disclosure regarding the selection of documents reveals attorney-client work product -- they brought such a consequence on themselves.")

Case Date Jurisidction State Cite Checked
2013-04-25 Federal IL B 3/14

Chapter: 42.902

Case Name: N. Natural Gas Co. v. Approx. 9117.53 acres, 289 F.R.D. 644, 648 (D. Kan. 2013)
(holding that the work product doctrine did not protect the identity of documents a lawyer selected to prepare a deposition witness; "This court agrees with the two district judges and three magistrate judges from this district who have analyzed this issue and determined that the attorney's selection process does not result in material protected by the work product doctrine, and adopts the arguments and analysis of those cases.")

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

Chapter: 42.902

Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 204 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "Generally, the work product doctrine does not shield against discovery of the facts that the adverse party's lawyer or representative has learned, or the persons from whom he has learned such facts, or the existence or nonexistence of documents. See, e.g., Bd. Of Educ. v. Admiral Heating & Ventilating Inc., 104 F.R.D. 23, 32 (E.D. Ill. 1984). Thus, a party may properly inquire into the identity and location of persons having knowledge of relevant facts.")

Case Date Jurisidction State Cite Checked
2003-01-01 State VA B 3/16
Comment:

key case


Chapter: 42.903

Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("First Mercury relies on Sporck v. Peil, 759 F.2d 312, 315 (3d Cir. 1985) for the proposition that 'documents selected by counsel for review by a defendant are protected as opinion work product.'. . . But, as AAIC points out, courts within the Tenth Circuit have questioned whether this is so. . . . Moreover, Sutton testified that she used the documents provided to her to refresh her recollection in anticipation of testifying at her deposition. . . . Thus, to the extent First Mercury has not already done so, it must identify and produce the documents Sutton reviewed prior to her deposition under FED. R. EVID. 612.")

Case Date Jurisidction State Cite Checked
2016-10-22 Federal NM

Chapter: 42.903

Case Name: Williams v. Bank Banking & Trust Corp. of Va., 71 Va. Cir. 43, 44 (Va. Cir. Ct. 2006)
("Defendants proposed that the court enter a protective order requiring Plaintiff to bear the costs for copying prior to production. Plaintiff, as before, argues that the production should occur under the procedure outlined in Rule 4:9(b) with, for example, the Defendants organizing and labeling the documents for Plaintiff's review prior to the copying. This would allow Plaintiff to advise which of the documents are needed for copying etc. . . . The simpler and more efficient way to comply with Plaintiff's request, according to Defendants, is to ship the material to the copier for copying in bulk. That way the post-it notes and highlighted work product information can be removed in the copying process.")

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

Chapter: 42.904

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

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

key case


Chapter: 42.904

Case Name: McClurg v. Mallinckrodt, Inc., No. 4:12-CV-00361-AGF, 2016 U.S. Dist. LEXIS 29230 (E.D. Mo. March 8, 2016)
(holding that a litigant's selection of documents collected as a result of FOIA requests deserved protection under Spork if they were not responsive to the adversary's document requests; apparently also holding that the documents could be withheld under Sporck even if they were responsive to the adversary's document request; "[T]he discoverability of documents that Defendants' attorneys collected during this litigation from the State Historical Society of Missouri ('Historical Society') and from defense counsel's Freedom of Information Act ('FOIA') requests. Plaintiffs requested that Defendants produce these collected documents, and Defendants objected, claiming protection under the work product doctrine."; "At the time of the status conference, the parties had not briefed this issue with supporting legal authority. Nor had the parties provided the Court with the language of the disputed discovery requests, including, for example, whether the requests simply asked for production of all documents collected from the Historical Society and/or from FOIA requests, or whether, instead, the requests were topic-specific requests to which the disputed third-party documents may be responsive as part of a larger document production. The Court nevertheless noted that its initial impression was that publicly available documents prepared by third parties in the ordinary course of business, rather than in anticipation of litigation, are not protected by the work product doctrine and do not gain protection merely by coming into the hands of a party's attorney. However, the Court noted that if production of the documents would reveal the attorneys' legal theories and thought processes in selecting the documents, the work product doctrine may apply. The Court suggested that such legal theories and thought processes may be revealed, for instance, if Plaintiffs' requests for production asked for all documents obtained from a particular source, because the wholesale production of the documents selected and compiled by attorneys may reveal the attorneys' mental impressions and strategies used in the collection process. The Court permitted the parties to submit simultaneous briefs on this issue, which they have now done."; "Upon review of the parties' briefs and the record in this case, the Court believes that here, too, the discovery at issue is protected by the work product doctrine because there is a legitimate concern that counsel's thought processes would be revealed through disclosure. Defendant Cotter Corporation quotes Plaintiffs' requests for production as requesting, for example, 'all documents received by You or Your counsel pursuant to a Freedom of Information Act (FOIA) request regarding any Radioactive Material and/or its effect on the human population.'. . . This is exactly the kind of request for wholesale production that the Court previously suggested would impermissibly intrude into opposing counsel's thought processes relating to this litigation. As such, the Court believes that the request asks for protected work product, and the Court will not compel production."; "As to the Historical Society documents, it appears that these documents were not the subject of any written request for production, but that Plaintiffs inquired whether such documents were collected by Defendants and if so, whether Defendants intended to produce those documents. As discussed above, the Court believes that such a request for wholesale production of the strategically collected Historical Society documents would impermissibly intrude into defense counsel's thought processes."; "Additionally, even if the third-party documents are responsive to previously served discovery requests, the Court believes that there is a legitimate concern that disclosure at this stage would impermissibly intrude into opposing counsel's thought processes. At the status conference, Defendants stated that their document productions in response to Plaintiffs' previously served discovery requests were substantially complete. If the third-party documents are responsive to those previously served requests, and Defendants were compelled to produce them now as a supplemental production, it may be the functional equivalent of a wholesale production, which again would reveal their opinion work product. Moreover, the Court questions Plaintiffs' motives in seeking the documents at this stage."; "Plaintiffs admittedly have equal access to the publicly available1 third-party documents and have undertaken their own efforts to collect such public records. As such, there is little need to obtain the documents from Defendants, except to learn their strategic thinking."; "Of course, Defendants must timely supplement their Rule 26(a) disclosures to the extent any documents not previously disclosed fall within the scope of Fed. R. Civ. P. Rule 26(a)(1)(A)(ii).")

Case Date Jurisidction State Cite Checked
2016-03-08 Federal MO
Comment:

key case


Chapter: 42.904

Case Name: Christison v. Biogen Idec, Case No. 2:11-cv-01140-DN-DBP, 2014 U.S. Dist. LEXIS 104232 (D. Utah July 29, 2014)
(holding that the work product doctrine did not protect the identity of documents plaintiff received from other litigants; "'Plaintiff also argues that the work-product privilege protects his discovery responses because the responses 'would encompass' documents Plaintiff collected in a similar litigation set for trial in another jurisdiction. . . . However, the Court rejects this argument due to its underdeveloped nature. For instance, the cases Plaintiff cites to support this argument do not stand for the sweeping proposition that the work-product privilege protects documents collected in other litigations."; "[T]his Court could not locate Tenth Circuit case law recognizing a work-product privilege for an attorney's compilation of select documents. In fact, cases from district courts within the Tenth Circuit question such a privilege.")

Case Date Jurisidction State Cite Checked
2014-07-29 Federal UT

Chapter: 42.904

Case Name: Dalton v. Crawley, Dkt. No. A-4033-12T3, 2014 N.J. Super. Unpub. LEXIS 788 (N.J. Sup. Div. April 8, 2014)
(holding that the work product doctrine did not protect plaintiff's collection of transcripts from other cases, but did protect the identity of the transcripts that the plaintiff's lawyer intended to use for cross-examination purposes; "On leave granted, plaintiff Stephany Dalton appeals two discovery orders that compel her to produce transcripts she has gathered of testimony that defendants' experts have given in other cases, transcripts she claims are work product because she intends to use them solely to cross-examine the experts. The first order requires that plaintiff identify transcripts in her possession but not information she intends to use at trial. The second order requires that both plaintiff and defendants identify 'any prior deposition transcripts of . . . experts [they] plan[] to use at the time of trial.'"; "Plaintiff did not establish in the trial court that the transcripts were prepared by or for her in anticipation of litigation or for trial. Consequently, the transcripts in her possession are discoverable. Conversely, her attorney's decisions as to which transcripts to use to cross-examine adverse experts involve the attorney's mental processes, so they are inherently work product. Defendants have not demonstrated a sufficient reason to compel discovery of what are, in effect, the mental impressions and thought processes of plaintiff's attorney. Accordingly, we affirm in part, reverse in part, and remand for further proceedings."; rejecting work product protection for the transcripts that the plaintiff might use to cross-examine adverse experts; "Plaintiff argues that in view of her intention to use the transcripts solely to cross-examine adverse experts, the transcripts are not non-discoverable work product. We disagree. As we have previously explained, asserting that otherwise discoverable material will be used solely for cross-examination does not render the material non-discoverable. When attorneys prepare cases, they routinely gather otherwise discoverable material that they might decide to use when cross-examining adverse witnesses. The test is not how the evidence will be used at trial, but rather whether it was prepared in anticipation of litigation."; "We are also unpersuaded by plaintiff's reliance on interrogatory from Uniform Interrogatory Form A(1), which exempts from disclosure learned treatises that are to be used for purposes of impeachment. Our Supreme Court has not adopted a similar rule that exempts the production of other relevant evidence from disclosure if such evidence is to be used solely for the purpose of cross-examining adverse witnesses. Rather, the non-disclosure of such other evidence is circumscribed by Rule 4:10-2(c)."; "We recognize that when a party obtains discovery of transcripts in an opposing party's possession, the party discovering the transcripts may be in a better position to anticipate and prepare for an opponent's cross-examination strategy. But that is true for other evidence as well. We except attorneys to anticipate and prepare witnesses for possible credibility attacks during cross-examination. But the balance between policies underlying our discovery rules on one hand, and the purposes of cross-examination on the other, has been struck by our Supreme Court and is reflected in our discovery rules, in this instance by Rule 4:10-2(c). It is not our place to shift that balance by changing the test of non-discoverability under Rule 4:10-2(c) from whether materials were prepared in anticipation of litigation, to what attorneys say they will do with the materials at trial."; in contrast, finding that the work product protection covered the identity of a transcripts the plaintiff intended to use at trial; "The second order did not merely require the parties to produce transcripts in their possession, but rather compelled the parties to identify which deposition transcripts they 'plan[ned] to use at the time of trial.' The order required the parties to produce the results of their attorneys' thought processes and strategies after the attorneys 'assemble[d] information, sift[ed] what [they] consider[ed] to be the relevant from the irrelevant facts, prepare[d] [their] legal theories and plan[ned] [their] strateg[ies].; Hickman, supra, 329 U.S. at 511, 67 S. Ct. at 393, 91 L. Ed. At 462."; "More importantly, the second order requires, in effect, that the parties disclose the mental impressions and trial strategies their attorneys have developed after studying the transcripts and deciding which transcripts, and which transcript segments, to use for cross-examination. The order contravenes the Supreme Court's pronouncement that attorneys' mental processes remain sacrosanct.")

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

Chapter: 42.904

Case Name: Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188, at *17 (R.I. Super. Ct. Nov. 6, 2013)
(analyzing work product protection for documents defendant copied during a joint visit to an asbestos site with plaintiff's lawyer; "Without doubt, Defendants created photocopies of the Hoechst documents in anticipation of litigation, as the documents are germane to their defenses against Plaintiff's claims, and they reviewed the documents after Plaintiff had filed suit against them. . . . Therefore, Defendants' copies are factual work product.")

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

Chapter: 42.904

Case Name: Sporck v. Peil, 759 F.2d 312, 315 (3d Cir. 1985)
May 4, 2016 (PRIVILEGE POINT)

"Does the Opinion Work Product Doctrine Protect the Identity of Documents a Litigant Obtains from a Third Party?"

Many courts extend opinion work product protection to a lawyer's selection of intrinsically unprotected documents used to prepare a deponent, the identity of witnesses important enough to interview, etc. This approach is frequently called the Sporck doctrine, after a Third Circuit case. Sporck v. Peil, 759 F.2d 312, 315 (3d Cir. 1985).

In McClurg v. Mallinckrodt, Inc., No. 4:12-CV-00361-AGF, 2016 U.S. Dist. LEXIS 29230 (E.D. Mo. Mar. 8, 2016), defendants' lawyers collected documents from Missouri's Historical Society and from the government through FOIA requests. Plaintiff filed discovery requests seeking the identity of those documents. The court concluded that the documents defendants had obtained from the Historical Society were not responsive. After reminding defendants that they must produce all responsive documents they had obtained from any source, the court also denied plaintiffs' request to identify the specific documents defendant had obtained through FOIA — concluding that forcing defendants to re-produce those documents as a "supplemental production" would "reveal their opinion work product." Id. At *12.

Lawyers should keep in mind that their selection of even intrinsically unprotected documents can reflect their opinion, thus justifying withholding those documents' identity. However the Sporck doctrine only protects the documents' identity — and applies only if the adversary also has the documents themselves.

Case Date Jurisidction State Cite Checked
1985-01-01 Federal
Comment:

key case


Chapter: 42.905

Case Name: McClurg v. Mallinckrodt, Inc., No. 4:12-CV-00361-AGF, 2016 U.S. Dist. LEXIS 29230 (E.D. Mo. March 8, 2016)
(holding that a litigant's selection of documents collected as a result of FOIA requests deserved protection under Spork if they were not responsive to the adversary's document requests; apparently also holding that the documents could be withheld under Sporck even if they were responsive to the adversary's document request; "[T]he discoverability of documents that Defendants' attorneys collected during this litigation from the State Historical Society of Missouri ('Historical Society') and from defense counsel's Freedom of Information Act ('FOIA') requests. Plaintiffs requested that Defendants produce these collected documents, and Defendants objected, claiming protection under the work product doctrine."; "At the time of the status conference, the parties had not briefed this issue with supporting legal authority. Nor had the parties provided the Court with the language of the disputed discovery requests, including, for example, whether the requests simply asked for production of all documents collected from the Historical Society and/or from FOIA requests, or whether, instead, the requests were topic-specific requests to which the disputed third-party documents may be responsive as part of a larger document production. The Court nevertheless noted that its initial impression was that publicly available documents prepared by third parties in the ordinary course of business, rather than in anticipation of litigation, are not protected by the work product doctrine and do not gain protection merely by coming into the hands of a party's attorney. However, the Court noted that if production of the documents would reveal the attorneys' legal theories and thought processes in selecting the documents, the work product doctrine may apply. The Court suggested that such legal theories and thought processes may be revealed, for instance, if Plaintiffs' requests for production asked for all documents obtained from a particular source, because the wholesale production of the documents selected and compiled by attorneys may reveal the attorneys' mental impressions and strategies used in the collection process. The Court permitted the parties to submit simultaneous briefs on this issue, which they have now done."; "Upon review of the parties' briefs and the record in this case, the Court believes that here, too, the discovery at issue is protected by the work product doctrine because there is a legitimate concern that counsel's thought processes would be revealed through disclosure. Defendant Cotter Corporation quotes Plaintiffs' requests for production as requesting, for example, 'all documents received by You or Your counsel pursuant to a Freedom of Information Act (FOIA) request regarding any Radioactive Material and/or its effect on the human population.'. . . This is exactly the kind of request for wholesale production that the Court previously suggested would impermissibly intrude into opposing counsel's thought processes relating to this litigation. As such, the Court believes that the request asks for protected work product, and the Court will not compel production."; "As to the Historical Society documents, it appears that these documents were not the subject of any written request for production, but that Plaintiffs inquired whether such documents were collected by Defendants and if so, whether Defendants intended to produce those documents. As discussed above, the Court believes that such a request for wholesale production of the strategically collected Historical Society documents would impermissibly intrude into defense counsel's thought processes."; "Additionally, even if the third-party documents are responsive to previously served discovery requests, the Court believes that there is a legitimate concern that disclosure at this stage would impermissibly intrude into opposing counsel's thought processes. At the status conference, Defendants stated that their document productions in response to Plaintiffs' previously served discovery requests were substantially complete. If the third-party documents are responsive to those previously served requests, and Defendants were compelled to produce them now as a supplemental production, it may be the functional equivalent of a wholesale production, which again would reveal their opinion work product. Moreover, the Court questions Plaintiffs' motives in seeking the documents at this stage."; "Plaintiffs admittedly have equal access to the publicly available1 third-party documents and have undertaken their own efforts to collect such public records. As such, there is little need to obtain the documents from Defendants, except to learn their strategic thinking."; "Of course, Defendants must timely supplement their Rule 26(a) disclosures to the extent any documents not previously disclosed fall within the scope of Fed. R. Civ. P. Rule 26(a)(1)(A)(ii).")

Case Date Jurisidction State Cite Checked
2016-03-08 Federal MO
Comment:

key case


Chapter: 42.905

Case Name: Dalton v. Crawley, Dkt. No. A-4033-12T3, 2014 N.J. Super. Unpub. LEXIS 788 (N.J. Sup. Div. April 8, 2014)
(holding that the work product doctrine did not protect plaintiff's collection of transcripts from other cases, but did protect the identity of the transcripts that the plaintiff's lawyer intended to use for cross-examination purposes; "On leave granted, plaintiff Stephany Dalton appeals two discovery orders that compel her to produce transcripts she has gathered of testimony that defendants' experts have given in other cases, transcripts she claims are work product because she intends to use them solely to cross-examine the experts. The first order requires that plaintiff identify transcripts in her possession but not information she intends to use at trial. The second order requires that both plaintiff and defendants identify 'any prior deposition transcripts of . . . experts [they] plan[] to use at the time of trial.'"; "Plaintiff did not establish in the trial court that the transcripts were prepared by or for her in anticipation of litigation or for trial. Consequently, the transcripts in her possession are discoverable. Conversely, her attorney's decisions as to which transcripts to use to cross-examine adverse experts involve the attorney's mental processes, so they are inherently work product. Defendants have not demonstrated a sufficient reason to compel discovery of what are, in effect, the mental impressions and thought processes of plaintiff's attorney. Accordingly, we affirm in part, reverse in part, and remand for further proceedings."; rejecting work product protection for the transcripts that the plaintiff might use to cross-examine adverse experts; "Plaintiff argues that in view of her intention to use the transcripts solely to cross-examine adverse experts, the transcripts are not non-discoverable work product. We disagree. As we have previously explained, asserting that otherwise discoverable material will be used solely for cross-examination does not render the material non-discoverable. When attorneys prepare cases, they routinely gather otherwise discoverable material that they might decide to use when cross-examining adverse witnesses. The test is not how the evidence will be used at trial, but rather whether it was prepared in anticipation of litigation."; "We are also unpersuaded by plaintiff's reliance on interrogatory from Uniform Interrogatory Form A(1), which exempts from disclosure learned treatises that are to be used for purposes of impeachment. Our Supreme Court has not adopted a similar rule that exempts the production of other relevant evidence from disclosure if such evidence is to be used solely for the purpose of cross-examining adverse witnesses. Rather, the non-disclosure of such other evidence is circumscribed by Rule 4:10-2(c)."; "We recognize that when a party obtains discovery of transcripts in an opposing party's possession, the party discovering the transcripts may be in a better position to anticipate and prepare for an opponent's cross-examination strategy. But that is true for other evidence as well. We except attorneys to anticipate and prepare witnesses for possible credibility attacks during cross-examination. But the balance between policies underlying our discovery rules on one hand, and the purposes of cross-examination on the other, has been struck by our Supreme Court and is reflected in our discovery rules, in this instance by Rule 4:10-2(c). It is not our place to shift that balance by changing the test of non-discoverability under Rule 4:10-2(c) from whether materials were prepared in anticipation of litigation, to what attorneys say they will do with the materials at trial."; in contrast, finding that the work product protection covered the identity of a transcripts the plaintiff intended to use at trial; "The second order did not merely require the parties to produce transcripts in their possession, but rather compelled the parties to identify which deposition transcripts they 'plan[ned] to use at the time of trial.' The order required the parties to produce the results of their attorneys' thought processes and strategies after the attorneys 'assemble[d] information, sift[ed] what [they] consider[ed] to be the relevant from the irrelevant facts, prepare[d] [their] legal theories and plan[ned] [their] strateg[ies].; Hickman, supra, 329 U.S. at 511, 67 S. Ct. at 393, 91 L. Ed. At 462."; "More importantly, the second order requires, in effect, that the parties disclose the mental impressions and trial strategies their attorneys have developed after studying the transcripts and deciding which transcripts, and which transcript segments, to use for cross-examination. The order contravenes the Supreme Court's pronouncement that attorneys' mental processes remain sacrosanct.")

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

Chapter: 42.905

Case Name: Dalton v. Crawley, Dkt. No. A-4033-12T3, 2014 N.J. Super. Unpub. LEXIS 788 (N.J. Super. April 8, 2014)
(ordering plaintiff to produce a collection of defendant's expert's testimony the plaintiff gathered from other cases, but not requiring the plaintiff to indicate which testimony she will use; "We turn to the second order, which requires all parties to disclose information concerning transcripts they intend to use at trial. We conclude that the judge who entered that order misapplied his discretion by compelling the disclosure of work product."; "The second order did not merely require the parties to produce transcripts in their possession, but rather compelled the parties to identify which deposition transcripts they 'plan[ned] to use at the time of trial.'. . ."; "Aside from the concept of work product, there are practical problems with the order. Although attorneys can be expected to prepare cross-examination strategies before the actual trial, they cannot be expected to know precisely what material they will use to cross-examine witnesses until they hear the witnesses testify. The second order does not appear to apprehend that practical problem.")

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

Chapter: 42.905

Case Name: Dalton v. Crawley, Dkt. No. A-4033-12T3, 2014 N.J. Super. Unpub. LEXIS 788 (N.J. Super. April 8, 2014)
(ordering plaintiff to produce a collection of defendant's expert's testimony the plaintiff gathered from other cases, but not requiring the plaintiff to indicate which testimony she will use; "On leave granted, plaintiff Stephany Dalton appeals two discovery orders that compel her to produce transcripts she has gathered of testimony that defendants' experts have given in other cases, transcripts she claims are work product because she intends to use them solely to cross-examine the experts. The first order requires that plaintiff identify transcripts in her possession but not information she intends to use at trial. The second order requires that both plaintiff and defendants identify 'any prior deposition transcripts of . . . experts [they] plan[] to use at the time of trial.'"; "Plaintiff did not establish in the trial court that the transcripts were prepared by or for her in anticipation of litigation or for trial. Consequently, the transcripts in her possession are discoverable. Conversely, her attorney's decisions as to which transcripts to use to cross-examine adverse experts involve the attorney's mental processes, so they are inherently work product. . . .")

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

Chapter: 42.906

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 661 (D. Nev. 2013)
("She [quality assurance manager] specifically recounts that in 2005, at the request of Mr. North [outside counsel], she collected and maintained certain documents for use by Mr. North in connection with his provision of counsel to Bard regarding ongoing litigation. . . . These materials were kept in a folder titled 'Litigation-Richard North.'"; "Bard acknowledges that these documents, in and of themselves, are not privileged, and does not assert a privilege to any of the individual documents, but maintains that the file represents the selection and compilation of the documents by Mr. North, as maintained by Ms. Ludwig [quality assurance manager], and thereby constitute opinion work product protecting the production of the file from discovery."; "In light of the representations made by Ms. Ludwig, the court finds that the litigation file, compiled by Ms. Ludwig at the direction of Mr. North, and set forth in Joint Selection 48 is protected work product and need not be produced.")

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

Chapter: 42.907

Case Name: Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 U.S. Dist. LEXIS 12420 (S.D. Cal. Feb. 2, 2016)
(analyzing defendant's instructions to various witnesses not to answer deposition questions; finding that a Sporck doctrine protected the identity of deposition preparation documents defendant's lawyer selected, but not the documents the witness selected; "Plaintiffs fail to persuade the Court it should not rely on Sporck here. See Sporck, 759 F.2d at 316 (holding 'the selection and compilation of documents by counsel . . . In preparation for pretrial discovery falls within the highly-protected category of opinion work product'). Although it is true the Ninth Circuit has never cited Sporck in a published opinion, this means it is also true the Ninth Circuit has never explicitly disagreed with the case or declined to follow it in a published opinion."; "The Court does not agree attorney work product protection should not apply to an attorney's selection of documents when the attorney 'gratuitously disclosed' the documents a deponent reviewed were selected by counsel. It is well known by attorneys that it is common practice for counsel to prepare their clients and their clients' witnesses for depositions. Such attorney preparation necessarily includes hand-selecting documents relevant to a case to review with the witnesses. As such, there is an implicit presumption that some, if not all, of the documents reviewed by a deponent were selected for review by his counsel, and therefore the Court does not agree that there would not be 'any risk of revealing attorney-work product' if opposing counsel is prohibited from asking, and defending counsel is prohibited from offering, who selected the documents reviewed by the deponent."; "On the other hand, the Court recognizes Plaintiffs' questions at issue seek not only the disclosure of documents that Defendant's counsel selected for the witnesses to review but also the disclosure of documents the witnesses may have chosen to review on their own, outside the presence of counsel. . . . The work product doctrine does not protect documents selected and reviewed by fact witnesses outside the presence of counsel, as no attorney mental impressions, conclusions, or opinions attach to the selection. . . . Therefore, to the extent Plaintiffs' questions sought the disclosure of documents that each witness selected and reviewed on his own, outside the presence of counsel, in preparation for his deposition, Plaintiffs' Motion is GRANTED."; "Accordingly, Defendant is directed that, on or before February 8, 2016, it shall provide Plaintiffs written declarations of Mr. Bailey, Mr. Grubbs, and Mr. McElmon verifying whether or not the only documents, including any source code, each witness personally reviewed in preparation for his deposition were the documents selected for his review by Defendant's counsel.")

Case Date Jurisidction State Cite Checked
2016-02-02 Federal CA
Comment:

key case


Chapter: 42.907

Case Name: Pate v. Winn-Dixie Stores, Inc., Civ. A. No. CV213-166, 2014 U.S. Dist. LEXIS 148764, at *13 (S.D. Ga. Oct. 20, 2014)
December 3, 2014 (PRIVILEGE POINT)

“Courts Address "Discovery about Discovery": Part II”

Last week's Privilege Point described a court's complicated approach to lawyers' deposition preparation sessions and adversaries' efforts to determine if the preparation refreshed a witness's recollection. That court acknowledged that the work product doctrine generally protects lawyers' "selection of materials to be covered during a preparation session." Estate of Jaquez v. City of New York, No. 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717, at *4 (S.D.N.Y. Oct. 10, 2014).

Three days later, however, a North Carolina state court dealt with an adversary's interrogatory asking that litigants "identify all documents that [they] reviewed and/or relied upon in responding to the . . . interrogatories." Nat’l Fin. Partners Corp. v. Ray, 2014 NCBC 49 ¶ 41 (N.C. Super. Ct. Oct. 13, 2014). The court held that "in merely seeking identification of documents, [the interrogatory] requests only factual information" that did not deserve protection under either the attorney-client privilege or the work product doctrine. Id. ¶ 43. A week after that, a federal court addressed defendant Winn-Dixie's argument that the attorney-client privilege protected its "methods of preparing for deposition." Pate v. Winn-Dixie Stores, Inc., Civ. A. No. CV213-166, 2014 U.S. Dist. LEXIS 148764, at *13 (S.D. Ga. Oct. 20, 2014). Although concluding that it needed more information, the court warned that "[b]ecause preparation for deposition often requires investigating numerous sources of information, it is unlikely that all efforts to prepare for the deposition in this case constitute privileged communications." Id.

Although courts disagree about both the attorney-client privilege's and the work product doctrine's application to the process of preparing discovery responses, companies should not assume that their lawyers' involvement in those efforts automatically assures either protection.

Case Date Jurisidction State Cite Checked
2014-10-20 Federal GA
Comment:

key case


Chapter: 42.907

Case Name: Nat’l Fin. Partners Corp. v. Ray, 2014 NCBC 49 ¶ 41 (N.C. Super. Ct. Oct. 13, 2014)
December 3, 2014 (PRIVILEGE POINT)

“Courts Address "Discovery about Discovery": Part II”

Last week's Privilege Point described a court's complicated approach to lawyers' deposition preparation sessions and adversaries' efforts to determine if the preparation refreshed a witness's recollection. That court acknowledged that the work product doctrine generally protects lawyers' "selection of materials to be covered during a preparation session." Estate of Jaquez v. City of New York, No. 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717, at *4 (S.D.N.Y. Oct. 10, 2014).

Three days later, however, a North Carolina state court dealt with an adversary's interrogatory asking that litigants "identify all documents that [they] reviewed and/or relied upon in responding to the . . . interrogatories." Nat’l Fin. Partners Corp. v. Ray, 2014 NCBC 49 ¶ 41 (N.C. Super. Ct. Oct. 13, 2014). The court held that "in merely seeking identification of documents, [the interrogatory] requests only factual information" that did not deserve protection under either the attorney-client privilege or the work product doctrine. Id. ¶ 43. A week after that, a federal court addressed defendant Winn-Dixie's argument that the attorney-client privilege protected its "methods of preparing for deposition." Pate v. Winn-Dixie Stores, Inc., Civ. A. No. CV213-166, 2014 U.S. Dist. LEXIS 148764, at *13 (S.D. Ga. Oct. 20, 2014). Although concluding that it needed more information, the court warned that "[b]ecause preparation for deposition often requires investigating numerous sources of information, it is unlikely that all efforts to prepare for the deposition in this case constitute privileged communications." Id.

Although courts disagree about both the attorney-client privilege's and the work product doctrine's application to the process of preparing discovery responses, companies should not assume that their lawyers' involvement in those efforts automatically assures either protection.

Case Date Jurisidction State Cite Checked
2014-10-13 State NC
Comment:

key case


Chapter: 42.907

Case Name: Estate of Jaquez v. City of New York, No. 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717 (S.D.N.Y. Oct. 10, 2014)
November 26, 2014 (PRIVILEGE POINT)

“Courts Address "Discovery about Discovery": Part I”

Plaintiffs sometimes try to generate a litigation "side show" by challenging corporate defendants' steps in preparing their discovery responses. Courts' reactions to such efforts highlight disagreements about the work product doctrine's application in that context.

In Estate of Jaquez v. City of New York, No. 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717 (S.D.N.Y. Oct. 10, 2014), Judge Forrest addressed plaintiff's effort to learn what deposition transcripts a defense witness had reviewed before testifying. The court acknowledged that a lawyer's "general selection of materials to be covered during a preparation session are [sic] usually protected from an omnibus request for disclosure." Id. at *4. However, the court held that the plaintiff could ask a witness whether his or her recollection "was refreshed by a specific document shown during the preparation — and to identify such a document." Id. at *5. The court then added another more subtle principle — holding that a defense lawyer who had "shared the substance" of another witness's testimony with a deponent could not avoid disclosure under this refreshment rule "simply by reading or summarizing it to the witness instead of having the witness read it him or herself." Id. at *8. As the court bluntly put it "in for a penny, in for a pound." Id.

If a lawyer preparing a witness simply discusses historical facts (without attributing them to another deposition witness), it is difficult to imagine how this process would work. Next week's Privilege Point addresses two other decisions issued just a few days later, also focusing on what could be called "discovery about discovery."

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

key case


Chapter: 42.907

Case Name: Estate of Jaquez v. City of New York, No. 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717, at *4 (S.D.N.Y. Oct. 10, 2014)
December 3, 2014 (PRIVILEGE POINT)

“Courts Address "Discovery about Discovery": Part II”

Last week's Privilege Point described a court's complicated approach to lawyers' deposition preparation sessions and adversaries' efforts to determine if the preparation refreshed a witness's recollection. That court acknowledged that the work product doctrine generally protects lawyers' "selection of materials to be covered during a preparation session." Estate of Jaquez v. City of New York, No. 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717, at *4 (S.D.N.Y. Oct. 10, 2014).

Three days later, however, a North Carolina state court dealt with an adversary's interrogatory asking that litigants "identify all documents that [they] reviewed and/or relied upon in responding to the . . . interrogatories." Nat’l Fin. Partners Corp. v. Ray, 2014 NCBC 49 ¶ 41 (N.C. Super. Ct. Oct. 13, 2014). The court held that "in merely seeking identification of documents, [the interrogatory] requests only factual information" that did not deserve protection under either the attorney-client privilege or the work product doctrine. Id. ¶ 43. A week after that, a federal court addressed defendant Winn-Dixie's argument that the attorney-client privilege protected its "methods of preparing for deposition." Pate v. Winn-Dixie Stores, Inc., Civ. A. No. CV213-166, 2014 U.S. Dist. LEXIS 148764, at *13 (S.D. Ga. Oct. 20, 2014). Although concluding that it needed more information, the court warned that "[b]ecause preparation for deposition often requires investigating numerous sources of information, it is unlikely that all efforts to prepare for the deposition in this case constitute privileged communications." Id.

Although courts disagree about both the attorney-client privilege's and the work product doctrine's application to the process of preparing discovery responses, companies should not assume that their lawyers' involvement in those efforts automatically assures either protection.

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

key case


Chapter: 42.907

Case Name: The Estate of Mauricio Jaquez v. The City of New York, 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717 (S.D.N.Y. Oct. 10, 2014)
(dealing with discovery about discovery, but without citing Federal Rule of Evidence 612; after concluding that the deposition preparation session might deserve privilege and work product protection, and that a lawyer's "general selection of materials" to use during such a session usually deserves protection under an "omnibus request for disclosure," explaining that the adversary can ask about specific documents"; "In contrast, however, during a deposition, counsel is entitled to ask a witness whether his or her recollection was refreshed by a specific document shown during the preparation -- and to identify such a document."; "Inquiry into other materials shared with a witness and that did refresh recollection, such as depositions, should be treated no different than the various documents cited above. . . . Just as counsel can ask a witness if his own counsel showed him a particular document in the course of deposition preparation, plaintiff's counsel here is entitled to ask the police officers if they have read -- or have had read to or summarized for them -- deposition testimony of others. The answer to that question would be a simple 'yes,' 'no,' or 'I don't recall' and is in no way privileged. If 'yes,' an appropriate follow-up question would be 'did it refresh your recollection as to any events?' If the answer to that question is 'yes,' the follow-up question would be: 'List for me whose depositions refreshed your recollection.' After obtaining a list, an appropriate follow-up question would then be 'which topics that refreshed your recollection were read (or summarized) to you?' If the witness remembers (e.g. 'that X testified that the light was red') he can testify to the topics. Opposing counsel could not inquire into the content of any strategic discussion which may have occurred between the witness and his lawyer about those topics -- that would be privileged."; "An attorney cannot shield from disclosure that he or she has shared the substance of a witness's testimony, which has refreshed the deponent's recollection, simply by reading or summarizing it to the witness instead of having the witness read it him or herself. As they say, 'in for a penny, in for a pound.' To the extent that the City believes there is any protection for an attorney verbally reading or summarizing another officer's deposition testimony to a witness rather than showing him or her the written transcript during deposition preparation, the Court finds no distinction. The deposition transcript of other officers is simply a factual record which evinces no work product concerns. A summary of deposition may incorporate work product and such work product need not be revealed; however, the factual content would potentially be open to inquiry, as discussed above.")

Case Date Jurisidction State Cite Checked
2014-10-10 Federal NY

Chapter: 42.907

Case Name: The Estate of Mauricio Jaquez v. The City of New York, 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717 (S.D.N.Y. Oct. 10, 2014)
(dealing with discovery about discovery, but without citing Federal Rule of Evidence 612; "It is expected that a witness will prepare for a deposition by discussing legal strategy and anticipated topics with his or her counsel. Opposing counsel is of course not entitled to know the entire substance of those communications. . . . Indeed deposition preparation may involve a combination of attorney-client privilege advice and work-product. . . . The advice would relate to specific counseling; the work product would relate to the information and materials reflective of the attorney's mental processes and trial strategies. . . . An attorney's general selection of materials to be covered during a preparation session are usually protected from an omnibus request for disclosure.")

Case Date Jurisidction State Cite Checked
2014-10-10 Federal NY

Chapter: 42.907

Case Name: The Estate of Mauricio Jaquez v. The City of New York, 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717 (S.D.N.Y. Oct. 10, 2014)
(dealing with discovery about discovery, but without citing Federal Rule of Evidence 612; after concluding that the deposition preparation session might deserve privilege and work product protection, and that a lawyer's "general selection of materials" to use during such a session usually deserves protection under an "omnibus request for disclosure," explaining that the adversary can ask about specific documents"; "In contrast, however, during a deposition, counsel is entitled to ask a witness whether his or her recollection was refreshed by a specific document shown during the preparation -- and to identify such a document."; "Inquiry into other materials shared with a witness and that did refresh recollection, such as depositions, should be treated no different than the various documents cited above. . . . Just as counsel can ask a witness if his own counsel showed him a particular document in the course of deposition preparation, plaintiff's counsel here is entitled to ask the police officers if they have read -- or have had read to or summarized for them -- deposition testimony of others. The answer to that question would be a simple 'yes,' 'no,' or 'I don't recall' and is in no way privileged. If 'yes,' an appropriate follow-up question would be 'did it refresh your recollection as to any events?' If the answer to that question is 'yes,' the follow-up question would be: 'List for me whose depositions refreshed your recollection.' After obtaining a list, an appropriate follow-up question would then be 'which topics that refreshed your recollection were read (or summarized) to you?' If the witness remembers (e.g. 'that X testified that the light was red') he can testify to the topics. Opposing counsel could not inquire into the content of any strategic discussion which may have occurred between the witness and his lawyer about those topics -- that would be privileged."; "An attorney cannot shield from disclosure that he or she has shared the substance of a witness's testimony, which has refreshed the deponent's recollection, simply by reading or summarizing it to the witness instead of having the witness read it him or herself. As they say, 'in for a penny, in for a pound.' To the extent that the City believes there is any protection for an attorney verbally reading or summarizing another officer's deposition testimony to a witness rather than showing him or her the written transcript during deposition preparation, the Court finds no distinction. The deposition transcript of other officers is simply a factual record which evinces no work product concerns. A summary of deposition may incorporate work product and such work product need not be revealed; however, the factual content would potentially be open to inquiry, as discussed above.")

Case Date Jurisidction State Cite Checked
2014-10-10 Federal NY

Chapter: 42.907

Case Name: Dalton v. Crawley, Dkt. No. A-4033-12T3, 2014 N.J. Super. Unpub. LEXIS 788 (N.J. Super. April 8, 2014)
(ordering plaintiff to produce a collection of defendant's expert's testimony the plaintiff gathered from other cases, but not requiring the plaintiff to indicate which testimony she will use; "We turn to the second order, which requires all parties to disclose information concerning transcripts they intend to use at trial. We conclude that the judge who entered that order misapplied his discretion by compelling the disclosure of work product."; "The second order did not merely require the parties to produce transcripts in their possession, but rather compelled the parties to identify which deposition transcripts they 'plan[ned] to use at the time of trial.'. . ."; "Aside from the concept of work product, there are practical problems with the order. Although attorneys can be expected to prepare cross-examination strategies before the actual trial, they cannot be expected to know precisely what material they will use to cross-examine witnesses until they hear the witnesses testify. The second order does not appear to apprehend that practical problem.")

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

Chapter: 42.907

Case Name: Dalton v. Crawley, Dkt. No. A-4033-12T3, 2014 N.J. Super. Unpub. LEXIS 788 (N.J. Sup. Div. April 8, 2014)
(holding that the work product doctrine did not protect plaintiff's collection of transcripts from other cases, but did protect the identity of the transcripts that the plaintiff's lawyer intended to use for cross-examination purposes; "On leave granted, plaintiff Stephany Dalton appeals two discovery orders that compel her to produce transcripts she has gathered of testimony that defendants' experts have given in other cases, transcripts she claims are work product because she intends to use them solely to cross-examine the experts. The first order requires that plaintiff identify transcripts in her possession but not information she intends to use at trial. The second order requires that both plaintiff and defendants identify 'any prior deposition transcripts of . . . experts [they] plan[] to use at the time of trial.'"; "Plaintiff did not establish in the trial court that the transcripts were prepared by or for her in anticipation of litigation or for trial. Consequently, the transcripts in her possession are discoverable. Conversely, her attorney's decisions as to which transcripts to use to cross-examine adverse experts involve the attorney's mental processes, so they are inherently work product. Defendants have not demonstrated a sufficient reason to compel discovery of what are, in effect, the mental impressions and thought processes of plaintiff's attorney. Accordingly, we affirm in part, reverse in part, and remand for further proceedings."; rejecting work product protection for the transcripts that the plaintiff might use to cross-examine adverse experts; "Plaintiff argues that in view of her intention to use the transcripts solely to cross-examine adverse experts, the transcripts are not non-discoverable work product. We disagree. As we have previously explained, asserting that otherwise discoverable material will be used solely for cross-examination does not render the material non-discoverable. When attorneys prepare cases, they routinely gather otherwise discoverable material that they might decide to use when cross-examining adverse witnesses. The test is not how the evidence will be used at trial, but rather whether it was prepared in anticipation of litigation."; "We are also unpersuaded by plaintiff's reliance on interrogatory from Uniform Interrogatory Form A(1), which exempts from disclosure learned treatises that are to be used for purposes of impeachment. Our Supreme Court has not adopted a similar rule that exempts the production of other relevant evidence from disclosure if such evidence is to be used solely for the purpose of cross-examining adverse witnesses. Rather, the non-disclosure of such other evidence is circumscribed by Rule 4:10-2(c)."; "We recognize that when a party obtains discovery of transcripts in an opposing party's possession, the party discovering the transcripts may be in a better position to anticipate and prepare for an opponent's cross-examination strategy. But that is true for other evidence as well. We except attorneys to anticipate and prepare witnesses for possible credibility attacks during cross-examination. But the balance between policies underlying our discovery rules on one hand, and the purposes of cross-examination on the other, has been struck by our Supreme Court and is reflected in our discovery rules, in this instance by Rule 4:10-2(c). It is not our place to shift that balance by changing the test of non-discoverability under Rule 4:10-2(c) from whether materials were prepared in anticipation of litigation, to what attorneys say they will do with the materials at trial."; in contrast, finding that the work product protection covered the identity of a transcripts the plaintiff intended to use at trial; "The second order did not merely require the parties to produce transcripts in their possession, but rather compelled the parties to identify which deposition transcripts they 'plan[ned] to use at the time of trial.' The order required the parties to produce the results of their attorneys' thought processes and strategies after the attorneys 'assemble[d] information, sift[ed] what [they] consider[ed] to be the relevant from the irrelevant facts, prepare[d] [their] legal theories and plan[ned] [their] strateg[ies].; Hickman, supra, 329 U.S. at 511, 67 S. Ct. at 393, 91 L. Ed. At 462."; "More importantly, the second order requires, in effect, that the parties disclose the mental impressions and trial strategies their attorneys have developed after studying the transcripts and deciding which transcripts, and which transcript segments, to use for cross-examination. The order contravenes the Supreme Court's pronouncement that attorneys' mental processes remain sacrosanct.")

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

Chapter: 42.907

Case Name: In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, No. 3:12-md-02385-DRH-SCW, 2013 U.S. Dist. LEXIS 59164 (S.D. Ill. Apr. 25, 2013)
May 29, 2013 (PRIVILEGE POINT)

"Does the Work Product Doctrine Protect the Identity of Documents a Witness Reviews Before Testifying?"

Under what is commonly called the Sporck doctrine, the opinion work product doctrine can sometimes protect the identity of certain documents that do not themselves deserve intrinsic privilege or work product protection, as long as the adversary also has the documents and the identity could reflect a lawyer's opinion. Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985).

Courts disagree about the Sporck doctrine's application to documents a witness reviews before testifying at a deposition. Some courts find that those documents' identity deserves work product protection, while other courts reject that concept. In In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, No. 3:12-md-02385-DRH-SCW, 2013 U.S. Dist. LEXIS 59164 (S.D. Ill. Apr. 25, 2013) (not for publication), the court tried to thread the needle. The court held that deposition witnesses had to disclose which documents they reviewed before testifying, but did not have to disclose which documents their lawyers had selected.

Lawyers trying to maximize opinion work product protection should see if the pertinent court applies the Sporck doctrine in this setting.

Case Date Jurisidction State Cite Checked
2013-04-25 Federal IL
Comment:

key case


Chapter: 42.907

Case Name: Shanholtzer v. Dean, 51 Va. Cir. 493, 493-94 (Va. Cir. Ct. 2000)
("Because all the items Dean reviewed prior to her deposition have already been turned over to opposing counsel in discovery, forcing Dean to identify what specific items she looked over would only serve to invade defense counsel's work product. Once all documents have been turned over in discovery, answering a question such as this would reveal defense counsel's trial tactics and thoughts by way of showing Plaintiff exactly what the Defendant feels is and is not important to his or her case.")

Case Date Jurisidction State Cite Checked
2000-01-01 State VA B 5/16

Chapter: 42.907

Case Name: Shanholtzer v. Dean, 51 Va. Cir. 493, 493-94 (Va. Cir. Ct. 2000)
("Because all the items Dean reviewed prior to her deposition have already been turned over to opposing counsel in discovery, forcing Dean to identify what specific items she looked over would only serve to invade defense counsel's work product. Once all documents have been turned over in discovery, answering a question such as this would reveal defense counsel's trial tactics and thoughts by way of showing Plaintiff exactly what the Defendant feels is and is not important to his or her case."; denying Plaintiff's Motion to Compel Defendant to identify all items that she "reviewed and relied upon in preparation for her deposition")

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

Chapter: 42.907

Case Name: Shanholtzer v. Dean, 51 Va. Cir. 493, 493, 493-94, (Va. Cir. Ct. 2000)
(refusing to compel a party to "identify all items, including statements and photographs, that she reviewed and relied upon in preparation for her deposition"; noting that the party's counsel represented to the court "that all items that Dean reviewed prior to her deposition were items that were previously produced in discovery"; concluding that "forcing Dean to identify what specific items she looked over would only serve to invade defense counsel's work product. Once all documents have been turned over in discovery, answering a question such as this would reveal defense counsel's trial tactics and thoughts by way of showing Plaintiff exactly what the Defendant feels is and is not important to his or her case."; rejecting any decisions relying on Fed. R. Evid. 612 because "they are federal cases that rely on a federal rule of evidence that Virginia has not adopted")

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

Chapter: 42.907

Case Name: Mills v. MCC Behavioral Care, Inc., 37 Va. Cir. 225, 226 (Va. Cir. Ct. 1995)
(citing Sporck v. Peil, 759 F.2d 312, 315 (3d Cir. 1985) in concluding that "[i]dentifying documents the deponents reviewed with counsel in preparation for their depositions is attorney work product. By revealing the identity of particular documents out of the array of all documents pertaining to the case the thought processes of counsel in selecting those documents for use with the witnesses in preparing for the testimony would also be revealed"; noting that Virginia has not adopted Fed. R. Evid. 612, and therefore "still adheres to the common law approach in this area"; denying plaintiff's motion to compel "each deponent to identify any documents they had reviewed in preparation for their depositions")

Case Date Jurisidction State Cite Checked
1995-01-01 State VA B 3/16

Chapter: 42.907

Case Name: Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985)
May 29, 2013 (PRIVILEGE POINT)

"Does the Work Product Doctrine Protect the Identity of Documents a Witness Reviews Before Testifying?"

Under what is commonly called the Sporck doctrine, the opinion work product doctrine can sometimes protect the identity of certain documents that do not themselves deserve intrinsic privilege or work product protection, as long as the adversary also has the documents and the identity could reflect a lawyer's opinion. Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985).

Courts disagree about the Sporck doctrine's application to documents a witness reviews before testifying at a deposition. Some courts find that those documents' identity deserves work product protection, while other courts reject that concept. In In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, No. 3:12-md-02385-DRH-SCW, 2013 U.S. Dist. LEXIS 59164 (S.D. Ill. Apr. 25, 2013) (not for publication), the court tried to thread the needle. The court held that deposition witnesses had to disclose which documents they reviewed before testifying, but did not have to disclose which documents their lawyers had selected.

Lawyers trying to maximize opinion work product protection should see if the pertinent court applies the Sporck doctrine in this setting.

Case Date Jurisidction State Cite Checked
1985-01-01 Federal
Comment:

key case


Chapter: 42.1002

Case Name: Whitchurch v. Canton Marine Towing Co., Inc., No. 16-cv-3278, 2017 U.S. Dist. LEXIS 42034 (C.D. Ill. March 23, 2017)
(holding that a third party's affidavits did not deserve work product protection; "The privilege, however, does not extend to the identity of individuals with knowledge and the factual information that such individual possess.")

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

Chapter: 42.1002

Case Name: Hatamian v. Advanced Micro Devices, Inc., Case No. 14-cv-00226-YGR (JSC), 2015 U.S. Dist. LEXIS 128678 (N.D. Cal. Sept. 24, 2015)
("Here, Defendants seek the identity of a person Plaintiffs have already identified as someone with knowledge. Such request does not seek work product. . . ."; "Plaintiffs' decision to exclude CW1 from the corrected amended complaint because CW1 did not want to be included does not transform CW1's name into work product. The cat is out of the bag. Plaintiffs previously disclosed that a specific person has knowledge relevant to this lawsuit. Revealing that person's name does not disclose 'counsel's tactical or strategic thoughts.'"; "As the name of CW1 is not work product Defendants' motion to compel disclosure of CW1's name is granted. That being said, the Court accepts Plaintiffs' representation that publicly disclosing CW1's name could have negative repercussions for CW1. Accordingly, as Defendants have offered . . . The Court orders that any disclosure be subject to an attorneys' eyes only protective order.")

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

Chapter: 42.1002

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

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

Chapter: 42.1002

Case Name: Skibinski v. Lunger, 74 Va. Cir. 428, 431, 432, 420 (Va. Cir. Ct. 2008)
(addressing a discovery issue arising from plaintiff home purchaser's lawsuit against defendant home sellers, based on defendants' alleged failure to disclose defects in the house in violation of various zoning requirements; noting that plaintiffs had spoken to the contractor who built the defective addition on the plaintiffs' home and who admitted to plaintiffs that he had advised defendants of the defect; noting that plaintiffs had not identified the contract in responding to interrogatories asking plaintiffs for the identity of persons with knowledge of relevant facts and asking plaintiffs to "'[i]dentify the factual basis'" for their contention that the defendants were aware of the defects (citation omitted); acknowledging that plaintiffs had filed a general objection to the interrogatories on the basis of "attorney work product" and concluding the interrogatories were not objectionable; "If Defendant William Lunger's interrogatories had requested the identification of witnesses the Plaintiffs intended to call at trial, attorney work product would have been a colorable objection. But simply seeking the identification and knowledge of all witnesses who had knowledge of the facts of the case is not."; rejecting plaintiffs' argument that "there is no prejudice to the Defendants, since they have known of Hudlow's existence since 1990 and have had equal access to him, and further, that all of the information about Hudlow has now been discovered more than six months before trial"; declining to dismiss plaintiffs' complaint, but ordering plaintiffs to pay attorneys' fees relating to the issue) [Alper, J.]

Case Date Jurisidction State Cite Checked
2008-01-01 State VA B 3/09; n

Chapter: 42.1002

Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 204 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "Generally, the work product doctrine does not shield against discovery of the facts that the adverse party's lawyer or representative has learned, or the persons from whom he has learned such facts, or the existence or nonexistence of documents. See, e.g., Bd. Of Educ. v. Admiral Heating & Ventilating Inc., 104 F.R.D. 23, 32 (E.D. Ill. 1984). Thus, a party may properly inquire into the identity and location of persons having knowledge of relevant facts.")

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

Chapter: 42.1003

Case Name: Steele v. CVS Pharmacy, Inc., No. 15-CV-4261 (JGK) (KNF), 2016 U.S. Dist. LEXIS 55986, at *5-6 (S.D.N.Y. Apr. 18, 2016)
("The Court is persuaded by the reasoning of the courts in this district that the identities of third-party witnesses pertinent to this case have the potential to reveal counsel's opinions, thought processes or strategies and are, therefore, protected as work product.")

Case Date Jurisidction State Cite Checked
2016-04-18 Federal NY B 8/16

Chapter: 42.1003

Case Name: Steele v. CVS Pharmacy, Inc., No. 15-CV-4261 (JGK) (KNF), 2016 U.S. Dist. LEXIS 55986, at *5-6 (S.D.N.Y. Apr. 18, 2016)
("The Court is persuaded by the reasoning of the courts in this district that the identities of third-party witnesses pertinent to this case have the potential to reveal counsel's opinions, thought processes or strategies and are, therefore, protected as work product.")

Case Date Jurisidction State Cite Checked
2016-04-18 Federal NY B 8/16

Chapter: 42.1003

Case Name: Banks v. St. Francis Health Center, Inc., Case No. 15-cv-2602-JAR-TJJ, 2015 US. Dist. LEXIS 122955 (D. Kan. Sept. 15, 2015))
(holding that a plaintiff did not have to identify prospective clients; "The Court here declines to address whether the identities or names of potential clients who contacted Plaintiff's counsel about potential representation of their own possible discrimination claims, allegedly after hearing about Plaintiff's claims against Defendant, are themselves privileged information or otherwise protected from disclosure. As the Court previously pointed out to the parties, caselaw in this District suggests that client identities are not protected by the attorney-client privilege. However, given the concerns raised by Plaintiff's counsel and the fact that the purpose of the privilege log can be satisfied in this case without identifying the clients or potential clients, the Court will not require the inclusion of the names of the potential clients in the privilege log. Based upon the other information provided in Plaintiff's privilege log, Defendant can adequately assess the claim of privilege without the potential clients' name.").

Case Date Jurisidction State Cite Checked
2015-09-15 Federal KS

Chapter: 42.1003

Case Name: In re Millennial Media, Inc. Sec. Litig., No. 14 Civ. 7923 (PAE), 2015 U.S. Dist. LEXIS 69534, at *43, *43-44 (S.D.N.Y. May 29, 2015)
(criticizing a plaintiff's lawyer designating individuals as confidential witnesses without their knowledge; "The Court, the public, and above all such witnesses have the right to expect better of counsel. They have a right to expect counsel to treat witnesses with decency. They have a right to expect counsel, before designating a person as a CW, to take into account how that person might be affected were this designation to lead to his identification. They have a right to expect counsel to consider thoughtfully, for each person who submits to an interview, whether the consequences of potentially outing that person are justified -- genuinely justified -- counsel's duty of zealous representation of their clients."; "By globally identifying 11 interviewees as Confidential Witnesses with no advance notice to them and no consideration given to their situations and interests, counsel here treated these people shabbily. The Court's hope and expectation is that, in future cases, counsel will aspire to better.")

Case Date Jurisidction State Cite Checked
2015-05-29 Federal NY B 4/16

Chapter: 42.1003

Case Name: Fort Worth Emps.' Ret. Fund v. J.P. Morgan Chase & Co., No. 09 Civ. 3701 (JPO) (JCF), 2013 U.S. Dist. LEXIS 65056, at *5, *6 (S.D.N.Y. May 7, 2013)
(holding that the work product doctrine did not protect the identity of confidential sources of information included in the complaint, or the date a client hired a lawyer; "While there is some disagreement within this district as to whether the identities of confidential informants referenced in the complaint are privileged, the majority view, especially more recently, is that 'the names of the persons identified in the [complaint] as confidential informants are not entitled to any work product protection.'" (citation omitted); "Furthermore, leaving the defendants to contact all 44 individuals to identify the confidential informants would be costly and time-consuming where the lead plaintiffs can easily provide the same information. Accordingly, the defendants' application for disclosure of the identities of the confidential informants referenced in the complaint is granted.")

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

Chapter: 42.1003

Case Name: Curry v. Hansen Med., Inc., Nos. 09-cv-05049 & 11-cv-04941 CW (NC), 2012 U.S. Dist. LEXIS 163726, at *4 (N.D. Cal. Nov. 15, 2012)
("The only effect of withholding the identities of the three confidential witnesses plaintiffs rely upon in their complaint is to force Sells to depose each of the 147 witnesses in plaintiffs' initial disclosures in order to identify the three confidential witnesses. The Court finds the reasoning in Harmonic [In re Harmonic, Inc. Secs. Litig., 245 F.R.D. 424 (N.D. Cal. 2007)] persuasive and determines that disclosing the identities of these confidential witnesses will not reveal attorney work product. To require Sells to depose 147 witnesses to identify three would undermine the purpose of the Federal Rules of Civil Procedure to secure the 'just, speedy, and inexpensive determination of every action and proceeding.' Fed. R. Civ. P. 1.")

Case Date Jurisidction State Cite Checked
2012-11-15 Federal CA B 7/13

Chapter: 42.1003

Case Name: Samuels v. Commonwealth of Va., Rec. No. 2849-09-3, 2010 Va. App. LEXIS 466, at *7 (Va. Ct. App. Nov. 30, 2010)
("It is well established that 'the identity of a person furnishing the prosecution with information concerning criminal activities is privileged.' Gray v. Commonwealth, 233 Va. 313, 328, 356 S.E.2d 157, 165, 3 Va. Law Rep. 2416 (1987).")

Case Date Jurisidction State Cite Checked
2010-11-30 State VA

Chapter: 42.1004

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)
("Courts have also held that requiring a party to divulge which witnesses it has interviewed violates the work product privilege as it provides insight into which witnesses that party believes are critical to its case.")

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

Chapter: 42.1004

Case Name: In re Cathode Ray Tube (CRT) Antitrust Litig., MDL No 1917,Master Case No 3:07cv05944SC,No 13cv01173; No 13cv05724; No 13cv05261; No 13cv05264; No 13cv05727; No 13cv05726; No 13cv05723; No 13cv05725; 2015 U.S. Dist. LEXIS 147413 (N.D. Cal. Oct. 5, 2015)
("Thomson is correct that the identity of the individuals its outside counsel selected to interview is itself protected work product. . . . But some courts have found that the identities of interviewed witnesses are fact work product that may be discoverable if there is a sufficient need for the information."; "Based on the newly submitted information, the undersigned finds that: (1) the disclosure of interviewee identities would reveal fact attorney work product; (2) the record does not support a showing of necessity and substantial hardship justifying disclosure; and (3) the information sought is not critical to the preparation of the DAPs' [Direct Action Plaintiffs] case and little would be gained by disclosure of the names of the 16 interviewees in light of the depositions and other discovery conducted to date.")

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

key case


Chapter: 42.1004

Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199 (S.D.N.Y. Jan. 15, 2015)
(finding that the attorney-client privilege and the work product doctrine protected notes and memoranda relating to the witness interviews conducted by the Jenner lawyers during the firm's investigation into General Motors ignition switch incidents; finding that plaintiffs could not overcome GM's work product protection; finding plaintiffs could try again to overcome GM's work product protection; ordering GM to disclose the identity of the witness interviewed in connection with the investigation but not named in the final report; "Plaintiffs request for the Interview Materials is denied on the independent ground that it constitutes attorney work product. That denial, however, is without prejudice to any future application (after conferring with counsel for New GM) for particular materials in the event that a witness who was interviewed by the Valukas team proves to be unavailable for deposition as a result of death, invocation of the Fifth Amendment privilege against self-incrimination, or otherwise. And to facilitate any such application, New GM is ordered to disclose, within two weeks, the names of all witnesses who were interviewed by the Valukas team but not mentioned by name in the Valukas Report itself.")

Case Date Jurisidction State Cite Checked
2015-01-15 Federal NY

Chapter: 42.1004

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

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

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

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

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

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

key case


Chapter: 42.1004

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

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

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

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

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

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

key case


Chapter: 42.1004

Case Name: US Bank Nat'l Ass'n v. PHL Variable Ins. Co., Nos. 12 Civ. 6811 & 13 Civ. 1580 (CM) (JCF), 2013 U.S. Dist. LEXIS 143398, at *27-28, *29 (S.D.N.Y. Oct. 3, 2013)
("It is an unsettled question whether the work product immunity protects the identities of those persons interviewed by an attorney or his agent in anticipation of litigation. . . . However, courts in this district have noted that the identities of people interviewed as part of counsel's investigation into the facts of the case have the potential to reveal counsel's opinions, thought processes, or strategies, and are therefore protected."; "Here, U.S. Bank asserts that its former counsel's decisions regarding whom to interview had a strategic component based on information counsel had about PHL and about individuals at PHL. . . . In light of this assertion, and the persuasive reasoning of cases cited above, I find that the identities of the individuals U.S. Bank interviewed in its investigation are protected as work product.")

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

Chapter: 42.1004

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

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

Chapter: 42.1004

Case Name: In re Weatherford Int'l Secs. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 110928, at *16 (S.D.N.Y. Aug. 5, 2013)
(in an opinion by Magistrate Judge James Francis, analyzing a topic for a Rule 30(b)(6) deposition; "[Q]uestions 28, 29, 40, and 41, which seek information about the number of interviews conducted in connection with the internal investigations, do not seek information that is privileged or protected.")

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

Chapter: 42.1004

Case Name: Farzan v. Wells Fargo Bank, No. 12 Civ. 1217 (RJS) (JLC), 2012 U.S. Dist. LEXIS 183623, at *8 (S.D.N.Y. Dec. 28, 2012)
(holding that communications to and from a bank's EEO consultant working under the supervision of the law department deserved privilege protection, because the consultant was working as the lawyer's agent; "The disclosure of who Bernard [EEO Consultant working under supervision of defedant's legal department] interviewed as part of her investigation does not reveal Wells Fargo's legal strategy, its analysis of Farzan's claims, or other protected information. Thus, while I grant the application to preclude Bernard's deposition from proceeding on attorney-client privilege and work-product grounds, to the extent they have not already done so, I direct Defendants to promptly identify the names of all of the individuals Bernard interviewed as part of her investigation to Farzan.")

Case Date Jurisidction State Cite Checked
2012-12-28 Federal NY B 5/13

Chapter: 42.1004

Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 205 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "Although facts regarding potential sources of information are discoverable, a party may not discover the identity of specific sources of information that an opposing party may have consulted.")

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

Chapter: 42.1004

Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 205 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "Although facts regarding potential sources of information are discoverable, a party may not discover the identity of specific sources of information that an opposing party may have consulted.")

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

Chapter: 42.1004

Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 200 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "Although generally the work product doctrine does not shield against discovery the facts that the adverse party's lawyer or representative has learned, a party may not inquire into the identity of persons that the opposing party's lawyer or representative has interviewed. See, e.g., Bd. Of Educ. v. Admiral Heating & Ventilating Inc., 104 F.R.D. 23, 32 (E.D. Ill. 1984).")

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

Chapter: 42.1004

Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 204 (Va. Cir. Ct. 2003)
(concluding that the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; " A party may not, however, inquire into the identity of persons that the opposing party's lawyer or representative has interviewed.")

Case Date Jurisidction State Cite Checked
2003-01-01 State VA B 3/16
Comment:

key case


Chapter: 42.1004

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

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

Chapter: 42.1004

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

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

key case


Chapter: 42.1005

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

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

Chapter: 42.1007

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

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

Chapter: 42.1203

Case Name: First Coast Energy, L.L.P. v. Mid-Continent Cas. Co., Case No. 3:12-cv-281-J-32MCR, 2013 U.S. Dist. LEXIS 69078, at *8 (M.D. Fla. May 15, 2013)
(analyzing privilege issues in a first party bad faith insurance case; "Defendant is directed to produce any documents previously withheld on the basis of work product contained in the claims files at issue in this case prepared up to and including the date of resolution of the underlying coverage dispute.")

Case Date Jurisidction State Cite Checked
2013-05-15 Federal FL B 3/14