Showing 135 of 135 results

Chapter: 44.1

Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 250 (4th Cir. 2005)
("The privilege encompasses both 'fact' work product and 'opinion' work product. Fact work product, which consists of documents prepared by an attorney that do not contain the attorney's mental impressions, 'can be discovered upon a showing of both a substantial need and an inability to secure the substantial equivalent of the materials by alternate means without undue hardship.' In re Grand Jury Proceedings, 33 F.3d [342,] 348 [(4th Cir. 1994)]; see also In re John Doe, 662 F.2d 1073, 1076 (4th Cir. 1981).")

Case Date Jurisidction State Cite Checked
2005-01-01 Federal N 11/05

Chapter: 44.1

Case Name: Rakes v. Fulcher, 210 Va. 542, 546 172 S.E.2d 751, 755 (Va. 1970)
("Within the scope of the good cause rule is the 'work product' doctrine, which protects an attorney from opening his files for inspection by an opposing attorney. This doctrine, however, does not offer absolute immunity, and discovery will be permitted where a showing of necessity greater than the normal requirement for good cause is made.")

Case Date Jurisidction State Cite Checked
1970-01-01 State VA

Chapter: 44.2

Case Name: Harleysville Ins. Co. v. Holding Funeral Home, Inc., Case No. 1:15cv00057, 2017 U.S. Dist. LEXIS 18714 (W.D. Va. Feb. 9, 2017)
("The work-product doctrine, however, it not a privilege, but rather a qualified immunity from discovery. . . . Thus, Rule 501 does not apply, and federal law, not Virginia law, governs the applicability and waiver of the protection available under the work-product doctrine.")

Case Date Jurisidction State Cite Checked
2017-02-09 Federal VA

Chapter: 44.2

Case Name: In re Grand Jury Subpoena, No. 2013R00691-009, Dkt. 3:16-mc-00079-FDW-DCK, 2016 U.S. Dist. LEXIS 110274 (W.D.N.C. Aug. 16, 2016)
("Distinct from the attorney-client privilege, the work product doctrine belongs to the attorney and confers a qualified privilege on documents prepared by an attorney in anticipation of litigation.")

Case Date Jurisidction State Cite Checked
2016-08-16 Federal NC

Chapter: 44.2

Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
("As Defendant notes, a core difference between the work-product doctrine and the attorney-client privilege is the ability for an opponent to pierce the veil of the work-product doctrine.")

Case Date Jurisidction State Cite Checked
2015-10-27 Federal MI

Chapter: 44.2

Case Name: Baylor v. Mitchell Rubenstein & Associates, Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (U.S. D.D.C. 2015)
("The work-product doctrine is not a privilege but a qualified immunity provided under Federal Rule of Civil Procedure 26.")

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

Chapter: 44.2

Case Name: Brooks v. Mon River Towing, Inc., Civ. A. No. 11-1580, 2013 U.S. Dist. LEXIS 59417, at *10 (W.D. Pa. Apr. 3, 2013)
("The attorney-client privilege is absolute; however, the work product protection depends on the type of matter being sought as well as the adversary's need for the information, as set forth in the rule itself.")

Case Date Jurisidction State Cite Checked
2013-04-03 Federal PA B 3/14

Chapter: 44.2

Case Name: Solis v. Food Emp'rs Labor Relations Ass'n, 644 F.3d 221, 231-32 (4th Cir. 2011)
("Distinct from the attorney-client privilege, the work product doctrine belongs to the attorney and confers a qualified privilege on documents prepared by an attorney in anticipation of litigation. Hickman v. Taylor, 329 U.S. 495, 509-14, 67 S. Ct. 385, 91 L. Ed. 451 (1947); In re Grand Jury Proceedings, Thur. Special Grand Jury Sept. Term, 1991, 33 F.3d 342, 348 (4th Cir. 1994); Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480, 483, n.12 (4th Cir. 1973).")

Case Date Jurisidction State Cite Checked
2011-01-01 Federal

Chapter: 44.2

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 608 (E.D. Va. 2010)
("Kolon, of course, is not required to show substantial need for protection that is waived. However, it must do so to have access to protected fact work product that as to which there has been no waiver.")

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

Chapter: 44.2

Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 66484, at *8 (E.D. Va. July 31, 2009)
(analyzing work product protection for materials created in connection with a patient's death at a hospital; "There are two types of work-product: one that is completely immune from discovery and one that is qualifiedly immune. Fire Ins. Co. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th Cir. 1992).")

Case Date Jurisidction State Cite Checked
2009-07-31 Federal VA

Chapter: 44.2

Case Name: Rush v. Sunrise Senior Living, Inc., No. CL-07-11322, 2008 Va. Cir. LEXIS 12, at *14 (Va. Cir. Ct. Feb. 12, 2008)
(addressing the privilege implications of a company's former CFO's request for a protected document from his former employer, against which he had filed a breach of contract and defamation action; "Unlike the attorney client privilege, the doctrine is qualified: it may be overcome by showing that an opposing party has a substantial need for the materials and that the party would not be able to obtain the 'substantial equivalent' without 'undue hardship.'")

Case Date Jurisidction State Cite Checked
2008-02-12 State VA B 5/09 & 6/09

Chapter: 44.2

Case Name: Gutshall v. 5 New Prime, Inc., 196 F.R.D. 43, 45 n.2 (W.D. Va. 2000)
("The work product doctrine is not a 'privilege,' but a sort of 'qualified immunity' from discovery, originally established in Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947), and ultimately codified in Rule 26(b)(3). See Chiasson, 988 F.2d at 514 n.2")

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

Chapter: 44.4

Case Name: O'Dell v. Cedar Lakes, L.P., 44 Va. Cir. 164, 165 (Va. Cir. Ct. 1997)
("The O'Dell statement is a chronology of the events and problems the O'Dells allegedly experienced with Unit 2, lot 50, at Cedar Lakes Condominium. It was prepared at the O'Dells' counsel's request, and Mr. Brincefield asserts that it is protected by both the attorney-client privilege and the work product doctrine. Apparently, the document was also provided to one of Ms. O'Dell's physicians, Dr. Grace Ziem. The O'Dells signed a release, and Dr. Ziem produced the statement to defendants. There is no argument that Dr. Ziem was working with the O'Dells' lawyer, see Commonwealth v. Edwards, 370 S.E.2d 296, 301 (Va. 1988); thus the delivery of the statement to the doctor destroyed the confidentiality leg of the attorney-client privilege. Likewise, the work product doctrine does not preclude the defendants' use of the statement. Rule 4:1(a)(3) specifically exempts party statements from the work product doctrine. Thus Defendants may use the statement without running afoul of the doctrine."; finding that disclosure of a previously privileged document to a doctor waived the privilege because the doctor was not working with the parties' lawyer)

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

Chapter: 44.9

Case Name: Bacote v. Riverbay Corp., 16 Civ. 1599 (GHW) (AJP), 2017 U.S. Dist. LEXIS 35098 (S.D.N.Y. March 10, 2017)
(holding that a lawyer did not have to be a witness because he had recorded conversations of other police officers; analyzing New York Rule 3.7; "Federal courts also have discretion to exclude evidence unethically obtained by attorneys.")

Case Date Jurisidction State Cite Checked
2017-03-10 Federal NY

Chapter: 44.9

Case Name: Scranton Products, Inc. v. Bobrick Washroom Equipment, Inc., No. 3:14-CV-00853, 2016 U.S. Dist. LEXIS 72802 (M.D. Pa. June 2, 2016)
August 17, 2016 (PRIVILEGE POINT)

"Courts Explore Wrongful Conduct's Effect on Privilege and Work Product Protection"

Apart from the crime-fraud exception, lawyer and client misconduct might affect privilege and work product claims in more subtle ways.

In Scranton Products, Inc. v. Bobrick Washroom Equipment, Inc., No. 3:14-CV-00853, 2016 U.S. Dist. LEXIS 72802 (M.D. Pa. June 2, 2016), the court rejected defendant's argument that the privilege could not protect plaintiff's communications with its general counsel -- who was apparently committing the unauthorized practice of law in Pennsylvania. The court noted that the general counsel was licensed to practice in another jurisdiction, so "the fact that [the general counsel] 'is not admitted to practice law in Pennsylvania does not mean that [the corporate client's] communications with him are not protected by the attorney-client privilege.'" Id. at *17 (internal citation omitted). Six days later, the court in Halley v. Oklahoma ex rel. Oklahoma State Dep’t of Human Services, Case No. 14-CV-562-JHP, 2016 U.S. Dist. LEXIS 74567 (E.D. Okla. June 8, 2016) found that plaintiff's investigator had illegally conducted interviews in Oklahoma. Because the investigator was "unlicensed to act as a private investigator in Oklahoma," the court concluded that "such illegally-collected information does not obtain the benefit of work-product protection." Id. at *5.

Every court recognizes privilege protection for lawyers licensed somewhere, even if they are engaged in the unauthorized practice of law somewhere else. But most if not all courts refuse to extend work product protection to illegally obtained evidence.

Case Date Jurisidction State Cite Checked
2016-06-02 Federal PA B 8/16
Comment:

key case


Chapter: 44.9

Case Name: United States v. Christensen, No. 08-50531, No. 08-50570, No. 09-50115, No. 09-50125, No. 09-50128, No. 09-50159, No. 10-50434, No. 10-50462, No. 10-50464, No. 10-50472, 2015 U.S. App. LEXIS 14961 (9th Cir. Aug. 25, 2015)
(analyzing work product protection; "Not surprisingly, it does not apply to foster a distortion of the adversary process by protecting illegal actions by an attorney. Because its purpose 'is to protect the integrity of the adversary process[,] . . . it would be improper to allow an attorney to exploit the privilege for ends that are antithetical to that process.'")

Case Date Jurisidction State Cite Checked
2015-08-25 Federal

Chapter: 44.9

Case Name: Bahrami v. Maxie Price Chevrolet-Oldsmobile, Inc., Civ. A. File No. 1:11-CV-4483-SCJ-AJB, 2013 U.S. Dist. LEXIS 104040, at *13-14 (N.D. Ga. July 19, 2013)
(holding that a secret tape recording can be protected work product, after the ABA issued an opinion finding that such tape recording was not unethical; "The first question before the Court is whether the recordings are protected by the work product doctrine. As to all of the recordings, Defendant argues that the clandestine nature of the recordings -- in other words, the fact that the interviewees did not know that they were being recorded -- vitiates any such protection. The Court finds, however, that work product protection is not vitiated by the clandestine nature of the recordings. Defendant cites guidance from other jurisdictions on this matter, but the Court is unaware of precedent within this district or the Eleventh Circuit that would require such a determination here.")

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

Chapter: 44.9

Case Name: Haigh v. Matsushita Elec. Corp. of Am., Civ. A. No. 87-0455-R, 1987 U.S. Dist. LEXIS 12113 (E.D. Va. Dec. 28, 1987)
("While counsel did not tell Haugh to initiate or continue taping conversations, the old adage 'actions speak louder than words' comes to mind. Indeed, Haigh and his attorneys fell into a pattern of conduct whereby Haigh would tape conversations and almost immediately turn the tapes over to counsel for their use. This pattern of conduct continued over a period of approximately nine months, and included the taping of fifty-eight conversations."; "The Court would not be so troubled if it were faced with the situation where a party, in his exuberance over pending litigation, pursued such a course of conduct and delivered a handful of tapes to his counsel. In that situation, the lawyer's conduct could fairly be described as simply acquiescence in the situation created by the client's exuberance. There is a point, however, where acquiescence ceases to be passive and noncommittal, and becomes active encouragement and affirmative support. There is, and can be, no bright line to determine when this point is reached. Instead, the circumstances of each case must be viewed in their totality in an attempt to get a fix on that point. Here, the Court is certain that that point has been crossed. As such, the Court holds that the work product privilege has been vitiated."; "The ruling today should not be taken as an indictment of counsel's ethics or professionalism. To be sure, the law on this point is in an infant, perhaps even fetal, state. The Court in no way assumes or believes that counsel's intent was to run afoul of ethical strictures."; "Additionally, it should be noted that this ruling may be interpreted by some as punishment for Haigh's retention of counsel. Indeed, if Haigh were proceeding pro se, the privilege would not be vitiated. However, an attorney's clients may not reap the benefits of the attorney's expertise in a vacuum-like state. Rather, the client must realize that the attorney is bound by a Code of Professional Responsibility, and, when he retains the attorney, he also retains the responsibilities imposed on that attorney.")

Case Date Jurisidction State Cite Checked
1987-12-28 State VA

Chapter: 44.9

Case Name: Haigh v. Matsushita Elec. Corp. of Am., 676 F. Supp. 1332 (E.D. Va. 1987)
(in light of the lawyer's unprofessional behavior, finding that the work product doctrine did not protect properly created tapes of conversations)

Case Date Jurisidction State Cite Checked
1987-01-01 Federal VA

Chapter: 44.11

Case Name: Davita Healthcare Partners, Inc. v. United States, No. 11-297C, 2016 U.S. Claims LEXIS 1427 (Fed. Cl. Sept. 29, 2016)
("Plaintiffs assert that Ms. Ryan's [Testifying expert] spreadsheets, scripts, analyses, and presentations are protected 'communications from Plaintiffs' testifying expert, Ms. Ryan, to Plaintiffs' counsel about Ms. Ryan's preliminary claims data analyses and report strategies' protected under Rule 26(b)(4)(C)."; "Defendant mistakenly equates the expert's spreadsheets, graphs, and analyses in her presentations to counsel with 'facts and data.' These formulations, however, are interpretations of data that reflect counsel's mental impressions and result from the expert's and counsel's collaborative efforts to organize, marshal, and present data. This selective presentation of data is separate and distinct from the underlying facts and data themselves. . . . because Ms. Ryan included an extensive list of facts and data she considered in formulating her report in her description of 'Key Data Sources,' Defendant has obtained a full factual predicate for this expert's opinions and has what it needs to probe and test those opinions.")

Case Date Jurisidction State Cite Checked
2016-09-29 Federal Other

Chapter: 44.11

Case Name: Davita Healthcare Partners, Inc. v. United States, No. 11-297C, 2016 U.S. Claims LEXIS 1427 (Fed. Cl. Sept. 29, 2016)
("The facts and data which Ms. Ryan considered in forming her opinions have already been produced to Defendant. . . . As discussed above, Ms. Ryan's [Testifying expert] report details every document and data set she considered in forming her analyses. Defendant does not argue that Ms. Ryan's report or her disclosures are somehow insufficient or incomplete, but instead seeks documents containing Ms. Ryan's preliminary analyses of claims data and various damages scenarios, reflecting Plaintiffs' counsel's mental processes in developing litigation strategy, or the iterations of the expert's preliminary analyses communicated to counsel. . . .These preliminary analyses are not discoverable. RCFC 26(b)(4)(C).")

Case Date Jurisidction State Cite Checked
2016-09-29 Federal Other

Chapter: 44.11

Case Name: Davita Healthcare Partners, Inc. v. United States, No. 11-297C, 2016 U.S. Claims LEXIS 1427 (Fed. Cl. Sept. 29, 2016)
("The facts and data which Ms. Ryan considered in forming her opinions have already been produced to Defendant. . . . As discussed above, Ms. Ryan's [Testifying expert] report details every document and data set she considered in forming her analyses. Defendant does not argue that Ms. Ryan's report or her disclosures are somehow insufficient or incomplete, but instead seeks documents containing Ms. Ryan's preliminary analyses of claims data and various damages scenarios, reflecting Plaintiffs' counsel's mental processes in developing litigation strategy, or the iterations of the expert's preliminary analyses communicated to counsel. . . .These preliminary analyses are not discoverable. RCFC 26(b)(4)(C).")

Case Date Jurisidction State Cite Checked
2016-09-29 Federal Other

Chapter: 44.11

Case Name: Davita Healthcare Partners, Inc. v. United States, No. 11-297C, 2016 U.S. Claims LEXIS 1427 (Fed. Cl. Sept. 29, 2016)
("Plaintiffs assert that Ms. Ryan's [Testifying expert] spreadsheets, scripts, analyses, and presentations are protected 'communications from Plaintiffs' testifying expert, Ms. Ryan, to Plaintiffs' counsel about Ms. Ryan's preliminary claims data analyses and report strategies' protected under Rule 26(b)(4)(C)."; "Defendant mistakenly equates the expert's spreadsheets, graphs, and analyses in her presentations to counsel with 'facts and data.' These formulations, however, are interpretations of data that reflect counsel's mental impressions and result from the expert's and counsel's collaborative efforts to organize, marshal, and present data. This selective presentation of data is separate and distinct from the underlying facts and data themselves. . . . because Ms. Ryan included an extensive list of facts and data she considered in formulating her report in her description of 'Key Data Sources,' Defendant has obtained a full factual predicate for this expert's opinions and has what it needs to probe and test those opinions.")

Case Date Jurisidction State Cite Checked
2016-09-29 Federal Other

Chapter: 44.11

Case Name: Amtrust North America, Inc. v. Safebuilt Insurance Services, Inc., 14-CV-9494 (CM) (JLC), 2016 U.S. Dist. LEXIS 75906 (S.D.N.Y. June 10, 2016)
(holding that the work product doctrine protected an audit firm's documents, despite the absence of any lawyer involvement; concluding that the defendant's cannot overcome the work product protection; "Even if the Court assumes that Alan Gray's ['an audit firm that plaintiffs retained to review the billing practices of a third-party administrator that processed insurance claims for them'] analysis was helpful in plaintiffs' negotiations with Network, these facts do not strip away work-product protection. After all, 'where an expert is employed for 'dual purposes,' both to prepare for litigation and for some non-litigation purpose, work product protection still applies.'")

Case Date Jurisidction State Cite Checked
2016-06-10 Federal NY

Chapter: 44.11

Case Name: Neuman v. The State, S15A0011, 2015 Ga. LEXIS 444 (Ga. June 15, 2015)
(reversing a murder conviction because the court had improperly allowed the state to discover defendant's non-testifying experts opinions; "Consistent with this general principle, and after a review of authority from other states on this issue, we join numerous other jurisdictions in holding that the (2) attorney-client privilege applies to confidential communications, related to the matters on which legal advice is being sought, between the attorneys, their agents, or their client, and an expert engaged by the attorney to aid in the client's representation; the privilege is not waived if the expert will neither serve as a testimony. . . . If counsel later elects to call the expert as a witness at trial, the cloak of privilege ends."; "Neither Dr. Thomas nor Dr. Rand Dorney conducted an independent investigation of the facts of the criminal case, nor did they review any discovery. Neither doctor prepared an evaluation of Neuman's mental capacity with regard to insanity to be used in court, nor did they professionally treat Neuman. Finally, neither of Neuman's expert witnesses at trial relied on Dr. Rand Dorney's or Dr. Thomas' notes in the formulation of their expert opinions."; "The State contends that Neuman signed a form, presented to him when Dr. Thomas and Dr. Rand Dorney met with him at the jail, waiving any confidentiality."; "When a client authorizes his lawyers or their agents, expressly or impliedly, to waive his confidential communications as necessary to carry out his representation, that does not authorize the other party to the litigation to demand that the waiver be exercised.")

Case Date Jurisidction State Cite Checked
2015-06-15 State GA

Chapter: 44.11

Case Name: Perez v. El Tequila LLC, Case No. 12-CV-588-JED-PJC, 2015 U.S. Dist. LEXIS 34174 (N.D. Okla. March 19, 2015)
(finding that the work product doctrine protected oral communications between a government lawyer and a third party's employees; also analyzing the government's later retention of witnesses' experts; "Defense counsel contends that once the Casio witnesses were retained as experts in August 2014, it rendered their July 24 communications with Plaintiff's counsel discoverable. Counsel has provided no authority for this position and the Court rejects it. The Defendants are entitled to know what the expert witnesses considered and relied on in forming their opinions. That information was provided in the Rule 26 expert report provided to the defense a month before Speer's deposition.")

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

Chapter: 44.11

Case Name: United States Commodity Futures Trading Comm. v. Newell, Case No. 12 C 6763, 2014 U.S. Dist. LEXIS 117734 (N.D. Ill. Aug. 25, 2014)
("The purpose of amending Rule 26(b) in 2010, however, was to change the law about discovery regarding drafts of expert reports and counsel's communication with the expert . . . .")

Case Date Jurisidction State Cite Checked
2014-08-25 Federal IL

Chapter: 44.11

Case Name: In re Methyl Tertiary Butyl Ether ('MTBE') Prods. Liab. Litig., 293F.R.D. 568, 576 (S.D.N.Y. 2013)
(in an opinion by Judge Shira Scheindlin, analyzing experts playing two roles in the same case; "Prior to the 2010 Amendment, Rule 26(a)(2)(B)(ii) permitted discovery of 'data or other information' considered by a testifying expert in connection with her opinion, leading many courts to conclude that 'Rule 26 creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts.' The 2010 Amendment to Rule 26 abrogates this bright-line approach in favor of the work-product doctrine's original function: protecting the 'orderly prosecution and defense of legal claims[]' by preventing 'unwarranted inquiries into the files and the mental impressions of attorneys. . . . Among other changes -- e.g., designating drafts of expert reports as work-product through Rule 26(b)(4)(B -- the 2010 Amendment: (1) clarifies that 'communications between [a] party's attorney and' a testifying expert are within the scope of the work-product doctrine; and (2) excepts from the work-product doctrine 'facts or data' considered by a testifying expert, rather than 'data or other information[,]' thereby clarifying that attorney theories and impressions are not discoverable." (citations omitted))

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

Chapter: 44.11

Case Name: In re Methyl Tertiary Butyl Ether ('MTBE') Prods. Liab. Litig., 293F.R.D. 568, 577 (S.D.N.Y. 2013)
(in an opinion by Judge Shira Scheindlin, analyzing experts playing two roles in the same case; "I conclude that the 2010 Amendment to Rule 26 does not alter the considerations applicable to dual-capacity experts in any way pertinent to this dispute. The 2010 Amendment did not change the rules (or policies) applicable to consulting expert discovery: a party seeking discovery of facts known or opinions held by a consulting expert must still demonstrate exceptional need to overcome the federal policy of encouraging parties to seek, and enabling parties to obtain, competent consultation."; "I conclude that the 2010 Amendment alters the analysis of privilege for dual-capacity experts only when 'core' work product -- e.g., attorney theories and impressions -- is involved.")

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

Chapter: 44.11

Case Name: Yeda Research & Dev. Co. v. Abbott GMBH & Co. KG, 292 F.R.D. 97, 109, 113, 114, 115 (D.D.C. 2013)
(in a patent case, ordering a testifying expert to produce his earlier work created when he was a non-testifying expert; holding that after federal rules changes, a testifying expert can withhold only those documents prepared "uniquely" in his or her non-testifying roles; "Yeda is correct to the extent that there is a temporal line of demarcation between the 2003 experiments and these proceedings. The documents at issue were clearly prepared by Dr. Engelmann in his capacity as a consultant. However, whether time has passed is not the pertinent inquiry; instead, the question is the extent of the substantive relationship between Dr. Engelmann's two expert roles. In so doing, 'the scope of the privilege must be narrowly construed against the expert's proponent,' . . . . The presumption in favor of the party seeking discovery means that 'if the subject matter directly relates to the opinion in the expert report, there will be at least an ambiguity as to whether the materials informed the expert's opinion,' and consulting materials should be disclosed." (citation omitted); "The Court finds the line of demarcation Yeda has drawn is more illusory than real."; "The Court finds that Yeda waived the work product protection of Dr. Engelmann's work as a consultant in this case by designating him as a testifying expert witness. Accordingly, Abbott's motion to compel as to the documents related to the 2003 experiment will be granted with respect to the five groups of documents Abbott seeks, subject to any attorney work product otherwise protected by amended Rule 26.")

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

Chapter: 44.302

Case Name: United States v. NeuroScience, Inc., 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572 (W.D. Wis. Feb. 10, 2015)
(rejecting defendant's claims that a billing audit was motivated by litigation and therefore deserved work product protection, and that the auditor was protected by the Kovel doctrine; "Bublitz's explanation leaves no doubt that Pharmasan/NeuroScience hired CodeMap for business reasons, namely, to review its billing system to ensure compliance with federal rules and regulations governing laboratories.")

Case Date Jurisidction State Cite Checked
2015-02-10 Federal WI

Chapter: 44.303

Case Name: United States v. All Assets Held at Bank Julius Baer & Company, Ltd., Civ. A. No. 04-798 (PLF/GMH), 2016 U.S. Dist. LEXIS 72534 (D.D.C. June 3, 2016)
(holding that the work product protection applied in unrelated later litigation)

Case Date Jurisidction State Cite Checked
2016-06-03 Federal DC

Chapter: 44.303

Case Name: Charvat v. Valente, No. 12 CV 5746, 2015 U.S. Dist. LEXIS 85234 (N.D. Ill. July 1, 2015)
("Plaintiff contends that the work product doctrine cannot apply in this lawsuit because they were prepared in anticipation of separate litigation. . . . On the contrary, courts generally hold that when documents have been prepared in anticipation of litigation, but not in anticipation of the litigation in which work product protection is asserted, the documents should still be treated as work product.")

Case Date Jurisidction State Cite Checked
2015-07-01 Federal IL

Chapter: 44.303

Case Name: Bethune-Hill v. Va. State Bd. of Elections, 114 F. Supp. 3d 323, 348 (E.D. Va. 2015)
("The protections of the work product doctrine extend beyond the litigation for which the materials were prepared.")

Case Date Jurisidction State Cite Checked
2015-05-26 Federal VA B 3/16

Chapter: 44.303

Case Name: Sedgwick Claims Management Services, Inc. v. Feller, Case No. 5D15-217, 2015 Fla. App. LEXIS 7286 (Fla. App. 5d May 15, 2015)
("[T]he trial court erred by finding the work product privilege to be inapplicable on grounds that the current case between these parties involves issues different than those presented in the prior litigation for which the documents were prepared. . . . ('It is well-established that 'work product retains its qualified immunity after the original litigation terminates, regardless of whether or not the subsequent litigation is related.'").")

Case Date Jurisidction State Cite Checked
2015-05-15 State FL

Chapter: 44.303

Case Name: In re Sadler Clinic, PLLC v. Angelica Textile Svcs., Inc., Case No. 12-34546, Ch. 7, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369 (S.D. Tex. April 17, 2015)
(analyzing various work product issues; "Furthermore, the majority of circuit courts to have directly decided the issue apply the work-product doctrine to all subsequent litigation, related or not.")

Case Date Jurisidction State Cite Checked
2015-04-17 Federal TX

Chapter: 44.303

Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 12-5393, 2015 U.S. App. LEXIS 2559 (D.C. App. Feb. 20, 2015)
("A document prepared as work product for one lawsuit will retain its protected status even in subsequent unrelated litigation.")

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

key case


Chapter: 44.303

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

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

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

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

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

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

key case


Chapter: 44.303

Case Name: Wilson v. City of Phila., Civ. A. No. 04-5396, 2014 U.S. Dist. LEXIS 39863, at *7 (E.D. Pa. Mar. 26, 2014)
("As an initial matter, it is not entirely clear that that the work-product privilege applies in a proceeding unrelated to the litigation for which the work was prepared.")

Case Date Jurisidction State Cite Checked
2014-03-26 Federal PA B 8/14

Chapter: 44.303

Case Name: Cosmetic Warriors Ltd. v. Lush Day Spa, LLC, Civ. A. No. 13-1697 (WJM), 2013 U.S. Dist. LEXIS 144272, at *5 (D.N.J. Oct. 4, 2013)
(not for publication) (analyzing the work product doctrine's duration; explaining that plaintiff's lawyer discovered defendant's alleged trademark violation while investigating another possible infringer; concluding that the current lawsuit was not sufficiently related to the other litigation in which the lawyer discovered the possible infringement, so the work product doctrine did not protect his documents; "Mr. Clifford's [plaintiff's lawyer] investigation was of a separate, non-party's supposed infringement; he apparently simply stumbled onto LDS during that investigation. Because of the separate investigations, the question becomes whether work-product protection attaches when the information was generated in anticipation of a different, unrelated litigation.")

Case Date Jurisidction State Cite Checked
2013-10-04 Federal NJ B 5/14

Chapter: 44.303

Case Name: Cosmetic Warriors Ltd. v. Lush Day Spa, LLC, Civ. A. No. 13-1697 (WJM), 2013 U.S. Dist. LEXIS 144272, at *8 (D.N.J. Oct. 4, 2013)
(not for publication) (analyzing the work product doctrine's duration; explaining that plaintiff's lawyer discovered defendant's alleged trademark violation while investigating another possible infringer; concluding that the current lawsuit was not sufficiently related to the other litigation in which the lawyer discovered the possible infringement, so the work product doctrine did not protect his documents; "The cases that generally carry work-product protection over from one proceeding to a second often have much more in common than is alleged here. . . . CWL does little other than state, in a perfunctory way, that the prior case Mr. Clifford [plaintiff's lawyer] was investigating involved alleged trademark infringement and that LUSH marks were at issue. However, no authority is cited that suggests that investigating one trademark infringer makes it closely related to another.")

Case Date Jurisidction State Cite Checked
2013-10-04 Federal NJ B 5/14

Chapter: 44.303

Case Name: Cosmetic Warriors Ltd. v. Lush Day Spa, LLC, Civ. A. No. 13-1697 (WJM), 2013 U.S. Dist. LEXIS 144272, at *6 (D.N.J. Oct. 4, 2013)
(not for publication) (analyzing the work product doctrine's duration; explaining that plaintiff's lawyer discovered defendant's alleged trademark violation while investigating another possible infringer; concluding that the current lawsuit was not sufficiently related to the other litigation in which the lawyer discovered the possible infringement, so the work product doctrine did not protect his documents; "In dicta, the Third Circuit has endorsed the 'closely related' view. That is, when work-product is claimed on information generated in connection with a prior proceeding, there must be a sufficiently close relationship between the prior suit and the present action to justify work-product protection.")

Case Date Jurisidction State Cite Checked
2013-10-04 Federal NJ B 5/14

Chapter: 44.303

Case Name: Sullivan v. Alcatel-Lucent USA, Inc., Case No. 12 C 7528, 2013 U.S. Dist. LEXIS 82407, at *29 n.1 (N.D. Ill. June 12, 2013)
("'Although the Seventh Circuit has not decided this issue, it has noted the majority view that the work product privilege 'endures after termination of the proceedings for which the documents were created, especially if the old and new matters are related.'")

Case Date Jurisidction State Cite Checked
2013-06-12 Federal IL 4/14

Chapter: 44.303

Case Name: COMPTEL v. FCC, 910 F. Supp. 2d 100, 120 (D.D.C. 2012)
("Attorney work product is exempt from mandatory disclosure regardless of whether the litigation for which it was prepared has ended or was never brought.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 9/13

Chapter: 44.303

Case Name: Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234, 235 (Va. Cir. Ct. 2008)
("It appears that documents and tangible things prepared in anticipation of any litigation are protected, whether or not they were prepared in anticipation of this litigation.")

Case Date Jurisidction State Cite Checked
2008-01-01 State VA B 3/16

Chapter: 44.303

Case Name: Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 509 F.2d 730, 736 n.9 (4th Cir. 1974)
("[w]e thus adhere to and follow our holding in Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F2d 480 (4th Cir. 1973) (that the immunity extended to work product may extend in time beyond the litigation at hand) and hold here that the immunity extended to attorneys' mental impressions, conclusions, opinions, or legal theories by the last sentence of FRCP 26(b)(3) does not expire once the litigation for which they are prepared has been concluded."), cert. denied, 420 U.S. 997 (1975)

Case Date Jurisidction State Cite Checked
1974-01-01 Federal

Chapter: 44.304

Case Name: Patel v. Kensol-Franklin, Inc., Civ. A. No. 3:14-1439, 2016 U.S. Dist. LEXIS 36684 (M.D. Pa. March 22, 2016)
(in a bad faith insurance case, analyzing privilege and work product protection for a post-accident investigation; finding that both protections applied; "This court agrees with Serrano [Serrano v. Chesapeake Appalachia, LLC, 298 F.R.D. 271 (W.D. Pa. 2014)], . . . And the cases it cites which held "that the non-parties could invoke the [work-product] privilege where the circumstances implicated 'all the purposes for the privilege articulated in Hickman: 'preventing discovery from chilling attorneys' ability to formulate their legal theories and prepare their cases, preventing opponents from free-loading off their adversaries' preparation, and preventing disruption of ongoing litigation.'" (citation omitted). Indeed, "[t]he doctrine 'extends to material prepared in anticipation of litigation by an attorney's 'investigators and other agents.'" Nor does it matter that the material was prepared in anticipation of different litigation "because such material 'will still be protected as work product if the anticipated litigation was related to the proceedings in which the material is to be produced.'")

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

Chapter: 44.304

Case Name: NL Industries, Inc. v. ACF Industries LLC, 10CV89W, 2015 U.S. Dist. LEXIS 86677 (W.D.N.Y. July 2, 2015)
("The litigation for which the documents were prepared need not be this particular case, but may be related actions.")

Case Date Jurisidction State Cite Checked
2015-07-02 Federal NY

Chapter: 44.304

Case Name: Broadband iTV, Inc. v. Hawaiian Telecom, No. 15-mc-80053 HRL, 2015 U.S. Dist. LEXIS 51131 (N.D. Cal. April 17, 2015)
("Broadband argues that the information sought is not subject to work-product or attorney client privilege because Unified and Jakel are not parties to the patent lawsuit. However, 'work product is not limited to proceedings which are strictly related to each other.'")

Case Date Jurisidction State Cite Checked
2015-04-17 Federal CA

Chapter: 44.304

Case Name: In re Sadler Clinic, PLLC v. Angelica Textile Svcs., Inc., Case No. 12-34546, Ch. 7, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369 (S.D. Tex. April 17, 2015)
(analyzing various work product issues; "Applying the work-product doctrine only to subsequent litigation which is closely related to the original litigation appears to contradict the plain language of the Federal Rules.")

Case Date Jurisidction State Cite Checked
2015-04-17 Federal TX

Chapter: 44.304

Case Name: In re Sadler Clinic, PLLC v. Angelica Textile Svcs., Inc., Case No. 12-34546, Ch. 7, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369 (S.D. Tex. April 17, 2015)
(analyzing various work product issues; "Several courts have held or suggested that documents can only be treated as work product in subsequent litigation if the two lawsuits are 'closely related.")

Case Date Jurisidction State Cite Checked
2015-04-17 Federal TX

Chapter: 44.304

Case Name: Bryan Corp. v. ChemWerth, Inc., Civ. A. No. 12-10446-MLW, 2013 U.S. Dist. LEXIS 152286 (D. Mass. Oct. 23, 2013)
December 4, 2013 (PRIVILEGE POINT)

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

Last week's Privilege Point noted that the work product doctrine applies only at certain times, and therefore offers a more limited protection than the attorney-client privilege. The work product doctrine is narrower than the privilege in other ways too.

For instance, work product protection might evaporate, while the attorney-client privilege lasts forever. In Cosmetic Warriors v. Lush Day Spa, LLC, the court explained that some courts protect work product forever, some courts only protect work product created during "closely related" earlier litigation, and some courts only protect work product during the litigation in which it was created. Civ. A. No. 13-1697 (WJM), 2013 U.S. Dist. LEXIS 144272, at *6 (D.N.J. Oct. 4, 2013) (not for publication). The court noted that "the Third Circuit has endorsed the 'closely related' view." Id. A few weeks later, a court dealt with another limitation -- adversaries can overcome litigants' work product protection, while the attorney-client privilege provides absolute immunity. In Bryan Corp. v. ChemWerth, Inc., Civ. A. No. 12-10446-MLW, 2013 U.S. Dist. LEXIS 152286 (D. Mass. Oct. 23, 2013), defendant sought to overcome plaintiff's work product protection for documents created by its FDA consultant. Under the federal rules, adversaries can obtain litigants' work product if they establish "substantial need" for the work product, and their inability to obtain its "substantial equivalent" without "undue hardship." Id. at *33-34 (citing Fed. R. Civ. P. 26(b)(3)). The court rejected defendant's attempt, noting that it could depose other fact witnesses possessing the same information as plaintiff's consultant.

Although the work product doctrine sometimes provides less protection than the attorney-client privilege, in other ways it can be more expansive. Next week's Privilege Point will describe two ways (of many) in which the work product doctrine can apply when privilege protection is unavailable.

Case Date Jurisidction State Cite Checked
2013-10-23 Federal MA
Comment:

key case


Chapter: 44.304

Case Name: Cosmetic Warriors v. Lush Day Spa, LLC, Civ. A. No. 13-1697 (WJM), 2013 U.S. Dist. LEXIS 144272, at *6 (D.N.J. Oct. 4, 2013)
December 4, 2013 (PRIVILEGE POINT)

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

Last week's Privilege Point noted that the work product doctrine applies only at certain times, and therefore offers a more limited protection than the attorney-client privilege. The work product doctrine is narrower than the privilege in other ways too.

For instance, work product protection might evaporate, while the attorney-client privilege lasts forever. In Cosmetic Warriors v. Lush Day Spa, LLC, the court explained that some courts protect work product forever, some courts only protect work product created during "closely related" earlier litigation, and some courts only protect work product during the litigation in which it was created. Civ. A. No. 13-1697 (WJM), 2013 U.S. Dist. LEXIS 144272, at *6 (D.N.J. Oct. 4, 2013) (not for publication). The court noted that "the Third Circuit has endorsed the 'closely related' view." Id. A few weeks later, a court dealt with another limitation -- adversaries can overcome litigants' work product protection, while the attorney-client privilege provides absolute immunity. In Bryan Corp. v. ChemWerth, Inc., Civ. A. No. 12-10446-MLW, 2013 U.S. Dist. LEXIS 152286 (D. Mass. Oct. 23, 2013), defendant sought to overcome plaintiff's work product protection for documents created by its FDA consultant. Under the federal rules, adversaries can obtain litigants' work product if they establish "substantial need" for the work product, and their inability to obtain its "substantial equivalent" without "undue hardship." Id. At *33-34 (citing Fed. R. Civ. P. 26(b)(3)). The court rejected defendant's attempt, noting that it could depose other fact witnesses possessing the same information as plaintiff's consultant.

Although the work product doctrine sometimes provides less protection than the attorney-client privilege, in other ways it can be more expansive. Next week's Privilege Point will describe two ways (of many) in which the work product doctrine can apply when privilege protection is unavailable.

Case Date Jurisidction State Cite Checked
2013-10-04 Federal NJ
Comment:

key case


Chapter: 44.305

Case Name: United States v. Tailwind Sports Corp., Case No. 1:10-cv-00976 (CRC), 2015 U.S. Dist. LEXIS 4610 (D.D.C. Jan. 12, 2015)
(analyzing bicyclists Floyd Landis's qui tam action against Lance Armstrong, concluding that government agents' witness interview memoranda from the civil investigation deserved opinion work product protection, but that similar witness interview memoranda prepared during the government's criminal investigation deserved only fact work product protection, which Armstrong could overcome; "The Court previously ruled that Armstrong has demonstrated a substantial need for any law enforcement memoranda created during the now-closed criminal investigation that contain relevant fact work product only. . . . The Court explained that because the civil lawyers litigating this qui tam action have received a substantial advantage from having access to the fruits of the prior criminal investigation, fairness dictates that both sides have equal access to relevant witness statements developed by law enforcement in the prior criminal investigation. Id.")

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

Chapter: 44.305

Case Name: Billups v. Penn State Milton S. Hershey Med. Ctr., Civ. No. 1:11-CV-1784, 2013 U.S. Dist. LEXIS 111396, at *19 (M.D. Pa. Aug. 7, 2013)
(analyzing the duration of the work product protection; holding that the protection survived a criminal defendant's acquittal, and applied in a later civil case; "There is no dispute that the instant civil action is related to the prior criminal proceedings against Mr. Billups, and as such, the correspondence exchanged between the Franklin County District Attorney and the Hershey Defendants containing the opinions and legal theories of the prosecutor are subject to work product protection in this action. Furthermore, Plaintiffs fail to argue that they have a substantial need for the materials to prepare their case and cannot, without undue hardship, obtain the substantial equivalent by other means.")

Case Date Jurisidction State Cite Checked
2013-08-07 Federal PA B 4/14

Chapter: 44.305

Case Name: Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496 (W.D. Va. Apr. 15, 2008)
(holding work product prepared in a criminal case is not protected in a later civil case)

Case Date Jurisidction State Cite Checked
2008-04-15 Federal VA

Chapter: 44.305

Case Name: Jondahl v. Gasper, 73 Va. Cir. 42, 43, 44 (Va. Cir. Ct. 2007)
(analyzing work product protection in a civil wrongful death action for documents prepared during an earlier criminal proceeding against the defendant; "The plaintiff argues that since the letters [from an investigator to defendant's criminal lawyer] were prepared in anticipation of the previous criminal litigation involving the defendant, not the civil litigation that is currently taking place, the work product doctrine should not apply."; "Though there does not appear to be any Virginia state law on the subject, the defendant has cited two federal cases that support his position that work product immunity does not expire upon the termination of the subject litigation."; "Here, the letters at issue were obviously prepared for the defendant in anticipation of the criminal litigation that took place involving the defendant and the plaintiffs' son. This case involves the exact same events and issues that were the subject of the criminal litigation. Given that federal courts have ruled that work product immunity can apply to unrelated subsequent litigation, it is logical that it should certainly apply in this instance, where the subsequent civil litigation is directly related to the previous criminal litigation. Accordingly, the letters are privileged under the work product doctrine and the plaintiffs' motion to compel with respect to these documents is overruled.")

Case Date Jurisidction State Cite Checked
2007-01-01 State VA

Chapter: 44.305

Case Name: Jondahl v. Gasper, 73 Va. Cir. 42, 44 (Va. Cir. Ct. 2007)
(analyzing work product protection in a civil wrongful death action for documents prepared during an earlier criminal proceeding against the defendant; "The second two documents in the defendant's privilege log are both descriptions of the events that happened on the evening that the plaintiffs' son passed away. The first document, entitled 'Attention: Work Product of James Broccoletti' [defendant's criminal lawyer in the earlier criminal matter] is a description of events, prepared by the defendant for Mr. Broccoletti. The second document, entitled 'Narrative of Events,' is another description of the events, prepared by Mr. Broccoletti and his staff. The defendant argues that these documents are immune from discovery under both the work product doctrine and the attorney-client privilege. . . . The documents were obviously prepared by the defendant and his attorney in anticipation of the criminal litigation. The immunity of the documents from discovery should extend to this related, civil litigation.")

Case Date Jurisidction State Cite Checked
2007-01-01 State VA

Chapter: 44.305

Case Name: Jondahl v. Gasper, 73 Va. Cir. 42, 44, 45 (Va. Cir. Ct. 2007)
(analyzing work product protection in a civil wrongful death action for documents prepared during an earlier criminal proceeding against the defendant; "[T]he plaintiffs also seek discovery of the audiotape of a telephone conversation between the defendant and Liana Workman, a potential witness in the case. The tape was made by the defendant, apparently at the suggestion of the investigator hired by his attorney, Mr. Broccoletti."; "[T]he defendant obviously recorded the conversation with Workman in anticipation of the criminal litigation, at least. And, following the rationale of the Supreme Court of Virginia in Rakes [Rakes v. Fulcher, 210 Va. 542, 547, 172 S.E.2d 751 (1970)] discovery should not be granted because both sides know of the witness. Additionally, the plaintiffs have not shown that they will be unable to obtain the substantial equivalent of this audiotape without undue hardship. Accordingly, the plaintiffs' motion to compel the audiotape is also overruled.")

Case Date Jurisidction State Cite Checked
2007-01-01 State VA

Chapter: 44.503

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: 44.503

Case Name: McDaniels v. State Auto Property and Casualty Ins. Co., Civ. A. No. 3:15-CV-69 (GROH), 2016 U.S. Dist. LEXIS 62795 (N.D.W. Va. May 12, 2016)
(analyzing Federal Rule of Evidence 612; "Rule 612 is "silent with respect to whether it applies to work product [and other privileged] materials used to refresh recollection.'. . . Courts have adopted differing approaches to this issue, some holding that privileged materials reviewed by a witness prior to being deposed are subject to disclosure under Rule 612, while others have held that they are not."; "The undersigned finds that Plaintiff has not established the three foundational elements that must be met before an adverse party is required to produce documents pursuant to Rule 612. Regarding the first element, that the witness used a writing to refresh his or her memory, it is unclear from Mr. Lovrak's deposition testimony whether he actually used his notes to refresh his recollection. When initially asked whether the notes 'help[ed his] recollection,' Mr. Lovrak testified 'I don't think so.' However, later in the deposition, Mr. Lovrak testified that, 'at that time,' he was looking at the notes to help refresh his memory. Regardless of whether Mr. Lovrak used his notes to refresh his recollection, Plaintiff must establish all three foundational elements for documents to be produced pursuant to Rule 612."; "Regarding the second element, that the writing was used for the purpose of testifying, Mr. Lovrak testified that the purpose of the notes 'would deal with a discussion [he] had with counsel.' When asked if a purpose of the notes was to refresh his memory, Mr. Lovrak reiterated that the notes were for a meeting with Defendant's counsel. Furthermore, when asked what documents he reviewed 'for purposes of refreshing [his] memory or preparing [for the deposition],' Mr. Lovrak did not mention his notes. Finally, the undersigned reviewed the notes in camera during the evidentiary hearing and finds that Plaintiff clearly used his notes, not to prepare for his deposition, but to receive Defendant's counsel's advice and guidance. Therefore, Plaintiff has failed to establish the second foundational element."; "Plaintiff fails to establish the third element, that justice requires Defendant to produce the notes. When analyzing the third element, a court must initially determine whether the documents at issue are protected from disclosure. In this case, Defendant argues that Mr. Lovrak's notes are protected by the attorney-client privilege and work product doctrines. Although Plaintiff did not dispute that the notes constitute documents protected by the attorney-client privilege and work product doctrine at the evidentiary hearing, he argued that Defendant's claims of privilege and work product were waived when Defendant's counsel failed to raise these specific objections during the deposition. Defendant countered by arguing that, while it may have waived its work product claim, Mr. Lovrak asserted the attorney-client privilege during his deposition. Because the undersigned agrees that Mr. Lovrak clearly asserted the attorney-client privilege as to his notes during the deposition and had the authority as a Rule 30(b)(6) corporate representative to do so, the undersigned finds that Mr. Lovrak's notes are privileged."; "A thorough review of Mr. Lovrak's deposition testimony and an in camera review of Mr. Lovrak's notes revealed that the notes would only be marginally, if at all, useful for the purposes of cross-examination and impeachment.")

Case Date Jurisidction State Cite Checked
2016-05-12 Federal WV

Chapter: 44.504

Case Name: Beach v. Touradji Capital Mgmt., LP, 949 N.Y.S.2d 666, 670 (N.Y. App. Div. 2012)
("[W]e clarify that the attorney work product privilege is not waived when a privileged document is used to refresh the recollection of a witness prior to testimony.")

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

Chapter: 44.505

Case Name: Accusoft Corp. v. Quest Diagnostics, Inc., Civ. A. No. 12-cv-400070-TSH, 2014 U.S. Dist. LEXIS 18976, at *12 (D. Mass. Feb. 14, 2014)
April 30, 2014 (PRIVILEGE POINT)

"States Adopting Federal Rules of Evidence Sometimes Add Their Own Variations"

Under Federal Rule of Evidence 612, courts can order the production of privilege or work product protected documents that witnesses review before they testify if (1) the review refreshed the witnesses' recollection, and (2) "justice requires" the production. Fed. R. Evid. 612(a). This contrasts with documents the witnesses review while testifying, which witnesses must always produce. Some states have adopted Rule 612, some have not – and some have adopted variations.

In Accusoft Corp. v. Quest Diagnostics, Inc., the federal court found that Rule 612 did not require production of a protected email an in-house lawyer reviewed before testifying, noting that the witness "never testified specifically that [the email] refreshed his recollection." Civ. A. No. 12-cv-400070-TSH, 2014 U.S. Dist. LEXIS 18976, at *12 (D. Mass. Feb. 14, 2014). About two weeks later, the Nevada Supreme Court applied that state's version of Rule 612 – focusing on testimony by a witness at a sanctions hearing, who admitted that his pre-testimony review of documents had refreshed his recollection. The Nevada court noted an enormous difference between Federal Rule 612 and its Nevada counterpart – explaining that the Nevada rule "mandates that documents relied on before and during testimony to refresh recollection be treated the same [and thus automatically produced]." Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 319 P.3d 618, 623 (Nev. 2014) (emphasis added). However, the Nevada rule is also narrower than the federal rule, because it requires the adversary to invoke the rule during the hearing at which the witness testifies. The Nevada Supreme Court therefore concluded that the trial court improperly ordered production of the protected documents two months after the hearing. Id. at 624.

Many states have adopted federal evidence rules, but some have "tweaked" their rules in significant ways. As always, lawyers must check the applicable rule.

Case Date Jurisidction State Cite Checked
2014-02-14 Federal MA
Comment:

key case


Chapter: 44.505

Case Name: Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 319 P.3d 618, 623 (Nev. 2014)
April 30, 2014 (PRIVILEGE POINT)

"States Adopting Federal Rules of Evidence Sometimes Add Their Own Variations"

Under Federal Rule of Evidence 612, courts can order the production of privilege or work product protected documents that witnesses review before they testify if (1) the review refreshed the witnesses' recollection, and (2) "justice requires" the production. Fed. R. Evid. 612(a). This contrasts with documents the witnesses review while testifying, which witnesses must always produce. Some states have adopted Rule 612, some have not – and some have adopted variations.

In Accusoft Corp. v. Quest Diagnostics, Inc., the federal court found that Rule 612 did not require production of a protected email an in-house lawyer reviewed before testifying, noting that the witness "never testified specifically that [the email] refreshed his recollection." Civ. A. No. 12-cv-400070-TSH, 2014 U.S. Dist. LEXIS 18976, at *12 (D. Mass. Feb. 14, 2014). About two weeks later, the Nevada Supreme Court applied that state's version of Rule 612 – focusing on testimony by a witness at a sanctions hearing, who admitted that his pre-testimony review of documents had refreshed his recollection. The Nevada court noted an enormous difference between Federal Rule 612 and its Nevada counterpart – explaining that the Nevada rule "mandates that documents relied on before and during testimony to refresh recollection be treated the same [and thus automatically produced]." Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 319 P.3d 618, 623 (Nev. 2014) (emphasis added). However, the Nevada rule is also narrower than the federal rule, because it requires the adversary to invoke the rule during the hearing at which the witness testifies. The Nevada Supreme Court therefore concluded that the trial court improperly ordered production of the protected documents two months after the hearing. Id. at 624.

Many states have adopted federal evidence rules, but some have "tweaked" their rules in significant ways. As always, lawyers must check the applicable rule.

Case Date Jurisidction State Cite Checked
2014-01-01 State NV
Comment:

key case


Chapter: 44.702

Case Name: Durand v. The Hanover Ins. Group, Inc., Civ. A. No. 3:07-CV-00130-HBB, 2016 U.S. Dist. LEXIS 143064 (W.D. Ky. Oct. 17, 2016)
("The ERISA context differs from the corporate context and more closely involves fiduciary duties owed directly to participants and beneficiaries. . . . Several courts have applied the logic of common law trusts from which the fiduciary exception to the attorney-client privilege was extrapolated to the ERISA context, and they have found that the exception similarly applies to the work product doctrine. . . . Those courts have reasoned a trustee's attorney should not withhold work product from the actual client, the trust beneficiaries. . . . The Court finds these persuasive authorities demonstrate there is no legitimate basis on which to distinguish between the attorney-client privilege and the work product protection when applying the fiduciary exception in the ERISA context.")

Case Date Jurisidction State Cite Checked
2016-10-17 Federal KY

Chapter: 44.702

Case Name: Solis v. Food Emp'rs Labor Relations Ass'n, 644 F.3d 221, 232, 233 (4th Cir. 2011)
("The Funds argue that the district court erred in finding that the fiduciary exception extends to require disclosure of mate-rial (sic) covered by the work product doctrine. In support of their contention, the Funds point to cases in which other courts have refused to apply the fiduciary exception to attorney work product. See, e.g., Jicarilla Apache Nation v. the United States, 88 Fed. Cl. 1, 11 (2009). . . . the ERISA context differs from the corporate context and more closely involves fiduciary duties owed directly to participants and beneficiaries. Applying the logic of common law trusts from which the fiduciary exception to the attorney-client privilege was extrapolated to the ERISA context, several courts have found that the exception similarly applies to the work product doctrine, reasoning that a trustee's attorney should not withhold work product from the actual client, i.e. the trust beneficiaries. See Everett v. USAir Group, Inc., 165 F.R.D. 1, 5 (D.D.C. 1995). . . . These persuasive authorities demonstrate that there is no legitimate basis on which to distinguish between the two privileges in the application of the fiduciary exception in the ERISA context.")

Case Date Jurisidction State Cite Checked
2011-01-01 Federal

Chapter: 44.703

Case Name: Wal-Mart Stores, Inc. v. Indiana Elec. Workers Pension Trust Fund IBEW, No. 614, 2013, 2014 Del. LEXIS 336 (Del. July 23, 2014)
(applying the Garner doctrine in a Delaware § 220 action, in which union shareholders sought privileged documents about Wal-Mart's alleged Mexican corruption investigation; "The Garner doctrine applies to information protected by the attorney-client privilege, but not to work product. Instead, pursuant to Court of Chancery Rule 26(b)(3), a party may obtain access to non-opinion work product 'upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.'"; "Wal-Mart asserts that the Court of Chancery erroneously applied Garner, rather than Court of Chancery Rule 26(b)(3), to the work-product issue. A careful reading of the Garner factors demonstrates that they overlap with the required showing under the Rule 26(b)(3) work-product doctrine. One factor under Garner is 'the apparent necessity or desirability of the shareholders having the information and the availability of it from other sources.' In fact, this Court has utilized the Garner factors in the context of a work-product analysis in the past.")

Case Date Jurisidction State Cite Checked
2014-07-23 State DE

Chapter: 44.801

Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 251, 251-52 (4th Cir. 2005)
("Both the attorney-client and work product privileges may be lost, however, when a client gives information to an attorney for the purpose of committing or furthering a crime or fraud. . . . The party asserting the crime-fraud exception, the Government in our case, must make a prima facie showing that the privileged communications fall within the exception. . . . In satisfying this prima facie standard, proof either by a preponderance or beyond a reasonable doubt of the crime or fraud is not required."; "Our jurisprudence of the application of the crime-fraud exception to the work product privilege is less well-defined. We have explicitly held that the crime-fraud exception applies to opinion work product. . . . We have also found that because the attorney, as well as the client, has the right to assert the opinion work product privilege, a prima facie case of crime or fraud must also be made out against the attorney for the exception to apply. . . . Thus, while the attorney-client privilege may be vitiated without showing that the attorney knew of the fraud or crime, those seeking to overcome the opinion work product privilege must make a prima facie showing that the 'attorney in question was aware of or a knowing participant in the criminal conduct.' . . . If the attorney was not aware of the criminal conduct, a court must redact any portions of subpoenaed materials containing opinion work product.")

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

Chapter: 44.801

Case Name: United States v. Regan, 281 F. Supp. 2d 795 (E.D. Va. 2002)
(the crime fraud exception applies to work product as well as privileged material)

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

Chapter: 44.801

Case Name: United States v. Under Seal (In re Grand Jury Proceedings), 102 F.3d 748, 751-52 (4th Cir. 1996)
("the crime-fraud exception applies in the work-product context"; affirming the district court's finding that a prima facie case of crime-fraud vitiated the attorney-client privilege and work product doctrine protections)

Case Date Jurisidction State Cite Checked
1996-01-01 Federal

Chapter: 44.801

Case Name: In re Grand Jury Proceedings, Thursday Special Grand Jury, Sept. Term, 33 F.3d 342, 348 (4th Cir. 1994)
("We have recognized the crime-fraud exception in the context of attorney-client privilege and in the context of the work product doctrine.")

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

Chapter: 44.802

Case Name: United States v. Frostman, Crim No. 4:16cr55, 2016 U.S. Dist. LEXIS 147899 (E.D. Va. Oct. 25, 2016)
(holding that a criminal defendant's lawyer waived opinion work product protection by presenting the criminal defendant in pleading guilty, while declining to acknowledge that the lawyer provided all the necessary warnings to the client before the guilty plea; "Our Court of Appeals has explicitly recognized an exception to work product protection, which is referenced herein as the 'crime fraud exception' but also is sometimes referred to as the crime/fraud/tort exception. . . . When applying this exception, the Fourth Circuit has noted that prima facie evidence of a crime or fraud by a client vitiates an attorney's work product privilege as to non-opinion work product. . . . However, because an attorney has his own right to assert the opinion work product privilege, when an attorney asserts such privilege, 'those seeking to overcome the opinion work product privilege must make a prima facie showing that the 'attorney in question was aware of or a knowing participant in the criminal conduct. '")

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

Chapter: 44.802

Case Name: In re Application of International Mineral Resources B.V. For An Order To Take Discovery Pursuant To 28 U.S.C. § 1782, Civ. A. No. 14-mc-340 (GK), 2015 U.S. Dist. LEXIS 98414 (D.D.C. July 28, 2015)
(holding that the crime-fraud exception applied to non-testifying experts; "[T]he Court concludes that the non-testifying expert witness privilege contained in Fed. R. Civ. P. 26(b) (4) (D), like the attorney-client and work-product privileges, must give way to the crime-fraud exception.")

Case Date Jurisidction State Cite Checked
2015-07-28 Federal DC

Chapter: 44.802

Case Name: United States v. Harris, Crim. No. 2:14cr76, 2014 U.S. LEXIS 140333 (E.D. Va. Oct. 1, 2014)
(analyzing the crime-fraud exception; pointing to In re Grand Jury Proceedings #5, 401 F.3d at 251; "The same standard applies to 'fact work product,' which is discoverable even if counsel was unaware of the client's ongoing crime or fraud. . . . In contrast, 'opinion work product' is only discoverable upon a prima facie showing that counsel knew of the client's ongoing crime or fraud.")

Case Date Jurisidction State Cite Checked
2014-10-01 Federal VA

Chapter: 44.802

Case Name: In re Grand Jury Subpoena Dated March 20, 2013, 13-Mc189 (Part I) 2014 U.S. Dis. LEXIS 91901, *27 (S.D.N.Y. July 2, 2014)
("Neither the attorney-client privilege nor the work product doctrine will shield communications made in furtherance of a crime or fraud.")

Case Date Jurisidction State Cite Checked
2014-07-02 Federal NY

Chapter: 44.802

Case Name: Ishee v. Federal National Mortgage Association, Civ. A. No. 2:13-cv-234-KS-MTP, 2014 U.S. Dist. LEXIS 71141 (S.D. Miss. May 23, 2014)
("The party seeking to invoke the crime-fraud exception bears the burden of establishing a prima facie case that the attorney-client relationship was intended to further criminal or fraudulent activity. . . . To make the necessary prima facie showing, Plaintiff 'must produce evidence such as will suffice until contradicted and overcome by other evidence' to establish the elements of a crime or fraud. . . . 'Allegations in pleadings are not evidence and are not sufficient to make a prima facie showing that the crime-fraud exception applies.'. . . Also, Plaintiff must show 'some valid relationship between the work product under subpoena and the prima facie violation' or that the 'material reasonably relate[s] to the fraudulent activity.'")

Case Date Jurisidction State Cite Checked
2014-05-23 Federal MS

Chapter: 44.802

Case Name: Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 U.S. Dist. LEXIS 28483, at *10 (N.D. Tex. Feb. 27, 2014)
(analyzing the crime-fraud exception's applicability to work product; "This exception also applies to work product protections. . . . The party seeking discovery of privileged or protected information bears the burden of establishing a prima facie case that the attorney-client relationship was intended to further criminal or fraudulent activity.")

Case Date Jurisidction State Cite Checked
2014-02-27 Federal TX B 8/14

Chapter: 44.802

Case Name: Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 U.S. Dist. LEXIS 28483, at *12 13 (N.D. Tex. Feb. 27, 2014)
(analyzing the crime-fraud exception's applicability to work product; "But Plaintiff's allegations do not amount to a prima facie showing of fraud or contemplated fraud as required by the governing federal common law. And his allegations do not make the required showing that the text messages at issue were made in furtherance of any alleged contemplated or ongoing fraudulent conduct. Neither will the Court, at this point, engage in an in camera examination to determine the applicability of the crime-fraud exception, because Plaintiff has not made a sufficient showing of a factual basis adequate to support a good faith belief by a reasonable person that the crime-fraud exception applies.")

Case Date Jurisidction State Cite Checked
2014-02-27 Federal TX B 8/14

Chapter: 44.802

Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 691, 692, 693, 694 (3d Cir. 2014)
(concluding that the crime-fraud exception did not apply if the client formed a criminal intent after obtaining advice; "In delineating the connection required between the advice sought and the crime or fraud, we have repeatedly stated that the legal advice must be used 'in furtherance' of the alleged crime or fraud. We have rejected a more relaxed 'related to' standard." (citation omitted); "If the attorney merely informs the client of the criminality of a proposed action, the crime-fraud exception does not apply. For example, consider the situation where a client, intending to undertake an illegal course of action, consults a first attorney, tells the attorney the proposed course of action, and the attorney advises that the course of action is illegal. The client, dissatisfied with the first attorney's answer, then consults a second attorney. The client tells the attorney the same proposed course of action, but this attorney says yes, that course of action is legal. Both of these consultations would remain privileged, because the attorneys merely opined on the lawfulness of a particular course of conduct, and this advice cannot be used 'in furtherance' of the crime."; "A crime-fraud finding overcomes the work product privilege.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 44.802

Case Name: In re Park Cities Bank, 409 S.W.3d 859, 869 (Tex. Ct. App. 2013)
("The crime-fraud exception also applies to any work product created under circumstances within this exception.")

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

Chapter: 44.802

Case Name: In re Grand Jury, 705 F.3d 133, 151 (3d Cir. 2012)
(finding the crime fraud exception applicable; "We have held that this exception also applies to the work product doctrine.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal B 8/13

Chapter: 44.802

Case Name: United States v. Oracle Corp., Civ. A. No. 1:07cv529 (LMB/TRJ), 2011 U.S. Dist. LEXIS 72377, at *7 (E.D. Va. July 6, 2011)
("Defendants and Reed Smith further argued at the June 21, 2011 hearing that they should be given an opportunity to demonstrate how the fact work product contained in the documents presented for in camera review did not 'further the fraud.' As detailed supra, however, the Fourth Circuit test requires a 'close relationship,' not that the fact work product 'further the fraud.' The argument is therefore inapplicable.")

Case Date Jurisidction State Cite Checked
2011-07-06 Federal VA

Chapter: 44.802

Case Name: United States v. Oracle Corp., Civ. A. No. 1:07cv529 (LMB/TRJ), 2011 U.S. Dist. LEXIS 72377, at *5-6 (E.D. Va. July 6, 2011)
("Defendants and Reed Smith urge that a second in camera review would be required, on the ground that some documents contain and/or reflect attorney-client communications, fact work product, and opinion work product in the same document. Defendants and Reed Smith argue that the magistrate judge's review occurred in the context of attorney-client privilege, and that the magistrate judge therefore did not examine the work product contained in the documents for the 'close relationship' required by the Fourth Circuit test for crime/fraud. As the April 21, 2011 memorandum opinion indicates, however, that the magistrate judge reviewed 'documents,' not simply communications. See United States ex rel. Frascella v. Oracle Corp., No. 1:07-cv-00529, 2011 U.S. Dist. LEXIS 43322 (E.D. Va. April 21, 2011) ('Many of the documents just reviewed . . . .'; '[T]he magistrate judge refers the district judge to the documents logged with the numbers listed in the footnote.'; 'The documents reviewed in camera . . . .'; '[T]hese documents are responsive . . . . The magistrate judge finds that they likewise bear a "close relationship" to the scheme alleged.') (emphasis added). The review that has been conducted is thus sufficient to support the application of the crime/fraud exception to fact work product.")

Case Date Jurisidction State Cite Checked
2011-07-06 Federal VA

Chapter: 44.802

Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 252-53 (4th Cir. 2005)
("Because fact work product enjoys less protection than opinion work product, it may be discovered upon prima facie evidence of a crime or fraud as to the client only and thus even when the attorney is unaware of the crime or fraud. While the attorney, along with the client, holds the fact work product privilege, the discovery of facts furnished to an attorney does not implicate the same concerns as does invading the necessary privacy of an attorney's opinion work product, an invasion only justified if the attorney himself knows of the fraud. We thus use similar standards when applying the crime-fraud exception to attorney-client and fact work product privileges.")

Case Date Jurisidction State Cite Checked
2005-01-01 Federal N 11/05

Chapter: 44.802

Case Name: United States v. Regan, 281 F. Supp. 2d 795, 803 (E.D. Va. 2002)
("[T]he Government must overcome the attorney work product privilege, which protects work done in preparation for litigation, before it may successfully assert the crime-fraud exception. See Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947); In re Grand Jury Proceedings, 33 F.3d 342.")

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

Chapter: 44.802

Case Name: United States v. Regan, 281 F. Supp. 2d 795, 804 (E.D. Va. 2002)
("The Fourth Circuit has also recognized that the crime-fraud exception can be invoked to vitiate the attorney work-product privilege. See In re John Doe, 662 F.2d 1073, 1079 (4th Cir. 1981), cert. denied, 455 U.S. 1000, 71 L. Ed. 2d 867, 102 S. Ct. 1632 (1982). However, the burden of overcoming the privilege is on the party opposing the privilege to show a 'substantial need' for the attorney's work product. The Government must make the same prima facie showing to overcome the work product privilege as is required to overcome the attorney-client privilege")

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

Chapter: 44.802

Case Name: Peterson v. Fairfax Hosp. Sys., Inc., 32 Va. Cir. 294 (Va. Cir. Ct. 1993)
(holding that the crime-fraud exception applies to work product materials)

Case Date Jurisidction State Cite Checked
1993-01-01 State VA

Chapter: 44.803

Case Name: In re Grand Jury Matter #3 John Doe, No. 15-2475, 2017 U.S. App. LEXIS 1498 (3rd Cir. Jan. 27, 2017)
(reversing the district court's crime-fraud finding, because the government had not established that the defendant used privileged communications to further the crime or fraud; "[W]e turn to an important question involving the limits of the exception to the confidentiality normally afforded to attorney work product. It loses protection from disclosure when it is used to further a fraud (hence the carve-out is called the crime-fraud exception). The District Court stripped an attorney's work product of confidentiality based on evidence suggesting only that the client had thought about using that product to facilitate a fraud, not that the client had actually done so. Because an actual act to further the fraud is required before attorney work product loses its confidentiality and we know of none here, we reverse.")

Case Date Jurisidction State Cite Checked
2017-01-27 Federal

Chapter: 44.803

Case Name: In re Grand Jury Matter #3 John Doe, No. 15-2475, 2017 U.S. App. LEXIS 1498 (3rd Cir. Jan. 27, 2017)
("Without the crime-fraud exception allowing the Government to show it to the grand jury, the email from Doe's lawyer is protected by the attorney work-product doctrine. That doctrine (often referred to as a privilege from or exception to disclosure), which is a complement to the attorney-client privilege, preserves the confidentiality of legal communications prepared in anticipation of litigation. Shielding work product from disclosure 'promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients.'. . . Though Doe waived the attorney-client privilege by forwarding the email to his accountant, the document still retained its work-product status because it was used to prepare for Doe's case against those suing him."; "This evidence is strong, but it is not sufficient by itself to pierce the work-product protection. We have been clear that 'evidence of a crime or fraud, no matter how compelling, does not by itself satisfy both elements of the crime-fraud exception.'. . . Rather, the second requirement -- use in furtherance -- exists for the same reason that certain conspiracy statutes require proof that a defendant engaged in an overt act to further the crime. In both settings we want to make sure that we are not punishing someone for merely thinking about committing a bad act. Instead, as Justice Holmes noted in the conspiracy context, we ask for evidence that the plan 'has passed beyond words and is [actually] on foot.'"; "To illustrate, if a client approaches a lawyer with a fraudulent plan that the latter convinces the former to abandon, the relationship has worked precisely as intended. We reward this forbearance by keeping the work-product protection intact. If, by contrast, the client uses work product to further a fraud, the relationship has broken down, and the lawyer's services have been 'misused.'. . . Only in that limited circumstance -- misuse of work product in furtherance of a fraud -- does the scale tip in favor of breaking confidentiality."; "Here the only purported act in furtherance identified by the District Court was Doe forwarding the email to his accountant. If he had followed through and retroactively amended his tax returns, we would have no trouble finding an act in furtherance. Even if Doe had told the accountant to amend the returns and later gotten cold feet and called off the plan before it could be effected, there might still be a case to be made. That is because the Government 'does not have to show that the intended crime or fraud was accomplished, only that the lawyer's advice or other services were misused.'"; "But none of that happened. Doe merely forwarded the email to the accountant and said he wanted to 'discuss' it. There is no indication he had ever decided to amend the returns, and before the plan could proceed further the lawyer told the accountant to hold off. Thus Doe at most thought about using his lawyer's work product in furtherance of a fraud, but he never actually did so. What happened is not so different than if Doe merely wrote a private note, not sent to anyone, reminding himself to think about his lawyer's suggestion. The absence of a meaningful distinction between these scenarios shows why finding an act in furtherance here lacks a limiting principle and risks overcoming confidentiality based on mere thought.")

Case Date Jurisidction State Cite Checked
2017-01-27 Federal

Chapter: 44.803

Case Name: AKH Company, Inc. v. Universal Underwriters Ins. Co., Case No. 13-2003-JAR-KGG, 2016 U.S. Dist. LEXIS 178005 (D. Kansas Dec. 22, 2016)
("Paul Hastings contends that there is no crime-fraud exception to the work product doctrine under California law. . . . Rather, it contends that the exception applies only to the attorney-client privilege. According to Paul Hastings, work product documents belong to the attorney exclusively, not the client. . . . The Court does not find Paul Hastings' arguments to be persuasive for two reasons."; "First, the undersigned Magistrate Judge previously ruled in the present case that '[u]nlike the attorney-client privilege, which belongs to the client, '[t]he work-product privilege belongs to both the attorney and the client.'"; "Second, a review of the documents at issue identifies additional document(s) that provide evidence of a prima facie case of fraud and that, at a minimum, Paul Hastings was aware of said fraudulent activity.")

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

Chapter: 44.803

Case Name: United States v. Frostman, Crim No. 4:16cr55, 2016 U.S. Dist. LEXIS 147899 (E.D. Va. Oct. 25, 2016)
(holding that a criminal defendant's lawyer waived opinion work product protection by presenting the criminal defendant in pleading guilty, while declining to acknowledge that the lawyer provided all the necessary warnings to the client before the guilty plea; "Our Court of Appeals has explicitly recognized an exception to work product protection, which is referenced herein as the 'crime fraud exception' but also is sometimes referred to as the crime/fraud/tort exception. . . . When applying this exception, the Fourth Circuit has noted that prima facie evidence of a crime or fraud by a client vitiates an attorney's work product privilege as to non-opinion work product. . . . However, because an attorney has his own right to assert the opinion work product privilege, when an attorney asserts such privilege, 'those seeking to overcome the opinion work product privilege must make a prima facie showing that the 'attorney in question was aware of or a knowing participant in the criminal conduct. '")

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

Chapter: 44.803

Case Name: Lucas v. Jos. A. Bank Clothiers, Inc., Case No. 14-cv-01631-LAB-JLB, 2016 U.S. Dist. LEXIS 136198 (S.D. Cal. Sept. 30, 2016)
(analyzing the crime-fraud exception work product; "Fact work product must be produced if it is found to fall within the crime-fraud exception, even if the attorney asserting the work-product protection was unaware of the client's wrongdoing.")

Case Date Jurisidction State Cite Checked
2016-09-30 Federal CA

Chapter: 44.803

Case Name: Lucas v. Jos. A. Bank Clothiers, Inc., Case No. 14-cv-01631-LAB-JLB, 2016 U.S. Dist. LEXIS 136198 (S.D. Cal. Sept. 30, 2016)
(analyzing the crime-fraud exception work product; "While Defendant is not seeking production per se at this time, the production of attorney opinion work product requires the Court to make a specific finding of wrongdoing or knowledge on behalf of the lawyers. . . . Defendant does not ask this Court to make such a finding, but anticipates that such a finding may be made by the District Judge on October 18.")

Case Date Jurisidction State Cite Checked
2016-09-30 Federal CA

Chapter: 44.803

Case Name: Lucas v. Jos. A. Bank Clothiers, Inc., Case No. 14-cv-01631-LAB-JLB, 2016 U.S. Dist. LEXIS 136198 (S.D. Cal. Sept. 30, 2016)
(analyzing the crime-fraud exception work product; "The test for vitiating the work product privilege under the crime-fraud exception is different depending on whether the information sought constitutes fact work product or opinion work product. For fact work product, courts 'generally follow the same two-part approach used in applying the exception to the attorney-client privilege.'. . . '[F]act work product must be produced if it is found within the crime-fraud exception, even if the attorney asserting the work-product protection was unaware of the client's wrongdoing.'"; "In contrast, opinion work product -- internal communications or internal documents reflecting the mental impressions, opinions, conclusions, judgments or legal theories of counsel -- generally receives a higher degree of protection from discovery' than fact work product. . . . Opinion work product is afforded near absolute protection from discovery and the protection it receives may be vitiated in the rare instances 'when there is a prima facie showing that the attorney had knowledge of or participated in the crime or fraud.'")

Case Date Jurisidction State Cite Checked
2016-09-30 Federal CA
Comment:

key case


Chapter: 44.803

Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015)
(finding the crime-fraud exception inapplicable because the ignition switch plaintiffs could not establish that the King & Spalding communications did not further any alleged General Motors wrongdoing; "Plaintiffs ask for in camera review of otherwise protected attorney work product on the ground that K&S -- not New GM -- committed various ethical violations in its representation of New GM. . . . As Plaintiffs note . . . Some courts have indeed held that the attorney work product doctrine can be vitiated by counsel's violation of professional rules of conduct.")

Case Date Jurisidction State Cite Checked
2015-11-25 Federal NY

Chapter: 44.803

Case Name: Brooks v. Mon River Towing, Inc., Civ. A. No. 11-1580, 2013 U.S. Dist. LEXIS 59417, at *6 n.2 (W.D. Pa. Apr. 3, 2013)
("[T]he crime—fraud exception is only applicable to the attorney-client privilege and not to the work product doctrine.")

Case Date Jurisidction State Cite Checked
2013-04-03 Federal PA B 3/14

Chapter: 44.803

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 615 n.255 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "[N]or does the decision in Garner [Garner v. Wolfinbarger, 430 F. 2d 1093 (5th Cir. 1970)] (as to shareholder's access to privileged materials of a corporation) extend to work-product.")

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

Chapter: 44.803

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *11 (E.D. Va. Dec. 3, 2012)
("[W]hen applying the doctrine to opinion work product, 'a prima facie case of crime or fraud must also be made out against the attorney.' Id. at 252 (citation omitted) [In re Grand Jury Proceedings #5, 401 F.3d 247, 252 (4th Cir. 2005)]. 'Thus, while the attorney-client privilege may be vitiated without showing that the attorney knew of the fraud or crime, those seeking to overcome the opinion work product privilege must make a prima facie showing that the attorney in question was aware of or a knowing participant in the criminal conduct.'")

Case Date Jurisidction State Cite Checked
2012-12-03 Federal VA

Chapter: 44.803

Case Name: In re Grand Jury, 705 F.3d 133, 158, 158-59 (3d Cir. 2012)
(finding the crime fraud exception applicable; "Because the work product doctrine protects the interests of attorneys separately from the interests of clients, there is at least some basis for the proposition that an innocent attorney should be able to prevent disclosure of work product that his client used to further a crime or fraud. Accordingly, other courts of appeals have afforded attorneys this protection in appropriate circumstances."; "We continue, however, to leave for another day whether we should join these courts. None of the in-house counsel has appealed the District Court's June Order. Indeed, the in-house counsel would likely need to disobey that Order for us to have jurisdiction over their purported work product claims. In the absence of their doing so, we cannot properly assess the existence and parameters of their independent interests in resisting disclosure of information.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal B 8/13

Chapter: 44.803

Case Name: United States v. Oracle Corp., Civ. A. No. 1:07cv529 (LMB/TRJ), 2011 U.S. Dist. LEXIS 72377, at *4-5 (E.D. Va. July 6, 2011)
("Overcoming the protection afforded to opinion work product requires a prima facie showing that counsel was aware of or a knowing participant in the wrongful conduct. Id. at 252 [In re Grand Jury Proceedings #5, 401 F.3d 247 (4th Cir. 2005)] (internal citation omitted). Overcoming the protection afforded to fact work product, however, requires no such showing. Id. Courts 'thus use similar standards when applying the crime-fraud exception to attorney-client and fact work product privileges.' Id. at 252-53; see also id. at 255-56 (ordering evaluation of work product under same standard as attorney-client communications). If a court finds that work product protection has been lost as to fact work product but not opinion work product, the documents should be produced with any portions containing opinion work product redacted. Id. at 256.")

Case Date Jurisidction State Cite Checked
2011-07-06 Federal VA

Chapter: 44.803

Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 252-53 (4th Cir. 2005)
("Because fact work product enjoys less protection than opinion work product, it may be discovered upon prima facie evidence of a crime or fraud as to the client only and thus even when the attorney is unaware of the crime or fraud. While the attorney, along with the client, holds the fact work product privilege, the discovery of facts furnished to an attorney does not implicate the same concerns as does invading the necessary privacy of an attorney's opinion work product, an invasion only justified if the attorney himself knows of the fraud. We thus use similar standards when applying the crime-fraud exception to attorney-client and fact work product privileges.")

Case Date Jurisidction State Cite Checked
2005-01-01 Federal N 11/05

Chapter: 44.803

Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 251-52 (4th Cir. 2005)
("Our jurisprudence of the application of the crime-fraud exception to the work product privilege is less well-defined. We have explicitly held that the crime-fraud exception applies to opinion work product. . . . We have also found that because the attorney, as well as the client, has the right to assert the opinion work product privilege, a prima facie case of crime or fraud must also be made out against the attorney for the exception to apply. . . . Thus, while the attorney-client privilege may be vitiated without showing that the attorney knew of the fraud or crime, those seeking to overcome the opinion work product privilege must make a prima facie showing that the 'attorney in question was aware of or a knowing participant in the criminal conduct.' . . . If the attorney was not aware of the criminal conduct, a court must redact any portions of subpoenaed materials containing opinion work product.")

Case Date Jurisidction State Cite Checked
2005-01-01 Federal N 11/05

Chapter: 44.803

Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 256 (4th Cir. 2005)
("[O]pinion work product is treated differently. While the Government did present evidence demonstrating that some violation of a federal criminal statute was ongoing or about to be committed under prong one, it did not demonstrate (or attempt to demonstrate at the in camera hearing) that the attorney knew of the violation. Therefore, on remand, the district court must also determine whether the Government has presented prima facie evidence of the crime-fraud exception as applied to the attorney. If the district court determines that a prima facie showing has not been made as to the attorney, but has as to the client, and thus orders the subpoenaed documents to be turned over, it must redact any portions of the documents that contain opinion work product. If the court makes such a finding, the attorney would also be entitled to assert work product privilege as to his testimony before the grand jury that contains opinion work product.")

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

Chapter: 44.803

Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 256 (4th Cir. 2005)
(explaining what a district court must do on remand to determine if the crime-fraud exception applies to opinion work product; "[A]s noted, opinion work product is treated differently. While the Government did present evidence demonstrating that some violation of a federal criminal statute was ongoing or about to be committed under prong one, it did not demonstrate (or attempt to demonstrate at the in camera hearing) that the attorney knew of the violation. Therefore, on remand, the district court must also determine whether the Government has presented prima facie evidence of the crime-fraud exception as applied to the attorney.")

Case Date Jurisidction State Cite Checked
2005-01-01 Federal N 11/05

Chapter: 44.803

Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 251, 251-52 (4th Cir. 2005)
("Both the attorney-client and work product privileges may be lost, however, when a client gives information to an attorney for the purpose of committing or furthering a crime or fraud. . . . The party asserting the crime-fraud exception, the Government in our case, must make a prima facie showing that the privileged communications fall within the exception. . . . In satisfying this prima facie standard, proof either by a preponderance or beyond a reasonable doubt of the crime or fraud is not required."; "Our jurisprudence of the application of the crime-fraud exception to the work product privilege is less well-defined. We have explicitly held that the crime-fraud exception applies to opinion work product. . . . We have also found that because the attorney, as well as the client, has the right to assert the opinion work product privilege, a prima facie case of crime or fraud must also be made out against the attorney for the exception to apply. . . . Thus, while the attorney-client privilege may be vitiated without showing that the attorney knew of the fraud or crime, those seeking to overcome the opinion work product privilege must make a prima facie showing that the 'attorney in question was aware of or a knowing participant in the criminal conduct.' . . . If the attorney was not aware of the criminal conduct, a court must redact any portions of subpoenaed materials containing opinion work product.")

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

Chapter: 44.803

Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 251-52, 252-53 (4th Cir. 2005)
("Our jurisprudence of the application of the crime-fraud exception to the work product privilege is less well-defined. We have explicitly held that the crime-fraud exception applies to opinion work product. . . . We have also found that because the attorney, as well as the client, has the right to assert the opinion work product privilege, a prima facie case of crime or fraud must also be made out against the attorney for the exception to apply. . . . Thus, while the attorney-client privilege may be vitiated without showing that the attorney knew of the fraud or crime, those seeking to overcome the opinion work product privilege must make a prima facie showing that the 'attorney in question was aware of or a knowing participant in the criminal conduct.' . . . If the attorney was not aware of the criminal conduct, a court must redact any portions of subpoenaed materials containing opinion work product."; "Because fact work product enjoys less protection than opinion work product, it may be discovered upon prima facie evidence of a crime or fraud as to the client only and thus even when the attorney is unaware of the crime or fraud. While the attorney, along with the client, holds the fact work product privilege, the discovery of facts furnished to an attorney does not implicate the same concerns as does invading the necessary privacy of an attorney's opinion work product, an invasion only justified if the attorney himself knows of the fraud. We thus use similar standards when applying the crime-fraud exception to attorney-client and fact work product privileges.")

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

Chapter: 44.804

Case Name: Lucas v. Jos. A. Bank Clothiers, Inc., Case No. 14-cv-01631-LAB-JLB, 2016 U.S. Dist. LEXIS 136198 (S.D. Cal. Sept. 30, 2016)
(analyzing the crime-fraud exception work product; "The Court concludes that Defendant has met its burden to demonstrate that the crime-fraud exception applies here. As the district court recently held, it 'appears to be uncontested' both 'that Lucas didn't make the purchases that he alleged in the complaint' and that 'the document that Lucas offered to prove his purchases is fraudulent.'. . . Having independently considered the record for purposes of ruling on this discovery motion, including all evidence proffered by Jos. A. Banks, the Court finds Defendant has established by a preponderance of the evidence that Plaintiff was engaged in a fraudulent scheme and he sought the advice of counsel to further the scheme. In fact, the court is persuaded Mr. Lucas's entire participation in this litigation was to further the scheme of maintaining this lawsuit based on the false story that he had purchased Jos. A. Bank's suits.")

Case Date Jurisidction State Cite Checked
2016-09-30 Federal CA

Chapter: 44.804

Case Name: United States v. Harris, Crim. No. 2:14cr76, 2014 U.S. LEXIS 140333 (E.D. Va. Oct. 1, 2014)
(analyzing the crime-fraud exception; pointing to In re Grand Jury Proceedings #5, 401 F.3d at 251; "The same standard applies to 'fact work product,' which is discoverable even if counsel was unaware of the client's ongoing crime or fraud. . . . In contrast, 'opinion work product' is only discoverable upon a prima facie showing that counsel knew of the client's ongoing crime or fraud.")

Case Date Jurisidction State Cite Checked
2014-10-01 Federal VA

Chapter: 44.804

Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 251-52, 252-53 (4th Cir. 2005)
("Our jurisprudence of the application of the crime-fraud exception to the work product privilege is less well-defined. We have explicitly held that the crime-fraud exception applies to opinion work product. . . . We have also found that because the attorney, as well as the client, has the right to assert the opinion work product privilege, a prima facie case of crime or fraud must also be made out against the attorney for the exception to apply. . . . Thus, while the attorney-client privilege may be vitiated without showing that the attorney knew of the fraud or crime, those seeking to overcome the opinion work product privilege must make a prima facie showing that the 'attorney in question was aware of or a knowing participant in the criminal conduct.' . . . If the attorney was not aware of the criminal conduct, a court must redact any portions of subpoenaed materials containing opinion work product."; "Because fact work product enjoys less protection than opinion work product, it may be discovered upon prima facie evidence of a crime or fraud as to the client only and thus even when the attorney is unaware of the crime or fraud. While the attorney, along with the client, holds the fact work product privilege, the discovery of facts furnished to an attorney does not implicate the same concerns as does invading the necessary privacy of an attorney's opinion work product, an invasion only justified if the attorney himself knows of the fraud. We thus use similar standards when applying the crime-fraud exception to attorney-client and fact work product privileges.")

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

Chapter: 44.804

Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 251, 251-52 (4th Cir. 2005)
("Both the attorney-client and work product privileges may be lost, however, when a client gives information to an attorney for the purpose of committing or furthering a crime or fraud. . . . The party asserting the crime-fraud exception, the Government in our case, must make a prima facie showing that the privileged communications fall within the exception. . . . In satisfying this prima facie standard, proof either by a preponderance or beyond a reasonable doubt of the crime or fraud is not required."; "Our jurisprudence of the application of the crime-fraud exception to the work product privilege is less well-defined. We have explicitly held that the crime-fraud exception applies to opinion work product. . . . We have also found that because the attorney, as well as the client, has the right to assert the opinion work product privilege, a prima facie case of crime or fraud must also be made out against the attorney for the exception to apply. . . . Thus, while the attorney-client privilege may be vitiated without showing that the attorney knew of the fraud or crime, those seeking to overcome the opinion work product privilege must make a prima facie showing that the 'attorney in question was aware of or a knowing participant in the criminal conduct.' . . . If the attorney was not aware of the criminal conduct, a court must redact any portions of subpoenaed materials containing opinion work product.")

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

Chapter: 44.804

Case Name: In re Doe, 662 F.2d 1073, 1079 (4th Cir. 1981)
(applying the crime-fraud exception to opinion work product), cert. denied, 455 U.S. 1000 (1982)

Case Date Jurisidction State Cite Checked
1981-01-01 Federal

Chapter: 44.1002

Case Name: B.M.I. Interior Yacht Refinishing, Inc. v. M/Y Claire, Case No. 13-62676-CIV-Williams/SIMONTON, 2015 U.S. Dist. LEXIS 91903 (S.D. Fla. July 15, 2015)
(analyzing waiver issues in connection with a non-testifying expert; "Based upon the facts presented at the hearing in the case sub judice, the undersigned concludes that Nautical has demonstrated the exceptional circumstances necessary to overcome the work product protection afforded to non-testifying experts, as to limited aspects of Mr. Clifford's Report. Specifically, Nautical contends that it is in need of Clifford's Report so that it may obtain information regarding temperature readings of the yacht taken in warmer weather. Nautical asserts that such information is necessary to determine if the air conditioning system was working during the summer months, after Nautical had completed work on the system."; "As stated above, a portion of the Clifford Report includes a chart which reflects temperatures taken at various locations on the M/Y Claire by the crew of that vessel. The temperature readings themselves appear to be factual in nature and thus do not reveal any opinion work product of either Mr. Clifford or Counsel for the M/Y Claire. While it is not entirely clear if the temperature readings taken in September as reflected in the Clifford Report vary greatly from those taken in November by Mr. Marshall, and whether any variance in those temperatures is of great significance in this case, it does appear that Nautical is unable to obtain those readings from another source. Thus, the object or condition observed by the non-testifying expert is no longer observable by an expert of the party seeking discovery. As such, although it is somewhat of a close call, the undersigned finds that Nautical has demonstrated that exceptional circumstances exist to warrant disclosure of the temperature readings from the M/Y Claire contained in Mr. Clifford's Report.")

Case Date Jurisidction State Cite Checked
2015-07-15 Federal FL
Comment:

key case


Chapter: 44.1002

Case Name: CSX Transportation, Inc. v. Chicago South Shore and South Bend Railroad, Cause No. 2:13-CV-285-RL-PRC, 2015 U.S. Dist. LEXIS 13090 (N.D. Ind. Feb. 4, 2015)
(analyzing both party's post-accident documents; concluding that some documents prepared by plaintiff CSX deserved work product protection and some did not; concluding that plaintiff CSX could not overcome defendant CSS's production for its non-testifying expert; "In addition, the Court finds that there are not exceptional circumstances that would require production of these documents notwithstanding their designation as privileged in that CSX has not shown that it is unable to obtain equivalent information essential to case preparation from other sources. CSX conducted its own investigation regarding the derailment and the alleged damages thereto.")

Case Date Jurisidction State Cite Checked
2015-02-04 Federal IN

Chapter: 44.1002

Case Name: In re Morning Song Bird Food Litig., Lead Case No. 12cv1592 JAH (RBB), 2015 U.S. Dist. LEXIS 11333 (S.D. Cal. Jan. 23, 2015)
(finding a defendant waived work product protection by giving its non-testifying expert's report to the government; "Rule 26(b)(4)(D) 'creates a safe harbor whereby facts and opinions of nontestifying, consulting experts are shielded from discovery, except upon a showing of exceptional circumstances.'. . . Several policy considerations underlie the rule, including, (1) encouraging counsel to obtain necessary expert advice without fear that the adversary may obtain such information; (2) preventing unfairness that would result from allowing an opposing party to reap the benefits from another party's efforts and expense; (3) limiting any chilling effect on the use of experts as consultants if their testimony could be compelled; and (4) avoiding prejudice to the retaining party if the opposing party were allowed to call at trial an expert who provided an unfavorable opinion to the party who first retained them.")

Case Date Jurisidction State Cite Checked
2015-01-23 Federal CA

Chapter: 44.1002

Case Name: Holland v. Nat'l Union Fire Ins. Co., No. 2:12-cv-1983 TLN AC, 2013 U.S. Dist. LEXIS 157161, at *15 (E.D. Cal. Oct. 31, 2013)
(analyzing standing issues; explaining that the defendant insurance company provided coverage for losses resulting from plaintiff's injury, and sought discovery from a personal injury lawyer who had represented plaintiff in an earlier action against the hospital and the doctor for medical malpractice following a work injury; further noting that the underlying malpractice case was resolved, after which the insurance company sought discovery from plaintiff's personal injury lawyer and defendants' lawyer; holding that plaintiff had standing to resist the insurance company's discovery of the former but not the latter; "Here, since defendant has not shown exceptional circumstances to obtain these reports, it is only due to them as provided in Federal Rule of Civil Procedure 35(b). Thus, plaintiff's motion is granted as to consulting experts." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-10-31 Federal CA B 5/14

Chapter: 44.1002

Case Name: Precision of New Hampton, Inc. v. Tri Component Prods. Corp., No. C12-2020, 2013 U.S. Dist. LEXIS 79847, at *12, *7 (N.D. Iowa June 5, 2013)
(analyzing the status of documents created by defendant's engineering expert; ultimately concluding that the non-testifying expert's work product claim was "dubious," but that plaintiff could not overcome any work product protection that did exist; "The purpose of Rule 26(b)(4)(D) is to promote fairness by precluding a party from using an opponent's expert to build his own case. . . . The rule aims to prevent a party from benefitting from the effort expended and costs incurred by the opposing party while preparing for litigation. . . . The rule also protects an 'important interest in allowing counsel to obtain the expert advice they need . . . without fear that every consultation with an expert may yield grist for the adversary's mill.' . . . Thus, the Rules set a high barrier for discovery of a non-testifying expert's opinions, with the only exceptions being medical examinations under FEDERAL RULE OF CIVIL PROCEDURE 35(b) or a showing of 'exceptional circumstances.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-06-05 Federal IA B 4/14

Chapter: 44.1002

Case Name: Sloan Valve Co. v. Zurn Indus., No. 10 C 204, 2012 U.S. Dist. LEXIS 161749, at *6-7 (N.D. Ill. Nov. 13, 2012)
("[T]he Court would not require Sloan to produce a Rule 30(b)(6) witness to testify about the infringement contentions. First, Zurn has not shown that it needs to obtain information specifically from an attorney. Second, Zurn cannot show any exceptional circumstances justifying discovery of the 'facts known or opinions held by' Sloan's consulting experts who conducted the tests at issue. See Fed. R. Civ. P. 26(b)(4)(D)(ii).")

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

Chapter: 44.1002

Case Name: Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680, 684, 686 n.3 (N.D. Ga. 2012)
(analyzing the type of exceptional circumstances that would justify discovery of a non-testifying expert; "As the party asserting the work product privilege, Plaintiff bears the burden of establishing that the documents it seeks to protect were prepared in anticipation of litigation. . . . The work product privilege 'must be specifically raised and demonstrated rather than asserted in a blanket fashion.'. . . This burden may be satisfied through a detailed privilege log and affidavits from counsel, the party, or the expert, and also by any of the traditional ways in which proof is produced in pretrial proceedings. . . . Once Plaintiff has shown the application of the work product privilege, the burden shifts to Defendant to demonstrate the existence of exceptional circumstances for the discovery of otherwise privileged documents. . . . Defendant, as the party seeking to show exceptional circumstances under Rule 26(b)(4)(B)[,] carries a heavy burden."; "Courts have recognized four interests weighing against allowing an opposing party to depose or call at trial a consultative, non-testifying expert witness: (1) an 'important interest in allowing counsel to obtain the expert advice they need in order properly to evaluate and present their clients' position without fear that every consultation with an expert may yield grist for the adversary's mill,' which the court found underlies Fed.R.Civ.P.26(b)(4)(B)'s limitation on discovery of consultative, as opposed to testifying[,] experts; (2) unfairness of allowing an opposing party to benefit from a party's effort and expense incurred in preparing its case; (3) fear of restraint on the willingness of experts to serve as consultants if their testimony could be compelled; and (4) the substantial risk of 'explosive' prejudice stemming from the fact of the prior retention of any expert by the opposing party." (citation omitted))

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

Chapter: 44.1002

Case Name: Meadwestvaco Corp. v. Rexam PLC, Case No. 1:10cv511 (GBL/TRL), 2011 U.S. Dist. LEXIS 78028, at *17, *18 (E.D. Va. July 18, 2011)
("While parties may overcome this standard, the burden is very high. See 8A Charles Alan Wright et al., Federal Practice and Procedure § 2032, at 105 (3d ed. 2010) (recognizing that a party 'seeking discovery from non testifying retained experts faces a heavy burden'); see also Faller v. Faller, No. DKC 09-0889, 2010 U.S. Dist. LEXIS 102837, 2010 WL 3834865, at *16 (D. Md. Sept. 28, 2010) (affirming the grant of a motion to compel when the judge found that the Rule 26(b)(4)(D) 'exceptional circumstances' standard was met because it was not only 'impracticable' but 'impossible' for plaintiffs to obtain the information they sought). Finally, 'courts have "recognized the availability of other means of obtaining information sought under Rule 26(b)(4)(B) as a conclusive factor militating against a finding of exceptional circumstances."' 2010 U.S. Dist. LEXIS 102837, [WL] at *16. (citing 33 A.L.R. Fed. 403 § 18(a) (1977))." (footnote omitted); "Accordingly, Rexam is not required to disclose the materials at issue because non-testifying experts prepared this information at the direction of Defendant's counsel after MWV sent Rexam cease-and-desist letters, and Plaintiff is unable to demonstrate that it has an exceptional need for the information.")

Case Date Jurisidction State Cite Checked
2011-07-18 Federal VA

Chapter: 44.1002

Case Name: Meadwestvaco Corp. v. Rexam PLC, Case No. 1:10cv511 (GBL/TRL), 2011 U.S. Dist. LEXIS 78028, at *11-12 (E.D. Va. July 18, 2011)
("Overcoming this burden is not lightly undertaken by a party seeking access to a non-testifying expert witness. See, e.g., Sanford v. Virginia, No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979, 2009 WL 2947377, at *2 (E.D. Va. Sept. 14, 2009) ('[D]iscovery of fact work product is permitted, but a party seeking disclosure must demonstrate [1] that its need is truly substantial, and [2] that there is no reasonable substitute for the documents they seek.'); see also In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994) (citing In re John Doe, 662 F.2d 1073, 1080 (4th Cir. 1981)) (demonstrating that fact work product 'can be discovered only in limited circumstances' and only 'upon a showing of both a substantial need and an inability to secure the substantial equivalent') (emphasis added). The Court has noted that the following factors may be considered to determine whether there is a 'substantial need' for work product: '(1) importance of the materials to the party seeking them for case preparation; (2) the difficulty the party will have obtaining them by other means; and (3) the likelihood that the party, even if he obtains the information by independent means, will not have the substantial equivalent of the documents he seeks.' Sanford, 2009 U.S. Dist. LEXIS 83979, 2009 WL 2947377, at *2.")

Case Date Jurisidction State Cite Checked
2011-07-18 Federal VA

Chapter: 44.1002

Case Name: Atlantic Yacht Basin, Inc. v. Grimm, 79 Va. Cir. 476, 477 (Va. Cir. Ct. 2009)
("Typically, an opposing party may discover facts known or opinions held by a non-testifying expert as these are not privileged and work product. However, any further information, such as a non-testifying expert's report, is privileged and cannot be obtained absent exceptional circumstances.")

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

Chapter: 44.1002

Case Name: Atlantic Yacht Basin, Inc. v. Grimm, 79 Va. Cir. 476, 478 (Va. Cir. Ct. 2009)
("Under Rule 4:1(b)(4)(B), the party desiring information from the expert must make a showing of "exceptional circumstances" justifying the discovery. AYB has made no such showing in this case. AYB had its own surveyor inspect the vessel earlier in the same week, on September 11, 2007, and, further, when Giesel performed his survey, he was accompanied by a representative of AYB.")

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

Chapter: 44.1003

Case Name: Delaware Display Group LLC v. Lenovo Group Ltd., Civ. A. No. 13-2108-RGA, Civ. A. No. 13-2109-RGA, Civ. A. No. 13-2112-RGA, 2016 U.S. Dist. LEXIS 21461 (D. Del. Feb. 23, 2016)
(analyzing the common interest doctrine's applicability to communications between non-party Rambus (and who sold patents to a company who then sold them to plaintiff) and the plaintiff; finding that Rambus's royalty interest was a commercial rather than a legal interest, so the common interest doctrine did not apply; also finding the work product doctrine inapplicable because Rambus was not a party to the lawsuit between plaintiff and defendant; finding that the non-testifying consultant rule did not apply to Rambus, because it was not a assisting a party in the litigation; finding litigant had to disclose the identity of non-testifying experts without satisfying the "exceptional circumstances" standard; "From the Court's review, it is not evident how the documents reveal any information about Plaintiffs' non-testifying experts. The reports do not appear to reveal the identities of any consultants. Even if they did, however, that information is discoverable without showing exceptional circumstances."; "'The Court acknowledges that there is a split of authority regarding whether a party seeking the identity of a non-testifying expert must show 'exceptional circumstances.' See In re Welding Fume Prods. Liab. Litig., 534 F. Supp. 2d 761, 767-69 (N.D. Ohio 2008) (discussing split between Ager v. Stormont, 622 F.2d 496 (10th Cir. 1980) and Baki v. B.F. Diamond Constr. Co., 71 F.R.D. 179 (D. Md. 1976)). District courts in the Third Circuit, however, have generally embraced the view of Baki, and held that the 'disclosure of [an] expert's identity . . . Is not subject to a heightened showing of 'exceptional circumstances.'" Eisai Co. v. Teva Pharms. USA, Inc., 247 F.R.D. 440, 442 (D.N.J. 2007); see also Arco Pipeline Co v. S/S Trade Star, 81 F.R.D. 416, 417 (E.D. Pa. 1978); Butler v. Harrah's Marina Hotel Casino, 1987 U.S. Dist. LEXIS 8256, 1987 WL 16691, at *2-3 (E.D. Pa. Sept. 8, 1987).'")

Case Date Jurisidction State Cite Checked
2016-02-23 Federal DE
Comment:

key case


Chapter: 44.1003

Case Name: United States ex rel. Westrick v. Second Chance Body Armor, Inc., 288 F.R.D. 222, 228 (D.D.C. 2012)
("Exceptional circumstances 'may exist when a non-testifying expert's report is used by a testifying expert as the basis for an expert opinion, or where there is evidence of substantial collaborative work between a testifying expert and a non-testifying expert.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 9/13

Chapter: 44.1004

Case Name: Nix v. Holbrook, Civ. A. No. 5:13-cv-02173-JMC, 2015 U.S. Dist. LEXIS 56681 (D.S.C. April 30, 2015)
(analyzing protection for non-testifying experts; finding "exceptional circumstances" because one side's non-testifying expert had access to the pertinent scene several days before the other side's non-testifying expert; "The court is further unpersuaded by Defendants' new argument that they should not have to produce post-accident reconstruction investigation information developed by STI's independent adjuster because Plaintiff's own accident reconstruction engineer had access to the relevant area 5 days after the accident. The court reiterates that the basis for its exceptional circumstances finding in the February Order is that STI's independent adjuster gathered evidence by being 'at the scene of the collision immediately after the incident, presumably while vehicles were in the roadway, [and] witnesses were present, . . . .'. . . This finding is justified due to the extraordinarily superior nature of evidence collected by STI's independent adjuster immediately after the accident versus the evidence that was collected by Plaintiff's representative 5 days after the accident.")

Case Date Jurisidction State Cite Checked
2015-04-30 Federal SC

Chapter: 44.1004

Case Name: In the Matter of New York City Asbestos Litig.: Weitz & Luxenberg P.C. v. Georgia-Pacific LLC, 40000/88,9535, 109 A.D. 3d 7, 966 N.Y.S. 2d 420, 2013 N.Y. App. Div. LEXIS 4036 (N.Y. Sup. Ct. 1d June 6, 2013)
(concluding that plaintiffs could satisfy the first step of the crime-fraud standard, and therefore ordering in camera review of defendant Georgia-Pacific's communications expert involved in authoring favorable articles; "GP funded these studies in 2005 to aid in its defense of asbestos-related lawsuits. The studies were performed by experts from various organizations, who, among other things, recreated GP's historical joint compound product for the purpose of testing its biopersistence and pathogenicity. To facilitate the endeavor, GP entered into a special employment relationship with Stewart Holm, its Director of Toxicology and Chemical Management, to perform expert consulting services under the auspices of its in-house counsel, who also was significantly involved in the prepublication review process."; "Holm coauthored nearly all of the studies, which were intended to cast doubt on the capability of chrysotile asbestos to cause cancer. On the two articles that he did not coauthor, he and GP's counsel participated in lengthy 'WebEx conferences" in which they discussed the manuscripts and suggested revisions. Despite this extensive participation, none of the articles disclosed that GP's in-house counsel had reviewed the manuscripts before they were submitted for publication."; "The foregoing constitutes a sufficient factual basis for a find that the relevant communications could have been in furtherance of a fraud, and the motion court properly confirmed the recommendation directing in camera review of the internal documents.")

Case Date Jurisidction State Cite Checked
2013-06-06 State NY

Chapter: 44.1004

Case Name: Precision of New Hampton, Inc. v. Tri Component Prods. Corp., No. C12-2020, 2013 U.S. Dist. LEXIS 79847, at *12, *8 (N.D. Iowa June 5, 2013)
(analyzing the status of documents created by defendant's engineering expert; ultimately concluding that the non-testifying expert's work product claim was "dubious," but that plaintiff could not overcome any work product protection that did exist; "[C]ourts have found exceptional circumstances where the object or condition at issue cannot be observed by experts of the party seeking discovery.")

Case Date Jurisidction State Cite Checked
2013-06-05 Federal IA B 4/14

Chapter: 44.1004

Case Name: Precision of New Hampton, Inc. v. Tri Component Prods. Corp., No. C12-2020, 2013 U.S. Dist. LEXIS 79847, at *12, *8 (N.D. Iowa June 5, 2013)
(analyzing the status of documents created by defendant's engineering expert; ultimately concluding that the non-testifying expert's work product claim was "dubious," but that plaintiff could not overcome any work product protection that did exist; "Courts have interpreted exceptional circumstances to mean that the party cannot obtain equivalent information from another source.")

Case Date Jurisidction State Cite Checked
2013-06-05 Federal IA B 4/14

Chapter: 44.1004

Case Name: Atlantic Yacht Basin, Inc. v. Grimm, 79 Va. Cir. 476, 477 (Va. Cir. Ct. 2009)
("Typically, an opposing party may discover facts known or opinions held by a non-testifying expert as these are not privileged and work product. However, any further information, such as a non-testifying expert's report, is privileged and cannot be obtained absent exceptional circumstances.")

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

Chapter: 44.1004

Case Name: In re S3 LTD, No. 99-22531-S, 2000 WL 1239772, at *7 (Bankr. E.D. Va. Aug. 10, 2000)
(where a company in Chapter 11 bankruptcy hired a government contracts expert to assist it in a dispute with one of its major creditors, which it then settled and the bankrupt company later sought to lift a settlement-related protective order to disclose to government authorities what it alleged to be fraudulent billing of the government by the creditor; the creditor sought materials prepared by the expert, but the bankrupt company claimed that the materials were protected by the work product doctrine; discussing the interplay of Rule 26(b)(4)(B) (which allows discovery of a nontestifying expert "upon a showing of exceptional circumstances") and Rule 26(b)(3); explaining that Rule 26(b)(4) must be "narrowly construed in order to protect vigorously opinion work product"; holding that Rule 26(b)(4)(B) does not allow for the discovery of documents, but only permits interrogatories and depositions; finding that the consultant hired by the bankrupt company should also be deemed a non-testifying expert, so that the "substantial need" justifying discovery of nonopinion work product under Rule 26(b)(3) means that the creditor had also shown "exceptional circumstances" under Rule 26(b)(4)(B); "[t]hus, even if some or all of the Vander Schaaf Report [prepared by the consultant/non testifying expert] were not discoverable because of the work-product doctrine, MANCON [the creditor seeking the report] is not restricted from issuing interrogatories to Vander Schaaf or from deposing him in order to discover facts known or opinions held by the expert in conformity with Rule 26(b)(4)(B)"; holding that the portions of the report that are opinion work product would be protected from disclosure, except for the bankrupt company's action in providing the report to the Department of Defense, which waived the work product protection)

Case Date Jurisidction State Cite Checked
2000-08-10 Federal

Chapter: 44.1202

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: 44.1202

Case Name: Blais v. Cheramie Marine Mgmt., Inc., Civ. A. No. 12-2736 SECTION "R" (2), 2013 U.S. Dist. LEXIS 111307, at *7-8 (E.D. La. Aug. 7, 2013)
("There is no indication that these three witnesses, who remain employed by defendant, are now unavailable to be deposed or to otherwise provide their version of relevant events without undue hardship or that their recollection is now so poor that only their previously obtained statements -- as opposed to their deposition testimony -- will suffice. Before compelling the production of what clearly appears to be work product, I will require plaintiff to take the depositions of these witnesses or obtain sworn statements of his own, reserving plaintiff's right to move again for production of one or more of the statements if the depositions fail to provide the substantial equivalent or their recollection of relevant events must be refreshed by the statements.")

Case Date Jurisidction State Cite Checked
2013-08-07 Federal LA B 4/14

Chapter: 44.1202

Case Name: Berks Behavioral Health LLC v. St. Joseph Reg'l Health Network, 500 B.R. 711, 725 (E.D. Pa. 2013)
("[B]efore demanding that the Plaintiff produce the 4 entries logged as relating to the litigation, Defendants must undertake other means of discovery in an attempt to obtain the same information. If that fails and Defendants continue to maintain that the withheld information is both highly relevant and the sole source of such evidence, then they may move to compel its production. In that event, the Court will conduct an in camera review to determine if the withheld information warrants protection.")

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

Chapter: 44.1204

Case Name: Taylor v. McCallister, 40 Va. Cir. 327, 327, 327-28 (Va. Cir. Ct. 1996)
(addressing work product protection for a hearing transcript plaintiff arranged to have created at a court hearing; ultimately concluding that the work product doctrine protected the transcript, but that the defendant could overcome the protection; "On August 5, 1996, plaintiff's counsel arranged to tape record and transcribe a hearing in General District Court relating to traffic offenses arising out of the accident which is the subject of this litigation. Defendant's representative was also present at the hearing but did not record the proceeding. Defendant seeks a copy of plaintiff's transcript."; "Even though the defendant had the same opportunity to tape and transcribe the proceeding, he did not do so. Especially since plaintiff has the transcript in question, the defendant also has a substantial need for the material in preparation of the case. In addition, there exists no other method to obtain the material by other means. Upon tender of reasonable costs of duplication, the defendant is entitled to a copy of the transcript.")

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

Chapter: 44.1205

Case Name: In re McDaniel, No. 14-13-00127-CV, 2013 Tex. App. LEXIS 4052, at *12 (Tex. App. Mar. 28, 2013)
(holding that tests conducted on a product deserved work product protection; "The party seeking discovery of non-core work product labors under a heavy burden to show both that a substantial need for the materials exists and that materials equivalent to those sought cannot be obtained without substantial hardship.")

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