McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 394 of 394 results

Chapter: 34.2
Case Name: Tucker Ellis LLP v. Superior Ct. of the City and County of San Francisco, A148956, 2017 Cal. App. LEXIS 571 (Cal. App. 3d June 21, 2017)
(analyzing ownership of work product prepared by a lawyer who worked with an expert, and then left the firm; explaining that the former firm received a subpoena and was able to produce the work product because the firm owned it; "In this writ proceeding, we are presented with a narrow question of law concerning the attorney work product privilege as codified in Code of Civil Procedure section 2018.030. Specifically, we are asked to determine, as between an employer law firm and a former attorney employee, who is the holder of the attorney work product privilege that attaches to documents created by the attorney employee during and in the scope of his employment? We conclude that under the circumstances of this case, the holder of the attorney work product privilege is the employer law firm, petitioner Tucker Ellis LLP (Tucker Ellis), and not the former attorney employee, real party in interest Evan C. Nelson (Nelson). As a corollary to our holding, we necessarily conclude that because Tucker Ellis is the holder of the attorney work product privilege, it had no legal duty to secure Nelson's permission before it disclosed to others documents he created during and in the scope of his employment. Because respondent court held to the contrary, finding that Tucker Ellis had a legal duty to take appropriate steps to ensure that the documents were not disclosed without Nelson's permission, we shall issue a peremptory writ of mandate directing respondent court to vacate its July 19, 2016, summary adjudication order, and enter a new order consistent with this decision."; "[A]n attorney can assert his work product privilege even though he is no longer in possession the document . . . and the contents of the documents may have been communicated to the client.")

Case Date Jurisdiction State Cite Checked
2017-06-21 State CA

Chapter: 34.2
Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)
(holding that neither the work product protection nor the attorney-client privilege protected from discovery the one witness interview memoranda prepared by the Cadwalader law firm during its internal investigation of self-dealing at the Washington Metropolitan Area Transit Authority; concluding that the work product doctrine did not apply because the investigation was undertaken for business rather than litigation purposes, and that the privilege did not apply because WMATA disclosed the interview excerpts when it publicly revealed the Cadwalader report, and also relied on the report to defend itself in the litigation; "Work-product immunity is held by the lawyer, not the client, although either may assert the doctrine during discovery.")

Case Date Jurisdiction State Cite Checked
2017-05-16 Federal DC

Chapter: 34.2
Case Name: Khan v. United States, Case No. 13-24366-CIV-ALTONAGA/O'SULLIVAN, 2015 U.S. Dist. LEXIS 88672 (S.D. Fla. July 8, 2015)
(holding that work product created by government lawyers remains protected in a later malicious prosecution lawsuit; "The attorney work product privilege applies in malicious prosecution cases. . . . In the present case, the work product privilege protects the thoughts and opinions of the attorneys in the USAO and DOJ regarding the plaintiff's prosecution.")

Case Date Jurisdiction State Cite Checked
2015-07-08 Federal FL

Chapter: 34.2
Case Name: In re Fresh and Process Potatoes Antitrust Litigation, Case No. 4:10-md-2186-BLW-CWD, 4:13:cv-00251-BLW, 2015 U.S. Dist. LEXIS 33577 (D. Idaho March 17, 2015)
(analyzing privilege protection and the common interest doctrine in a trade association context; "[T]wo documents are internal communications about legal strategy between members of the Jones Waldo firm, and are thus attorney work product. The documents were properly withheld.")

Case Date Jurisdiction State Cite Checked
2015-03-17 Federal ID

Chapter: 34.2
Case Name: Allstate Ins. Co. v. Warns, Civ. No. CCB-11-1846, 2013 U.S. Dist. LEXIS 44507, at *7-8 (D. Md. Mar. 28, 2014)
("The Fourth Circuit has determined that 'the ability to protect work product normally extends to both clients and attorneys.'. . . As a result, as the entity in privity with and furthering the interests of the policyholder, Allstate had standing to assert work-product protection with respect to the exhibits to the Barry affidavit.")

Case Date Jurisdiction State Cite Checked
2014-03-28 Federal MD B 3/14

Chapter: 34.2
Case Name: Bahrami v. Maxie Price Chevrolet-Oldsmobile, Inc., Civ. A. File No. 1:11-CV-4483-SCJ-AJB, 2013 U.S. Dist. LEXIS 104040, at *17-18, *18, *20 (N.D. Ga. July 19, 2013)
(holding that a secret tape recording can be protected work product, after the ABA issued an opinion finding that such tape recording was not unethical; "Plaintiff has provided a declaration stating that after his termination on May 12, 2010, he decided to pursue legal action against Defendant."; "Defendant argues that because Plaintiff made the recordings before he filed an EEOC charge, the recordings could not have been made in anticipation of litigation."; "The Court concludes that the recordings by Plaintiff were made in anticipation of litigation, and thus are protected work product.")

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

Chapter: 34.2
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 *15 (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; "[T]he Court notes that documents and things prepared in anticipation of litigation by a party (or its representative) can be protected work product; in other words, Plaintiff's lack of an attorney at the time he made the recordings does not mean that the recordings cannot be protected work product.")

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

Chapter: 34.2
Case Name: Wells Fargo & Co. v. United States, Misc. Nos. 10-57 & 10-95 (JRT/JJG), 2013 U.S. Dist. LEXIS 79814, at *116 (D. Minn. June 4, 2013)
("[I]nformation closely related to an attorney's legal thinking about anticipated litigation is protected by the work product privilege even if it is disclosed within business documents drafted by non-lawyers.")

Case Date Jurisdiction State Cite Checked
2013-06-04 Federal MN B 4/14

Chapter: 34.2
Case Name: Wells Fargo & Co. v. United States, Misc. Nos. 10-57 & 10-95 (JRT/JJG), 2013 U.S. Dist. LEXIS 79814, at *115 (D. Minn. June 4, 2013)
("The fact that Wells Fargo's Tax Accounting Group created many of the TAWs ["tax accrual work papers"] at issue does not alter the Court's decision. The recognition and measurement analysis in the TAWs reflects the legal thinking of Wells Fargo's attorneys on anticipated litigation and is therefore protected. . . . These attorneys' pre-existing thoughts, conclusions, and opinions about ongoing and likely litigation, later incorporated into the TAWs, are protected work product.")

Case Date Jurisdiction State Cite Checked
2013-06-04 Federal MN B 4/14

Chapter: 34.2
Case Name: Vaher v. Town of Orangetown, No. 10 Civ. 1606 (KMK) (GAY), 2013 U.S. Dist. LEXIS 69559, at *2 (S.D.N.Y. May 15, 2013)
("The work product doctrine does not require the documents be prepared at the behest of counsel, but only that they be prepared 'because of the prospect of litigation.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-05-15 Federal NY B 3/14

Chapter: 34.2
Case Name: SGD Eng'g Ltd. v. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186, at *25 (D. Ariz. Apr. 17, 2013)
("The second redacted e-mail in document 111 is a communication by one Lockheed employee to other Lockheed employees. As a communication between non-lawyer employees, the e-mail is not protected by the attorney-client privilege. See Bickler [Bickler v. Senior Lifestyle Corp., 266 F.R.D. 379 (D. Ariz. 2010)]. But the e-mail does qualify for work-product protection. The e-mail concerns responding to SGD's e-mail threatening litigation and is in furtherance of preparing a response or approach to SGD's litigation threat on which Lockheed's employees had requested Mr. Hennegan's legal advice.")

Case Date Jurisdiction State Cite Checked
2013-04-17 Federal AZ B 7/13

Chapter: 34.2
Case Name: In re Cardinal Fastener & Specialty Co., Ch. 7 Case No. 11-15719, 2013 Bankr. LEXIS 452, at *23 (N.D. Ohio Feb. 4, 2013)
("Both the attorney and the client may invoke the doctrine.")

Case Date Jurisdiction State Cite Checked
2013-02-04 Federal OH B 2/14

Chapter: 34.2
Case Name: RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 220 (N.D. Ill. 2013)
("Documents that are written by or for attorneys or that include an attorney's legal advice are covered by the attorney-client privilege, and documents that are not prepared by or for attorneys but are created because of litigation fall into the work product doctrine.")

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

Chapter: 34.2
Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09 2051 MD ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *62 (S.D. Fla. Oct. 18, 2012)
("[T]he work product doctrine, as interpreted in case law, and explicitly set forth in Fed. R. Civ. P. 26 (b)(3), does not require that the withheld document be prepared by an attorney, or even reviewed by an attorney.")

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

Chapter: 34.2
Case Name: United States v. ISS Marine Servs., 905 F. Supp. 2d 121, 134-35 (D.D.C. 2012)
(analyzing privilege and work product protection for an audit; noting that the company had specifically indicated that it did not need the assistance of Arnold & Porter in connection with the audit; "[A]lthough the doctrine is known as the attorney work-product doctrine, work product created by non-attorneys can also be protected if it is 'so intertwined with the legal analysis as to warrant protection.'. . . This relationship can be thought of as a sliding scale, whereby a party's burden to demonstrate a document's litigious purpose increases -- all other things being equal -- as attorney involvement in creating the document decreases. This simple principle recognizes the reality that attorneys are the ones who actually litigate cases, and whether or not a company involves attorneys in creating a document is a telling indication about whether the document was prepared in anticipation of litigation.")

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

Chapter: 34.3
Case Name: Cooper v. Richland County Recreation Comm., Civ. A. No. 3:16-cv-1606-MGL-TER, 2018 U.S. Dist. LEXIS 163788 (D.S.C. Sept. 25, 2018)
(advising work product protection for an investigation into sexual harassment allegations; "Plaintiff argues with respect to Defendant's assertion of attorney-client privilege that Edwards [Lawyer] was not acting as a lawyer when she investigated her internal complaint, but rather as a fact-finding investigator. However, documents do not have to be created by an attorney to enjoy work-product protection.")

Case Date Jurisdiction State Cite Checked
2018-09-25 Federal SC

Chapter: 34.3
Case Name: Terrell v. Memphis Zoo, Inc., 17-cv-2928-JPM-tmp, 2018 U.S. Dist. LEXIS 112385 (W.D. Tenn. July 3, 2018)
(analyzing privilege and work product issues related to the plaintiff's allegation of employment discrimination; "[T]hese emails contain information indicating that the anticipation of litigation was the driving force behind their creation. The emails discuss how to approach settlement negotiations, how Memphis Zoo should utilize its attorney's services, and broader litigation tactics. Although Dr. Terrell repeats her argument that these emails are discoverable because they were not prepared by or for an attorney, a document need not be prepared by or for an attorney in order for the work-product doctrine to apply.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal TN

Chapter: 34.3
Case Name: Terrell v. Memphis Zoo, Inc., 17-cv-2928-JPM-tmp, 2018 U.S. Dist. LEXIS 112385 (W.D. Tenn. July 3, 2018)
(analyzing privilege and work product issues related to the plaintiff's allegation of employment discrimination; "The emails with Bates Nos. 1306, 1311, 1313, and 1318-20 are described in Memphis Zoo's privilege log as notes of a board meeting that occurred on November 22, 2017, that are protected by the work-product doctrine. . . . This meeting was the telephone conference at which members of the board voted to terminate Dr. Terrell. Dr. Terrell argues that these notes are not protected by the work-product doctrine because the notes were mandatory under Memphis Zoo's bylaws and made in the normal course of business. Memphis Zoo argues that these emails are protected because, but for its reasonable expectation of litigation, the meeting would never have occurred."; "Without the likelihood of litigation, these emails may never have been created, but that fact does not place the emails under the protection of the work-product doctrine. For the doctrine to apply, the anticipation of litigation must have been the driving force behind the preparation of the emails. . . . Here, the emails at issue were primarily created, not in anticipation of litigation, but to record the board's discussion at a meeting dealing with whether to terminate an employee -- a business purpose. Therefore, the court finds that the documents are not protected by the work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal TN

Chapter: 34.3
Case Name: Rafferty v. KeyPoint Government Solutions, Inc., Case No. 4:16-cv-00210-DCN, 2018 U.S. Dist. LEXIS 104369, at *19 (D. Idaho June 19, 2018)
August 22, 2018 (PRIVILEGE [POINT)

"Another Court Inexplicably Rejects a Work Product Claim Because No Lawyer Was Involved"

Some courts seem to ignore the plain language of the federal work product rule or state parallels by requiring lawyers' involvement.

In Rafferty v. KeyPoint Government Solutions, Inc., the court correctly quoted the federal work product rule indicating that "a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative." Case No. 4:16-cv-00210-DCN, 2018 U.S. Dist. LEXIS 104369, at *19 (D. Idaho June 19, 2018). Without noting that the accurately quoted language does not even mention lawyers, the court nevertheless concluded that "[b]ecause [defendant] KeyPoint has not established that an attorney or an attorney's agent prepared the document, the document is not protected by the work product doctrine." Id. at *20-21.

Cases like this represent a remarkable phenomenon. On its face, the work product rule simply does not require lawyers' involvement either in the creation or the direction of documents that can deserve protection. In fact, the rule explicitly indicates otherwise.

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal ID
Comment:

key case


Chapter: 34.3
Case Name: Rafferty v. KeyPoint Government Solutions, Inc., Case No. 4:16-cv-00210-DCN, 2018 U.S. Dist. LEXIS 104369 (D. Idaho June 19, 2018)
(inexplicably rejecting a work product claim because a lawyer had not prepared or directed the preparation of withheld documents; "Under Rule 26(b)(3)(A) of the Federal Rules of Civil Procedure, 'a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.'"; "KeyPoint claims this document is privileged because it was prepared in anticipation of litigation. However, Hegedus is not an attorney. Therefore, the Court must determine whether Hegedus conducted the investigation and prepared the report at the direction of counsel. KeyPoint has never identified what attorney directed Hegedus (or directed another KeyPoint employee to direct Hegedus) to conduct the internal investigation. Rather, after in camera review of the report, it appears that an individual named Marci Haabestad directed Hegedus to conduct the investigation. KeyPoint has not identified Haabestad as an attorney, nor has it identified an attorney who delegated the task of gathering information to respond to the EEOC complaint to Haabestad. KeyPoint carries the burden of providing such information, if it exists. . . . Because KeyPoint has not established that an attorney or an attorney's agent prepared the document, the document is not protected by the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal ID
Comment:

key case


Chapter: 34.3
Case Name: Wilder v. World of Boxing LLC, 16 Civ. 4423 (ALC) (GWG), 2018 U.S. Dist. LEXIS 42059 (S.D.N.Y. March 14, 2018)
(in an opinion by Judge Gorenstein, finding the work product doctrine applicable, after analyzing the context and reading the withheld documents; "A document that is prepared in anticipation of litigation need not be prepared by attorneys themselves in order to be work-product protected. . . . The text of Rule 26(b)(3)(A) accords the protection to material prepared 'by or for [a] party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).' Thus, the rule 'afford[s] protection to materials gathered by non-attorneys even where there was no involvement by an attorney.'")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal NY

Chapter: 34.3
Case Name: Buchanan v. Sterling Construction Co., Civ. A. No. 4:16-cv-3429 JURY, 2018 U.S. Dist. LEXIS 39792 (S.D. Tex. March 12, 2018)
(analyzing privilege issues in connection with a corporate investigation (although without explaining what the investigation focused on); "The remaining email is not protected by the attorney-client privilege, but instead is covered by the work product privilege. It is not sent to or from an attorney, nor does it indicate in any way that the author, Kevin Manning, is relaying advice or an opinion from an attorney. Rather, it is a discussion of Sterling's strategy in the litigation involving Star Operations. Because it contains the 'mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party,' it qualifies for protection under the work product privilege.")

Case Date Jurisdiction State Cite Checked
2018-03-12 Federal TX

Chapter: 34.3
Case Name: Allison v. McCabe, Trotter & Beverly, P.C., C.A. No. 2:17-cv-1727-PMD, 2017 U.S. Dist. LEXIS 204088 (D.S.C. Dec. 12, 2017)
(inexplicably holding that the work product doctrine did not protect documents because they did not contain a lawyer's mental impressions; "Because none of these documents should contain an attorney's mental impressions, they are not attorney work product. Consequently, attorney work-product protection does not provide a basis for standing to challenge the subpoena.")

Case Date Jurisdiction State Cite Checked
2017-12-12 Federal SC

Chapter: 34.3
Case Name: Colley v. Dickenson County School Bd., Case No. 2:17-cv-00003, 2017 U.S. Dist. LEXIS 193243 (W.D. Va. Nov. 22, 2017)
("The work-product privilege protects an attorney's work done in preparation for litigation.")

Case Date Jurisdiction State Cite Checked
2017-11-22 Federal VA

Chapter: 34.3
Case Name: In the Matter of Harold Peerenboom v. Marvel Entertainment, LLC, 162152/2015, 2017 N.Y. Misc. LEXIS 3103 (N.Y. Sup. Ct. Aug. 15, 2017)
(after a remand, analyzing possible work product protection for a communications between Marvel's CEO and his personal defamation lawyer conducted on Marvel's computer system; finding that some documents deserved work product protection and some did not; "Even where an investigation is conducted by an attorney, and documents are generated in connection therewith, unless the documents sought to be protected from disclosure indicate that an attorney had conducted any legal research or analysis or rendered any legal opinion about the client's legal position, the work-product privilege is inapplicable.")

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

Chapter: 34.3
Case Name: In the Matter of Harold Peerenboom v. Marvel Entertainment, LLC, 162152/2015, 2017 N.Y. Misc. LEXIS 3103 (N.Y. Sup. Ct. Aug. 15, 2017)
(after a remand, analyzing possible work product protection for a communications between Marvel's CEO and his personal defamation lawyer conducted on Marvel's computer system; finding that some documents deserved work product protection and some did not; "Even where an investigation is conducted by an attorney, and documents are generated in connection therewith, unless the documents sought to be protected from disclosure indicate that an attorney had conducted any legal research or analysis or rendered any legal opinion about the client's legal position, the work-product privilege is inapplicable.")

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

Chapter: 34.3
Case Name: JBGR LLC v. Chicago Title Ins. Co., 35140-11, 2017 N.Y. Misc. LEXIS 3008 (N.Y. Sup. Ct. Aug. 2, 2017)
("The Dempsey memo [memorandum allegedly containing privileged communications] is not an attorney work product. While it was prepared by John Dempsey, an attorney, he was not acting as an attorney when he prepared it . . . . Moreover, it does not contain language uniquely reflecting a lawyer's learning and professional skills, including legal research, analysis, conclusions, legal theory or strategy.")

Case Date Jurisdiction State Cite Checked
2017-08-02 State NY

Chapter: 34.3
Case Name: In re NC Swine Farm Nuisance Litig.: Anderson v. Murphy-Brown, LLC, Master Case No. 5:15-CV-13-BR, 2017 U.S. Dist. LEXIS 81572 (E.D.N.C. May 26, 2017)
(finding that defendants had properly logged and withheld documents, and that no in camera review is necessary; "A document created by a non-attorney may still be entitled to protection as work product if it was prepared in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2017-05-26 Federal NC

Chapter: 34.3
Case Name: U.S. Home Corp. v. Settlers Crossing, L.L.C., No. 15-1254, 2017 U.S. App. 6272 (4th Cir. App. April 12, 2017)
(holding that an unlicensed lawyer could not engage in privileged communications in the lawyer role, but could create protected work product; "Lennar claimed that Steven Engel was its attorney, and that documents and communications with Engel were entitled to the attorney-client privilege. However, Engel was not licensed to practice law. The district court therefore sanctioned Lennar, and ordered it to turn over Engel documents and communications wrongfully withheld under the attorney-client privilege but allowed it to continue to withhold documents under the work-product doctrine if it submitted such documents for in camera review.")

Case Date Jurisdiction State Cite Checked
2017-04-12 Federal

Chapter: 34.3
Case Name: Blake v. Harvest New England, LLC, HHDCV166065384S, 2017 Conn. Super. LEXIS 535 (Conn. Super. Ct. March 17, 2017)
(holding that a corporate parent's in-house lawyer also represented the parent's wholly-owned subsidiary; also holding that a lawyer with the title of Vice President of Government and Regulatory Affairs can create protected work product; "The plaintiff argues that Davis [] is not claimed to have had any attorney-client relationship with Harvest New England, LLC because he is employed as Vice President of Government and Regulatory Affairs for Harvest Power, Inc. Similar to Vittiglio, there is no reason why Davis could not or did not act in a professional legal capacity for the subsidiary in his investigation of potential liabilities to which the subsidiary, and consequentially the parent company, is exposed. Moreover, Davis' title as vice president of government and regulatory affairs does not foreclose his acting in a professional legal capacity in some other field of law. The court finds that the interview notes are the result of an attorney's activities when those activities have been conducted with a view to pending or anticipated litigation and are thus protected from discovery. . . . A review of the interview notes demonstrates that they are the type of product of an attorney's work that is particularly likely to reflect and reveal the attorney's impressions, areas of strategic interest and theories of a case. For these reasons the court finds that they are protected from disclosure.")

Case Date Jurisdiction State Cite Checked
2017-03-17 Federal CT

Chapter: 34.3
Case Name: Behunin v. The Superior Court of L.A. County, B272225, 2017 Cal. App. 227 (Cal. App. March 14, 2017)
(finding that the privilege did not protect communications to and from an outside PR agency hired by plaintiff's lawyer; "'Although Behunin refers to the attorney work product doctrine in his petition and in his reply, he provides no legal argument or authorities to support the application of that doctrine to documents the court ordered produced. There is also no evidence in the record from which we might independently ascertain whether any of the communications to or from Behunin, Steiner, or Levick or any of the documents created by Levick would qualify as '[a] writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories' and thus work product.")

Case Date Jurisdiction State Cite Checked
2017-03-14 Federal CA

Chapter: 34.3
Case Name: Lucken Revocable Trust v. Heritage Bancshares Group, Inc., No. 16-CV-4005-MWB, 2017 U.S. Dist. LEXIS 21299 (N.D. Iowa Feb. 15, 2017)
(finding that the privilege did not protect communications with an inactive lawyer, because the plaintiff did not establish that it reasonably believed the inactive lawyer to be an active lawyer; also inexplicably holding that the inactive lawyer could not create protected work product; "As no attorney client relationship existed, any documents prepared by Peterson cannot be claimed to fall under the work product doctrine as Plaintiffs had not formed a valid attorney client relationship with Peterson.")

Case Date Jurisdiction State Cite Checked
2017-02-15 Federal IA

Chapter: 34.3
Case Name: In re Fairway Methanol LLC and Celanese Ltd., No. 14-16-00884-CV, 2017 Tex. App. LEXIS 830 (Tex. App. 14d Jan. 31, 2017)
("The work product privilege extends both to documents actually created by the attorney and to memoranda, reports, notes, or summaries prepared by other individuals for the attorney's use.")

Case Date Jurisdiction State Cite Checked
2017-01-31 Federal TX

Chapter: 34.3
Case Name: EEOC v. Sterling Jewelers, Inc., 08-CV-0706-RJA-MJR, 2017 U.S. Dist. LEXIS 3011 (W.D.N.Y. Jan. 3, 2017)
("A party asserting the work-product doctrine must demonstrate that the document was prepared by or at the behest of counsel principally or exclusively to assist in anticipated or ongoing litigation.")

Case Date Jurisdiction State Cite Checked
2017-01-03 Federal NY

Chapter: 34.3
Case Name: Lobel v. Woodland Golf Club of Auburndale, Civ. A. No. 15-13803-FDS, 2016 U.S. Dist. LEXIS 177423 (D. Mass. Dec. 22, 2016)
("The language of Rule 26(b)(3) protects documents prepared 'by or for another party or its representative.' Fed.R.Civ.P. 26(b)(3) (emphasis added). Consequently, work product protection extends 'to documents and things prepared for litigation or trial by or for the adverse party itself or its agent.' 8 Charles Alan Wright et al., Federal Practice and Procedure § 2024 (3rd ed. 2016).")

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

Chapter: 34.3
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; "In re Doe, 662 F.2d 1073, 1079 (4th Cir. 1981). Attorney-created work product, therefore, constitutes a subset of protected work product.")

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

Chapter: 34.3
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 recognized that both attorneys and non-attorneys can create protected work product.")

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

Chapter: 34.3
Case Name: Harrington v. Bergen Cty., A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727, at *11 (D.N.J. Sept. 13, 2016)
November 30, 2016 (PRIVILEGE POINT)

"Plaintiff's Live-In Boyfriend was Outside Privilege Protection, but Inside Work Product Protection: Part II"

Last week's Privilege Point described a court's acknowledgment that a mentally ill plaintiff's live-in boyfriend had provided "meaningful assistance" to the plaintiff in dealing with her lawyer, but was not "necessary or essential" for the plaintiff to obtain her lawyer's advice. Harrington v. Bergen Cty., A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727, at *11 (D.N.J. Sept. 13, 2016). This meant that communications in her boyfriend's presence were not privileged, and that any privileged communication later shared with her boyfriend lost privilege protection.

The court then turned to the work product analysis – and dealt with two related issues. First, the court correctly held that any work product that was "transmitted to or shared with" the boyfriend did not lose that separate protection. Id. at *15. As the court explained, "there is no indication of disclosure to adversaries," so work product protection remained. Id. Second, the court incorrectly held that "the work product doctrine does not protect documents, emails, or other items created by" the boyfriend – because "Plaintiff contends that [her boyfriend] served as her agent or representative, as opposed to" her lawyer's agent. Id. at *13, *15. It is impossible to square this conclusion with the work product rule itself – which on its face protects documents (motivated by litigation) created "'by or for another party or its representative.'" Id. at *7 (quoting Fed. R. Civ. P. 26(b)(3)(A)). The boyfriend's documents should have deserved work product protection either because (1) the documents were prepared "for" the plaintiff, or (2) "by" her "representative."

Lawyers and their clients should keep in mind the dramatic differences between the attorney-client privilege and the work product doctrine. In this case, the court correctly applied one privilege principle (under the majority approach) and one work product principle — but incorrectly applied another work product principle (which varied from the rule language itself). Perhaps the plaintiff can take solace in the words of Meatloaf's song: "Now don't be sad, cause two out of three ain't bad."

Case Date Jurisdiction State Cite Checked
2016-09-13 Federal NJ
Comment:

key case


Chapter: 34.3
Case Name: Harrington v. Bergen County, A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727 (D.N.J. Sept. 13, 2016)
(finding that plaintiff's roommate's presence during plaintiff's communications with her lawyer prevented privilege protection; also inexplicably finding that the roommate could not prepare protected work product; "The Court also finds that the work product doctrine does not protect documents, emails, or other items created by Martin [Plaintiff's friend and colleague with whom she resided]. . . . Defendants emphasize that Attorney 'Muller's Declaration does not assert that documents claimed to be protected by the work-product privilege were prepared at his direction in anticipation of litigation.'. . . The Court agrees, as while Plaintiff contends that the documents at issue 'were prepared by Martin at Muller's request for Muller's use in Plaintiff's Administrative matter[,]'. . . Plaintiff's assertion relies on Attorney Muller's statement that when he 'had questions, needed information, documents or clarification, [he] had to request such information from Martin.'. . . Muller's Declaration, even when read in conjunction with that of Plaintiff, only describes an arrangement of sorts, provides no further basis for a finding of the requisite 'direction' or agency relationship, and, again, Martin's mere assistance without, for example, a memorialized relationship or particularized duties, is insufficient to garner work product protection. This reasoning applies in equal force insofar as Plaintiff contends that Martin served as her agent or representative, as opposed to Attorney Muller's. Thus, the Court therefore finds that Plaintiff has not demonstrated that work product privilege protects the items prepared, created, or otherwise authored by Martin."; "As for the remaining disputed items for which Plaintiff claims work product privilege, i.e., those created or otherwise authored by Plaintiff or Attorney Muller and transmitted to or shared with Martin, the Court finds that the work product privilege protects against disclosure. The privilege applies because it is plain that the items at issue were prepared primarily for the ongoing administrative litigation, there is no indication of disclosure to adversaries, and Defendants have not demonstrated waiver.")

Case Date Jurisdiction State Cite Checked
2016-09-13 Federal NJ

Chapter: 34.3
Case Name: Harrington v. Bergen County, A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727 (D.N.J. Sept. 13, 2016)
(finding that plaintiff's roommate's presence during plaintiff's communications with her lawyer prevented privilege protection; also inexplicably finding that the roommate could not prepare protected work product; "The Court also finds that the work product doctrine does not protect documents, emails, or other items created by Martin [Plaintiff's friend and colleague with whom she resided]. . . . Defendants emphasize that Attorney 'Muller's Declaration does not assert that documents claimed to be protected by the work-product privilege were prepared at his direction in anticipation of litigation.'. . . The Court agrees, as while Plaintiff contends that the documents at issue 'were prepared by Martin at Muller's request for Muller's use in Plaintiff's Administrative matter[,]'. . . Plaintiff's assertion relies on Attorney Muller's statement that when he 'had questions, needed information, documents or clarification, [he] had to request such information from Martin.'. . . Muller's Declaration, even when read in conjunction with that of Plaintiff, only describes an arrangement of sorts, provides no further basis for a finding of the requisite 'direction' or agency relationship, and, again, Martin's mere assistance without, for example, a memorialized relationship or particularized duties, is insufficient to garner work product protection. This reasoning applies in equal force insofar as Plaintiff contends that Martin served as her agent or representative, as opposed to Attorney Muller's. Thus, the Court therefore finds that Plaintiff has not demonstrated that work product privilege protects the items prepared, created, or otherwise authored by Martin."; "As for the remaining disputed items for which Plaintiff claims work product privilege, i.e., those created or otherwise authored by Plaintiff or Attorney Muller and transmitted to or shared with Martin, the Court finds that the work product privilege protects against disclosure. The privilege applies because it is plain that the items at issue were prepared primarily for the ongoing administrative litigation, there is no indication of disclosure to adversaries, and Defendants have not demonstrated waiver.")

Case Date Jurisdiction State Cite Checked
2016-09-13 Federal NJ

Chapter: 34.3
Case Name: Manitowoc Co., Inc. v. Kachmer, No. 14 C 09271, 2016 U.S. Dist. LEXIS 114553 (N.D. Ill. Aug. 26, 2016)
(analyzing privilege and work product protection for a spreadsheet created by a company's former employee, who the company has sued for taking confidential information; finding that the spreadsheet deserved work product protection, and that the defendant could not overcome the work product protection; "Manitowoc's limitation of the work product doctrine to attorneys only fatally undermines its position."; "Protection afforded by the work product doctrine extends to documents prepared by a party irrespective of the absence of counsel's involvement in the documents' generation. . . . Here, no doubt exists as to whether Reuther can meet this test. Reuther constructed the spreadsheet both at the specific instruction of counsel and in direct response to Manitowoc filing suit against him. . . . The Court's in camera review of the document's contents corroborates Reuther's briefing and attached deposition testimony.")

Case Date Jurisdiction State Cite Checked
2016-08-26 Federal IL

Chapter: 34.3
Case Name: Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016)
September 14, 2016 (PRIVILEGE POINT)

"Court Points to Several Factors in Denying Work Product Protection: Part I"

Although some courts seem to misunderstand this, Fed. R. Civ. P. 26(b)(3) on its face allows nonlawyers to create protected work product. But lawyers' involvement can buttress work product claims even in courts applying the rule as written.

In Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016), the court rejected Phoenix's work product claim for emails it generated over a seven-day period. Phoenix claimed that it created the documents because it anticipated litigation with defendant, rather than because of a business dispute that had not yet ripened into anticipated litigation. Phoenix argued that "its in-house counsel provided 'continual' legal advice and direction" about the dispute, but the court emphasized that Phoenix's lawyer's "declaration does not identify a single document for which she provided instruction, review or comment." Id. at *23, *26. The court noted that "[l]ack of attorney involvement in documents" can be an important indication that the documents did not deserve work product protection. Id. at *26. After reviewing the withheld documents in camera, the court concluded that "the documents at issue would have been drafted or circulated for a business purpose even if this lawsuit never came to pass." Id. at *28.

Although lawyers need not be involved in creating work product, their involvement supports the argument that the documents were motivated by anticipated litigation rather than created in the ordinary course of business. Next week's Privilege Point will discuss three other factors that doomed Phoenix's work product claim.

Case Date Jurisdiction State Cite Checked
2016-07-01 Federal CA B 9/16
Comment:

key case


Chapter: 34.3
Case Name: Johnston v. Dow Employees' Pension Plan, Case No. 14-cv-10427, 2016 U.S. Dist. LEXIS 36825 (E.D. Mich. March 22, 2016)
("The work-product doctrine also protects documents and materials prepared by clients at the direction of attorneys.")

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

Chapter: 34.3
Case Name: Robinson v. Vineyard Vines, LLC, 15 Civ. 4972 (VB)(JCM), 2016 U.S. Dist. LEXIS 27948 (S.D.N.Y. March 4, 2016)
(holding that work product doctrine was prepared during a resources consulting group's investigation into a company employee's allegation that she was raped; noting that the defendant dropped an affirmative defense that arguably asserted a Faragher-Ellerth defense, and disclaimed relying on Faragher-Ellerth; "Documents may receive work-product protection even if they are not prepared at the direction of counsel. The text of Federal Rule of Civil Procedure 26(b)(3)(A) affords protection to material prepared 'by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)' -- not merely material prepared by or for an attorney -- and several courts, including courts in the Second Circuit, have interpreted this rule according to its plain meaning.")

Case Date Jurisdiction State Cite Checked
2016-03-04 Federal NY

Chapter: 34.3
Case Name: United States v. Allen, 14 Cr. 272 (JSR), 2016 U.S. Dist. LEXIS 4329 (S.D.N.Y. Jan. 8, 2016)
(holding that the attorney-client privilege protected a government cooperator's notes made when he reviewed the defendant's testimony, even if the cooperator did not give his notes to a lawyer; "Furthermore, independent of the Court's determination that Mr. Robson's notes are protected by the attorney-client privilege, the Court holds that Mr. Robson's [Cooperator] notes are subject to work-product protection as well. Mr. Robson's notes were prepared 'at the behest of counsel in anticipation of litigation.'")

Case Date Jurisdiction State Cite Checked
2016-01-08 Federal NY

Chapter: 34.3
Case Name: Nichol v. City of Springfield, No. 6:14-cv-1983-AA, 2015 U.S. Dist. LEXIS 169901 (D. Or. Dec. 18, 2015)
February 10, 2016 (PRIVILEGE POINT)

"Court Refreshingly Interprets the Work Product Rule as it is Written"

In one of the greatest mysteries involving the work product doctrine, some federal courts only protect documents created by or at the direction of lawyers — although Fed. R. Civ. P. 23(b)(3) cannot possibly be read to include such a requirement.

In Nichol v. City of Springfield, No. 6:14-cv-1983-AA, 2015 U.S. Dist. LEXIS 169901 (D. Or. Dec. 18, 2015), the court held that the plaintiff's friend could create protected work product. In analyzing the rule's language protecting documents prepared "'by or for another party or its representative,'" the court noted that "[t]he plain meaning of this broad provision encompasses four categories of materials: those prepared (1) by a party; (2) by a party's representative; (3) for a party; or (4) for a party's representative." Id. At *8-9. The court observed that most work product cases involve documents prepared by or for a party's representative, but properly concluded that the lack of such case law protecting documents created for a party (the third category) "does not authorize the court to ignore the plain meaning of Rule 26(b)(3)." Id. At *10. The court acknowledged that the "lack of attorney involvement in creating materials imposes a heightened burden on a party to prove they were prepared in anticipation of litigation." Id. At *11.

Fed. R. Civ. P. 26(b)(3) clearly states that the work product doctrine can protect documents created by or for a party — without a lawyer's involvement. It is remarkable that some federal courts do not apply the rule that way.

Case Date Jurisdiction State Cite Checked
2015-12-18 Federal OR
Comment:

key case


Chapter: 34.3
Case Name: Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015)
December 2, 2015 (PRIVILEGE POINT)

"Decision Highlights a Key Difference Between Attorney-Client Privilege and Work Product Doctrine Protection"

The attorney-client privilege provides absolute but fragile protection. In contrast, work product doctrine protection can be overcome — but offers more robust safety than the privilege. This distinction affects the impact of third parties' participation, and disclosure of protected communications or documents to third parties.

In Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015), the court dealt with plaintiff's communications with his lawyer — in the plaintiff's father-in-law's presence. The court found that the father-in-law's participation rendered the privilege unavailable — holding that the father-in-law "was not necessary to Plaintiff's communications with his counsel and [therefore] does not fall within the privilege." Id. At *6. In addressing the work product doctrine, the court applied the universal rule that "unlike the more sensitive attorney-client privilege, waiver of work product protection does not occur simply because a document is shared with a third person." Id. At *10. Because the father-in-law's "interests are aligned with Plaintiff's," disclosing work product to the father-in-law did not waive that separate protection. Id. At *11. In fact, the court concluded that the plaintiff's father-in-law could himself prepare protected work product under Fed. R. Civ. P. Rule 26(b)(3)(A) — which can cover documents prepared in anticipation of litigation "for" a party (such as the plaintiff). Id. At *7.

The attorney-client privilege and the work product doctrine apply in dramatically different ways in the context of friendly third parties — who are generally outside privilege protection but inside work product protection, and who, even themselves, can create protected work product. Corporate lawyers should remember these rules when considering their corporate clients' friendly third parties such as accountants, consultants, or other agents.

Case Date Jurisdiction State Cite Checked
2015-09-29 Federal AZ
Comment:

key case


Chapter: 34.3
Case Name: Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015)
Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015) (holding that the attorney-client did not protect communications between the plaintiff and his lawyer in which the plaintiff's father-in-law participated, but that disclosing work product to the father-in-law did not waive that protection, and that the father-in-law could create protected work product; "The protection also applies, however, to documents prepared 'for' a party or his representative. Id. The list of persons in Rule 26(b)(3)(A) -- attorney, consultant, surety, indemnitor, insurer, or agent -- defines 'representative,' and thus identifies the persons 'by or for' whom work product may be prepared. Id. It does not limit the persons who can prepare work product 'for' a party or its representative."; "The work product protection applies not only to emails written by Mr. Prussin [Plaintiff's father-in-law] to Plaintiff and his counsel, but also to emails written to Plaintiff alone, so long as they were written in anticipation of litigation."; "The Court concludes that emails written by Mr. Prussin satisfy the requirements for work product protection. They were written to a party in this litigation in anticipation of litigation."; "The Court also concludes that emails written by Plaintiff and his counsel in anticipation of litigation constitute work product, and that they retain this protection even though they were shared with Mr. Prussin. As many courts have recognized, unlike the more sensitive attorney-client privilege, waiver of work product protection does not occur simply because a document is shared with a third person."; "Mr. Prussin is closely allied with Plaintiff in this litigation. His interests are aligned with Plaintiff's. The Court cannot conclude that disclosure of work product to him substantially increased the opportunity for Defendants to obtain the information, or that it was otherwise inconsistent with the work product protection. The Court concludes, therefore, that the disclosure did not waive the protection.")

Case Date Jurisdiction State Cite Checked
2015-09-29 Federal AZ
Comment:

key case


Chapter: 34.3
Case Name: Moore v. Plains All American GP, LLC, Civ. A. No. 14-4666, 2015 U.S. Dist. LEXIS 124794 (E.D. Pa. Sept. 18, 2015)
("I . . . agree that the plain language of Rule 26(b)(3) indicates that the work product doctrine may extend to documents prepared in anticipation of litigation by a party or its representative.").

Case Date Jurisdiction State Cite Checked
2015-09-18 Federal PA

Chapter: 34.3
Case Name: Beachfront North Condominium Assoc., Inc. v. Lexington Ins. Co., Civ. No. 14-6706 (RBK/JS), 2015 U.S. Dist. LEXIS 102917 (D.N.J. Aug. 5, 2015)
(analyzing work product issues in a first party insurance context; "[A] document may be protected by the work-product doctrine even though it was not prepared by an attorney. The work-product doctrine may apply even if a document was prepared by a party's agent.")

Case Date Jurisdiction State Cite Checked
2015-08-05 Federal NJ

Chapter: 34.3
Case Name: Barba v. Shire US, Inc., Case No. 13-21158-CIV-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 65859 (S.D. Fla. May 20, 2015)
("While the Court accepts Shire's position that scripts prepared by or with the advice of counsel may be attorney work product . . . Close review of the document at issue here finds only one specific reference to the advice of counsel. Shire states broadly that the non-attorney negotiator who prepared this script for use in negotiations was advised by counsel, but nothing more is offered to substantiate this.")

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

Chapter: 34.3
Case Name: Karam v. County of Rensselaer, Civ. No. 1:13-CV-1018 (MAD/RFT), 2015 U.S. Dist. LEXIS 16011 (N.D.N.Y. Feb. 10, 2015)
("'There is a split of authority as to whether an attorney needs to be involved for the work product doctrine to be invoked.'")

Case Date Jurisdiction State Cite Checked
2015-02-10 Federal NY

Chapter: 34.3
Case Name: BASF Corp. Man Diesel & Turbo N.A., Inc., Civ. A. No. 13-42-JWD-RLB, 2015 U.S. Dist. LEXIS 15615 (M.D. La. Feb. 10, 2015)
(holding that a disbarred lawyer can create work product; "Having reviewed the documents submitted for in camera inspection, the Court finds that they constitute protected work product. These contain emails made between August 22, 2012 and August 28, 2012 primarily involving executives of Man Diesel discussing their plans and strategies with regard to responding to the draft Petition and settlement demand letter send by counsel for BASF, including preparation for settlement negotiations and potential mediation. Although Mr. Porrier is a disbarred attorney, he is acting as point person in these communications with opposing counsel for the benefit of Man Diesel's counsel. These communications are in the context of having received a draft petition from counsel for BASF as well as having received BASF's offer to pursue settlement of this dispute through alternative dispute resolution.")

Case Date Jurisdiction State Cite Checked
2015-02-10 Federal LA

Chapter: 34.3
Case Name: Wultz v. Bank of China Ltd., 11 Civ. 1266 (SAS) (GWG), 2015 U.S. Dist. LEXIS 8605 (S.D.N.Y. Jan. 21, 2015)
(in an opinion by Judge Gorenstein, finding that a compliance-initiated investigation into a defendant's possible tie with terrorists did not deserve privilege or work product protection; "Notwithstanding the common description of the doctrine as the 'attorney' work product doctrine, as a doctrine 'intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy,'. . . It is not in fact necessary that the material be prepared by or at the direction of an attorney.")

Case Date Jurisdiction State Cite Checked
2015-01-21 Federal NY

Chapter: 34.3
Case Name: Largan Precision Co., Ltd. v. Genius Electronic Optical Co., Ltd., Case No. 13-cv-02502-JD, 2015 U.S. Dist. LEXIS 2072 (N.D. Cal. Jan. 8, 2015)
(in a patent case, finding that the absence of any lawyer involvement made it more difficult to claim work product; "[I]t is certainly true that a document need not be prepared personally by an attorney to qualify as work product. But attorney involvement -- or the lack thereof -- is far from irrelevant, as Genius [Defendant] suggests. The fact that the withheld documents do not involve any attorneys is a useful sign, in conjunction with other indicators, that they are not protected work product."; " [T]hat the involvement of attorneys should be considered as part of the 'anticipation of litigation' prong of the tests.")

Case Date Jurisdiction State Cite Checked
2015-01-08 Federal CA

Chapter: 34.3
Case Name: In re Third Party Subpoenas Issued to Rambus, Inc. v. Acer Inc., Case No. 14-mc-80293 EJD (NC), 2014 U.S. Dist. LEXIS 164398 (N.D. Cal. Nov. 21, 2014)
("Documents prepared at the direction of counsel may qualify for work product protection, but unless a document consists of a 'confidential communication,' Rambus improperly asserts attorney-client privilege.")

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

Chapter: 34.3
Case Name: Szulik v. State Street Bank and Trust Co., Civ. A. No. 12-10018-NMG, 2014 U.S. Dist. LEXIS 110447 (D. Mass. Aug. 11, 2014)
("State Street argues that the chronology cannot be work product because it was not prepared under the direction of an attorney, or to assist the attorney -- rather, it was prepared to assist the party deponent. . . . This argument is not persuasive. By now, it is well-established that the doctrine protects writings made by a party, even without any involvement by counsel. . . . There is no separate requirement in the work product doctrine or in Fed. R. Civ. P. 26(b)(3) that the document actually be used by counsel.")

Case Date Jurisdiction State Cite Checked
2014-08-11 Federal MA

Chapter: 34.3
Case Name: Hooke v. Foss Maritime Co., Case No. 13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. April 10, 2014)
(analyzing work product protection for documents created after separate work-related injuries; finding the work product doctrine inapplicable; "As to the EIS Report Witness Statements, all three witnesses testified that it was standard operating procedure to fill out the EIS Report Witness Statements, and that they were not specifically instructed to do so by the General Counsel.")

Case Date Jurisdiction State Cite Checked
2014-04-10 Federal CA

Chapter: 34.3
Case Name: Shire LLC v. Amneal Pharmaceuticals LLC, Civ. A. No. 2:11-cv-03781 (SRC) (CLW) (Consolidated), 2014 U.S. Dist. LEXIS 45075 (D.N.J. April 1, 2014)
("This is not work product because it was not written by an attorney revealing the preparation of a client's case nor does the Court find it to be an informal evaluation of the case written by Defendant's agent.")

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

Chapter: 34.3
Case Name: Shire LLC v. Amneal Pharmaceuticals LLC, Civ. A. No. 2:11-cv-03781 (SRC) (CLW) (Consolidated), 2014 U.S. Dist. LEXIS 45075 (D.N.J. April 1, 2014)
("This is not work product because it is written by a non-attorney and does not provide an informal evaluation of the case that, under the circumstance, should be protected.")

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

Chapter: 34.3
Case Name: In the Matter of the Search of Advanced Pain Centers Poplar Bluff v. Ware, Case No. 4:13CV010408AG and Case No. 1:13CV00107 AGF, 2014 U.S. Dist. LEXIS 43177 (E.D. Mo. March 31, 2014)
(finding that a company's Incident Reports reports did not deserve work product protection; "Petitioners have not satisfied their burden to show that the documents were prepared by, or at the behest of, an attorney and in reasonable anticipation of litigation. Petitioners' practice of marking each incident report with the phrase 'Prepared in Anticipation of Litigation' does not magically convert the document to attorney work product. Indeed, many of the reports were completed many years ago, and Petitioners cannot show any reasonable basis for claiming any litigation is anticipated with respect to these matters."; "The record indicates that in the course of the operation of the APCs many different individuals including medical assistants, receptionists, compliance officers, and physicians filled out the forms in the wake of every day mishaps and incidents of many types. The very fact that the incident reports were used in so many different types of situations by personnel with varying qualifications strongly suggests that they were prepared as part of the day-to-day operation of the APCs and not in anticipation of litigation."; also finding the attorney-client privilege inapplicable)

Case Date Jurisdiction State Cite Checked
2014-03-31 Federal MO

Chapter: 34.3
Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
(focusing on the content of work product rather than a supporting affidavit; "To establish the applicability of the work product doctrine to such documents, it is not sufficient for a party to show only that an attorney or the attorney's agent generated the document. Corporate in-house counsel are 'often called upon to perform tasks that go beyond the traditional tasks performed by lawyers.'. . . Accordingly, 'each document must be perused to see whether the attorney was involved in rendering legal advice or if the document contains work product information.'"; "In making this inquiry, a court need not simply accept the parties' declarations. . . . Additionally, a court may scrutinize the content of the subject documents for analysis that 'hints at a focus on litigation.'")

Case Date Jurisdiction State Cite Checked
2014-03-28 Federal FL

Chapter: 34.3
Case Name: Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 U.S. Dist. LEXIS 28483, at *9 (N.D. Tex. Feb. 27, 2014)
("Defendants have failed to show that Trombetta's text messages with non-attorneys David Icenhower and Kelly Myers were prepared for an attorney in preparation for litigation. They also failed to demonstrate that the sought-after text messages were made to assist an attorney in preparation for litigation instead of in the ordinary course of business or for some other purpose."; "Instead, according to the evidence before the Court, the text messages are simply communications between three non-attorney employees of Borden Perlman who are discussing the lawsuit. As such, and unless and until Borden Perlman comes forward with evidence showing otherwise, the redacted text messages are not protected by the work product doctrine.")

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

Chapter: 34.3
Case Name: S.S. v. Leatt Corp., Case No. 1:12 CV 483, 2014 U.S. Dist. LEXIS 12192, at *19 (N.D. Ohio Jan. 31, 2014)
("[T]he 2009 version of the White Paper was created without the input of an attorney. Thus, this version is not covered by the work product doctrine. Defendant's arguments are rejected.")

Case Date Jurisdiction State Cite Checked
2014-01-31 Federal OH B 6/14

Chapter: 34.3
Case Name: Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., 29 F.R.D. 611, 620 (D. Kan. 2014)
("In most instances the involvement of an attorney is required. The lack of attorney involvement, however, does not necessarily preclude a party from demonstrating the privilege's applicability.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal KS B 8/14

Chapter: 34.3
Case Name: Meighan v. Transguard Ins. Co. of Am., Inc., 298 F.R.D. 436, 445 (N.D. Iowa 2014)
(analyzing work product issues in a first party insurance bad faith context; "The reserves information here seems to relate to Meighan's particular claim. Although this information was documented by Sobus [insurance adjuster], who is not an attorney, it is still protected by the work product privilege.")

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

Chapter: 34.3
Case Name: Owens v. Stifel, Nicolaus & Co., Civ. A. No. 7:12-CV-144 (HL), 2013 U.S. Dist. LEXIS 171913, at *6 (M.D. Ga. Dec. 6, 2013)
("The document is an email string about Anthony Fisher [broker] and Plaintiffs' accounts. In-house counsel is involved in the email string, but the emails do not explicitly seek or contain legal advice. However, the emails are protected by the work product doctrine because the emails were prepared because of the prospect of litigation.")

Case Date Jurisdiction State Cite Checked
2013-12-06 Federal GA B 5/14

Chapter: 34.3
Case Name: Toensing v. United States Dep't of Justice, Civ. A. No. 11-1215 (BAH), 2013 U.S. Dist. LEXIS 162158, at *14 (D.D.C. Nov. 14, 2013)
("The work product doctrine can apply to preparatory work performed not only by attorneys, but also, in some circumstances by nonlawyers.")

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

Chapter: 34.3
Case Name: Mastr Adjustable Rate Mortgs. Trust 2006-OA2 v. UBS Real Estate Sec. Inc., No. 12 Civ. 7322 (HB) (JCF), 2013 U.S. Dist. LEXIS 130606, at *16 (S.D.N.Y. Sept. 12, 2013)
(in an opinion by Magistrate Judge James Francis, analyzing privilege log issues; "[O]nly those documents authored by Williams & Connolly [defendant's lawyer] or its agents 'specifically directed to litigation strategy or possible litigation defenses' are covered by work product immunity." (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-09-12 Federal NY B 4/14

Chapter: 34.3
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 92089, at *3-4 (S.D.N.Y. June 28, 2013)
(analyzing work product protection for materials created by a private investigator and communications with a public relations firm; "[I]t is important to bear in mind that the work product doctrine protects the confidentiality of documents and other materials prepared in anticipation of litigation except in limited circumstances. It rests in part on the premise that each party to a lawsuit should do its own work, including its own investigation of the facts, without intruding into and benefitting from the efforts of its adversary. And it extends to work prepared by a private investigator in anticipation of litigation, at least where the investigator is working at the direction of an attorney. Accordingly, in the absence of a more particular showing as to particular documents that the requisites of work product protection have not been made out by Chevron's privilege log -- and there is none -- the suggestion that none of the investigative materials have any protection to begin with fails. In particular, the suggestion that surveillance videos and photos taken by investigators in the context of a litigation such as this, and documents relating to such activities, 'are not protected to begin with' is frivolous. They quite obviously are materials prepared in anticipation of litigation and therefore protected by Fed. R. Civ. P. 26(b)(3)." (footnotes omitted))

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

Chapter: 34.3
Case Name: Warren v. Bastyr Univ., No. 2:11-cv-01800-RSL, 2013 U.S. Dist. LEXIS 71269, at *7 (W.D. Wash. May 17, 2013)
(inexplicably requiring a lawyer's involvement for work product protection; "[T]here is no indication that an attorney requested, created, or reviewed the withheld proposal for how to approach plaintiff regarding re entry into the clinical program at Bastyr.")

Case Date Jurisdiction State Cite Checked
2013-05-17 Federal WA B 3/14

Chapter: 34.3
Case Name: Warren v. Bastyr University, No. 2:11-cv-01800-RSL, 2013 U.S. Dist. LEXIS 71269, at *7 (W.D. Wash. May 17, 2013)
July 10, 2013 (PRIVILEGE POINT)

"Does Work Product Protection Depend on a Lawyer's Involvement?"

Perhaps the most remarkable judicial disagreement about the work product doctrine involves the issue of a lawyer's involvement. The rule could not be any clearer. Federal Rule of Civil Procedure 26(b)(3)(A) protects documents prepared in anticipation of litigation or trial "by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." (Emphasis added).

Some courts apply the rule as written. In In re MI Windows & Doors, Inc., Prod. Liab. Litig., the court recognized that "even if no lawyer was involved, these notes would be protected by work product," because "[t]he work product immunity protects material prepared by non-lawyers in anticipation of litigation." MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *4 (D.S.C. May 1, 2013). About two weeks later, the Southern District of New York took the same approach. Vaher v. Town of Orangetown, No. 10 Civ. 1606 (KMK) (GAY), 2013 U.S. Dist. LEXIS 69559 (S.D.N.Y. May 15, 2013). However, two days after that, the Western District of Washington inexplicably took a different position. In Warren v. Bastyr University, No. 2:11-cv-01800-RSL, 2013 U.S. Dist. LEXIS 71269, at *7 (W.D. Wash. May 17, 2013), the court rejected defendant's work product argument – noting among other things that "there is no indication that an attorney requested, created, or reviewed the withheld" document. A few other courts have taken this puzzling approach. See, e.g., United States ex rel. Dye v. ATK Launch Sys. Inc., Case No. 1:06-CV-00039-CW, 2011 U.S. Dist. LEXIS 28536, at *15 (N.D. Utah Mar. 9, 2011) ("ATK agrees that the Wecker and Davidson Slides were not prepared at the direction of counsel, so the work product doctrine does not apply.")

Lawyers appearing in a court taking the narrow view face the awkward task of gently suggesting that the court actually read the rule.

Case Date Jurisdiction State Cite Checked
2013-05-17 Federal WA
Comment:

key case


Chapter: 34.3
Case Name: Vaher v. Town of Orangetown, No. 10 Civ. 1606 (KMK) (GAY), 2013 U.S. Dist. LEXIS 69559 (S.D.N.Y. May 15, 2013)
July 10, 2013 (PRIVILEGE POINT)

"Does Work Product Protection Depend on a Lawyer's Involvement?"

Perhaps the most remarkable judicial disagreement about the work product doctrine involves the issue of a lawyer's involvement. The rule could not be any clearer. Federal Rule of Civil Procedure 26(b)(3)(A) protects documents prepared in anticipation of litigation or trial "by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." (Emphasis added).

Some courts apply the rule as written. In In re MI Windows & Doors, Inc., Prod. Liab. Litig., the court recognized that "even if no lawyer was involved, these notes would be protected by work product," because "[t]he work product immunity protects material prepared by non-lawyers in anticipation of litigation." MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *4 (D.S.C. May 1, 2013). About two weeks later, the Southern District of New York took the same approach. Vaher v. Town of Orangetown, No. 10 Civ. 1606 (KMK) (GAY), 2013 U.S. Dist. LEXIS 69559 (S.D.N.Y. May 15, 2013). However, two days after that, the Western District of Washington inexplicably took a different position. In Warren v. Bastyr University, No. 2:11-cv-01800-RSL, 2013 U.S. Dist. LEXIS 71269, at *7 (W.D. Wash. May 17, 2013), the court rejected defendant's work product argument – noting among other things that "there is no indication that an attorney requested, created, or reviewed the withheld" document. A few other courts have taken this puzzling approach. See, e.g., United States ex rel. Dye v. ATK Launch Sys. Inc., Case No. 1:06-CV-00039-CW, 2011 U.S. Dist. LEXIS 28536, at *15 (N.D. Utah Mar. 9, 2011) ("ATK agrees that the Wecker and Davidson Slides were not prepared at the direction of counsel, so the work product doctrine does not apply.")

Lawyers appearing in a court taking the narrow view face the awkward task of gently suggesting that the court actually read the rule.

Case Date Jurisdiction State Cite Checked
2013-05-15 Federal NY
Comment:

key case


Chapter: 34.3
Case Name: In re MI Windows & Doors, Inc., Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *4 (D.S.C. May 1, 2013)
July 10, 2013 (PRIVILEGE POINT)

"Does Work Product Protection Depend on a Lawyer's Involvement?"

Perhaps the most remarkable judicial disagreement about the work product doctrine involves the issue of a lawyer's involvement. The rule could not be any clearer. Federal Rule of Civil Procedure 26(b)(3)(A) protects documents prepared in anticipation of litigation or trial "by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." (Emphasis added).

Some courts apply the rule as written. In In re MI Windows & Doors, Inc., Prod. Liab. Litig., the court recognized that "even if no lawyer was involved, these notes would be protected by work product," because "[t]he work product immunity protects material prepared by non-lawyers in anticipation of litigation." MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *4 (D.S.C. May 1, 2013). About two weeks later, the Southern District of New York took the same approach. Vaher v. Town of Orangetown, No. 10 Civ. 1606 (KMK) (GAY), 2013 U.S. Dist. LEXIS 69559 (S.D.N.Y. May 15, 2013). However, two days after that, the Western District of Washington inexplicably took a different position. In Warren v. Bastyr University, No. 2:11-cv-01800-RSL, 2013 U.S. Dist. LEXIS 71269, at *7 (W.D. Wash. May 17, 2013), the court rejected defendant's work product argument – noting among other things that "there is no indication that an attorney requested, created, or reviewed the withheld" document. A few other courts have taken this puzzling approach. See, e.g., United States ex rel. Dye v. ATK Launch Sys. Inc., Case No. 1:06-CV-00039-CW, 2011 U.S. Dist. LEXIS 28536, at *15 (N.D. Utah Mar. 9, 2011) ("ATK agrees that the Wecker and Davidson Slides were not prepared at the direction of counsel, so the work product doctrine does not apply.")

Lawyers appearing in a court taking the narrow view face the awkward task of gently suggesting that the court actually read the rule.

Case Date Jurisdiction State Cite Checked
2013-05-01 Federal SC
Comment:

key case


Chapter: 34.3
Case Name: Global Oil Tools, Inc. v. Barnhill, Civ. A. No. 12-1507 SECTION "J" (4), 2013 U.S. Dist. LEXIS 48226, at *21 (E. D. La. Apr. 3, 2013)
("The work-product doctrine protects materials prepared by or for in [sic] attorney in preparation for litigation.")

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

Chapter: 34.3
Case Name: Cosentino v. Transcend Servs., Inc., No. 12 C 3627, 2013 U.S. Dist. LEXIS 37538, at *3, *4-5 (N.D. Ill. Mar. 19, 2013)
("Transcend moves to strike the declarations submitted by the plaintiffs in support of their motion for conditional certification on the ground that the plaintiffs failed to turn over the declarations despite document requests and interrogatories seeking their disclosure."; "The plaintiffs claim the declarations were not turned over because they are attorney work product. But the plaintiffs did not turn over a privilege log, thus giving Transcend the ability to challenge the assertion of the privilege. In any event, the plaintiffs fail to demonstrate that the declarations contain attorney impressions and are therefore subject to the work product privilege.")

Case Date Jurisdiction State Cite Checked
2013-03-19 Federal IL B 3/14

Chapter: 34.3
Case Name: Laws v. Stevens Transp., Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159, at *5-6 (S.D. Ohio Feb. 19, 2013)
(holding that the work product doctrine protected photographs of an accident scene taken the day of an accident, and that plaintiff could not overcome the protection; inexplicably finding that the work product doctrine did not apply unless photographs were taken at the direction of a lawyer; "Their reply brief focuses on the fact that defendants, in their memorandum in opposition, did not produce any evidence showing that the photos were taken at the direction of any defendant and in anticipation of litigation. They were correct in that assertion when it was made, but the subsequently-filed affidavit from Mr. Buchbinder [defendant company's lawyer] cured that defect, and plaintiffs have not questioned its truthfulness.")

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

Chapter: 34.3
Case Name: Bryan Corp. v. Chemwerth, Inc., 296 F.R.D. 31, 38 (D. Mass. 2013)
(quoting successful affidavits supporting plaintiff's lawyer's contention that it needed the assistance of plaintiff's long-time FDA consultant in providing legal advice to plaintiff; "[T]he work product doctrine encompasses documents that are prepared in anticipation of litigation by a party's representative, including a party's consultant or agent. . . . Because Waldman [plaintiff's FDA consultant] was acting as Bryan's agent when the documents were created, its participation in the communications does not defeat application of the work product doctrine even though it was not represented by counsel. Moreover, Waldman's communications, made both in its capacity as Bryan's agent and in anticipation of litigation, are entitled to protection even in the absence of attorney involvement.")

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

Chapter: 34.3
Case Name: Popina v. Rice-Steward, 86 Va. Cir. 402, 403, 404 (Va. Cir. Ct. 2013)
("The statement at issue was taken by the agent of the Defendant's insurance company prior to the employment of counsel. No additional facts supporting the allegations of work product were presented. Defendant's counsel argues that the Defendant's statement is not discoverable under Rule 4:1(b)(3) because it was taken in anticipation of litigation. Without establishing that the statement is the work product of counsel, the argument that the statement was taken in anticipation of litigation is irrelevant. Rule 4:1(b)(3) is not engaged without the finding that the material collected is encompassed within the work product of an attorney."; "Any effort to expand the work-product doctrine to include the work of the insurance adjuster prior to retention of counsel requires a deliberative and participative process either by the General Assembly or amendment of the Rules of Court by the Virginia Supreme Court to assure a careful balance between advocacy and truthfulness. In the absence of a deliberate expansion of the work product doctrine, this court finds that the routine taking of statements by an auto insurance adjuster is work in the ordinary course of business which fails to qualify as work product.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State VA B 9/13, 3/14

Chapter: 34.3
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 647 (D. Nev. 2013)
("A review of Joint Selection 12 reveals that it consists of an e-mail which serves as a calendaring invitation for a 'liability meeting.' There is nothing privileged about the e-mail itself, but the document also contains handwritten notes regarding the meeting. Bard has not provided any information regarding the identity of the person who made the handwritten notes. The work product doctrine covers items prepared by a party, or its representative, in anticipation of litigation.")

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

Chapter: 34.3
Case Name: Popina v. Rice-Steward, 86 Va. Cir. 402, 403, 404 (Va. Cir. Ct. 2013)
("The statement at issue was taken by the agent of the Defendant's insurance company prior to the employment of counsel. No additional facts supporting the allegations of work product were presented. Defendant's counsel argues that the Defendant's statement is not discoverable under Rule 4:1(b)(3) because it was taken in anticipation of litigation. Without establishing that the statement is the work product of counsel, the argument that the statement was taken in anticipation of litigation is irrelevant. Rule 4:1(b)(3) is not engaged without the finding that the material collected is encompassed within the work product of an attorney."; "Any effort to expand the work-product doctrine to include the work of the insurance adjuster prior to retention of counsel requires a deliberative and participative process either by the General Assembly or amendment of the Rules of Court by the Virginia Supreme Court to assure a careful balance between advocacy and truthfulness. In the absence of a deliberate expansion of the work product doctrine, this court finds that the routine taking of statements by an auto insurance adjuster is work in the ordinary course of business which fails to qualify as work product.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State VA

Chapter: 34.3
Case Name: Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *4 (E.D. Va. July 12, 2012)
("The party asserting the work product doctrine must establish that the document at issue was prepared by, or at the direction of, an attorney in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2012-07-12 Federal VA B 3/16
Comment:

key case


Chapter: 34.3
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("[T]he party asserting the work product doctrine must establish that the document at issue was prepared at the direction of an attorney in anticipation of litigation. Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947).")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 34.3
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("Lawson must meet its initial burden of showing that the documents are work product by establishing that they were prepared 'in anticipation of litigation' at the direction of an attorney. It has not done so.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 34.3
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 257 (E.D. Va. 2012)
("To establish that the work product privilege is applicable, a party has the burden of establishing that the document at issue was prepared at the direction of an attorney in anticipation of litigation. Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947).")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA B 3/16
Comment:

key case


Chapter: 34.3
Case Name: Yorktowne Shopping Center, LLC v. Nat'l Surety Corp., Civ. A. No. 1:10cv1333, 2011 U.S. Dist. LEXIS 52032, at *2-3 (E.D. Va. May 16, 2011)
("[T]he work product rule limits discovery of documents (1) prepared by, or under the direction of, an attorney or representative, and (2) in anticipation of litigation. Fed.R.Civ.P. 26(b)(3); E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530 at *10 (E.D. Va. April 13, 2010)." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2011-05-16 Federal VA B 3/16
Comment:

key case


Chapter: 34.3
Case Name: United States ex rel. Dye v. ATK Launch Sys. Inc., Case No. 1:06-CV-00039-CW, 2011 U.S. Dist. LEXIS 28536, at *15 (N.D. Utah Mar. 9, 2011)
July 10, 2013 (PRIVILEGE POINT)

"Does Work Product Protection Depend on a Lawyer's Involvement?"

Perhaps the most remarkable judicial disagreement about the work product doctrine involves the issue of a lawyer's involvement. The rule could not be any clearer. Federal Rule of Civil Procedure 26(b)(3)(A) protects documents prepared in anticipation of litigation or trial "by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." (Emphasis added).

Some courts apply the rule as written. In In re MI Windows & Doors, Inc., Prod. Liab. Litig., the court recognized that "even if no lawyer was involved, these notes would be protected by work product," because "[t]he work product immunity protects material prepared by non-lawyers in anticipation of litigation." MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *4 (D.S.C. May 1, 2013). About two weeks later, the Southern District of New York took the same approach. Vaher v. Town of Orangetown, No. 10 Civ. 1606 (KMK) (GAY), 2013 U.S. Dist. LEXIS 69559 (S.D.N.Y. May 15, 2013). However, two days after that, the Western District of Washington inexplicably took a different position. In Warren v. Bastyr University, No. 2:11-cv-01800-RSL, 2013 U.S. Dist. LEXIS 71269, at *7 (W.D. Wash. May 17, 2013), the court rejected defendant's work product argument – noting among other things that "there is no indication that an attorney requested, created, or reviewed the withheld" document. A few other courts have taken this puzzling approach. See, e.g., United States ex rel. Dye v. ATK Launch Sys. Inc., Case No. 1:06-CV-00039-CW, 2011 U.S. Dist. LEXIS 28536, at *15 (N.D. Utah Mar. 9, 2011) ("ATK agrees that the Wecker and Davidson Slides were not prepared at the direction of counsel, so the work product doctrine does not apply.")

Lawyers appearing in a court taking the narrow view face the awkward task of gently suggesting that the court actually read the rule.

Case Date Jurisdiction State Cite Checked
2011-03-09 Federal UT
Comment:

key case


Chapter: 34.3
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 Jurisdiction State Cite Checked
2011-01-01 Federal

Chapter: 34.3
Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 503 (4th Cir. 2011)
("To the extent that the replies to Jill Slaughter's February 9, 2009 e-mails were written by non-lawyers, the work-product privilege might not apply. Similarly, if the e-mails failed any of the Jones [United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)] criteria, the attorney-client privilege might also be inapplicable. Because Interbake has not presented a document-by-document privilege analysis of the reply e-mails or offered a specific reason why the e-mail string should be treated as a group, see In re Universal Serv. Fund Litig., 232 F.R.D. at 673, we conclude that the district court must assess the privilege claim with respect to each e mail in the string to determine whether Interbake has carried its burden, see Jones, 696 F.2d at 1072."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

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

Chapter: 34.3
Case Name: In re Outside Wall Tire Litig., Case No. 1:09cv1217, 2010 U.S. Dist. LEXIS 67578, at *6 (E.D. Va. July 6, 2010)
("Nor is the material protected by the attorney work-product doctrine, which 'protects an attorney's work done in preparation for litigation.' In re Grand Jury Proceedings # 5 Empanelled Jan. 28, 2004, 401 F.3d 247, 250 (4th Cir. 2005).")

Case Date Jurisdiction State Cite Checked
2010-07-06 Federal VA

Chapter: 34.3
Case Name: E.I. DuPont De Nemours & Co. v. Kolon Indus., Inc., Civ. A. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530, at *10 (E.D. Va. Apr. 13, 2010)
(holding that DuPont had not waived the work product protection by providing work product to the government in an effort to cooperate with the government's criminal investigation of a former DuPont employee against whom DuPont was also planning to pursue a civil case; "It is the burden of the party asserting work product privilege to show that the privilege applies, and to meet this burden, the party asserting privilege must show, 'as to each document, that the work product in question was: (1) prepared by, or under the discretion of, an attorney and, (2) was prepared in anticipation of litigation.' Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 272 (E.D. Va. 2004) (citing Hickman, 329 U.S. at 495; In re Grand Jury Proceedings, 102 F.3d 748, 750 (4th Cir. 1996))")

Case Date Jurisdiction State Cite Checked
2010-04-13 Federal VA B 3/16
Comment:

key case


Chapter: 34.3
Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 604 (E.D. Va. 2010)
("Work product protection, as discussed at length in the Memorandum Opinion of April 13, 2010 (DuPont v. Kolon, 2010 U.S. Dist. LEXIS 36530, 2010 WL 1489966, at *3-5), shields from discovery work product prepared by an attorney, or at the direction of an attorney, in anticipation of litigation.")

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

Chapter: 34.3
Case Name: Schwarz & Schwarz v. Certain Underwriters at Lloyd's, Civ. A. No. 6:07cv042, 2009 U.S. Dist. LEXIS 56912, at *6 (W.D. Va. July 1, 2009)
(analyzing protection for notes taken by in insured's corporate representative at depositions in a first party insurance case; finding that the notes deserve work product protection; "Although Underwriters asserts that Staley's [corporate representative for plaintiff] notes were not shared with counsel, counsel for Schwarz [insured] represented that they were taken at his direction. As the notes were created during the litigation process by a party representative, they are plainly subject to work product protection. The fact that Staley [insured's corporate representative] did not share them with counsel is not controlling. See Pete Rinaldi's Fast Foods, Inc. v. Great American Ins. Cos., 123 F.R.D. 198, 202 (M.D.N.C. 1988) (holding that the '[i]nvolvement of an attorney is a highly relevant but not necessarily controlling factor'). Underwriters made no showing of substantial need, indeed, it deposed Staley. As such, the notes are not subject to discovery.")

Case Date Jurisdiction State Cite Checked
2009-07-01 Federal VA B 3/16
Comment:

key case


Chapter: 34.3
Case Name: Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234, 237 (Va. Cir. Ct. 2008)
("While document one is addressed to Cintas' [seller of real estate] counsel and labeled 'CONFIDENTIAL WORK PRODUCT', it appears to have been prepared by one of Cintas' administrators, there is absolutely nothing to indicate that it was prepared at the request of Cintas' counsel, and in addition to the attorney it is also addressed to two employees of Environ [Cintas' "environmental remediation contractor"]. The subject does not appear to be litigation, and Cintas has not addressed why they would be sharing litigation or trial preparation materials with another company. Document two is addressed to two of Cintas' attorneys, but it is also addressed to an Environ employee, and although it suggests litigation there is nothing to indicate that it was prepared in anticipation of litigation. Rather the subject appears to be the ongoing environmental remediation work, and when that work might be complete.")

Case Date Jurisdiction State Cite Checked
2008-01-01 State VA B 3/16
Comment:

key case


Chapter: 34.3
Case Name: Sheets v. Insurance Co. of N. Am., No. 4:04CV00058, 2005 U.S. Dist LEXIS 27060, at *2 (W.D. Va. Nov. 8, 2005)
("The work-product privilege protects an attorney's work done in preparation for litigation. United States v. Under Seal (In re Grand Jury Proceedings), 33 F.3d 342, 348 (4th Cir. 1994).")

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

Chapter: 34.3
Case Name: Brown v. Laboratory Corp. of Am., 67 Va. Cir. 232, 235 (Va. Cir. Ct. 2005)
(assessing work product protection for medical incident reports after an infant died; concluding that the work product doctrine did not apply;"The reports in question do not contain mental impressions or strategies of any attorney, but merely provide an immediate account of the facts giving rise to the claim.")

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

Chapter: 34.3
Case Name: McDonald v. Sentara Medical Group, 64 Va. Cir. 30, 36-37 (Va. Cir. Ct. (2004)
(holding that the work product doctrine protected documents prepared by a hospital after the plaintiff slipped and fell on the premises; "The Court recognizes the danger of the outright exclusion of files of this nature from discovery based on the work product doctrine. As noted by the Rockingham Circuit Court, such a practice would make the exclusion too broad and effectively create an entire new category of material exempt from discovery. Estabrook v. Conley, 42 Va. Cir. 512, 513 (Rockingham County 1997). However, a rule that denies application of the work product doctrine where there is not some minimal involvement of counsel seems not to recognize the practical reality that, at some point before retention of counsel, a defendant may be faced with an actual or potential claim, such that the defendant anticipates litigation and acts accordingly. Thus, it is well reasoned to approach the issue by evaluating why the requested documents were prepared to determine if the work product doctrine is relevant. Prince v. Ponderosa Steakhouse, 40 Va. Cir. 466, 470 (Albemarle County 1996); Ring v. Mikris, Inc., 40 Va. Cir. 528, 532-33 (Newport News 1996).")

Case Date Jurisdiction State Cite Checked
2004-01-01 State VA B 3/16
Comment:

key case


Chapter: 34.3
Case Name: Hanson v. United States Agency for Int'l Dev., 372 F.3d 286, 292-93 (4th Cir. 2004)
(explaining that under Exemption 5 of FOIA "[t]o be considered attorney work product, a document must have been 'prepared by an attorney in contemplation of litigation which sets forth the attorney's theory of the case and his litigation strategy.'. . . The attorney work product exemption includes factual information prepared by an attorney in anticipation of litigation." (citation omitted))

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal N 11/05

Chapter: 34.3
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 200 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "The work product doctrine not only applies to material prepared by a party's attorney, but also to material prepared by a party's representative, including that party's insurer. See Virginia Rule 4:1(b)(3) (2000).")

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

key case


Chapter: 34.3
Case Name: United States v. Ruhbayan, 201 F. Supp. 2d 682, 685 (E.D. Va. 2002)
("The work-product privilege protects the work an attorney does in anticipation of litigation. See, e.g., In re Grand Jury Proceedings, Thursday Special Grand Jury Sept. Term, 1991, 33 F.3d 342, 348 (4th Cir. 1994).")

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

Chapter: 34.3
Case Name: Thompson v. Winn Dixie Raleigh, Inc., 49 Va. Cir. 115, 116 (Va. Cir. Ct. 1999)
(addressing work product protection for statements prepared after an accident in a grocery store; ultimately concluding that the work product doctrine did not protect any statements taken before the defendant retained a lawyer; "Numerous courts have found that routine investigatory reports made and prepared without some minimal involvement of counsel are not protected by the work protect doctrine. See North and South Lines v. U.S. F. & G. Co., 46 Va. Cir. 294 (Rockingham 1998); Whetzel & McKee, 44 Va. Cir. 315 (Rockingham County 1998); Estabrook V. Conley, 42 Va. Cir. 512 (Rockingham 1997); Overton v. Dise, 35 Va. Cir. 177 (Fairfax 1994); Whitehead v. Harris-Teeter, Inc., 28 Va. Cir. 367 (Amherst 1992); Brugh v. Norfolk & W. Ry., 4 Va. Cir. 477 (Botetourt 1979); but see Whitehurst v. Lloyd, 37 Va. Cir. 224 (Loudoun 1995); Green v. Oakwood Mobile Homes, Inc., 37 Va. Cir. 137 (Essex 1995); McCullough v. Standard Pressing Machines Co., 39 Va. Cir. 191 (Fairfax 1996); Ring v. Mikris, Inc., 40 Va. Cir. 528 (Newport News 1996)."; "The Court is of opinion that statements taken prior to litigation are not taken in 'anticipation of litigation' pursuant to Rule 4:1(b)(3). Therefore, any statement taken prior to the date defense counsel was retained is discoverable.")

Case Date Jurisdiction State Cite Checked
1999-01-01 State VA

Chapter: 34.3
Case Name: Pipkin v. Pleasant Care, Inc., 43 Va. Cir. 443, 443-44 (Va. Cir. Ct. 1997)
("It appears to be undisputed that the 'statements' in question were done at the request of the superiors of the two people who gave them. The statements were prepared in response to a complaint made by a person identified as the decedent's daughter concerning the decedent's condition and a call from a family member of the decedent saying that Certified Nursing Assistant (CNA) Connie Davis did not know what she was doing. One statement was given on February 2, 1997, the day the decedent was transferred from Pleasant Care, Inc., to Chesapeake General Hospital, and the other was given the next day. There is no assertion that the statements were prepared in response to a request by the defendant's attorney or even its insurer."; declining to protect as work product statements made by employees after an incident)

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

Chapter: 34.3
Case Name: Larry Bartee v. CSX Transp., Inc., No. LX-2976-1, slip op. at 2 (Va. Cir. Ct. (Richmond City) June 21, 1995)
(explaining that "I am not aware that the work product rule at common law extends beyond attorneys. To the extent the rule incorporates other persons--consultants, insurers, agents, etc.--it seems to prevent only discovery of documents and tangible things developed by such persons in anticipation of litigation or for trial."; apparently holding that some deposition questions (such as those asking who was present during reenactments of an accident, whether there were photographs taken, etc.) could not "be reasonably said to be in anticipation of litigation" and therefore were not covered by the work product doctrine)

Case Date Jurisdiction State Cite Checked
1995-06-21 State VA B 3/16
Comment:

key case


Chapter: 34.3
Case Name: Economos v. K Mart Corp., 33 Va. Cir. 55, 55 (Va. Cir. Ct. 1993)
(analyzing work product protection for a post-accident incident report prepared by a retail store; ultimately finding that the incident report deserved work product protection, although the store's standard procedure required the report's preparation; "The fact that the incident report was prepared by a K Mart employee does not remove the document from the protection afforded by the rule.")

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

key case


Chapter: 34.3
Case Name: Potter v. Hazel, 17 Va. Cir. 408, 409 (Va. Cir. Ct. 1989)
("Nothing before the Court supports the conclusion that the documents were requested or guided by an attorney, and the mere possibility that litigation would arise is insufficient to bar discovery of the documents requested in this case.")

Case Date Jurisdiction State Cite Checked
1989-01-01 State VA

Chapter: 34.3
Case Name: Virginia Elec. & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D. 397, 402 (E.D. Va. 1975)
("It is elementary, of course, that in addition to the foregoing the work product of the lawyer must be presently a part of the work files of the lawyer to qualify for the protection of the rule.")

Case Date Jurisdiction State Cite Checked
1975-01-01 Federal VA

Chapter: 34.4
Case Name: Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016)
September 14, 2016 (PRIVILEGE POINT)

"Court Points to Several Factors in Denying Work Product Protection: Part I"

Although some courts seem to misunderstand this, Fed. R. Civ. P. 26(b)(3) on its face allows nonlawyers to create protected work product. But lawyers' involvement can buttress work product claims even in courts applying the rule as written.

In Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016), the court rejected Phoenix's work product claim for emails it generated over a seven-day period. Phoenix claimed that it created the documents because it anticipated litigation with defendant, rather than because of a business dispute that had not yet ripened into anticipated litigation. Phoenix argued that "its in-house counsel provided 'continual' legal advice and direction" about the dispute, but the court emphasized that Phoenix's lawyer's "declaration does not identify a single document for which she provided instruction, review or comment." Id. at *23, *26. The court noted that "[l]ack of attorney involvement in documents" can be an important indication that the documents did not deserve work product protection. Id. at *26. After reviewing the withheld documents in camera, the court concluded that "the documents at issue would have been drafted or circulated for a business purpose even if this lawsuit never came to pass." Id. at *28.

Although lawyers need not be involved in creating work product, their involvement supports the argument that the documents were motivated by anticipated litigation rather than created in the ordinary course of business. Next week's Privilege Point will discuss three other factors that doomed Phoenix's work product claim.

Case Date Jurisdiction State Cite Checked
2016-07-01 Federal CA B 9/16
Comment:

key case


Chapter: 34.4
Case Name: Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016)
September 21, 2016 (PRIVILEGE POINT)

"Court Points to Several Factors in Denying Work Product Protection: Part II"

Last week's Privilege Point described a court's rejection of a work product claim based, in part, on an in-house lawyer's lack of involvement in creating the withheld documents. Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016). The court also pointed to three other factors in denying Phoenix's work product claim.

First, two days before the date Phoenix claimed that it anticipated litigation, the company "was still internally referring to the dispute [with VMware] as employing the 'same process'" as used in another negotiation. Id. at *27. Second, one day later "Phoenix's Vice President of Sales communicated with VMware, seeking data and noting that VMware legal had agreed to 'move forward on resolving this licensing situation amicably.'" Id. Third, "Phoenix did not issue a litigation hold notice until February 17, 2015" — thirteen days after the company claimed it anticipated litigation. Id. The court pointed to these factors (and the lack of the in-house lawyers' involvement) as tending to show "that Phoenix did not reasonably anticipate that this matter would result in a lawsuit until after the date of the disputed documents." Id. at *27-28.

The Phoenix case provides several good lessons. Corporations anticipating litigation should (1) involve their lawyers, which tends to show that they were not acting in the ordinary course of business; (2) alert their business folks about the possible litigation, so that their internal communications do not undercut a later work product claim if the court reviews them in camera; and (3) quickly put a litigation hold in place. However, it seems wrong for courts to rely on external communications' laudable cordiality as evidence that the sender did not anticipate litigation.

Case Date Jurisdiction State Cite Checked
2016-07-01 Federal CA B 9/16
Comment:

key case


Chapter: 34.4
Case Name: Fieldwood Energy, L.L.C. v. Diamond Svcs. Corp., Civ. A. No. 14-650 Section "E" (3), 2015 U.S. Dist. LEXIS 39385 (E.D. La. March 27, 2015)
(holding that the privilege did not protect transcribed witness statements of an interview conducted by an adjuster; also finding that the work product did not apply because litigation was not imminent; "The information provided to the Court does not satisfy defendant's burden of demonstrating that the primary motivating purpose in securing the witness statements was in furtherance of a sufficiently identifiable resolve to litigate, rather than a more or less routine investigation of a possibly resolvable claim. . . . The only evidence before the Court is Halverson's self-serving statement that he took the statements in anticipation of litigation. . . . No attorney aided in the preparation of the documents. And there is no indication that litigation was imminent, and no evidence that defendant had already retained counsel for the purpose of the allision. Indeed, this Court has recognized on numerous occasions that corporations such as defendant routinely conduct investigations into accidents to prevent reoccurrences and improve safety procedures.")

Case Date Jurisdiction State Cite Checked
2015-03-27 Federal LA
Comment:

key case


Chapter: 34.4
Case Name: In re Fresh and Process Potatoes Antitrust Litigation, Case No. 4:10-md-2186-BLW-CWD, 4:13:cv-00251-BLW, 2015 U.S. Dist. LEXIS 33577 (D. Idaho March 17, 2015)
(analyzing privilege protection and the common interest doctrine in a trade association context; "Here, AWG challenges six of Mr. Wilson's [Jones Waldo lawyer] handwritten notes that reflect topics allegedly discussed with the Department of Justice and Defendants. After in camera review, the Court has determined that, from the face of these notes, it is evident none of the information contained within the handwritten notes was actually communicated with or to Defendants. The documents do not contain information shared between DOJ and Defendants. Rather, they all appear to be personal notes Mr. Wilson wrote to himself, or to the file. The documents are properly withheld as attorney work-product.")

Case Date Jurisdiction State Cite Checked
2015-03-17 Federal ID

Chapter: 34.4
Case Name: Largan Precision Co., Ltd. v. Genius Electronic Optical Co., Ltd., Case No. 13-cv-02502-JD, 2015 U.S. Dist. LEXIS 2072 (N.D. Cal. Jan. 8, 2015)
(in a patent case, finding that the absence of any lawyer involvement made it more difficult to claim work product; "[I]t is certainly true that a document need not be prepared personally by an attorney to qualify as work product. But attorney involvement -- or the lack thereof -- is far from irrelevant, as Genius [Defendant] suggests. The fact that the withheld documents do not involve any attorneys is a useful sign, in conjunction with other indicators, that they are not protected work product."; " [T]hat the involvement of attorneys should be considered as part of the 'anticipation of litigation' prong of the tests.")

Case Date Jurisdiction State Cite Checked
2015-01-08 Federal CA

Chapter: 34.5
Case Name: United States v. Farah, No. 06-4712, 2007 U.S. App. LEXIS 19310 (4th Cir. Aug. 14, 2007)
(acknowledging that the government can create work product)

Case Date Jurisdiction State Cite Checked
2007-08-14 Federal

Chapter: 34.6
Case Name: Booth v. Galveston Cty., Civ. A. No. 3:18-CV-00104, 2018 U.S. Dist. LEXIS 181063 (S.D. Tex. Oct. 10, 2018)
December 12, 2018 (PRIVILEGE POINT)

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

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

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

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

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

Chapter: 34.9
Case Name: Tucker Ellis LLP v. Superior Ct. of the City and County of San Francisco, A148956, 2017 Cal. App. LEXIS 571 (Cal. App. 3d June 21, 2017)
(analyzing ownership of work product prepared by a lawyer who worked with an expert, and then left the firm; explaining that the former firm received a subpoena and was able to produce the work product because the firm owned it; "In this writ proceeding, we are presented with a narrow question of law concerning the attorney work product privilege as codified in Code of Civil Procedure section 2018.030. Specifically, we are asked to determine, as between an employer law firm and a former attorney employee, who is the holder of the attorney work product privilege that attaches to documents created by the attorney employee during and in the scope of his employment? We conclude that under the circumstances of this case, the holder of the attorney work product privilege is the employer law firm, petitioner Tucker Ellis LLP (Tucker Ellis), and not the former attorney employee, real party in interest Evan C. Nelson (Nelson). As a corollary to our holding, we necessarily conclude that because Tucker Ellis is the holder of the attorney work product privilege, it had no legal duty to secure Nelson's permission before it disclosed to others documents he created during and in the scope of his employment. Because respondent court held to the contrary, finding that Tucker Ellis had a legal duty to take appropriate steps to ensure that the documents were not disclosed without Nelson's permission, we shall issue a peremptory writ of mandate directing respondent court to vacate its July 19, 2016, summary adjudication order, and enter a new order consistent with this decision."; "[A]n attorney can assert his work product privilege even though he is no longer in possession the document . . . and the contents of the documents may have been communicated to the client.")

Case Date Jurisdiction State Cite Checked
2017-06-21 State CA

Chapter: 34.9
Case Name: Patrick v. City of Chicago, No. 14 C 3658, 2015 U.S. Dist. LEXIS 85719 (N.D. Ill. July 1, 2015)
("To claim work product privilege, a number of cases have held that the party resisting production must be a party to the case. . . . Thus, the privilege set forth in Rule 26(b) is unavailable when a prosecutor in a prior criminal investigation later objects to discovery of her work product by a litigant in a related civil lawsuit. . . . Here, a number of the documents were created by ASA Stack, who is not a party to the instant case. Nor is her employer. Hence, there is a question as to whether the privilege is properly raised. But since it is not an issue that is pursued by the defendants, we ought not and do not consider it.")

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

Chapter: 34.9
Case Name: Sherwin-Williams Co. v. Motley Rice LLC, Case No. CV 09 689237, 2013 Ohio Misc. LEXIS 7, at *4 (Ohio Jan. 31, 2013)
(holding that the lead paint plaintiffs' law firm of Motley Rice must produce documents for in camera review, in response to defendant Sherwin-William's discovery of how Motley Rice obtained copies of Sherwin-Williams trade secrets; "The work product privilege, unlike the attorney-client privilege, belongs to the attorney and assures that counsel's private files shall remain free from intrusions by opposing counsel in the absence of special circumstances.")

Case Date Jurisdiction State Cite Checked
2013-01-31 State OH B 3/14

Chapter: 34.9
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 619 (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; "Immunity from production of work-product materials may be asserted by either the attorney or the client, and each can waive that immunity, but only as to herself, as both the attorney and the client benefit from the privilege.")

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

Chapter: 34.9
Case Name: Crosby v. Blue Cross Blue Shield of La., Civ. A. No. 08 0693 SECTION: "S" (4), 2012 U.S. Dist. LEXIS 159605, at *22 (E.D. La. Nov. 7, 2012)
("'Thus, a waiver by the client of the work product privilege will not deprive the attorney of his own work product privilege, and vice versa.'. . . Crosby's attorneys clearly remained free to assert the privilege after Crosby's 'waiver.'")

Case Date Jurisdiction State Cite Checked
2012-11-07 Federal LA B 5/13

Chapter: 34.9
Case Name: In re Grand Jury Subpoena, 463 F. Supp. 2d 573, 575 (W.D. Va. 2006)
("As a result, the grand jury has broad investigative powers, and the court may not interfere in the grand jury process without a 'compelling' reason. . . . A court can intervene, however, if a recognized privilege 'provides a legitimate ground for refusing to comply with a grand jury subpoena.' . . . In this context, constitutional, common law, and statutory privileges may be invoked. . . . the work product doctrine applies to both attorney and client, protecting the interest of the attorney in his own work product. In re: Grand Jury Proceedings # 5, 401 F.3d at 250.")

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

Chapter: 34.9
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 250 (4th Cir. 2005)
("Because the work product privilege protects not just the attorney-client relationship but the interests of attorneys to their own work product, . . . the attorney, as well as the client, hold the privilege.")

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

Chapter: 34.9
Case Name: United States v. Regan, 281 F. Supp. 2d 795, 803 (E.D. Va. 2002)
("'Opinion work product enjoys a nearly absolute immunity and can be discovered in very rare and extraordinary circumstances.' . . . . Protection of the attorney's work product may be asserted by either the client or the attorney. See In re Grand Jury Proceedings, 33 F.3d at 348.")

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

Chapter: 34.501
Case Name: Manitowoc Co., Inc. v. Kachmer, No. 14 C 09271, 2016 U.S. Dist. LEXIS 114553 (N.D. Ill. Aug. 26, 2016)
(analyzing privilege and work product protection for a spreadsheet created by a company's former employee, who the company has sued for taking confidential information; finding that the spreadsheet deserved work product protection, and that the defendant could not overcome the work product protection; "Manitowoc's limitation of the work product doctrine to attorneys only fatally undermines its position."; "Protection afforded by the work product doctrine extends to documents prepared by a party irrespective of the absence of counsel's involvement in the documents' generation. . . . Here, no doubt exists as to whether Reuther can meet this test. Reuther constructed the spreadsheet both at the specific instruction of counsel and in direct response to Manitowoc filing suit against him. . . . The Court's in camera review of the document's contents corroborates Reuther's briefing and attached deposition testimony.")

Case Date Jurisdiction State Cite Checked
2016-08-26 Federal IL

Chapter: 34.501
Case Name: Rush v. Sunrise Senior Living, Inc., No. CL-07-11322, 2008 Va. Cir. LEXIS 12, at *13-14 (Va. Cir. Ct. Feb. 12, 2008)
("Accordingly, the doctrine protects documents which are prepared by an attorney 'in anticipation of litigation' from discovery. See Va. Sup. Ct. R Rule 4:1(b)(3) (2007).")

Case Date Jurisdiction State Cite Checked
2008-02-12 State VA

Chapter: 34.501
Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 265 (E.D. Va. 2006)
(assessing the privilege and work product protection for a letter that a City Attorney sent to the City Council, the City Manager and other officials; finding that the letter was privileged, but that the City had waived the privilege because: the City Attorney sent the letter in an envelope that was not marked confidential or sealed; the City Attorney might have faxed the letter to a City Council Member's home where his family could have intercepted it; the City did not have a training program or guidelines on the handling and disposal of privileged documents; neither the City Attorney nor any of the recipients objected when one of the City Council Members revealed some of the letter's content at a City Council Meeting; nevertheless finding that the letter also deserved work product protection, which had not been waived; "As an entity, a municipal organization may invoke the privilege.")

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

Chapter: 34.501
Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 169 (Va. Cir. Ct. 2005)
(assessing the discoverability of an accident investigation report prepared by a railroad in connection with an accident in which plaintiff was injured; ultimately finding that the work product doctrine applied and could not be overcome; "The adoption of this rule 'settled the other major post-Hickman problem by unequivocally extending work product immunity to nonattorneys engaged in trial preparation.'" (citation omitted))

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

key case


Chapter: 34.502
Case Name: Booth v. Galveston Cty., Civ. A. No. 3:18-CV-00104, 2018 U.S. Dist. LEXIS 181063 (S.D. Tex. Oct. 10, 2018)
December 12, 2018 (PRIVILEGE POINT)

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

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

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

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

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

Chapter: 34.502
Case Name: Firefighters' Retirement System v. Citco Group Ltd., Civ. A. 13-373-SDD-EWD, 2018 U.S. Dist. LEXIS 79034 (M.D. La. May 10, 2018)
("With respect to the remaining documents identified on Plaintiffs' privilege log, although the undersigned agrees that generally, the Minutes themselves do not appear to be prepared in anticipation of this litigation, the court finds that Plaintiffs have established that the redacted portions themselves were in anticipation of litigation. With respect to the second necessary component for work product protection, i.e., whether the Minutes were prepared by Plaintiffs or Plaintiffs' representative, although it appears that the Minutes were compiled by the JOLs, the redacted portions are, based on Plaintiffs' counsel's representations, reflections of Plaintiffs' counsel's litigation strategy.")

Case Date Jurisdiction State Cite Checked
2018-05-10 Federal LA

Chapter: 34.502
Case Name: In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 05-MD-1720 (MKB), 2018 U.S. Dist. LEXIS 34113 (E.D.N.Y. Feb. 26, 2018)
(holding that a business person's documents deserved work product protection because they reflected communications with a lawyer; also finding that the opinion work product doctrine could protect opinions from a corporate employee, who counts as a party's "representative"; "Judge Orenstein did not err in finding that the documents reflect Mr. Fellman's opinion. There is no dispute that the Fellman Documents were authored by Mr. Fellman, a business executive employed by Bank of America. At his deposition, [TEXT REDACTED BY THE COURT]. . . . Bank of America asserts that there was 'back and forth' and 'give and take' but points to no specific portions of the documents that are likely to reveal mental impressions or thoughts of in-house or outside counsel."; "Judge Orenstein does not appear to have considered whether the fact that Mr. Fellman's opinion was that of a businessperson and an employee of Bank of America, rather than an attorney, was relevant in determining the level of work product protection to be afforded to the documents. . . . Because Rules 26 (b)(3)(A) and 26 (b)(3)(B) afford different levels of protection and each enumerate different authors to whom work product is attributed, the Court will review whether Judge Orenstein's determination that the opinion of Mr. Fellman was entitled to heightened work product protection is contrary to law."; "Bank of America contends that Judge Orenstein's ruling was correct because heightened protection is afforded to 'attorney and other representative' and Mr. Fellman qualifies as 'other representative.'. . . In support of this argument, Bank of America relies on cases from other Circuit Courts where heightened work product protection was afforded to non-attorneys to argue that Mr. Fellman's opinions are entitled to heightened work product protection."; "7-Eleven argues that as an employee of Bank of America, Mr. Fellman is not a 'representative' within the meaning of Rule 26 (b)(3), and instead is a party, whose work product is entitled to ordinary protection under Rule 26 (b)(3)(A)."; "The Court finds it instructive that Rule 26 (b)(3) subsections (A) and (B), grant different levels of protection, and list different sets of authors for the documents that are afforded protection -- subsection (A), ordinary protection, includes documents 'by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent),' and subsection (B), heightened protection, only includes documents by 'attorney or other representative.' Fed. R. Civ. P. 26 (b)(3) (emphasis added)."; "Although 7-Eleven is correct that none of the cases cited by Bank of America afforded heightened work product protection to non-attorney employees, 7-Eleven has not cited any Second Circuit or Supreme Court authority, and the Court has found none, ruling that company employees cannot be considered a 'representative' within the meaning of Rule 26 (b)(3) or that an employee can only be considered a 'party' within the meaning of Rule 26 (b)(3)(A). Therefore, although the Court may have rendered a different result, had it been conducting a de novo review of whether an employee is a representative within the meaning of Rule 26 (b)(3), in the absence of controlling Second Circuit authority stating otherwise, a magistrate judge's finding that an employee's opinion is afforded a heightened work product protection cannot be set aside as contrary to law.")

Case Date Jurisdiction State Cite Checked
2018-02-26 Federal NY
Comment:

key case


Chapter: 34.502
Case Name: Beltran v. InterExchange, Inc., Civ. A. No. 14-cv-03074-CMA-CBS, 2018 U.S. Dist. LEXIS 22564 (D. Colo. Feb. 12, 2018)
(holding that only a party can prepare protected work product; "Work product privilege does not protect the Alliance's documents because the documents -- handwritten notes taken at meetings between the Alliance's staff members and Defendants -- were not 'prepared in anticipation of litigation or for trial by or for [a] party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).' See Fed. R. Civ. P. 26(b)(3)(A) (emphasis added)."; "Defendants fail to meet their burden to show that the documents were prepared 'by or for [a] party or its representative.' Every entry in Defendants' privilege log invokes 'work product' but indicates that Lisa Hines, Ilir Zherka, or another 'Alliance staff' member was the author of each redacted document. . . . In short, the documents were created by the Alliance's non-legal staff, as the Magistrate Judge found as a matter of fact. . . . The Alliance and its staff members are not party to this action. Nor is the Alliance a representative of Defendants in this action.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal CO

Chapter: 34.502
Case Name: In re GM LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2018 U.S. Dist. LEXIS 14851 (S.D.N.Y. Jan. 29, 2018)
(holding that a plaintiff lawyer's questionnaire and prospective clients' responses did not deserve privilege protection, but that emails about the lawyer's advertisements deserved work product protection; "Lead Counsel argue that the E-mails [e-mails between Lead Counsel and TCA regarding the advertising campaign ('the 'E-mails'), which Lead Counsel contends are protected by the work-product doctrine] are protected by the work-product doctrine, which 'provides qualified protection for materials prepared by or at the behest of counsel in anticipation of litigation or for trial.'. . . New GM only half-heartedly argues otherwise . . . which is wise as the communications were created by Hagens Berman or TCA (at Hagens Berman's request) as part of counsel's efforts to find named plaintiffs 'in anticipation of litigation'. . . Instead, New GM's principal argument is that the protections of the doctrine were waived because there were ninety-four e-mails between TCA and Lead Counsel and TCA disclosed ninety of them to New GM in responding to an earlier subpoena (a response that was allegedly made '[i]n coordination with Lead Counsel'). . . . That may well be so, but it is ultimately beside the point because disclosure of some materials results in a subject matter waiver of 'related, protected' materials 'only in those 'unusual situations in which fairness requires a further disclosure . . . in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary.' In re Gen. Motors LLC Ignition Switch Litig., 80 F. Supp. 3d 521, 533 (S.D.N.Y. 2015) (quoting Fed. R. Evid. 502, Committee Notes). Here, there is no suggestion, let alone evidence, that the partial disclosure — which was made by a third party, not by Plaintiffs or Lead Counsel — was done selectively or strategically so that Plaintiffs might gain an unfair advantage over New GM. The Court therefore finds that TCA's earlier disclosure does not call for production of the remaining four E-mails.")

Case Date Jurisdiction State Cite Checked
2018-01-29 Federal NY
Comment:

key case


Chapter: 34.502
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("And entry 1572 is an email from a consultant that Koven hired to create a report on an entity's compliance with an existing co-promotion agreement. Koven states that the report and email constitute legal advice, because if the entity was not in compliance, Kos planned to commence litigation. . . . The email and the attached report were therefore prepared in anticipation of litigation, and even though they were prepared by a consultant, they were properly withheld as work product.")

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

Chapter: 34.502
Case Name: Bard v. Brown County, Case No. 1:15-cv-00643, 2017 U.S. Dist. LEXIS 114073 (S.D. Ohio July 21, 2017)
(holding that the work product doctrine was not limited to parties to litigation; explaining that a litigation consultant's opinion could be work product, even though the litigation consultant was also a fact witness; "The work product protection of Rule 26(b)(3) is not limited to attorneys but has been extended to documents and tangible things prepared by or for the party and the party's representative, as long as such documents were prepared in anticipation of litigation.")

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

Chapter: 34.502
Case Name: Tucker Ellis LLP v. Superior Ct. of the City and County of San Francisco, A148956, 2017 Cal. App. LEXIS 571 (Cal. App. 3d June 21, 2017)
(analyzing ownership of work product prepared by a lawyer who worked with an expert, and then left the firm; explaining that the former firm received a subpoena and was able to produce the work product because the firm owned it; "In this writ proceeding, we are presented with a narrow question of law concerning the attorney work product privilege as codified in Code of Civil Procedure section 2018.030. Specifically, we are asked to determine, as between an employer law firm and a former attorney employee, who is the holder of the attorney work product privilege that attaches to documents created by the attorney employee during and in the scope of his employment? We conclude that under the circumstances of this case, the holder of the attorney work product privilege is the employer law firm, petitioner Tucker Ellis LLP (Tucker Ellis), and not the former attorney employee, real party in interest Evan C. Nelson (Nelson). As a corollary to our holding, we necessarily conclude that because Tucker Ellis is the holder of the attorney work product privilege, it had no legal duty to secure Nelson's permission before it disclosed to others documents he created during and in the scope of his employment. Because respondent court held to the contrary, finding that Tucker Ellis had a legal duty to take appropriate steps to ensure that the documents were not disclosed without Nelson's permission, we shall issue a peremptory writ of mandate directing respondent court to vacate its July 19, 2016, summary adjudication order, and enter a new order consistent with this decision."; "[A]n attorney can assert his work product privilege even though he is no longer in possession the document . . . and the contents of the documents may have been communicated to the client.")

Case Date Jurisdiction State Cite Checked
2017-06-21 State CA

Chapter: 34.502
Case Name: Valley Force Ins. Co. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006-RLM-SLC, 2017 U.S. Dist. LEXIS 57370 (N.D. Ind. April 14, 2017)
(holding that the environmental consultant was outside privilege protection, but could create protected work product; "Hartford Iron claims that all of the withheld emails are protected by the attorney-client privilege, asserting that the emails were confidential communications, between its counsel and an agent hired by counsel, to aid counsel in providing legal advice to Hartford Iron. Valley Forge disagrees, contending that the primary purpose in retaining Keramida [Environmental contractor] and CH2M [Environmental contractor] was not to provide legal advice, but rather, to provide environmental remediation services -- that is, to design and construct a new stormwater control system."; "Here, although Dameron's [Plaintiff's counsel selected by plaintiff insurance company to represent Hartford Iron] firm initially retained Keramida and CH2M, 'retention or employment by the attorney alone is insufficient to bring the consultant within the scope of the attorney-client privilege.'"; "Keramida and CH2M -- like HydroTech and August Mack before them -- were hired to design, build, and install a stormwater remediation plan that would be acceptable to IDEM and the EPA. In doing so, they 'were not simply putting into usable form information obtained from the client.'. . . In fact, it is evident that the assistance rendered by Keramida and CH2M 'was based on factual and scientific evidence obtained through studies and observation of the physical condition of the [Hartford Iron] site, and not through client confidences.'"; "The provision of environmental consulting advice or services falls outside the attorney-client privilege, which is to be 'strictly confined within the narrowest possible limits.'"; "It is apparent that Dameron employed language at times in a deliberate effort to bring Keramida and CH2M within the privilege. . . . But labeling communications as 'privileged and confidential' or 'attorney-client work product' 'does not render the documents privileged when they contain no communication made or work done for the purpose of providing informed legal advice.'"; "In fact, at times, Dameron's role as defense counsel appeared to morph into that of an environmental consultant, most likely due to her extensive experience performing clean ups as an environmental consulting geologist prior to practicing law. . . . Ultimately, Dameron's initial retention of Keramida did not appear to be because she needed information translated into a useable form so that she could render legal advice; rather, Dameron quickly spotted problems with August Mack's stormwater collection system and urged Valley Forge and Hartford Iron to get a second opinion from another environmental contractor.")

Case Date Jurisdiction State Cite Checked
2017-04-14 Federal IN

Chapter: 34.502
Case Name: Valley Force Ins. Co. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006-RLM-SLC, 2017 U.S. Dist. LEXIS 57370 (N.D. Ind. April 14, 2017)
(holding that the environmental consultant was outside privilege protection, but could create protected work product; "Valley Forge's attempted parsing of Hartford Iron's environmental remediation efforts from its litigation purposes is unpersuasive. The record suggests that the threat of litigation with IDEM and the EPA 'was the motivating factor which moved [Hartford Iron] to complete the clean up of the [Hartford Iron] facility.'"; "In that regard, all of the emails with Keramida [Environmental contractor] and CH2M [Environmental contractor] were created after the parties became aware of the IDEM and EPA claims and after this lawsuit was filed."; "Having said that, the fact that the communications were prepared in the midst of litigation is not necessarily determinative, as the work-product privilege 'requires causation in the sense of the purpose or motivation for the creation of documents -- i.e., the intended use to which the documents were to be put -- not causation in the sense of a 'but for' sequence of events or influences.'"; "Accordingly, some categories of documents generally fall outside the scope of the work-product privilege. One example is mere transmittal communications."; "Another category of documents outside the scope of the work-product doctrine are communications dealing with merely administrative, logistical, or scheduling matters. . . . Here, as concluded infra, many of the emails reviewed in camera by the Court merely pertain to administrative, logistical, or scheduling matters, and thus, are not protected work product.")

Case Date Jurisdiction State Cite Checked
2017-04-14 Federal IN
Comment:

key case


Chapter: 34.502
Case Name: Goff v. United Rentals, Case No. 2:16-cv-608, 2017 U.S. Dist. LEXIS 46588 (E.D. Va. March 28, 2017)
(after an in camera review, concluding that documents held as work product were created in the ordinary course of business after a workplace injury; "Commonly referred to as the work product immunity doctrine, this protection belongs to the attorney and protects from disclosure documents that are prepared by or at the direction of an attorney in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2017-03-28 Federal VA

Chapter: 34.502
Case Name: In re Oxbow Carbon LLC Unitholder Litig., Consol. C.A. No. 12447-VCL, 2017 Del. Ch. LEXIS 43 (Ch. Ct. Del. March 13, 2017)
("Even '[m]aterials assembled during routine investigations by counsel are not protected as work product.' Bolstering the view that the materials are not protected, the only recipient of any of Elroy's communications was Karen Rowe, a human resources employee at Renegade Management, LLC, Koch's family office. Although each entry claims that the work was performed 'at the direction of Richard Callahan, Esq.,' Callahan was not a sender or recipient of a single communication that has been withheld. Moreover, Callahan is a member of the Company's Board and was appointed to that position by Koch Holdings. There is substantial reason to doubt that he was acting in a legal capacity. '[I]t is the rare case in which a company genuinely anticipating litigation will leave its attorneys on the outside looking in.'")

Case Date Jurisdiction State Cite Checked
2017-03-13 State DE
Comment:

key case


Chapter: 34.502
Case Name: Lobel v. Woodland Golf Club of Auburndale, Civ. A. No. 15-13803-FDS, 2016 U.S. Dist. LEXIS 177423 (D. Mass. Dec. 22, 2016)
("The language of Rule 26(b)(3) protects documents prepared 'by or for another party or its representative.' Fed.R.Civ.P. 26(b)(3) (emphasis added). Consequently, work product protection extends 'to documents and things prepared for litigation or trial by or for the adverse party itself or its agent.' 8 Charles Alan Wright et al., Federal Practice and Procedure § 2024 (3rd ed. 2016).")

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

Chapter: 34.502
Case Name: Obeid v. La Mack, 14 Civ. 6498 (LTS) (HBP), 2016 U.S. Dist. LEXIS 170826 (S.D.N.Y. Dec. 9, 2016)
("[D]ocument 5332 is a Promissory Note that was attached to an email from Schmidt [the "largest individual equity investor" in plaintiff's real estate projects] to plaintiff to help pay for the litigation, and so it is not work product.")

Case Date Jurisdiction State Cite Checked
2016-12-09 Federal NY

Chapter: 34.502
Case Name: Harrington v. Bergen City, A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727, at *11 (D.N.J. Sept. 13, 2016)
November 30, 2016 (PRIVILEGE POINT)

"Plaintiff's Live-In Boyfriend was Outside Privilege Protection, but Inside Work Product Protection: Part II"

Last week's Privilege Point described a court's acknowledgment that a mentally ill plaintiff's live-in boyfriend had provided "meaningful assistance" to the plaintiff in dealing with her lawyer, but was not "necessary or essential" for the plaintiff to obtain her lawyer's advice. Harrington v. Bergen Cty., A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727, at *11 (D.N.J. Sept. 13, 2016). This meant that communications in her boyfriend's presence were not privileged, and that any privileged communication later shared with her boyfriend lost privilege protection.

The court then turned to the work product analysis – and dealt with two related issues. First, the court correctly held that any work product that was "transmitted to or shared with" the boyfriend did not lose that separate protection. Id. at *15. As the court explained, "there is no indication of disclosure to adversaries," so work product protection remained. Id. Second, the court incorrectly held that "the work product doctrine does not protect documents, emails, or other items created by" the boyfriend – because "Plaintiff contends that [her boyfriend] served as her agent or representative, as opposed to" her lawyer's agent. Id. at *13, *15. It is impossible to square this conclusion with the work product rule itself – which on its face protects documents (motivated by litigation) created "'by or for another party or its representative.'" Id. at *7 (quoting Fed. R. Civ. P. 26(b)(3)(A)). The boyfriend's documents should have deserved work product protection either because (1) the documents were prepared "for" the plaintiff, or (2) "by" her "representative."

Lawyers and their clients should keep in mind the dramatic differences between the attorney-client privilege and the work product doctrine. In this case, the court correctly applied one privilege principle (under the majority approach) and one work product principle — but incorrectly applied another work product principle (which varied from the rule language itself). Perhaps the plaintiff can take solace in the words of Meatloaf's song: "Now don't be sad, cause two out of three ain't bad."

Case Date Jurisdiction State Cite Checked
2016-09-13 Federal NJ
Comment:

key case


Chapter: 34.502
Case Name: Harrington v. Bergen County, A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727 (D.N.J. Sept. 13, 2016)
(finding that plaintiff's roommate's presence during plaintiff's communications with her lawyer prevented privilege protection; also inexplicably finding that the roommate could not prepare protected work product; "The Court also finds that the work product doctrine does not protect documents, emails, or other items created by Martin [Plaintiff's friend and colleague with whom she resided]. . . . Defendants emphasize that Attorney 'Muller's Declaration does not assert that documents claimed to be protected by the work-product privilege were prepared at his direction in anticipation of litigation.'. . . The Court agrees, as while Plaintiff contends that the documents at issue 'were prepared by Martin at Muller's request for Muller's use in Plaintiff's Administrative matter[,]'. . . Plaintiff's assertion relies on Attorney Muller's statement that when he 'had questions, needed information, documents or clarification, [he] had to request such information from Martin.'. . . Muller's Declaration, even when read in conjunction with that of Plaintiff, only describes an arrangement of sorts, provides no further basis for a finding of the requisite 'direction' or agency relationship, and, again, Martin's mere assistance without, for example, a memorialized relationship or particularized duties, is insufficient to garner work product protection. This reasoning applies in equal force insofar as Plaintiff contends that Martin served as her agent or representative, as opposed to Attorney Muller's. Thus, the Court therefore finds that Plaintiff has not demonstrated that work product privilege protects the items prepared, created, or otherwise authored by Martin."; "As for the remaining disputed items for which Plaintiff claims work product privilege, i.e., those created or otherwise authored by Plaintiff or Attorney Muller and transmitted to or shared with Martin, the Court finds that the work product privilege protects against disclosure. The privilege applies because it is plain that the items at issue were prepared primarily for the ongoing administrative litigation, there is no indication of disclosure to adversaries, and Defendants have not demonstrated waiver.")

Case Date Jurisdiction State Cite Checked
2016-09-13 Federal NJ

Chapter: 34.502
Case Name: Harrington v. Bergen County, A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727 (D.N.J. Sept. 13, 2016)
(finding that plaintiff's roommate's presence during plaintiff's communications with her lawyer prevented privilege protection; also inexplicably finding that the roommate could not prepare protected work product; "The Court also finds that the work product doctrine does not protect documents, emails, or other items created by Martin [Plaintiff's friend and colleague with whom she resided]. . . . Defendants emphasize that Attorney 'Muller's Declaration does not assert that documents claimed to be protected by the work-product privilege were prepared at his direction in anticipation of litigation.'. . . The Court agrees, as while Plaintiff contends that the documents at issue 'were prepared by Martin at Muller's request for Muller's use in Plaintiff's Administrative matter[,]'. . . Plaintiff's assertion relies on Attorney Muller's statement that when he 'had questions, needed information, documents or clarification, [he] had to request such information from Martin.'. . . Muller's Declaration, even when read in conjunction with that of Plaintiff, only describes an arrangement of sorts, provides no further basis for a finding of the requisite 'direction' or agency relationship, and, again, Martin's mere assistance without, for example, a memorialized relationship or particularized duties, is insufficient to garner work product protection. This reasoning applies in equal force insofar as Plaintiff contends that Martin served as her agent or representative, as opposed to Attorney Muller's. Thus, the Court therefore finds that Plaintiff has not demonstrated that work product privilege protects the items prepared, created, or otherwise authored by Martin."; "As for the remaining disputed items for which Plaintiff claims work product privilege, i.e., those created or otherwise authored by Plaintiff or Attorney Muller and transmitted to or shared with Martin, the Court finds that the work product privilege protects against disclosure. The privilege applies because it is plain that the items at issue were prepared primarily for the ongoing administrative litigation, there is no indication of disclosure to adversaries, and Defendants have not demonstrated waiver.")

Case Date Jurisdiction State Cite Checked
2016-09-13 Federal NJ

Chapter: 34.502
Case Name: Rumble v. Fairview Health Services, Case No. 14-cv-2037 (SRN/FLN), 2016 U.S. Dist. LEXIS 115934 (D. Minn. Aug. 29, 2016)
(holding that the work product doctrine protected notes created by a nonlawyer, but that the plaintiff could overcome the notes and depose the note-taker; "Notes taken by an attorney, or an attorney's agent, during a witness interview often qualify as opinion work product because '[a]ttorney notes reveal an attorney's legal conclusions because, when taking notes, an attorney often focuses on those facts that she deems legally significant. In this way, attorney notes are akin to an attorney's determination as to which documents are important to a case . . . .". . . However, 'not every item which may reveal some inkling of a lawyer's mental impressions is protected as opinion work product. Opinion work product protection is warranted only if the selection or request reflects the attorney's focus in a meaningful way.'"; "A review of Nelson's Notes reveals that they consist entirely of ordinary work product. The Notes contain summaries of the questions asked by OCR and the interviewees' answers. They do not contain any of Nelson's mental impressions or suggest that Nelson considered some questions or answers significant for any particular reason. The mere fact that Nelson summarized the questions and answers, and only recorded some of the exchanges, does not make the Notes opinion work product because this does not reflect an 'attorney's focus in a meaningful way.'"; "To be opinion work product, the document in question must reveal an attorney's legal conclusions or mental impressions. . . . Nelson cannot remember whether an attorney instructed him to take notes and there is no indication he was told what he should take notes on. OCR 'set the direction' of the interviews when it selected the interviewees and what questions would be asked. Nelson was merely a passive observer during these interviews. His Notes summarize some of the questions asked and the answers given, but offer no mental impressions or legal conclusions. Afterwards, Nelson did not share his Notes with any attorney. Under these circumstances, the Notes consist entirely of ordinary work product.")

Case Date Jurisdiction State Cite Checked
2016-08-29 Federal MN

Chapter: 34.502
Case Name: Velsicol Chemical, LLC v. Westchester Fire Insurance Co., No. 15 C 2534, 2016 U.S. Dist. LEXIS 109736 (N.D. Ill. Aug. 18, 2016)
("'The Court raised concerns that documents prepared by a consultant retained by a party, as opposed to a consultant retained by counsel, may not be entitled to the same scope of work-product protection. However, case law supports Westchester's position that work-product protection can extend to communications with a consultant retained by a party if such consultation is in anticipation of litigation.'")

Case Date Jurisdiction State Cite Checked
2016-08-18 Federal IL

Chapter: 34.502
Case Name: In re International Oil Trading Company, LLC, Case No. 15-21596-EPK, Ch. 7, 2016 Bankr. LEXIS 1856 (S.D. Fla. April 28, 2016)
("Even if the 'primary purpose' test exists in the manner presented by IOTC USA, it is satisfied by the Burford Communications. The question is not the purpose of Burford's involvement in communications with Mr. Al-Saleh and his counsel. It does not matter that Burford's obvious purpose is to obtain a return on its investment, just as it does not matter that counsel's purpose typically is to earn a fee. Only Mr. Al-Saleh's purpose in communicating with Burford matters here. Mr. Al-Saleh is attempting to collect a debt owed by IOTC USA. To do so, Mr. Al-Saleh must continue to litigate with IOTC USA. This requires him to retain counsel and to pay that counsel. Mr. Al-Saleh determined that it was necessary or advantageous for him to seek assistance of Burford to enable him to fund his litigation efforts, meaning to pay his lawyers and other professionals. Each of these actions is a link in the same chain, leading to collection of the debt owed by IOTC USA.")

Case Date Jurisdiction State Cite Checked
2016-04-28 Federal FL

Chapter: 34.502
Case Name: United States v. Ocwen Loan Servicing, LLC, Case No. 4:12-CV-543, 2016 U.S. Dist. LEXIS 32967 (E.D. Tex. March 15, 2016)
(holding that communications with the litigation funder deserved work product protection, which the adversary cannot overcome; "The Court finds that the litigation funding information is protected by the work product doctrine. The litigation funding documents were between Fisher and actual or potential litigation funders and were used to possibly aid in future or ongoing litigation.")

Case Date Jurisdiction State Cite Checked
2016-03-15 Federal TX

Chapter: 34.502
Case Name: Obesity Research Institute, LLC v. Fiber Research International, LLC, Case No. 15-cv-0595-BAS-MDD, 2016 U.S. Dist. LEXIS 32605 (S.D. Cal. March 11, 2016)
(holding that the supplier product did not have a common legal interest with a litigant; "[I]t is clear that Mr. Salerno was tasked by Ms. Borts, in around November 2015, to have certain tests performed in connection with this litigation. . . . Ms. Borts works at Continuity Products, LLC which, pursuant to an agreement with Plaintiff, provides accounting, payroll, human resources, legal and marketing services to Plaintiff. Pursuant to that agreement, Ms. Borts serves as in-house counsel for Plaintiff. . . . Mr. Salerno, in turn, retained the services of ABC Laboratories. . . . The communications referenced in log entries 1-14, 73, and 76-79 are protected by the work product doctrine but only to the extent that disclosure would divulge the strategies and legal impressions of Ms. Borts.")

Case Date Jurisdiction State Cite Checked
2016-03-11 Federal CA

Chapter: 34.502
Case Name: Robinson v. Vineyard Vines, LLC, 15 Civ. 4972 (VB)(JCM), 2016 U.S. Dist. LEXIS 27948 (S.D.N.Y. March 4, 2016)
(holding that work product doctrine was prepared during a resources consulting group's investigation into a company employee's allegation that she was raped; noting that the defendant dropped an affirmative defense that arguably asserted a Faragher-Ellerth defense, and disclaimed relying on Faragher-Ellerth; "Here, HRCG is clearly a 'representative' of Vineyard Vines for the purposes of the work-product doctrine -- it was, at the very least, acting as Vineyard Vines' 'consultant' when it provided 'the full range of human resources services to Vineyard Vines . . . Including responding to employee issues that were brought to HRCG's attention by Vineyard Vines' managers or employees.'. . . I also find that the documents generated after HRCG received the January 9 Email were created 'in anticipation of litigation.' HRCG affirms that "as of January 9, 2013, the focus of the information-gathering by HRCG concerning [Plaintiff] shifted,' and it was HRCG's 'understanding at the time that the information that HRCG was gathering in response to the [January 9 Email] . . . Was to be provided to Vineyard Vines and/or its counsel for their use in defending against the [claims in the January 9 Email].'")

Case Date Jurisdiction State Cite Checked
2016-03-04 Federal NY

Chapter: 34.502
Case Name: In re International Oil Trading Co. 548 B.R. 825 (Bankr. S.D. Fla. 2016)
June 22, 2016 (PRIVILEGE PONT)

"Court Takes a Liberal View of Privilege for Communications Between a Plaintiff and a Litigation Funder"

With litigants' increasing reliance on litigation funders, courts have had to wrestle with privilege and work product issues, including whether litigants and their litigation funders share a "common interest" allowing the former to avoid a waiver when disclosing privileged communications to the latter, and whether litigation funders can create protected work product.

In In re International Oil Trading Co. 548 B.R. 825 (Bankr. S.D. Fla. 2016), the court held that the plaintiff and its litigation funder Burford Capital shared a sufficiently common legal interest, so that the plaintiff did not waive its privilege protection by disclosing privileged communications to Burford. And the court even went beyond that — finding that Burford was a protected client agent assisting the company "'in furtherance of the rendition of legal services,'" and therefore within the privilege on that separate ground. Id. At 834 (citation omitted). The court also held that Burford could create protected work product, concluding that "[i]t does not matter that Burford's obvious purpose is to obtain a return on its investment, just as it does not matter that counsel's purpose typically is to earn a fee." Id. At 836.

Not all courts share this liberal attitude toward privilege and work product protection in the context of litigation funders, but the trend seems to be in that direction.

Case Date Jurisdiction State Cite Checked
2016-01-01 Federal FL
Comment:

key case


Chapter: 34.502
Case Name: Nichol v. City of Springfield, No. 6:14-cv-1983-AA, 2015 U.S. Dist. LEXIS 169901 (D. Ore. Dec. 18, 2015)
(finding that plaintiff's friend could create protected work product even though the friend was not the plaintiff's "representative"; "Rule 26(b)(3) expanded on the rule announced in Hickman in at least one significant way -- by making clear work product protection could apply to materials prepared by non-lawyers."; "The plain meaning of this broad provision encompasses four categories of materials: those prepared (1) by a party; (2) by a party's representative. . . . The Umenhofer [Plaintiff's friend who had also been terminated by the police department and also filed a lawsuit against the same defendants] Documents fall into the third category, as it is undisputed Umenhofer prepared the materials for plaintiff, a party to this litigation."; "It is true courts generally have applied Rule 26(b) (3)'s protections to materials prepared by a non-lawyer where the non-lawyer either acted as a party's representative or acted under instructions from a party's representative. . . . The dearth of case law matching the precise fact pattern here, however, does not authorize the court to ignore the plain meaning of Rule 26(b)(3)."; "Even assuming a lack of attorney involvement in creating materials imposes a heightened burden on a party to prove they were prepared in anticipation of litigation, plaintiff has met that burden. It is undisputed Umenhofer drafted all the documents at issue to assist plaintiff with either the DPSST hearing or this lawsuit. Accordingly, the Umenhofer Documents qualify as work product under Rule 26(b)(3).").

Case Date Jurisdiction State Cite Checked
2015-12-18 Federal OR

Chapter: 34.502
Case Name: Edward Wisner Donation v. BP Exploration & Production, Inc., Civ. A. No. 14-1525, 2015 U.S. Dist. LEXIS 153846 (E.D. La. Nov. 13, 2015)
("The work product doctrine 'unquestionably' protects reports prepared by consulting experts in anticipation of litigation.").

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

Chapter: 34.502
Case Name: Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015)
(holding that the attorney-client did not protect communications between the plaintiff and his lawyer in which the plaintiff's father-in-law participated, but that disclosing work product to the father-in-law did not waive that protection, and that the father-in-law could create protected work product; "The protection also applies, however, to documents prepared 'for' a party or his representative. Id. The list of persons in Rule 26(b)(3)(A) -- attorney, consultant, surety, indemnitor, insurer, or agent -- defines 'representative,' and thus identifies the persons 'by or for' whom work product may be prepared. Id. It does not limit the persons who can prepare work product 'for' a party or its representative."; "The work product protection applies not only to emails written by Mr. Prussin [Plaintiff's father-in-law] to Plaintiff and his counsel, but also to emails written to Plaintiff alone, so long as they were written in anticipation of litigation."; "The Court concludes that emails written by Mr. Prussin satisfy the requirements for work product protection. They were written to a party in this litigation in anticipation of litigation."; "The Court also concludes that emails written by Plaintiff and his counsel in anticipation of litigation constitute work product, and that they retain this protection even though they were shared with Mr. Prussin. As many courts have recognized, unlike the more sensitive attorney-client privilege, waiver of work product protection does not occur simply because a document is shared with a third person."; "Mr. Prussin is closely allied with Plaintiff in this litigation. His interests are aligned with Plaintiff's. The Court cannot conclude that disclosure of work product to him substantially increased the opportunity for Defendants to obtain the information, or that it was otherwise inconsistent with the work product protection. The Court concludes, therefore, that the disclosure did not waive the protection.")

Case Date Jurisdiction State Cite Checked
2015-09-29 Federal AZ
Comment:

key case


Chapter: 34.502
Case Name: LifeVantage v. Domingo, Case No. 2:13-CV-01037-DB-PMW, 2015 U.S. Dist. LEXIS 131731 (D. Utah Sept. 29, 2015)
(LifeVantage v. Domingo, Case No. 2:13-CV-01037-DB-PMW, 2015 U.S. Dist. LEXIS 131731 (D. Utah Sept. 29, 2015) (finding that a public relations firm retained by a lawyer was not within privilege protection; also finding that the work product doctrine did not protect materials created by the public relations firm; "'[A]s a general matter[,] public relations advice, even if it bears on anticipated litigation, falls outside the ambit of protection of the so-called 'work product' doctrine.' McNamee [McNamee v. Clemens, No. 09 CV 1647, 2013 WL 6572899, *5 (E.D.N.Y., Sept. 18, 2013)], 2013 WL 6572899 at *3 (quoting Calvin Klein [Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53, 54-56 (S.D.N.Y. 2000)], 198 F.R.D. at 55).").

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

Chapter: 34.502
Case Name: Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015)
December 2, 2015 (PRIVILEGE POINT)

"Decision Highlights a Key Difference Between Attorney-Client Privilege and Work Product Doctrine Protection"

The attorney-client privilege provides absolute but fragile protection. In contrast, work product doctrine protection can be overcome — but offers more robust safety than the privilege. This distinction affects the impact of third parties' participation, and disclosure of protected communications or documents to third parties.

In Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015), the court dealt with plaintiff's communications with his lawyer — in the plaintiff's father-in-law's presence. The court found that the father-in-law's participation rendered the privilege unavailable — holding that the father-in-law "was not necessary to Plaintiff's communications with his counsel and [therefore] does not fall within the privilege." Id. at *6. In addressing the work product doctrine, the court applied the universal rule that "unlike the more sensitive attorney-client privilege, waiver of work product protection does not occur simply because a document is shared with a third person." Id. At *10. Because the father-in-law's "interests are aligned with Plaintiff's," disclosing work product to the father-in-law did not waive that separate protection. Id. At *11. In fact, the court concluded that the plaintiff's father-in-law could himself prepare protected work product under Fed. R. Civ. P. Rule 26(b)(3)(A) — which can cover documents prepared in anticipation of litigation "for" a party (such as the plaintiff). Id. At *7.

The attorney-client privilege and the work product doctrine apply in dramatically different ways in the context of friendly third parties — who are generally outside privilege protection but inside work product protection, and who, even themselves, can create protected work product. Corporate lawyers should remember these rules when considering their corporate clients' friendly third parties such as accountants, consultants, or other agents.

Case Date Jurisdiction State Cite Checked
2015-09-29 Federal AZ
Comment:

key case


Chapter: 34.502
Case Name: Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711, at *3, *4-5, *5-6, *6, *8, *9-10, *11 (D. Ariz. Sept. 29, 2015)
(holding that the attorney-client privilege protection did not cover communications between the plaintiff and his lawyer in the presence of the plaintiff's father-in-law, and that the plaintiff's disclosure of work product to the father-in-law did not waive that protection; also holding that the father-in-law could create protected work product; "Plaintiff's memorandum and the communications reviewed in camera make clear that Mr. Prussin is a friend of Plaintiff's, as well as his father-in-law, and an individual from whom Plaintiff seeks counsel. The submissions also make clear that Mr. Prussin did discuss litigation strategy with Plaintiff and his counsel. The Court cannot conclude, however, that this relationship brings Mr. Prussin within the attorney-client privilege."; "The court in Evans [United States v. Evans, 113 F.3d 1457 (7th Cir. 1997)] held that the presence of the defendant's friend, Holden, in communications with attorneys, resulted in waiver of the attorney-client privilege even though Holden was there to provide support and advice, to help locate a suitable criminal defense attorney, and was himself a lawyer."; "Plaintiff relies on Benedict v. Amaducci, No. 92-cv-05239-KMW, 1995 U.S. Dist. LEXIS 573, 1995 WL 23555 (S.D.N.Y. Jan. 20, 1995), in which a plaintiff informally retained a close friend with financial expertise to act as a financial advisor and assist in preparing plaintiff for litigation. 1995 U.S. Dist. LEXIS 573, [WL] at *1. The court found that the advisor became the functional equivalent of an independent contractor, and eventually entered into an oral agreement to receive compensation for his services. Id. The court held that the privilege protected only 'those communications involving [the advisor] when he was acting as plaintiffs' representative with respect to litigation, impending or pending.' 1995 U.S. Dist. LEXIS 573, [WL] at *2."; "Mr. Prussin is more like the friend of Evans than the friend in Benedict. The Court cannot conclude that Mr. Prussin acted as an independent contractor. Plaintiff has not identified any agreement that Mr. Prussin act in that capacity or be paid for his services. Mr. Prussin's actions were much like those of Holden in the Evans case -- a friend helping to arrange counsel, providing support, and participating in attorney-client communications. As in Evans, the Court concludes that Mr. Prussin was not necessary to Plaintiff's communications with his counsel and does not fall within the privilege."; "The work product protection applies not only to emails written by Mr. Prussin to Plaintiff and his counsel, but also to emails written to Plaintiff alone, so long as they were written in anticipation of litigation."; "The Court also concludes that emails written by Plaintiff and his counsel in anticipation of litigation constitute work product, and that they retain this protection even though they were shared with Mr. Prussin. As many courts have recognized, unlike the more sensitive attorney-client privilege, waiver of work product protection does not occur simply because a document is shared with a third person."; "Mr. Prussin is closely allied with Plaintiff in this litigation. His interests are aligned with Plaintiff's. The Court cannot conclude that disclosure of work product to him substantially increased the opportunity for Defendants to obtain the information, or that it was otherwise inconsistent with the work product protection. The Court concludes, therefore, that the disclosure did not waive the protection.")

Case Date Jurisdiction State Cite Checked
2015-09-29 Federal AZ
Comment:

key case


Chapter: 34.502
Case Name: Pemberton v. Republic Sers., Inc., 308 F.R.D. 195, 202 (E.D. Mo. 2015)
(holding a public relations consultant was not inside privilege protection, but was inside work product protection; "The Court finds, however, that the disputed documents and videos are protected by the work product doctrine. All the materials were created by a party and its attorney or an agent of the attorney, and would not have been prepared in substantially similar form but for the prospect of litigation. The Court's review of the documents shows that counsel, their clients, and Pelopidas ["non-party public relations company hired by Defendants' attorney"] worked closely together in discussing the information to be provided to the public, all with a view to the impact on future litigation. All of the materials in question were created in an effort to foster a public environment that was less likely to lead to further litigation involving the Landfill. As stated in Mr. Beck's amended declaration, defense counsel retained Pelopidas as a consultant 'to provide public relations advice related to the litigation already occurring and the litigation we believed was coming.'. . . As further stated by Ms. Merrigan, all the materials created by Pelopidas were 'created at the direction of counsel, in anticipation of litigation.'. . . Upon review of the materials, the Court is persuaded that this was indeed the case. The prospect of litigation was very real, as demonstrated by the quick proliferation of lawsuits against Defendants, beginning in 2013 and continuing to the present. Trying to address the media climate in which defense counsel was operating while attempting to provide information to the public was a legitimate activity, and within the scope of proper litigation strategy. Other courts have extended work product protection to public relations work in similar situations.")

Case Date Jurisdiction State Cite Checked
2015-06-23 Federal MO B 8/16
Comment:

key case


Chapter: 34.502
Case Name: Pemberton v. Republic Services, Inc., Case No. 4:14-cv-01421 AGF, 2015 U.S. Dist. LEXIS 81063 (E.D. Mo. June 23, 2015)
(holding that a public relations consultant was outside privilege protection but inside work product protection; "The Court finds, however, that the disputed documents and videos are protected by the work product doctrine. All the materials were created by a party and its attorney or an agent of the attorney, and would not have been prepared in substantially similar form but for the prospect of litigation. The Court's review of the documents shows that counsel, their clients, and Pelopidas worked closely together in discussing the information to be provided to the public, all with a view to the impact on future litigation. All of the materials in question were created in an effort to foster a public environment that was less likely to lead to further litigation involving the Landfill. . . . Upon review of the materials, the Court is persuaded that this was indeed the case. The prospect of litigation was very real, as demonstrated by the quick proliferation of lawsuits against Defendants, beginning in 2013 and continuing to the present. Trying to address the media climate in which defense counsel was operating while attempting to provide information to the public was a legitimate activity, and within the scope of proper litigation strategy. Other courts have extended work product protection to public relations work in similar situations.")

Case Date Jurisdiction State Cite Checked
2015-06-23 Federal MO
Comment:

key case


Chapter: 34.502
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; "'The memorandum was prepared by an attorney working for Andersen, not an accountant. The work product doctrine generally does not extend to accounting professionals.'")

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

Chapter: 34.502
Case Name: In re Baytown Nissan Inc. v. Gray, No. 01-14-00704-CV, 2014 Tex. App. LEXIS 12197 (Tex. Ct. App. Nov. 7, 2014)
(granting a writ of mandamus, and holding that the privilege did not protect communications between a lawyer for an automobile dealer and the general counsel of a dealer association; also finding that the association general counsel was not a "representative" of the dealer for work product purposes; "To the extent Baytown Nissan suggests that Phillips was its representative, we reject this argument for the same reason that an attorney-client privilege does not attach. The evidentiary record does not conclusively demonstrate an agreement that Phillips was to serve as either an attorney or any sort of representative acting on behalf of Baytown Nissan.")

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

Chapter: 34.502
Case Name: In the Matter of Bertucci Contracting Co., L.L.C., Civ. A. No. 12-664 C/W 12-697 C/W 12-1783 C/W 12-1912 C/W 12-1914, Ref. All Cases Section "J" (3), 2014 U.S. Dist. LEXIS 72986 (E.D. La. May 27, 2014)
(holding that some community meetings dealing with damage caused by demolition work deserved privilege protection, while some did not; "With regard to the meetings, the Court first notes that claimants do not assert any privilege with regard to the meeting at Stone's Bistro. Information as to that meeting is thus fully discoverable. And the Court also finds that when the meetings took place, the attendees, and the dates on which the attendees formally retained counsel are underlying facts that are completely discoverable. Claimants shall produce this information to PIL if they have not already done so. The contents of the meetings and any documents distributed at the December 2011 and April 2012 meetings at Phil's Marina Cafe is another matter with which this Court has struggled greatly."; "The evidence reveals that attorneys from Smith Stag attended the 2011 meeting at Phil's Marina Cafe at the request of clients. The e-mail sent by Shirley Wagner to affected neighbors informed them that the meeting was 'to discuss [their] rights under State and Federal law.' And Smith Stag sent invitations to the 2012 meeting to clients only. At the oral hearing, counsel informed the Court that Phil's Marina Cafe was closed to all but clients and potential clients. The Court can only find from this evidence that the affected neighbors attended the two meetings as clients and/or potential clients and for the purpose of seeking legal advice related to their rights under state and federal law. And simply because a non-attorney, counsel for claimants' expert, spoke at the meeting does not shatter the application of the privilege. It is well-established law that the work-product privilege applies to a representative of a party and not just its counsel. Fed. R. Civ. P. 26(b)(3)(A).")

Case Date Jurisdiction State Cite Checked
2014-05-27 Federal LA

Chapter: 34.502
Case Name: Clemmons v. Acad. for Educ. Dev., Civ. A. No. 10-cv-911 (RC), 2013 U.S. Dist. LEXIS 161586, at *3 (D.D.C. Nov. 13, 2013)
(analyzing work product protection for draft witness declarations; ultimately finding opinion work product protection that the adversary could not overcome; "Defendant AED argues that the materials are factual, were shared with a third-party witness that counsel does not represent, and are, thus, simply not protected by the work product doctrine. But, although the case law is not unanimous that such materials are covered by the work product doctrine, the more persuasive line of cases find [sic] that they are.")

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

Chapter: 34.502
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 92089, at *13-14 (S.D.N.Y. June 28, 2013)
(analyzing work product protection for materials created by a private investigator and communications with a public relations firm; "[T]here is not the slightest reason why communications between Chevron employees and PR firms cannot qualify at least as ordinary work product. If a document is prepared in anticipation of litigation, it qualifies. The questions that then matter are whether the document is responsive to a proper request and whether the showing necessary to overcome 'ordinary' work product protection has been made." (footnote omitted))

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

Chapter: 34.502
Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *11 (D. Mass. May 3, 2013)
(adopting a set of rules to govern privilege and work product determinations; ultimately concluding that disclosure to a public relations agency waived the attorney-client privilege but not the work product doctrine and that agency-created documents did not deserve work product protection; "Draft versions of a declaration submitted by Heather Goodman of the consulting firm Two Labs Marketing to the D.C. federal district court in support of Astellas's [defencant] lawsuit against the FDA, as well as communications between Goodman and Astellas or outside counsel regarding the content of and revisions to that declaration, are protected by the work-product doctrine.")

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

Chapter: 34.502
Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *10 (D. Mass. May 3, 2013)
(adopting a set of rules to govern privilege and work product determinations; ultimately concluding that disclosure to a public relations agency waived the attorney-client privilege but not the work product doctrine and that agency-created documents did not deserve work product protection; "Communications between either Astellas [defendant] or outside counsel and employees of public relations firms Hill & Knowlton and Fleishman-Hillard are neither privileged nor protected work product. Astellas has not shown that communications with either firm were necessary, or at least highly useful, for the rendering of legal advice. Cavallaro v. United States, 284 F.3d 236, 247 (1st Cir. 2002). Rather, it appears that both Hill & Knowlton and Fleishman-Hillard provided Astellas with standard public relations services related to the filing and outcome of the citizen petition and any subsequent business or media fallout. Moreover, even if the firms provided public relations advice or documents bearing upon potential litigation over the citizen petition, such materials fall outside the scope of work-product protection, which is intended 'to provide a zone of privacy for strategizing about the conduct of litigation itself, not for strategizing about the effects of the litigation on the client's customers, the media, or on the public generally.' Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53, 55 (S.D.N.Y. 2000).")

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

Chapter: 34.502
Case Name: SGD Eng'g Ltd. v. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186, at *25 (D. Ariz. Apr. 17, 2013)
("The second redacted e-mail in document 111 is a communication by one Lockheed employee to other Lockheed employees. As a communication between non-lawyer employees, the e-mail is not protected by the attorney-client privilege. See Bickler [Bickler v. Senior Lifestyle Corp., 266 F.R.D. 379 (D. Ariz. 2010)]. But the e-mail does qualify for work-product protection. The e-mail concerns responding to SGD's e-mail threatening litigation and is in furtherance of preparing a response or approach to SGD's litigation threat on which Lockheed's employees had requested Mr. Hennegan's legal advice.")

Case Date Jurisdiction State Cite Checked
2013-04-17 Federal AZ B 7/13

Chapter: 34.502
Case Name: Bryan Corp. v. Chemwerth, Inc., 296 F.R.D. 31, 38 (D. Mass. 2013)
(quoting successful affidavits supporting plaintiff's lawyer's contention that it needed the assistance of plaintiff's long-time FDA consultant in providing legal advice to plaintiff; "[T]he work product doctrine encompasses documents that are prepared in anticipation of litigation by a party's representative, including a party's consultant or agent. . . . Because Waldman [plaintiff's FDA consultant] was acting as Bryan's agent when the documents were created, its participation in the communications does not defeat application of the work product doctrine even though it was not represented by counsel. Moreover, Waldman's communications, made both in its capacity as Bryan's agent and in anticipation of litigation, are entitled to protection even in the absence of attorney involvement.")

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

Chapter: 34.502
Case Name: Carrion v. For Issuance of Subpoena under § 28 U.S.C. 0782(a) (In re Republic of Ecuador), 735 F.3d 1179, 1184, 1185 (10th Cir. 2013)
(holding that the testifying experts' materials are governed by the specific testifying expert rule rather than the general work product rule; "[A]gents of a party or its representative, who stand in the legal shoes of the party, are entitled to the same work-product protections as the party itself."; "Despite this focus on an attorney's mental impressions, courts applying the Hickman [Hickman v. Taylor, 329 U.S. 495 (1947)] doctrine struggled with whether the mental impressions of non-attorneys were also protected, particularly when litigants relied extensively on expert opinions. . . . Many federal courts held that materials produced by experts were protected under the work-product doctrine."; "In 1970, the Advisory Committee expressly rejected the holdings of these cases. The 1970 revised Rules were the first to incorporate a version of the Hickman work-product doctrine. The drafters noted that leaving the application of the doctrine to caselaw had grown troublesome given the 'confusion and disagreement as to the scope of the Hickman work-product doctrine, particularly whether it extends beyond work actually performed by lawyers.' Fed. R. Civ. P. 26(b)(3) (1970 Comments). By providing a rules-based work-product doctrine, the Advisory Committee expressly 'reject[ed] as ill-considered the decisions which have sought to bring expert information within the work-product doctrine.' Fed. R. Civ. P. 26(b)(4) (1970 Comments).")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal B 7/14

Chapter: 34.502
Case Name: Yorktowne Shopping Center, LLC v. Nat'l Surety Corp., Civ. A. No. 1:10cv1333, 2011 U.S. Dist. LEXIS 52032, at *3-4 (E.D. Va. May 16, 2011)
(in a first-party insurance case, finding that the work product doctrine protected the documents prepared under the direction of the insured's lawyer by a public adjuster retained by the insured; "Upon in camera review of these documents, the Court finds that work product protection applies (footnote omitted). First, each document in issue was created by or under the direction of Yorktowne's [insured] attorney, Mitchell Weitzman or Yorktowne's agent, Sill [public adjuster retained by Yorktowne]. Plaintiff hired Sill to maximize its coverage under the NSC policy, which required Sill and Yorktowne to work together with Attorney Weitzman, as representatives of Yorktowne. Reports and other analyses prepared by Sill were created to assist Mr. Weitzman in his representation of Yorktowne. Moreover, each communication identified on plaintiff's privilege log pertained to Mr. Weitzman's representation of Yorktowne, and included detailed legal analysis of Yorktowne's coverage objective. Also, plaintiff clearly anticipated imminent litigation between Yorktowne and Insurance Company if the claims were not settled amicably.")

Case Date Jurisdiction State Cite Checked
2011-05-16 Federal VA

Chapter: 34.502
Case Name: Fojtasek v. NCL (Bahamas) Ltd., Case No. 09-20581-CIV-UNGARO/SIMONTON, 2009 U.S. Dist. LEXIS 107478 (S.D. Fla. Nov. 6, 2009)
(holding that the work product doctrine protected a post-accident investigation after a cruise line passenger died in a zip line accident that was operated by an excursion company; also holding that the cruise line and the excursion had a common interest that allowed them to share the work product without waiving that protection (although inexplicably failing to explain that such a common interest is not necessary to avoid waiving work product in that situation; "In addition, it does not matter that the Report was prepared by an employee of Tabyana Tours rather than an employee of NCL [cruise line] because, based upon the Affidavit of Ms. Kilgour, the Tabyana Incident Report was prepared at the request of NCL and/or its legal counsel for NCL to use in anticipated litigation, and thus, in this factual scenario Tabyana Tours, prepared the Incident Report as an agent of NCL. . . . Thus, the report created by NCL's agent, Tabyana Tours, falls squarely into the scope of Rule 26(b)'s work protection and is not subject to disclosure.")

Case Date Jurisdiction State Cite Checked
2009-11-06 Federal FL
Comment:

key case


Chapter: 34.502
Case Name: DeHart v. Wal-Mart Stores, E., L.P., Case No. 4:05cv00061, 2006 U.S. Dist. LEXIS 599, at *1, *2-3, *3 (W.D. Va. Jan. 9, 2006)
(in a third-party insurance context, analyzing work product protection for what the court called a "a computer generated diary of the investigation of this incident by Claim Management, Inc., the adjusting company for defendant."; finding the work product doctrine applicable; "Upon review of the document, it appears that application of the work product doctrine is appropriate. The bulk of the entries on the document consist of communications with counsel for plaintiff regarding the claim, and the adjusting company's opinion and evaluation of the claim. As such, application of the work product doctrine appears appropriate."; also finding that plaintiff could not overcome the work product doctrine protection; noting that "defendant already had produced an incident report and witness statement, " and that "plaintiff may revisit the issue if statements by the plaintiff or Harry Wade [Wal-Mart employee] are not contained in that discovery")

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

Chapter: 34.502
Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 169-70 (Va. Cir. Ct. 2005)
(assessing the discoverability of an accident investigation report prepared by a railroad in connection with an accident in which plaintiff was injured; ultimately finding that the work product doctrine applied and could not be overcome; "The adoption of this rule 'settled the other major post-Hickman problem by unequivocally extending work product immunity to nonattorneys engaged in trial preparation.'")

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

Chapter: 34.502
Case Name: Green v. Sauder Mouldings, Inc., 223 F.R.D. 304, 306 (E.D. Va. 2004)
("A party may assert a work-product privilege if that party or its representative has created a particular document either in anticipation of litigation or for trial purposes.")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA

Chapter: 34.502
Case Name: Haugh v. Schroder Investment Management North Am. Inc., 02 Civ. 7955 (DLC), 2003 U.S. Dist. LEXIS 14586 (S.D.N.Y. Aug. 25, 2003)
(holding that a public relations consultant could not claim privilege protection for her documents but could claim work product protection; "This motion concerns the involvement of Laura J. Murray ('Murray'), a public relations consultant who is also a lawyer licensed to practice I n the state of Texas. Plaintiff's former counsel, Arkin Kaplan LLC ('Arkin'), retained Murray in September 2002, and sent Murray a formal retention letter on October 3, 2002. The retention letter states that Murray will 'provide us advice to assist us in providing legal services to Ms. Haugh.' The letter provided that Murray would look only to Haugh for payment. It included the following statement regarding confidentiality: 'You further understand that our communications with you are confidential and privileged.'"; "All of the documents submitted in conjunction with this motion are covered by the work product privilege, as they were all prepared by a party, her agent, attorney or consultant in anticipation of litigation. Defendants have articulated a substantial need only for documents that would tend to contradict Haugh's statement that her termination on May 9, 2002 came as a surprise.")

Case Date Jurisdiction State Cite Checked
2003-08-25 Federal NY

Chapter: 34.502
Case Name: In re S<3> Ltd., 252 B.R. 355, 363 (Bankr. E.D. Va. 2000)
("The Court could not locate any case law as to whom may be considered a party representative under the rule. The rule itself states that consultants, among others, are considered party representatives. In its Application to Employ Vander Schaaf, S<3> does not identify him as a 'consultant,' but rather asserts that he would be a non-testifying expert in the case engaged to assist counsel in preparation for trial. Regardless, the Court believes that, given Vander Schaaf's role in the litigation, he should be considered a consultant in his capacity of assisting the Debtor's counsel in evaluating the validity of the MANCON and S<3> claims. As a result, Vander Schaaf is a party representative for the purposes of Rule 26(b)(3).")

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

key case


Chapter: 34.502
Case Name: Larson v. McGuire, 42 Va. Cir. 40, 43 (Va. Cir. Ct. 1997)
(explaining that the work product doctrine "does not confine itself to the work product of the attorney but extends to others involved in the adversary process, including the party's 'consultant, surety, indemnitor, insurer, or agent.'" [Va. Sup. Ct. R. 4:1(b)(3)])

Case Date Jurisdiction State Cite Checked
1997-01-01 State VA B 12/09
Comment:

key case


Chapter: 34.502
Case Name: Covington v. Calvin, 40 Va. Cir. 489, 491 (Va. Cir. Ct. 1996)
(addressing work product protection for accident reconstruction documents prepared by a co-defendant's insurance company after a multi-car auto accident; ultimately finding that the accident reconstruction documents deserve work product protection; "[T]he same Rule that governs discovery of an attorney's work product also governs discovery of similar material prepared by a party's 'representative.'"; finding that the consultant who prepared the accident reconstruction report could create work product)

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA B 12/09

Chapter: 34.502
Case Name: Rickman v. Deere & Co., 154 F.R.D. 137, 138 (E.D. Va. 1993)
("The protection accorded by Rule 26(b)(3), however, applies only to documents prepared by a "party" or a party's "representative." In this case, [the insurance company] is not a "party." Nor, as the workers' compensation carrier of plaintiff's employer, is it the "representative" or "insurer" of plaintiff Rickman himself, "anymore than an insurance carrier of a person sued for negligence would be a 'representative' or 'insurer' of the injured party." (citing Bunting v. Gainsville Mach. Co., 53 F.R.D. 594, 595 (D. Del. 1971))), aff'd, 36 F.3d 1093 (4th Cir. 1994) (unpublished table decision)

Case Date Jurisdiction State Cite Checked
1993-01-01 Federal VA

Chapter: 34.502
Case Name: Carter v. Dwan, 9 Va. Cir. 109 (Va. Cir. Ct. 1987)
(holding that correspondence between a plaintiff and his medical malpractice carrier were protected work product because an insurer is specifically identified as a party's representative for purposes of the work product rule; "The language of Rule 4:1(b)(3) requires a showing by Plaintiff of a substantial need and that he is unable to obtain the substantial equivalent of the materials without undue hardship when the materials sought are 'in anticipation of litigation or for trial' by an attorney or other representative of the party. The term representative specifically includes the insurer."; finding that the work product doctrine protected communications between the defendant and the medical malpractice carrier)

Case Date Jurisdiction State Cite Checked
1987-01-01 State VA

Chapter: 34.503
Case Name: Jaffee Pension Plan v. Household Int'l, Inc., No. 02 C 5893 (N.D. Ill. Dec. 6, 2006)
(analyzing privilege and work product issues related to documents created by and communications with Ernst & Young ("E&Y") and Wilmer Hale during their internal investigation into defendant Household's alleged customer overcharges; concluding that: (1) E&Y's documents deserve privilege protection because it assisted Household's general counsel in providing legal advice, but that the Garner doctrine allowed access by the securities fraud plaintiff class shareholders; and deserved fact work product protection, but that plaintiffs could overcome that protection; (2) Wilmer Hale's documents deserved privilege protection because the firm represented Household although it was retained by an Audit Committee; and also deserved work product protection which plaintiffs could not overcome, and (3) Wilmer Hale did not waive the work product protection by disclosing facts, by disclosing its work product to Household's auditor KPMG, or by disclosing its work product to the SEC under a confidentiality agreement; explaining the court's conclusion that E&Y's documents deserved fact work product protection, which plaintiffs could overcome; "The fact that Household decided to conduct a more expansive review does not, however, contradict its assertion that it retained E&Y because of the prospect of litigation. The court is satisfied that Defendants have met their burden of showing that the E&Y documents constitute privileged work product."; "The court agrees that the E&Y documents constitute work product in that E&Y conducted its evaluation as an agent of Household's General Counsel's office. . . . The court is less certain that the documents constitute 'opinion' work product as contemplated by Rule 26, and finds that Household has not met its burden on this issue. As for the fact work product, the court believes that Plaintiffs have met their burden of overcoming the privilege. . . . Plaintiffs have demonstrated a substantial need for the E&Y information in that it may assist Plaintiffs in establishing falsity, scienter, and materiality. Plaintiffs do not have the underlying data E&Y utilized in preparing its report, and without this information, it is not clear that witness depositions would provide Plaintiffs with the substantial equivalent of the materials. Thus, Plaintiffs' motion to compel the E&Y materials is granted.")

Case Date Jurisdiction State Cite Checked
2206-12-06 Federal IL
Comment:

key case


Chapter: 34.503
Case Name: United States v. Snyder, Case No. 2:16-CR-160 JVB, 2018 U.S. Dist. LEXIS 166231 (N.D. Ind. Sept. 27, 2018)
("The work-product doctrine also protects the work prepared by the attorney's agents. 'As with the attorney-client privilege, documents that are not primarily legal in nature are not privileged under the work product doctrine.'")

Case Date Jurisdiction State Cite Checked
2018-09-27 Federal IN
Comment:

Key Case


Chapter: 34.503
Case Name: Chartwell Therapeautics Licensing LLC v. Citron Pharma LLC,16 CV 3181 (MKB) (CLP), 2018 U.S. Dist. LEXIS 119210, at *3 (E.D.N.Y. July 17, 2018)
September 26, 2018 (PRIVILEGE POINT)

Court Holds That an Accountant Was Inside Privilege Protection

Most courts reject privilege protection for communications to or from client agent/consultants such as accountants. And many courts reach the same conclusion about accountants that are retained by lawyers – unless the lawyers can prove that the accountants assisted them in providing legal advice.

Every now and then, a court takes a refreshingly broad view of privilege protection in those circumstances. In Chartwell Therapeautics Licensing LLC v. Citron Pharma LLC, the court held that an accountant retained by a law firm deserved privilege protection – noting that "when [the client] contacted [the law firm] to seek legal advice in connection with its dispute with [the defendant] in or around June 2015, [the law firm] had already retained [the accountant] to assist [law firm] and [client] in connection with another litigation." No. 16 CV 3181 (MKB) (CLP), 2018 U.S. Dist. LEXIS 119210, at *3 (E.D.N.Y. July 17, 2018). The law firm then "expanded the scope of the retainer" to assist in the new litigation. Id. After reading samples of withheld documents, the court upheld plaintiff's privilege and work product claims, explaining that "[i]n light of the complex factual and numerical issues presented by this case, it is eminently reasonable for counsel to rely extensively on the services of an accountant to assist the lawyer in rendering legal advice." Id. at *8.

The law firm's earlier retention of the accountant undoubtedly helped. But perhaps most importantly, the withheld documents apparently satisfied the court that the accountant had assisted the lawyers in giving legal advice rather than providing his or her own parallel accounting advice. Corporations and their lawyers must keep these factors in mind when seeking to maximize privilege and work product protection.

Case Date Jurisdiction State Cite Checked
2018-07-17 Federal

Chapter: 34.503
Case Name: Blattman v. Scaramellino, No. 17-1589, 2018 U.S. App. LEXIS 14252 (1st Cir. App. May 17, 2018)
("Depending on the circumstances, a document can contain attorney work product, and thus fall within the protection, even though a person other than an attorney, such as the attorney's client or agent, drafts the document.")

Case Date Jurisdiction State Cite Checked
2018-05-17 Federal

Chapter: 34.503
Case Name: Lassiter v. Hidalgo Medical Services, No. 17-cv-0850 JCH/SMV, 2018 U.S. Dist. LEXIS 64972 (D.N.M. April 18, 2018)
(analyzing work product protection for defendant's investigation into sexual harassment claims; "The contents of the Maynes [Lawyer who acted as an investigator rather than a legal advisor] reports that Plaintiff seeks, i.e. the factual summaries of the information she learned in the course of her investigations, are fact work product. Defendant has established that the reports are documents prepared by a representative of Defendant in anticipation of litigation. Thus, the reports are discoverable only if (1) Plaintiff shows a substantial need for the materials and an inability to obtain their equivalent through other means absent undue hardship, or (2) Defendant waived the protection.")

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

Chapter: 34.503
Case Name: Lassiter v. Hidalgo Medical Services, No. 17-cv-0850 JCH/SMV, 2018 U.S. Dist. LEXIS 64972 (D.N.M. April 18, 2018)
(analyzing work product protection for defendant's investigation into sexual harassment claims; "Plaintiff argues that the summaries are not protected by the work product doctrine (or attorney-client privilege) because Defendant never retained Ms. Maynes [Lawyer who acted as an investigator rather than a legal advisor] as an attorney, a fact that Defendant admitted in a related state court case. . . . Therefore, Plaintiff argues, '[n]othing more is required' to find in her favor on this dispute. . . . Plaintiff is mistaken. The work product doctrine explicitly applies to the party's 'attorney' or 'consultant,' among others. Though she was not retained as litigation counsel for HMS, Ms. Maynes was, at the very least, a hired investigator to whom the protections of the work product doctrine extend by the clear language of Rule 26(b)(3)(A).")

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

Chapter: 34.503
Case Name: Matter of Peerenboom v. Marvel Entertainment, LLC, 6232N, 162152/15, 2018 N.Y. App. Div. LEXIS 2364 (N.Y. Sup. Ct. April 5, 2018)
(holding that a litigation-related legal bill deserved work product protection; also holding that documents created by an investigation firm deserved work product protection; "Perlmutter also has demonstrated that certain documents concerning an investigation undertaken by Kroll Advisory Solutions are entitled to the qualified protection provided by CPLR 3101(d)(2) for materials prepared in anticipation of litigation. The record shows that Kroll was hired by Perlmutter's attorney to conduct an investigation in connection with the pending Florida action, which includes claims of defamation broadly implicating petitioner's reputation. Petitioner has not asserted that the investigation firm was retained for other purposes.")

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

Chapter: 34.503
Case Name: Center for Individual Rights v. Chevaldina, Case No. 16-20905-Civ.KING/TORRES, 2017 U.S. Dist. LEXIS 195871 (S.D. Fla. Nov. 29, 2017)
("'The work product doctrine is distinct from and broader than the attorney-client privilege, and it protects materials prepared by the attorney, whether or not disclosed to the client, as well as materials prepared by agents for the attorney.")

Case Date Jurisdiction State Cite Checked
2017-11-29 Federal FL

Chapter: 34.503
Case Name: In re Premera Blue Cross Customer Data Sec. Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762, at *16 (D. Or. Oct. 27, 2017)
February 7, 2018 (PRIVILEGE POINT)

"Public Relations Consultants Are Nearly Always Outside Privilege Protection"

In an important data breach investigation case discussed in a previous Privilege Point, the court held that the privilege did not protect communications between Premera and its public relations firm, because "drafting press releases relating to a security breach is a business function," and "[h]aving outside counsel hire a public relations firm is insufficient to cloak that business function with the attorney-client privilege." In re Premera Blue Cross Customer Data Sec. Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762, at *16 (D. Or. Oct. 27, 2017).

A few weeks later, another court reached the same conclusion about a public relations firm hired by famed lawyer Mark Geragos, who was representing the singer Kesha in high-profile litigation. Gottwald v. Sebert, 63 N.Y.S.3d 818 (N.Y. Sup. Ct. 2017). After reviewing communications between the public relations firm and Kesha's lawyers, the court concluded that Geragos and the other lawyers disclosed privileged communications to the PR consultant "primarily for the purpose of advancing a public relations strategy – and not for the purpose of developing or furthering a legal strategy." Id. at 826. Thus, "most of the legal advice discussed with [the public relations firm] lost the protection of the attorney-client privilege." Id. The court inexplicably failed to address the availability of work product protection for some disclosed documents, which normally would survive disclosure to a friendly third party such as a public relations consultant.

Public relations firms often play a critical role in high-profile media-covered litigation. While most courts would hold that disclosing work product to such consultants would not forfeit that protection, lawyers should remember that disclosing pre-litigation purely privileged communications normally will waive that more fragile protection.

Case Date Jurisdiction State Cite Checked
2017-10-27 Federal OR
Comment:

key case


Chapter: 34.503
Case Name: R.D. v. Shohola Camp Ground and Resort, Civ. No. 3:16-CV-1056, 2017 U.S. Dist. LEXIS 165733 (M.D. Pa. Oct. 6, 2017)
(holding that the plaintiff could inquire about defendant's investigator's initiation of communications with witnesses, but could not ask about the investigator's specific questions; "[I]t is not disputed that Trobe is an agent of counsel for the defendant, and therefore any fact work product he created in anticipation of the current litigation is protected. However, the plaintiff contends that the information sought from Trobe 'does not fall within the boundaries of attorney work-product doctrine,' since the plaintiff is seeking to explore the content of Trobe's communications to third parties. . . . the plaintiff asserts that he only wishes to determine the facts surrounding Trobe's conduct and communications with third party witnesses, and does not seek any information regarding defense counsel's mental impressions or legal strategy."; "We emphatically do not make any findings of any inappropriate conduct in this matter, but conclude that the plaintiff has made a sufficient showing to entitle the plaintiff to undertake a narrow line of questioning specifically designed to determine whether Trobe engaged in inappropriate conduct or coercion of the non-party witnesses, which does not run afoul of the work-product doctrine."; "Given the broad scope of discovery espoused in Rule 26, the court concludes that the plaintiff should be permitted to depose Trobe on the narrow issue of his alleged attempts to influence the non-party witnesses' testimony. . . . However, the court reminds both parties that Trobe 'is not required to supply counsel's view of the case, identify the facts which counsel considers significant, or the specific questions asked by [Trobe] during the investigation . . . as this type of information would fall under the category of mental impressions which are protected under Rule 26(b)(3).'")

Case Date Jurisdiction State Cite Checked
2017-10-06 Federal PA
Comment:

key case


Chapter: 34.503
Case Name: Carlin v. Dairy America, Inc., Case No. 1:09-cv-00430-AWI-EPG, 2017 U.S. Dist. LEXIS 144231 (E.D. Cal. Sept. 6, 2017)
(holding that documents relating to a plaintiff's interview of defendant's former employees deserve work product protection; "The work product doctrine applies not only to documents prepared by an attorney, but to documents created by investigators or agents working for attorneys in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2017-09-06 Federal CA

Chapter: 34.503
Case Name: Hobart Corp. v. Dayton Power & Light Co., Case No. 3:13-cv-115, 2017 U.S. Dist. LEXIS 136682 (S.D. Ohio Aug. 24, 2017)
October 18, 2017 (PRIVILEGE POINT)

"Courts Use Rule Language and Common Sense to Expand Work Product Protection: Part I"

Unlike the common law-dominated attorney-client privilege which developed organically in each state, work product protection comes from court rules. One might think that this would simplify courts' application of that protection, but it does not. Courts taking an expansive view sometimes rely on little-noticed rule language and sometimes essentially ignore rule language.

In Hobart Corp. v. Dayton Power & Light Co., Case No. 3:13-cv-115, 2017 U.S. Dist. LEXIS 136682 (S.D. Ohio Aug. 24, 2017), the court extended the heightened opinion work product protection to a paralegal's witness interview notes. This correctly applied the opinion work product provision of Fed. R. Civ. P. 26(b)(3)(B) – which flatly indicates that courts "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation" (emphases added). On its face, the rule thus provides such heightened protection to the opinions of nonlawyer client representatives such as paralegals, accountants, consultants, etc.

Although the work product rule broadly defines opinion work product protection, courts disagree about that protection's strength. Some courts absolutely protect such opinion work product, while some provide only a somewhat higher level of protection than they give fact work product. Next week's Privilege Point will discuss another court's expansive work product doctrine interpretation – which ignored rather than relied on Rule 26's language.

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

key case


Chapter: 34.503
Case Name: U.S. Home Corp. v. Settlers Crossing, L.L.C., No. 15-1254, 2017 U.S. App. 6272 (4th Cir. App. April 12, 2017)
(holding that an unlicensed lawyer could not engage in privileged communications in the lawyer role, but could create protected work product; "Lennar claimed that Steven Engel was its attorney, and that documents and communications with Engel were entitled to the attorney-client privilege. However, Engel was not licensed to practice law. The district court therefore sanctioned Lennar, and ordered it to turn over Engel documents and communications wrongfully withheld under the attorney-client privilege but allowed it to continue to withhold documents under the work-product doctrine if it submitted such documents for in camera review.")

Case Date Jurisdiction State Cite Checked
2017-04-12 Federal

Chapter: 34.503
Case Name: Blake v. Harvest New England, LLC, HHDCV166065384S, 2017 Conn. Super. LEXIS 535 (Conn. Super. Ct. March 17, 2017)
(holding that a corporate parent's in-house lawyer also represented the parent's wholly-owned subsidiary; also holding that a lawyer with the title of Vice President of Government and Regulatory Affairs can create protected work product; "The plaintiff argues that Davis [] is not claimed to have had any attorney-client relationship with Harvest New England, LLC because he is employed as Vice President of Government and Regulatory Affairs for Harvest Power, Inc. Similar to Vittiglio, there is no reason why Davis could not or did not act in a professional legal capacity for the subsidiary in his investigation of potential liabilities to which the subsidiary, and consequentially the parent company, is exposed. Moreover, Davis' title as vice president of government and regulatory affairs does not foreclose his acting in a professional legal capacity in some other field of law. The court finds that the interview notes are the result of an attorney's activities when those activities have been conducted with a view to pending or anticipated litigation and are thus protected from discovery. . . . A review of the interview notes demonstrates that they are the type of product of an attorney's work that is particularly likely to reflect and reveal the attorney's impressions, areas of strategic interest and theories of a case. For these reasons the court finds that they are protected from disclosure.")

Case Date Jurisdiction State Cite Checked
2017-03-17 Federal CT

Chapter: 34.503
Case Name: United States v. Acquest Transit LLC, 09-CV-555(F), 2017 U.S. Dist. LEXIS 24080 (W.D.N.Y. Feb. 21, 2017)
("Nor is there any merit in Defendants' contention that documents not prepared by agency counsel, or at the specific direction of agency counsel, but rather prepared by agency non-attorney staff such as investigators fall outside work-product protection. Where such staff are supervised by or acting at the direction of agency counsel, the relevant documents if prepared because of anticipated litigation are nonetheless protected.")

Case Date Jurisdiction State Cite Checked
2017-02-21 Federal NY

Chapter: 34.503
Case Name:


Case Date Jurisdiction State Cite Checked
2017-01-31 Federal TX

Chapter: 34.503
Case Name: In re Fairway Methanol LLC and Celanese Ltd., No. 14-16-00884-CV, 2017 Tex. App. LEXIS 830 (Tex. App. 14d Jan. 31, 2017)
("The work product privilege extends both to documents actually created by the attorney and to memoranda, reports, notes, or summaries prepared by other individuals for the attorney's use.")

Case Date Jurisdiction State Cite Checked
2017-01-31 Federal TX

Chapter: 34.503
Case Name: Gottwald v. Sebert, 63 N.Y.S.3d 818 (N.Y. Sup. Ct. 2017)
February 7, 2018 (PRIVILEGE POINT)

"Public Relations Consultants Are Nearly Always Outside Privilege Protection"

In an important data breach investigation case discussed in a previous Privilege Point, the court held that the privilege did not protect communications between Premera and its public relations firm, because "drafting press releases relating to a security breach is a business function," and "[h]aving outside counsel hire a public relations firm is insufficient to cloak that business function with the attorney-client privilege." In re Premera Blue Cross Customer Data Sec. Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762, at *16 (D. Or. Oct. 27, 2017).

A few weeks later, another court reached the same conclusion about a public relations firm hired by famed lawyer Mark Geragos, who was representing the singer Kesha in high-profile litigation. Gottwald v. Sebert, 63 N.Y.S.3d 818 (N.Y. Sup. Ct. 2017). After reviewing communications between the public relations firm and Kesha's lawyers, the court concluded that Geragos and the other lawyers disclosed privileged communications to the PR consultant "primarily for the purpose of advancing a public relations strategy – and not for the purpose of developing or furthering a legal strategy." Id. at 826. Thus, "most of the legal advice discussed with [the public relations firm] lost the protection of the attorney-client privilege." Id. The court inexplicably failed to address the availability of work product protection for some disclosed documents, which normally would survive disclosure to a friendly third party such as a public relations consultant.

Public relations firms often play a critical role in high-profile media-covered litigation. While most courts would hold that disclosing work product to such consultants would not forfeit that protection, lawyers should remember that disclosing pre-litigation purely privileged communications normally will waive that more fragile protection.

Case Date Jurisdiction State Cite Checked
2017-01-01 Federal NY
Comment:

key case


Chapter: 34.503
Case Name: Rumble v. Fairview Health Services, Case No. 14-cv-2037 (SRN/FLN), 2016 U.S. Dist. LEXIS 115934 (D. Minn. Aug. 29, 2016)
(holding that the work product doctrine protected notes created by a nonlawyer, but that the plaintiff could overcome the notes and depose the note-taker; "Notes taken by an attorney, or an attorney's agent, during a witness interview often qualify as opinion work product because '[a]ttorney notes reveal an attorney's legal conclusions because, when taking notes, an attorney often focuses on those facts that she deems legally significant. In this way, attorney notes are akin to an attorney's determination as to which documents are important to a case . . . .". . . However, 'not every item which may reveal some inkling of a lawyer's mental impressions is protected as opinion work product. Opinion work product protection is warranted only if the selection or request reflects the attorney's focus in a meaningful way.'"; "A review of Nelson's Notes reveals that they consist entirely of ordinary work product. The Notes contain summaries of the questions asked by OCR and the interviewees' answers. They do not contain any of Nelson's mental impressions or suggest that Nelson considered some questions or answers significant for any particular reason. The mere fact that Nelson summarized the questions and answers, and only recorded some of the exchanges, does not make the Notes opinion work product because this does not reflect an 'attorney's focus in a meaningful way.'"; "To be opinion work product, the document in question must reveal an attorney's legal conclusions or mental impressions. . . . Nelson cannot remember whether an attorney instructed him to take notes and there is no indication he was told what he should take notes on. OCR 'set the direction' of the interviews when it selected the interviewees and what questions would be asked. Nelson was merely a passive observer during these interviews. His Notes summarize some of the questions asked and the answers given, but offer no mental impressions or legal conclusions. Afterwards, Nelson did not share his Notes with any attorney. Under these circumstances, the Notes consist entirely of ordinary work product.")

Case Date Jurisdiction State Cite Checked
2016-08-29 Federal MN

Chapter: 34.503
Case Name: Ellis v. City of Milwaukee, Case No. 14-C-0506, 2016 U.S. Dist. LEXIS 77189 (E.D. Wis. June 14, 2016)
(the work product protected during an interview prepared at the plaintiff's lawyer's request; holding that the defendant could not overcome the work product protection; "In moving to compel production of the diagram, the defendants first contend that the diagram is not protected by the work-product doctrine because the diagram is a 'purely factual document[] created wholly by a third-party witness.'. . . I disagree. Johnikin prepared the diagram at the request of the plaintiff's counsel during an interview that counsel conducted in anticipation of the present litigation. The diagram thus satisfies the three elements of the work-product doctrine: it is (1) a document or tangible thing, (2) prepared in anticipation of litigation or for trial, (3) by or for the opposing party or her attorney. The diagram would satisfy these elements, and thus be protected by the work-product doctrine, regardless of whether the plaintiff's attorney herself wrote on the diagram. Indeed, because Johnikin prepared the diagram in response to the attorney's questions, it may be possible to draw inferences about the attorney's thought processes from the diagram, even though the attorney herself did not write on the diagram.'. . . Here, however, the plaintiff's attorney herself wrote on the drawing and labeled parts of it, which increases the degree to which the diagram discloses the attorney's thought processes.")

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

Chapter: 34.503
Case Name: Hausman v. Holland America Line-U.S.A., Case No. 2:13-cv-00937-BJR, 2015 U.S. Dist. LEXIS 165179 (W.D. Wash. Dec. 9, 2015)
(holding that a paralegal's witness interview notes deserved opinion work product protection; "[E]ven if Ms. Mizeur's [Plaintiff's former employee, who had been interviewed by defendant's paralegal] prior statement was germane to the Motion to Vacate, Ms. Roberts' [Paralegal] written notes from Ms. Mizeur's pre-trial interview would constitute the exact type of opinion work-product that the Supreme Court has cautioned must be zealously protected.").

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

Chapter: 34.503
Case Name: Nester v. Textron, Inc., Cause No. A-13-CA-920-LY, 2015 U.S. Dist. LEXIS 28182 (W.D. Tex. March 9, 2015)
("The document described in Item 12 of Defendants' privilege log is a communication informing Defendants' insurer and outside counsel about developments in the instant case. Federal Rule of Civil Procedure 26(b)(3) protects from disclosure 'documents and tangible things that are prepared in anticipation of litigation or for trial or by another party or its representative (including the other party's . . . Insurer or agent).' It thus appears that Item 12 falls well within the coverage of the work product privilege under Rule 26(b)(3) and Defendants are entitled to withhold Item 12 pursuant to federal work product privilege.")

Case Date Jurisdiction State Cite Checked
2015-03-09 Federal TX

Chapter: 34.503
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; "Memoranda prepared by an agent of the attorney that meet the above criteria may also be entitled to attorney work-product protection.")

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

Chapter: 34.503
Case Name: Folz v. Union Pac. R.R. Co., Case No. 13-CV-00579-GPC-(PCL), 2014 U.S. Dist. LEXIS 85960, *9 (S.D. Cal. June 23, 2014)
("The work product doctrine protects documents created by an attorney and may protect documents created by an agent or client of an attorney as well.")

Case Date Jurisdiction State Cite Checked
2014-06-23 Federal CA

Chapter: 34.503
Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2014 U.S. Dist. 52525 (D.D.C. April 16, 2014)
(analyzing privilege log issues in connection with plaintiff's attempt to recover attorney's fees after winning an insurance coverage case; "Feld claims privilege over a January 10, 2010 '[e]mail thread including emails among Fulbright attorneys and accounting personnel re: disclosure of tax ID number to FFIC, FFIC system for reimbursement, and invoice redaction.'. . . Feld claims this email thread is attorney work product 'in anticipation of litigation with FFIC.' Id. Feld is correct. In this email thread, Fulbright attorneys (and staff, who are also covered by the work-product privilege) . . . discuss how much information should be disclosed to FFIC, and in what form, in light of the objections FFIC had already raised to many of Feld's reimbursement requests. It is the equivalent of a strategy meeting in anticipation of this litigation but taking place via email chain rather than around a conference room table. It too is privileged.")

Case Date Jurisdiction State Cite Checked
2014-04-16 Federal DC

Chapter: 34.503
Case Name: Lennar Mare Island, LLC v. Steadfast Ins. Co., No. 2:12-cv-2182 KJM KJN, 2014 U.S. Dist. LEXIS 48509 (E.D. Cal. April 7, 2014)
("The work product doctrine applies to investigators or agents working for attorneys provided that the documents were created in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2014-04-07 Federal CA

Chapter: 34.503
Case Name: Arfa v. Zionist Org. of Am., Case No. CV 13-2942 ABC (SS), 2014 U.S. Dist. LEXIS 26970, at *7 (C.D. Cal. Mar. 3, 2014)
("The work product doctrine protects documents created by an attorney and may protect documents created by an agent or client of an attorney as well.")

Case Date Jurisdiction State Cite Checked
2014-03-03 Federal CA B 8/14

Chapter: 34.503
Case Name: Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., 29 F.R.D. 611, 616 (D. Kan. 2014)
("The work-product doctrine, however, is not restricted merely to materials prepared by attorneys themselves, but is also extended to an attorney's investigator or other agents.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal KS B 8/14

Chapter: 34.503
Case Name: Serrano v. Chesapeake Appalachia, LLC, 298 F.R.D. 271, 283 (W.D. Pa. 2014)
(analyzing documents created during a post-accident investigation, and application of the common interest doctrine; "Patterson's [employer of a worker who died at an oil rig] obligation to indemnify Chesapeake and its potential to become a party to the litigation sufficiently place it within the protections of the work product doctrine. As part of that protection it is entitled to utilize agents who are necessary to procure and/or provide representation in a manner that is needed to maintain and administer the availability of insurance coverage. The use of such agents is consistent with and advances the purpose of the work product privilege.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal PA B 8/14

Chapter: 34.503
Case Name: Premier Dealer Servs., Inc. v. Duhon, Civ. A. Nos. 12-1498 & -2790 SECTION: "H" (4), 2013 U.S. Dist. LEXIS 160204, at *20 (E.D. La. Nov. 8, 2013)
("Although Marc Mader is not a party to this action, these two communications involved the mental impression of Kurt Wolery [plaintiff's in-house counsel], as he was investigating topics necessary to better prepare Premier Dealer for the ongoing litigation. Therefore, these two documents fall under the work-product doctrine and [are] not subject to disclosure.")

Case Date Jurisdiction State Cite Checked
2013-11-08 Federal LA B 5/14

Chapter: 34.503
Case Name: Nelson v. Intercontinental Hotels Group Operating Corp., Case No. 12 CV 8485, 2013 U.S. Dist. LEXIS 157262 (N.D. Ill. Nov. 1, 2013)
(holding that neither the attorney-client privilege nor the work product doctrine protected a post-accident investigation following an accident at a hotel; "Defendants failed to show that this protection applies here. The doctrine protects documents prepared by an attorney or the attorney's agent in anticipation of litigation for purposes of analyzing, evaluating, and preparing a client's case.")

Case Date Jurisdiction State Cite Checked
2013-11-01 Federal IL

Chapter: 34.503
Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *33-34 (E.D. Wis. July 10, 2013)
("As the document was prepared by Furr [defendant] at the direction of his counsel after the investigation by the government became known to Lance Furr, this court sees no clear error in the decision that the document qualifies as attorney-client privileged material and work product. It appears to be a communication by Furr for his attorney and joint defense attorneys, in connection with legal services and in the context of the attorney-client relationship. Also, it is a document prepared for the attorney in anticipation of or for litigation. A notation on the Timeline indicates that the drafters intended the document to be privileged, suggesting that there was no intent to disclose the document to third parties.")

Case Date Jurisdiction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 34.503
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 92089, at *3-4 (S.D.N.Y. June 28, 2013)
(analyzing work product protection for materials created by a private investigator and communications with a public relations firm; "[I]t is important to bear in mind that the work product doctrine protects the confidentiality of documents and other materials prepared in anticipation of litigation except in limited circumstances. It rests in part on the premise that each party to a lawsuit should do its own work, including its own investigation of the facts, without intruding into and benefitting from the efforts of its adversary. And it extends to work prepared by a private investigator in anticipation of litigation, at least where the investigator is working at the direction of an attorney. Accordingly, in the absence of a more particular showing as to particular documents that the requisites of work product protection have not been made out by Chevron's privilege log -- and there is none -- the suggestion that none of the investigative materials have any protection to begin with fails. In particular, the suggestion that surveillance videos and photos taken by investigators in the context of a litigation such as this, and documents relating to such activities, 'are not protected to begin with' is frivolous. They quite obviously are materials prepared in anticipation of litigation and therefore protected by Fed. R. Civ. P. 26(b)(3)." (footnotes omitted))

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

Chapter: 34.503
Case Name: Bank of N.Y. Mellon, Index No. 651786/11, 2013 NY Slip Op. 30996(U), at 5, 6-7 (N.Y. Sup. Ct. May 6, 2013)
(explaining that under New York privilege law a consultant assisting the law firm of Mayer Brown was within the privilege and work product protection; explaining that the consultant ETI was retained; explaining that under New York law "'[t]he scope of the privilege is not defined by the third parties' employment or function; however, it depends on whether the client had an expectation of confidentiality under the circumstances.' Matter of Stenovich v. Wachtell, Lipton, Rosen & Katz, 195 Misc2d 99, 110, 756 N.Y.S.2d 367 (Sup Ct, NY Co 2003)"; "After careful review of the documents submitted for in camera review, this Court finds that all are properly withheld on the basis of the attorney-client privilege, the work product privilege or both. Those documents and/or testimony being withheld on the basis of the attorney-client privilege are appropriately withheld because, under the circumstances, the Court finds that ETI was serving as an agent of Mayer Brown, and all of the communications in which ETI was 'present,' reflect the client's 'expectation of confidentiality' within the context of the communications. As such, ETI's 'presence' does not constitute a waiver of the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-05-06 State NY B 3/14

Chapter: 34.503
Case Name: In re MI Windows & Doors, Inc. Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *4 (D.S.C. May 1, 2013)
(holding that a paralegal's list of earlier cases involving the company was work product, and that the lawyer's list of important earlier cases deserved opinion work product protection; "These are handwritten notes prepared by Mike Ohlin which summarize issues and arguments that the Defendant was having with a supplier, St. Gobain. The Defendant invokes the work-product immunity. As required by the CMO entered in this matter, the Defendant has specifically identified the litigation for which these notes were prepared. The Defendant avers that Ohlin's notes reflect advice of counsel. That assertion is difficult to evaluate in light of the sketchy nature of the notes. But what is clear is that at the time the notes were prepared, litigation was certainly anticipated and these notations relate to and are prepared in response to the threat of that litigation. So even if no lawyer was involved, these notes would be protected work product. The work product immunity protects material prepared by non-lawyers in anticipation of litigation.")

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

Chapter: 34.503
Case Name: In re MI Windows & Doors, Inc. Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *8-9, *9 (D.S.C. May 1, 2013)
(holding that a paralegal's list of earlier cases involving the company was work product, and that the lawyer's list of important earlier cases deserved opinion work product protection; "This is a case list prepared by Chris Risberg, a paralegal working for outside counsel. It basically sets out the name of the case, the state in which the case is brought, the building type, and the product or claim at issue in each case. The Defendant claims privilege but that claim fails, because there is no communication between attorney and client reflected in this list. It is, rather, just a factual description of the extant cases. The attorney-client privilege does not protect underlying facts."; "The Defendant claims work product, and while there does not seem to be much though process going on in the preparation of the list, it is apparent that the list is prepared for litigation purposes and it would be of some assistance to MIWD's lawyer. As such, it is granted the qualified immunity of fact work product.")

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

Chapter: 34.503
Case Name: Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783, at *9 (D. Ore. Feb. 4, 2013)
("Documents or the compilation of materials prepared by agents of the attorney in preparation for litigation may be covered by the work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2013-02-04 Federal OR B 2/14

Chapter: 34.503
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 634 (D. Nev. 2013)
("As long as the documents were created in anticipation of litigation, the doctrine applies to investigators and consultants working for attorneys.")

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

Chapter: 34.503
Case Name: Carrion v. For Issuance of Subpoena under § 28 U.S.C. 0782(a) (In re Republic of Ecuador), 735 F.3d 1179, 1184, 1185 (10th Cir. 2013)
(holding that the testifying experts' materials are governed by the specific testifying expert rule rather than the general work product rule; "[A]gents of a party or its representative, who stand in the legal shoes of the party, are entitled to the same work-product protections as the party itself."; "Despite this focus on an attorney's mental impressions, courts applying the Hickman [Hickman v. Taylor, 329 U.S. 495 (1947)] doctrine struggled with whether the mental impressions of non-attorneys were also protected, particularly when litigants relied extensively on expert opinions. . . . Many federal courts held that materials produced by experts were protected under the work-product doctrine."; "In 1970, the Advisory Committee expressly rejected the holdings of these cases. The 1970 revised Rules were the first to incorporate a version of the Hickman work-product doctrine. The drafters noted that leaving the application of the doctrine to caselaw had grown troublesome given the 'confusion and disagreement as to the scope of the Hickman work-product doctrine, particularly whether it extends beyond work actually performed by lawyers.' Fed. R. Civ. P. 26(b)(3) (1970 Comments). By providing a rules-based work-product doctrine, the Advisory Committee expressly 'reject[ed] as ill-considered the decisions which have sought to bring expert information within the work-product doctrine.' Fed. R. Civ. P. 26(b)(4) (1970 Comments).")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal B 7/14

Chapter: 34.503
Case Name: Farzan v. Wells Fargo Bank, No. 12 Civ. 1217 (RJS) (JLC), 2012 U.S. Dist. LEXIS 183623, at *5-6, *6 (S.D.N.Y. Dec. 28, 2012)
(holding that communications to and from a bank's EEO consultant working under the supervision of the law department deserved protection, because the consultant was working as the lawyer's agent; "Pursuant to Rule 26(b)(3) of the Federal Rules of Civil Procedure, any materials Bernard [EEO consultant working under supervision of defendant's legal department] produced to document her communications with the Wells Fargo employees may be protected under the work product doctrine if the investigation was conducted in anticipation of litigation. . . . It is undisputed that Bernard commenced her internal investigation only in response to the EEOC charge.'; "Given Farzan's threat of litigation and his filing with the EEOC, Wells Fargo justifiably anticipated litigation at the time of Bernard's investigation.")

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

Chapter: 34.503
Case Name: Farzan v. Wells Fargo Bank, No. 12 Civ. 1217 (RJS) (JLC), 2012 U.S. Dist. LEXIS 183623, at *8 (S.D.N.Y. Dec. 28, 2012)
(holding that communications to and from a bank's EEO consultant working under the supervision of the law department deserved privilege protection, because the consultant was working as the lawyer's agent; "The disclosure of who Bernard [EEO Consultant working under supervision of defedant's legal department] interviewed as part of her investigation does not reveal Wells Fargo's legal strategy, its analysis of Farzan's claims, or other protected information. Thus, while I grant the application to preclude Bernard's deposition from proceeding on attorney-client privilege and work-product grounds, to the extent they have not already done so, I direct Defendants to promptly identify the names of all of the individuals Bernard interviewed as part of her investigation to Farzan.")

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

Chapter: 34.503
Case Name: Werder v. Marriott Int'l, Inc., No. 2:10cv1656, 2012 U.S. Dist. LEXIS 134719, at *4 (W.D. Pa. Sept. 20, 2012)
("Also protected are those materials prepared by an attorney's agent.")

Case Date Jurisdiction State Cite Checked
2012-09-20 Federal PA B 10/13

Chapter: 34.503
Case Name: Front Royal Ins. Co. v. Gold Players, Inc., 187 F.R.D. 252, 258-59 (W.D. Va. 1999)
(finding that the work product doctrine protected witness statements taken by an independent investigator working at the direction of Front Royal's lawyer)

Case Date Jurisdiction State Cite Checked
1999-01-01 Federal VA

Chapter: 34.503
Case Name: Detrick v. Panalpina, Inc., C.A. No. 95-306-A, 1995 U.S. Dist. LEXIS 14509 (E.D. Va. Sept. 8, 1995)
(applying work product doctrine protection to a report prepared by a certified public accountant hired by the defendant's lawyer)

Case Date Jurisdiction State Cite Checked
1995-09-08 Federal VA B 3/16
Comment:

key case


Chapter: 34.701
Case Name: Merriweather v. UPS, Case No. 3:17-CV-349-CRS-LLK, 2018 U.S. Dist. LEXIS 124383 (W.D. Ky. July 25, 2018)
(analyzing product issues related to a post-accident investigation; "Merriweather concedes that Defendant has already produced photographs that were taken the same date of the accident. However, Merriweather argues that he is entitled to have the photographs listed on Defendant UPS' privilege log that were taken one day after the accident by its consulting expert. Merriweather argues that the photographs taken by Defendant UPS' consulting expert are not 'work product' because they deal with facts, and they in no way reveal any opinions the expert may have. However, photographs could easily contain the mental impressions and theories of the case of the consulting expert who was investigating and taking the photographs.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal KY

Chapter: 34.701
Case Name: Leone v. Owsley, Civ. A. No. 12-cv-02961-PAB-KMT, 2013 U.S. Dist. LEXIS 75432, at *10, *10-11 (D. Colo. May 29, 2013)
("Courts applying the rationale of the Upjohn [Upjohn v. United States, 449 U.S. 385 (1981)] and Bieter [In re Bieter, 16 F.3d 929 (8th Cir. 1994)] cases to third party communications with an attorney have held that confidential communications between a party's counsel and a non-testifying expert or consultant, hired in anticipation of litigation, are protected by the attorney-client privilege."; "Defendants are not entitled to communications between Plaintiff and his counsel and experts hired for the purposes of litigation.")

Case Date Jurisdiction State Cite Checked
2013-05-29 Federal CO B 8/13

Chapter: 34.702
Case Name: NRDC, Inc. v. Ill. Power Res. Generating, LLC, No. 13-cv-1181, 2018 U.S. Dist. LEXIS 9854 (C.D. Ill. Jan. 22, 2018)
(finding that a Rule 30(b)(6) witness would decline to answer questions based on the work product protection; "The Questions effectively asked Lindenbusch to recite information from the Research documents, and so, sought information protected by work product. Those portions of the Research prepared by outside experts retained to assist in litigation, but not testify, is also protected by Rule 26(b)(4)(D).")

Case Date Jurisdiction State Cite Checked
2018-01-22 Federal IL

Chapter: 34.702
Case Name: Kurlander v. Kroenke Arena Company, LLC, Civ. A. No. 16-cv-02754-WYD-NYW, 2017 U.S. Dist. LEXIS 113145 (D. Colo. July 20, 2017)
(finding that the work product doctrine did not protect a non-testifying expert's survey, or responses to the survey; holding that disclosing work product did not automatically trigger a subject matter waiver; holding that one testifying expert's opinion was protected, but that the plaintiff had established exceptional circumstances; "The third-party responses to the Survey Questions similarly do not constitute attorney or non-testifying expert work product. KAC and the third parties have no relationship, such as those identified in Rule 26(b)(3), that justifies the extension of the work product doctrine to the survey responses. Additionally, the responses to the Survey Questions are not the work of Ms. Knutson. The third parties did not prepare their responses on behalf of Defendant in anticipation of litigation or trial. Rather, they responded to non-confidential questions posed by Defendant's non-testifying expert. Even Ms. Knutson's own statements regarding confidentiality, which vary between the different email chains, are ambiguous at best about how long the third parties' responses would remain confidential. . . . Defendant cites no cases, and this court could find none, that suggest a party can claim work product protection over communication authored by third parties with whom it has no relationship. All of these factors lead this court to conclude that the third parties' survey responses are not attorney work product under Rule 26(b)(3). To the extent that correspondence authored by the third parties could constitute facts held by the non-testifying expert, this

Case Date Jurisdiction State Cite Checked
2017-07-20 Federal CO

Chapter: 34.702
Case Name: Kurlander v. Kroenke Arena Company, LLC, Civ. A. No. 16-cv-02754-WYD-NYW, 2017 U.S. Dist. LEXIS 113145 (D. Colo. July 20, 2017)
(finding that the work product doctrine did not protect a non-testifying expert's survey, or responses to the survey; holding that disclosing work product did not automatically trigger a subject matter waiver; holding that one testifying expert's opinion was protected, but that the plaintiff had established exceptional circumstances; "[T]his court notes that the express language of Rule 26(b)(3) and the history of Rule 26(b)(4)(D) instruct that the protection available under Rule 26(b)(4)(D) is not coextensive with, but rather distinct from, the work product doctrine. Fed. R. Civ. P. 26(b)(3)(A).")

Case Date Jurisdiction State Cite Checked
2017-07-20 Federal CO

Chapter: 34.702
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 Jurisdiction State Cite Checked
2015-06-15 State GA

Chapter: 34.702
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 Jurisdiction State Cite Checked
2015-01-23 Federal CA

Chapter: 34.702
Case Name: Leprino Foods Co. v. DCI, Inc., Civil Action No. 13BcvB02430BRMBKMT, 2014 U.S. Dist. LEXIS 87822, at *21 (D. Colo. June 27, 2014)
("The work product doctrine therefore applies to this report, as does the consulting-expert privilege.")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal CO

Chapter: 34.702
Case Name: Leprino Foods Co. v. DCI, Inc., Civil Action No. 13BcvB02430BRMBKMT, 2014 U.S. Dist. LEXIS 87822, at *21 (D. Colo. June 27, 2014)
("Unlike the work-product doctrine, Rule 26(b)(4)(D) does not only prohibit discovery of mental impressions, it also protects 'facts known or opinions held' by a consulting expert.")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal CO

Chapter: 34.702
Case Name: Williams v. Bridgeport Music, Inc., 14 Misc. 73-P1, 2014 U.S. Dist. 62056 (S.D.N.Y. May 5, 2014)
(finding federal rules protecting the identity of nontestifying experts; "Counter-Claimants contend that Rule 26 protects the identities of retained consulting experts as privileged unless they are designated to testify and, thus, the Subpoena must be quashed. The 1970 Advisory Committee's Notes appeared to have adopted this view in what was then Rule 26(b)(4)(B) (and now Rule 26(b)(4)(D)), when it noted that 'a party may on a proper showing require the other party to name experts retained or specially employed, but not those informally consulted.' See 1970 Advisory Committee's Notes on Fed. R. Civ. P. 26. Prior to the 2010 Amendments, other courts outside of this Circuit have held to this reading of Rule 26(b)(4)."; "The 2010 Amendments is silent as to whether the identity of a non-testifying expert is protected from disclosure under Rule 26(b)(4) or whether the 2010 Amendments changed Rule 26(b)(4) in way that would now preclude the protection of such information. Indeed, the 2010 Advisory Committee's Notes do not explicitly depart from the 1970 Committee's Notes, it only adopts work-product privilege to experts. . . . Accordingly, the 1970 Committee's Notes' preclusion from discovery of the identity of an informal consulting expert remains after the 2010 Amendments."; "Kyser and Jan Gaye were clearly acting for the interest of the Gayes, as they were retained as representatives of the Counter-Claimants. They fall within the classification of a 'party' under Rule 26(b)(4). Moreover, even if Jan Gaye were to be classified as a third party, her interests were clearly aligned with the Gayes. Consequently, work-product protection does cover Jan Gaye's and Kyser's retention of and subsequent communication with Ferrara as well as facts known or opinions of Ferrara. Waiver of the work-product privilege afforded under Rule 26(b)(4) did not occur. Plaintiffs are not entitled to discover the identity of Ferrara as a consulting expert.")

Case Date Jurisdiction State Cite Checked
2014-05-05 Federal NY

Chapter: 34.702
Case Name: Precision of New Hampton, Inc. v. Tri Component Prods. Corp., No. C12-2020, 2013 U.S. Dist. LEXIS 79847, at *12, *11-12 (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 disagree over the relationship between FEDERAL RULE OF CIVIL PROCEDURE 26(b)(4)(D) and the work product doctrine. In Vanguard Savings & Loan Ass'n v. Banks, 1995 U.S. Dist. LEXIS 2016, 1995 WL 71293, at *2 (E.D. Pa. 1995), while considering whether Rule 26(b)(4)(B) extends work product privilege to non-testifying experts or if it provides protection independent of the work product rule, the court found that 'Rule 26(b)(4)(B) is unrelated to the work product privilege.' See also Hartford Fire Ins. Co., 154 F.R.D. at 206 n.6 ('The concept of privilege, or work product, does not apply to the discovery of a consulting expert's opinion.'). However, in House v. Combined Insurance Company of America, 168 F.R.D. 236, 245 (N.D. Iowa 1996), the Northern District of Iowa noted that an expert consulted by a party but never designated as a witness 'might properly be considered to fall under the work product doctrine that protects matters prepared in anticipation of litigation.'")

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

Chapter: 34.702
Case Name: Sloan Valve Co. v. Zurn Indus., No. 10 C 204, 2012 U.S. Dist. LEXIS 161749, at *13 14 (N.D. Ill. Nov. 13, 2012)
("Unlike the work product doctrine, Rule 26(b)(4)(D) does not only prohibit discovery of mental impressions, it also protects 'facts known or opinions held' by a consulting expert as well. Fed. R. Civ. P. 26(b)(4)(D). Even the methodology employed by a consulting expert is off limits. . . . The Court will not additionally allow Zurn to depose a non testifying expert on the tests Sloan conducted on Zurn's own product in anticipation of litigation and to formulate its theory of infringement.")

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

Chapter: 34.702
Case Name: Sloan Valve Co. v. Zurn Indus., No. 10 C 204, 2012 U.S. Dist. LEXIS 161749, at *8 9 (N.D. Ill. Nov. 13, 2012)
("If Zurn instead seeks only 'information regarding what, if any, pre- and post-litigation testing the accused device(s) were subject to, and the data obtained from those tests,' as alleged in its Response, such documents may be protected by the work product privilege." (internal citation omitted))

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

Chapter: 34.702
Case Name: Appleton Papers, Inc. v. EPA, 702 F.3d 1018, 1024 (7th Cir. 2012)
("The consultant's work will, by definition, be work product because the party uses the consultant 'in anticipation of litigation.' See Fed. R. Civ. P. 26(b)(4)(D). The district court did not use the rule as independent authority to reject API's claim. Rather, the district court used it as an illustration. Because the rule protects 'facts known or opinions held by an expert,' the rule shows that facts and opinions alike are protected and therefore not separable. See id. (emphases added). API also cites authority for the proposition that once a party relies on the research of a nontestifying expert, it falls out of the protection of the Rule and becomes freely discoverable. True, but this is the same litigation-specific argument that API relies on throughout its brief. Parties need only disclose work product in the particular case they use it. This argument echoes the waiver argument we reject below -- that the government used a portion of the report in a consent decree does not mean that the Rule requires disclosure in every case going forward.")

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

Chapter: 34.703
Case Name: Univ. Hosps. Health Sys. v. Pohl Inc. of America, Case No. 1:15 CV 2461, 2018 U.S. Dist. LEXIS 48592 (N.D. Ohio March 23, 2018)
(holding that a consultant retained for business purposes could not satisfy the non-testifying specially retained expert standard and therefore could not avoid a deposition; "The burden of proving an expert has been retained in anticipation of litigation rests with the party asserting the privilege. United States v. Roxworthy, 457 F.3d 590, 593 (6th Cir. Ky. 2006). Thus, Pohl must prove that Mr. Mallory was retained or specially employed 'because of the prospect of litigation.' Id. at 593. Experts retained in the ordinary course of business or for 'non-litigation purposes' are not protected by the work-product doctrine and although documents prepared by an expert may help prepare for litigation, they do not qualify as work product if they were not created because of actual or impending litigation. Id. Under Roxworthy, the Court must consider '(1) whether the document was created because of a party's subjective anticipation of litigation, as contrasted with ordinary business purpose, and (2) whether that subjective anticipation of litigation was objectively reasonable.' Id. at 594. If both elements are proven, the burden shifts to UHHS to demonstrate undue hardship or exceptional circumstances."; "Pohl has fallen short of satisfying its burden to demonstrate that Mr. Mallory was retained or specially employed, or that Mr. Mallory's Reports were prepared, because of the prospect of litigation. UHHS seeks to depose Mr. Mallory 'to discover facts related to his 2010 engagement' when he was hired by Pohl and prepared Reports which have already been voluntarily provided by Pohl to UHHS. Pohl fails to offer an affidavit or equivalent proof showing that Mr. Mallory was retained as an expert in anticipation of litigation. The correspondence cited by UHHS clearly demonstrates that at the time Mr. Mallory was retained in 2010, there was no mention, discussion or suggestion that litigation was imminent or even a possibility. Mr. Mallory was retained at the direction of Mr. Udo Clages, Pohl's Chief Executive Officer, not by Pohl's attorneys, during construction, to examine the cracking Panels in light of Pohl's warranty obligations under the contract. The evidence presented to the Court demonstrates, as stated by UHHS, that Mr. Mallory was retained for ordinary business purposes -- to respond to the panel test results, determine Pohl's punch list and warranty obligations and, if necessary, begin the insurance claim process."; "Accordingly, Pohl has failed to sufficiently demonstrate that UHHS should be prevented from deposing Mr. Mallory.")

Case Date Jurisdiction State Cite Checked
2018-03-23 Federal OH

Chapter: 34.703
Case Name: Hale v. Emporia State Univ., Case No. 16-cv-4182-DDC-TJJ, 2018 U.S. Dist. LEXIS 26562 (D. Kansas Feb. 20, 2018)
("Based upon the information in the privilege log and ESU's representations made in its response, the Court finds the HR consultant qualifies as a non-testifying expert for the purposes of this litigation under Rule 26(b)(4)(D). It is likely that her report reflects facts or opinions known and gathered by her in the course of her work as a non-testifying expert.")

Case Date Jurisdiction State Cite Checked
2018-02-20 Federal KS

Chapter: 34.703
Case Name: Bard v. Brown County, Case No. 1:15-cv-00643, 2017 U.S. Dist. LEXIS 114073 (S.D. Ohio July 21, 2017)
(holding that the work product doctrine was not limited to parties to litigation; explaining that a litigation consultant's opinion could be work product, even though the litigation consultant was also a fact witness; "[D]efendants contend that Varnau [non-party litigation consultant] is a non-party and protection under Rule 26(b)(3) is limited to parties to the underlying litigation. . . . Contrary to defendants' argument, the protection afforded by the work product doctrine is not so limited."; "As the driving force behind their creation is the lawsuit, the Court finds the emails were created in anticipation of litigation by or for plaintiff's attorney or her agent, Varnau, and qualify as protected work product."; "[W]here a fact witness is retained as a litigation consultant, Rule 26(b)(3)'s work product protection applies to the opinions and documents created in his capacity as a litigation consultant."; "Like the consultant in Barrett [Barrett Indus. Trucks, Inc. v. Old Republic Ins. Co., 129 F.R.D. 515, 519 (N.D. Ill. 1990)], Varnau has been retained as a litigation consultant to plaintiff's lawyers. Thus, the communications and documents exchanged between counsel and Varnau which would disclose their mental impressions, conclusions, opinions, or legal theories are protected as work product. . . . The Court has reviewed, in camera, each of the communications at issue here and finds them to be in the nature of opinion work-product as their disclosure would tend to reveal the thought processes and legal strategies of counsel and Varnau. Therefore, the communications remain protected by the work-product privilege.")

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

key case


Chapter: 34.703
Case Name: Kurlander v. Kroenke Arena Company, LLC, Civ. A. No. 16-cv-02754-WYD-NYW, 2017 U.S. Dist. LEXIS 113145 (D. Colo. July 20, 2017)
(finding that the work product doctrine did not protect a non-testifying expert's survey, or responses to the survey; holding that disclosing work product did not automatically trigger a subject matter waiver; holding that one testifying expert's opinion was protected, but that the plaintiff had established exceptional circumstances; "The third-party responses to the Survey Questions similarly do not constitute attorney or non-testifying expert work product. KAC and the third parties have no relationship, such as those identified in Rule 26(b)(3), that justifies the extension of the work product doctrine to the survey responses. Additionally, the responses to the Survey Questions are not the work of Ms. Knutson. The third parties did not prepare their responses on behalf of Defendant in anticipation of litigation or trial. Rather, they responded to non-confidential questions posed by Defendant's non-testifying expert. Even Ms. Knutson's own statements regarding confidentiality, which vary between the different email chains, are ambiguous at best about how long the third parties' responses would remain confidential. . . . Defendant cites no cases, and this court could find none, that suggest a party can claim work product protection over communication authored by third parties with whom it has no relationship. All of these factors lead this court to conclude that the third parties' survey responses are not attorney work product under Rule 26(b)(3). To the extent that correspondence authored by the third parties could constitute facts held by the non-testifying expert, this court again finds that the issue is more appropriately considered under Rule 26(b)(4)(D).")

Case Date Jurisdiction State Cite Checked
2017-07-20 Federal CO

Chapter: 34.703
Case Name: Kurlander v. Kroenke Arena Company, LLC, Civ. A. No. 16-cv-02754-WYD-NYW, 2017 U.S. Dist. LEXIS 113145 (D. Colo. July 20, 2017)
(finding that the work product doctrine did not protect a non-testifying expert's survey, or responses to the survey; holding that disclosing work product did not automatically trigger a subject matter waiver; holding that one testifying expert's opinion was protected, but that the plaintiff had established exceptional circumstances; "There is no real dispute between the Parties that Defendant retained Ms. Knutson as a non-testifying expert for the purposes of this litigation. Nor is there any real dispute that the electronic correspondence between Ms. Knutson and the third parties reflects facts or opinions known and gathered by her in the course of her work as a non-testifying expert. This court thus concludes that the electronic correspondence falls squarely within Rule 26(b)(4)(D).")

Case Date Jurisdiction State Cite Checked
2017-07-20 Federal CO

Chapter: 34.703
Case Name: NL Industries, Inc. v. ACF Industries LLC, 10CV89W, 2015 U.S. Dist. LEXIS 86677 (W.D.N.Y. July 2, 2015)
(holding that an environmental engineering firm was not within the privilege as a lawyer agent; "Plaintiff (and not its attorneys) retained AGC [Non-party environmental engineering firm hired by plaintiff to conduct an environmental cleanup] years before this litigation was commenced. . . . Plaintiff also claims that AGC was retained as a consulting expert to identify those other entities responsible for the cleanup costs . . . In anticipation of litigation against the EPA and/or third parties."; "Here, plaintiff in parallel retained both AGC, to guide it through the cleanup and to identify possible responsible parties and defenses for plaintiff and attorneys, and its attorneys to provide its legal defense and advocate for its claims. AGC is preparing the materials for plaintiff, at the behest of counsel (according to the privilege log entries). . . . Plaintiff claims that it is undisputed that these documents were created in anticipation of litigation (defending plaintiff against the EPA as well as identifying possible claims against other parties) and thus are work product . . . . These documents appear to be the raw materials used to create the PowerPoint presentation made to the EPA and eventually produced to defendants in this action.")

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

Chapter: 34.703
Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *9 (D. Conn. Feb. 4, 2014)
(analyzing an investigation of railroad policies and practices conducted by a lawyer who was not providing legal advice; using the "assist" test, and declining to apply the work product doctrine; "Estreicher [Consultant, who was a lawyer, but not acting in the legal capacity] was retained after the Class Action was settled and judgment entered. He was not retained in anticipation of this litigation or to prepare for the trial of this action. Additionally, Defendant has already produced his report, which generally waives the protections afforded a non-testifying expert by Rule 26(b)(4)(D).")

Case Date Jurisdiction State Cite Checked
2014-02-04 Federal CT B 6/14

Chapter: 34.703
Case Name: Quality Time, Inc. v. West Bend Mut. Ins. Co., Case No. 12 1008 JTM GLR, 2012 U.S. Dist. LEXIS 161703, at *38 (D. Kan. Nov. 13, 2012)
("Although there appears to be no dispute that Defendant retained or specially employed Mr. Carney to investigate the roof collapse, Defendant has not shown that his retention or employment was in anticipation of litigation or for trial preparation. To the contrary, Defendant retained his services on July 21, 2011, well before Defendant reasonably anticipated litigation." (footnotes omitted))

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

Chapter: 34.703
Case Name: Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680, 686 (N.D. Ga. 2012)
("Pike has introduced argument, but no evidence to controvert the affidavits and documents provided by Spirit demonstrating that Messrs. Ramos and Hercules were retained in anticipation of litigation rather than as part of Spirit's ordinary course of business.")

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

Chapter: 34.705
Case Name: WIII Uptown, LLC v. B&P Restaurant Group, LLC, Misc. A. No. 15-51-BAJ-EWD, 2016 U.S. Dist. LEXIS 119903 (M.D. La. Sept. 6, 2016)
(analyzing product protection for documents prepared by a non-testifying expert; "Viewing Johnson [a certified fraud examiner hired by defendant's lawyer as a consulting expert and fraud investigator] as a private investigator (rather than a non-testifying consulting expert), WIII is entitled to discover facts which were learned by Johnson during his investigation. . . . WIII asserts that it has not requested Johnson produce any documents or tangible things and instead only seeks Johnson's 'factual knowledge.' The court agrees that such factual knowledge is appropriately within the scope of discovery. Accordingly, the court concludes that B&P has not met its burden of establishing that compliance with Johnson's deposition subpoena would be unduly burdensome or would require the disclosure of privileged information. However, because '[t]he work product privilege protects intangible work product as well as what Fed. R. Civ. P. 26(b)(3) calls 'documents and tangible things,'" questions directed to an investigator during his deposition must be "'carefully tailor[ed] . . . so as to elicit specific factual material, and avoid broad based inquiries, . . . which could lead to the disclosure of trial strategies.'")

Case Date Jurisdiction State Cite Checked
2016-09-06 Federal LA

Chapter: 34.705
Case Name: WIII Uptown, LLC v. B&P Restaurant Group, LLC, Misc. A. No. 15-51-BAJ-EWD, 2016 U.S. Dist. LEXIS 119903 (M.D. La. Sept. 6, 2016)
(analyzing product protection for documents prepared by a non-testifying expert; "Viewing Johnson [a certified fraud examiner hired by defendant's lawyer as a consulting expert and fraud investigator] as a private investigator (rather than a non-testifying consulting expert), WIII is entitled to discover facts which were learned by Johnson during his investigation. . . . WIII asserts that it has not requested Johnson produce any documents or tangible things and instead only seeks Johnson's 'factual knowledge.' The court agrees that such factual knowledge is appropriately within the scope of discovery. Accordingly, the court concludes that B&P has not met its burden of establishing that compliance with Johnson's deposition subpoena would be unduly burdensome or would require the disclosure of privileged information. However, because '[t]he work product privilege protects intangible work product as well as what Fed. R. Civ. P. 26(b)(3) calls 'documents and tangible things,'" questions directed to an investigator during his deposition must be "'carefully tailor[ed] . . . so as to elicit specific factual material, and avoid broad based inquiries, . . . which could lead to the disclosure of trial strategies.'")

Case Date Jurisdiction State Cite Checked
2016-09-06 Federal LA

Chapter: 34.705
Case Name: WIII Uptown, LLC v. B&P Restaurant Group, LLC, Misc. A. No. 15-51-BAJ-EWD, 2016 U.S. Dist. LEXIS 119903 (M.D. La. Sept. 6, 2016)
(analyzing product protection for documents prepared by a non-testifying expert; "Although B&P asserts that it 'hired Johnson for his expertise in fraud investigations,' B&P presents no evidence to support that position. B&P listed Johnson [a certified fraud examiner hired by defendant's lawyer as a consulting expert and fraud investigator] as an individual likely to have discoverable information in its initial disclosures and WIII points out that prior to filing the Motion to Quash, B&P had 'never referred to Johnson as an expert . . . .' Moreover, although B&P is careful to present the argument in the alternative, it also asserts that Johnson is entitled to assert a privilege under Louisiana state law as a licensed private investigator. As discussed below, federal common law does not recognize a 'private investigator's privilege.' The court finds that characterizing Johnson as a non-testifying consulting expert entitled to protection under Fed. R. Civ. P. 26(b)(4)(D), especially in light of B&P's previous identification of Johnson as a fact witness, would run contrary to federal common law declining to recognize such a privilege.")

Case Date Jurisdiction State Cite Checked
2016-09-06 Federal LA
Comment:

key case


Chapter: 34.705
Case Name: Petco Animal Supplies Stores, Inc. v. The Five Fifty Two Corp., 8:14CV280, 2015 U.S. Dist. LEXIS 23621 (D. Neb. Feb. 25, 2015)
(finding that the work product doctrine did not protect documents prepared by a contractor and an engineering company that plaintiff hired to repair premises; "Plaintiff has not met its burden to show that the work product doctrine is applicable to the requested discovery. Other than self-serving affidavits from Plaintiff's representative and attorney, Plaintiff has not submitted any evidence demonstrating that WDS and Excel were retained in anticipation of litigation. To the contrary, the evidence of record indicates that WDS and Excel were not retained to advise Plaintiff's attorney in preparation of this lawsuit, but rather were hired to repair the leased premises. Moreover, there is no evidence which suggests that WDS and Excel are consulting experts. Given that the primary issue in this case is whether Plaintiff complied with the lease by properly maintaining the leased premises, and the role WDS and Excel played in remedying the alleged defects, it appears that WDS and Excel are actually fact witnesses in this case.")

Case Date Jurisdiction State Cite Checked
2015-02-25 Federal NE

Chapter: 34.705
Case Name: Leprino Foods Co. v. DCI, Inc., Civil Action No. 13BcvB02430BRMBKMT, 2014 U.S. Dist. LEXIS 87822, at *21 (D. Colo. June 27, 2014)
("Unlike the work-product doctrine, Rule 26(b)(4)(D) does not only prohibit discovery of mental impressions, it also protects 'facts known or opinions held' by a consulting expert.")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal CO

Chapter: 34.705
Case Name: Hexion Specialty Chems., Inc. v. Huntsman Corp., 95 A.2d 47, 50-51, 51 (Del. Ch. 2013)
(holding that defendant's financial advisor Merrill Lynch would not receive the protection given specially-retained litigation-related non-testifying experts, because it played a substantive role in the underlying events; "[I]f Huntsman was actually interested in having Merrill Lynch provide litigation services to its attorneys (instead of cloaking its financial services from discovery), Huntsman had both the time and the occasion to ask Merrill Lynch to form a separate team of litigation consultants. Had that happened, Merrill Lynch might then have maintained adequate internal controls to prevent the fact witnesses serving on the investment banking team from gaining knowledge of the litigation consultant team's work. In that case, Huntsman might have gained the protections of Rule 26(b)(4)(B) for the work of those litigation consultants."; "[I]t is plain that Merrill Lynch has continued to perform financial advisory services, including giving advice to the Huntsman board, during the period since the litigation was filed. Huntsman should not be able to throw a cloak of secrecy over Merrill Lynch's advisory activities by the simple expendiency of purporting to hire the same team of Merrill Lynch employees as its counsel's so-called litigation consultants.")

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

Chapter: 34.705
Case Name: Hexion Specialty Chems., Inc. v. Huntsman Corp., 95 A.2d 47, 50 (Del. Ch. 2013)
(holding that defendant's financial advisor Merrill Lynch would not receive the protection given specially-retained litigation-related non-testifying experts, because it played a substantive role in the underlying events; "Rule 26(b)(4)(B) does not apply to Merrill Lynch in its role as Huntsman's financial advisor because in that role Merrill Lynch has acquired and continues to acquire information as an 'actor' in or 'viewer' of the Hexion transaction, which lies at the heart of the lawsuit.")

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

Chapter: 34.706
Case Name: Ansell Healthcare Prods. LLC v. Reckitt Benckiser LLC, Civ. A. No. 15-cv-915-RGA, 2017 U.S. Dist. LEXIS 202842 (D. Del. Dec. 11, 2017)
(analyzing the work product and expert testimony rules implication of a consulting expert who then becomes a testifying expert; holding that the expert could only withhold from discovery under the consulting expert rule documents that are uniquely related to that rule; "The scope of discoverable material under Rule 26(b)(4)(C)(ii) has varied over time. Prior to 1993, Rule 26(b)(4) permitted discovery of material only actually known and relied upon by a testifying expert. . . . From 1993, when the requirement for testifying expert reports was initially adopted, until 2010, the required disclosures included 'data and other information considered by the expert.'"; "The 2010 amendments to Rule 26(a)(2) narrowed the scope of required disclosures in testifying expert reports from 'the data and other information considered by the witness' to 'the facts or data considered by the witness.' Fed. R. Civ. P. 26(a)(2). The Advisory Committee notes to the 2010 amendments of Rule 26 indicate that the amendments are 'intended to alter the outcome in cases that have relied on the 1993 formulation in requiring disclosure of all attorney-expert communications and draft reports.'")

Case Date Jurisdiction State Cite Checked
2017-12-11 Federal DE
Comment:

key case


Chapter: 34.706
Case Name: Ansell Healthcare Prods. LLC v. Reckitt Benckiser LLC, Civ. A. No. 15-cv-915-RGA, 2017 U.S. Dist. LEXIS 202842 (D. Del. Dec. 11, 2017)
(analyzing the work product and expert testimony rules implication of a consulting expert who then becomes a testifying expert; holding that the expert could only withhold from discovery under the consulting expert rule documents that are uniquely related to that rule; "Consulting expert discovery is much more limited than testifying expert discovery -- materials considered by a consulting expert are generally not discoverable. . . . The 'dual hat' expert initially hired as a consulting expert and subsequently retained as a testifying expert in the same case thus presents issues regarding the appropriate scope of discovery."; "In cases involving a 'dual hat' expert, privilege applies 'only [to] those materials generated or considered uniquely in the expert's role as consultant.'. . . The party resisting disclosure of the documents must demonstrate that 'the information considered for consulting expert purposes was not also considered pursuant to the expert's testifying function.'"; "I find that Plaintiff has failed to establish a 'clear distinction' between Mr. Hansen's role as a consulting expert and his role as a testifying expert. Plaintiff's assertion that Mr. Hansen's consulting and testifying roles are separate engagements is belied by the fact that Plaintiffs have presented only one engagement agreement for Mr. Hansen. . . . The argument that the differing scope of information Mr. Hansen considered in his two roles clearly distinguishes those roles is similarly unavailing. The products and patents at issue in this case were included in the calculations Mr. Hansen performed or provided feedback on in his consulting role. Additionally, there is considerable overlap in the facts and data generally relevant to settlement analysis and damages analysis. Analyses related to settlement and damages generally include computation of a reasonable royalty using data such as the parties' market shares, sales revenues, and licensing history, among other things. Mr. Hansen considered all of these sorts of data in his testifying expert report, and the documents at issue also contain this information and additional economic information relevant to settlement and damages analyses, such as profit margins. That Mr. Hansen considered information in his consulting role beyond that which he considered in his testifying role does not establish a clear distinction. Since the information considered by Mr. Hansen for his consulting role included United States sales data and other information relevant to the current case, it is difficult, if not impossible, to believe that it did not inform the opinions in his testifying expert report concerning damages. Accordingly, Plaintiff must produce the documents it exchanged with Mr. Hansen in his consulting role.")

Case Date Jurisdiction State Cite Checked
2017-12-11 Federal DE

Chapter: 34.706
Case Name: Ansell Healthcare Prods. LLC v. Reckitt Benckiser LLC, Civ. A. No. 15-cv-915-RGA, 2017 U.S. Dist. LEXIS 202842 (D. Del. Dec. 11, 2017)
(analyzing the work product and expert testimony rules implication of a consulting expert who then becomes a testifying expert; holding that the expert could only withhold from discovery under the consulting expert rule documents that are uniquely related to that rule; holding that the expert could only withhold from discovery under the consulting expert rule documents that are uniquely related to that rule; holding that the dual hat expert could not withhold his draft report; "Plaintiff has continually argued to distinguish Mr. Hansen's consulting worldwide settlement analysis on the basis that it encompassed more products and a larger geographic area than his testifying expert analysis. Considering this and the lack of evidence that Document 2 is a draft for some other final product, I conclude that Plaintiff's arguments that the worldwide analysis is a draft for his testifying expert analysis are meritless. Document 2 is not a draft of Mr. Hansen's testifying expert report.")

Case Date Jurisdiction State Cite Checked
2017-12-11 Federal DE

Chapter: 34.706
Case Name: Bard v. Brown County, Case No. 1:15-cv-00643, 2017 U.S. Dist. LEXIS 114073 (S.D. Ohio July 21, 2017)
(holding that the work product doctrine was not limited to parties to litigation; explaining that a litigation consultant's opinion could be work product, even though the litigation consultant was also a fact witness; "[D]efendants contend that Varnau [non-party litigation consultant] is a non-party and protection under Rule 26(b)(3) is limited to parties to the underlying litigation. . . . Contrary to defendants' argument, the protection afforded by the work product doctrine is not so limited."; "As the driving force behind their creation is the lawsuit, the Court finds the emails were created in anticipation of litigation by or for plaintiff's attorney or her agent, Varnau, and qualify as protected work product."; "[W]here a fact witness is retained as a litigation consultant, Rule 26(b)(3)'s work product protection applies to the opinions and documents created in his capacity as a litigation consultant."; "Like the consultant in Barrett [Barrett Indus. Trucks, Inc. v. Old Republic Ins. Co., 129 F.R.D. 515, 519 (N.D. Ill. 1990)], Varnau has been retained as a litigation consultant to plaintiff's lawyers. Thus, the communications and documents exchanged between counsel and Varnau which would disclose their mental impressions, conclusions, opinions, or legal theories are protected as work product. . . . The Court has reviewed, in camera, each of the communications at issue here and finds them to be in the nature of opinion work-product as their disclosure would tend to reveal the thought processes and legal strategies of counsel and Varnau. Therefore, the communications remain protected by the work-product privilege.")

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

key case


Chapter: 34.706
Case Name: WIII Uptown, LLC v. B&P Restaurant Group, LLC, Misc. A. No. 15-51-BAJ-EWD, 2016 U.S. Dist. LEXIS 119903 (M.D. La. Sept. 6, 2016)
(analyzing product protection for documents prepared by a non-testifying expert; "Although B&P asserts that it 'hired Johnson for his expertise in fraud investigations,' B&P presents no evidence to support that position. B&P listed Johnson [a certified fraud examiner hired by defendant's lawyer as a consulting expert and fraud investigator] as an individual likely to have discoverable information in its initial disclosures and WIII points out that prior to filing the Motion to Quash, B&P had 'never referred to Johnson as an expert . . . .' Moreover, although B&P is careful to present the argument in the alternative, it also asserts that Johnson is entitled to assert a privilege under Louisiana state law as a licensed private investigator. As discussed below, federal common law does not recognize a 'private investigator's privilege.' The court finds that characterizing Johnson as a non-testifying consulting expert entitled to protection under Fed. R. Civ. P. 26(b)(4)(D), especially in light of B&P's previous identification of Johnson as a fact witness, would run contrary to federal common law declining to recognize such a privilege.")

Case Date Jurisdiction State Cite Checked
2016-09-06 Federal LA
Comment:

key case


Chapter: 34.706
Case Name: WIII Uptown, LLC v. B&P Restaurant Group, LLC, Misc. A. No. 15-51-BAJ-EWD, 2016 U.S. Dist. LEXIS 119903 (M.D. La. Sept. 6, 2016)
(analyzing product protection for documents prepared by a non-testifying expert; "Viewing Johnson [a certified fraud examiner hired by defendant's lawyer as a consulting expert and fraud investigator] as a private investigator (rather than a non-testifying consulting expert), WIII is entitled to discover facts which were learned by Johnson during his investigation. . . . WIII asserts that it has not requested Johnson produce any documents or tangible things and instead only seeks Johnson's 'factual knowledge.' The court agrees that such factual knowledge is appropriately within the scope of discovery. Accordingly, the court concludes that B&P has not met its burden of establishing that compliance with Johnson's deposition subpoena would be unduly burdensome or would require the disclosure of privileged information. However, because '[t]he work product privilege protects intangible work product as well as what Fed. R. Civ. P. 26(b)(3) calls 'documents and tangible things,'" questions directed to an investigator during his deposition must be "'carefully tailor[ed] . . . so as to elicit specific factual material, and avoid broad based inquiries, . . . which could lead to the disclosure of trial strategies.'")

Case Date Jurisdiction State Cite Checked
2016-09-06 Federal LA

Chapter: 34.706
Case Name: WIII Uptown, LLC v. B&P Restaurant Group, LLC, Misc. A. No. 15-51-BAJ-EWD, 2016 U.S. Dist. LEXIS 119903 (M.D. La. Sept. 6, 2016)
(analyzing product protection for documents prepared by a non-testifying expert; "Viewing Johnson [a certified fraud examiner hired by defendant's lawyer as a consulting expert and fraud investigator] as a private investigator (rather than a non-testifying consulting expert), WIII is entitled to discover facts which were learned by Johnson during his investigation. . . . WIII asserts that it has not requested Johnson produce any documents or tangible things and instead only seeks Johnson's 'factual knowledge.' The court agrees that such factual knowledge is appropriately within the scope of discovery. Accordingly, the court concludes that B&P has not met its burden of establishing that compliance with Johnson's deposition subpoena would be unduly burdensome or would require the disclosure of privileged information. However, because '[t]he work product privilege protects intangible work product as well as what Fed. R. Civ. P. 26(b)(3) calls 'documents and tangible things,'" questions directed to an investigator during his deposition must be "'carefully tailor[ed] . . . so as to elicit specific factual material, and avoid broad based inquiries, . . . which could lead to the disclosure of trial strategies.'")

Case Date Jurisdiction State Cite Checked
2016-09-06 Federal LA

Chapter: 34.706
Case Name: Haney v. Range Resources-Appalachia, LLC, No. 257 WDA 2015, 2016 Pa. Super. Unpub. LEXIS 265 (Pa. Super. Jan. 29, 2016)
(holding that a plaintiff suing defendant Range could obtain documents from an engineering firm that conducted air testing at range sites other than the one it issued in the litigation; noting that those documents were not covered by the consultant's status as a non-testifying expert; "Even if counsel for Range engaged URS [Consultant] in 2011 as an expert consultant in anticipation of litigation, Range admits that it also retained URS as non-expert 'to perform air monitoring at select natural gas sites' and that the scope of Residents' subpoena includes 'non-privileged materials.'. . . Moreover, the record establishes that URS performed studies for Range at various sites as early as 2011 . . . In fact, in April of 2011, Range's counsel expressed his willingness to provide the Cecil Township Board of Supervisors with emissions testing information once it was collected. . . . Based on the record at hand, we conclude that Range has no grounds for objecting to Residents' request for relevant information possessed by URS in its capacity as an engineering consultant that was not retained in anticipation of litigation. Pa. R.C.P. 4003.1.")

Case Date Jurisdiction State Cite Checked
2016-01-29 Federal PA

Chapter: 34.706
Case Name: Edward Wisner Donation v. BP Exploration & Production, Inc., Civ. A. No. 14-1525, 2015 U.S. Dist. LEXIS 153846 (E.D. La. Nov. 13, 2015)
(analyzing protection for documents created in connection with the BP Gulf of Mexico oil spill; protecting as work product documents created by an expert who assisted in educating BP lawyers; "Dr. Fitzgerald understood that the purpose of this work was to educate lawyers representing BP in future litigation, that Wisner and BP were already involved in a lawsuit and that the reports would be provided to BP's current attorneys.").

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

Chapter: 34.706
Case Name: Edward Wisner Donation v. BP Exploration & Production, Inc., Civ. A. No. 14-1525, 2015 U.S. Dist. LEXIS 153846 (E.D. La. Nov. 13, 2015)
(analyzing protection for documents created in connection with the BP Gulf of Mexico oil spill; protecting as work product documents created by an expert who assisted in educating BP lawyers; "Contrary to plaintiff's argument, the evidence establishes that Dr. Fitzgerald [Expert] was neither acting in the ordinary course of defendant's business of responding to the oil spill nor performing the same duties as he did before Hayward contacted him in December 2013 to work on the Fourchon Beach Project. Merely because Dr. Fitzgerald was using his expertise and 'writing reports' does not establish that he had the same duties or was working for the same purposes in preparing the Fitzgerald Reports as he did when he acted first as a SCAT Team Lead in 2010 or later as a SCAT Team Adviser. The crucial question is not what type of work he performed, but whether the primary motivating purpose of his work was to assist with pending or anticipated litigation. No evidence has been presented establishing that the Fitzgerald Reports would have been created regardless of whether litigation was also expected to ensue, which might show that they were created in the ordinary course of business, rather than in anticipation of litigation.").

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

Chapter: 34.706
Case Name: Edward Wisner Donation v. BP Exploration & Production, Inc., Civ. A. No. 14-1525, 2015 U.S. Dist. LEXIS 153846 (E.D. La. Nov. 13, 2015)
(analyzing protection for documents created in connection with the BP Gulf of Mexico oil spill; protecting as work product documents created by an expert who assisted in educating BP lawyers; "No field work or additional data gathering was conducted to generate these reports. Dr. Fitzgerald [Expert] understood at the time that the purpose of this work was to educate lawyers representing BP in future litigation, that Wisner and BP were already involved in a lawsuit and that the reports would be provided to BP's current attorneys. The work product doctrine protects the work of non-attorneys like Dr. Fitzgerald and his co-authors in compiling, organizing and evaluating data at the direction of and for use by Block and other attorneys in connection with pending or anticipated litigation.").

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

Chapter: 34.706
Case Name: Wreal LLC v. Amazon.com, Inc., Case No. 14-21385-CIV, 2015 U.S. Dist. LEXIS 35082 (S.D. Fla. March 20, 2015)
(explaining that a litigant can use an expert's testimony in a preliminary injunction hearing, which did not render expert testifying at trial for purposes of the federal rules -- thus allowing the expert to return to a non-testifying status for the trial; "At its root, this decision turns on the simple fact that Wreal is the master of its own case and can designate or de-designate experts for trial. Rule 26(a)(2)(A) requires disclosure of any expert that may be used 'at trial.' At this time, Wreal has not designated Dr. Maronick as an expert for use at trial. It has until June 15, 2015 to do so. For now, Dr. Maronick is simply a consulting, non-testifying expert, notwithstanding his prior role during the preliminary injunction phase."; "As of now, Dr. Maronick is not testifying at trial, and so barring discovery related to Dr. Maronick does not prejudice Amazon, as it does not have to prepare for his cross examination at trial.")

Case Date Jurisdiction State Cite Checked
2015-03-20 Federal FL

Chapter: 34.706
Case Name: Wreal LLC v. Amazon.com, Inc., Case No. 14-21385-CIV, 2015 U.S. Dist. LEXIS 35082 (S.D. Fla. March 20, 2015)
(explaining that a litigant can use an expert's testimony in a preliminary injunction hearing, which did not render expert testifying at trial for purposes of the federal rules -- thus allowing the expert to return to a non-testifying status for the trial; "Amazon has not demonstrated that the privilege afforded such non-testifying experts by Rule 26(b)(4)(D) has been waived. First, as other courts have found, whether such waiver is even possible appears subject to some debate. . . . Second, even if Dr. Maronick's status as a non-testifying expert was somehow waived by his participation in the preliminary injunction motion/hearing (or counsel's reference to his survey at the March 6, 2015 hearing), that status has likely now been restored.")

Case Date Jurisdiction State Cite Checked
2015-03-20 Federal FL

Chapter: 34.706
Case Name: Wreal LLC v. Amazon.com, Inc., Case No. 14-21385-CIV, 2015 U.S. Dist. LEXIS 35082 (S.D. Fla. March 20, 2015)
(explaining that a litigant can use an expert's testimony in a preliminary injunction hearing, which did not render expert testifying at trial for purposes of the federal rules -- thus allowing the expert to return to a non-testifying status for the trial; "Those cases that found waiver of the consulting expert witness privilege base the waiver on the fact that the expert in question has offered an opinion on something more closely related to trial or the ultimate resolution of a case (i.e. a summary judgment brief), that remains outstanding. Dr. Maronick's prior participation at the preliminary injunction phase does not fall into this category. Preliminary injunction matters are not necessarily related to 'trial' -- at least not for expert witness purposes, and, in any event, the preliminary injunction phase has passed.")

Case Date Jurisdiction State Cite Checked
2015-03-20 Federal FL

Chapter: 34.706
Case Name: Wreal LLC v. Amazon.com, Inc., Case No. 14-21385-CIV, 2015 U.S. Dist. LEXIS 35082 (S.D. Fla. March 20, 2015)
(explaining that a litigant can use an expert's testimony in a preliminary injunction hearing, which did not render expert testifying at trial for purposes of the federal rules -- thus allowing the expert to return to a non-testifying status for the trial; "There is authority to support the proposition that an expert's participation in preliminary injunction proceedings is separate and apart from whether that expert is a testifying expert for purposes of trial.")

Case Date Jurisdiction State Cite Checked
2015-03-20 Federal FL

Chapter: 34.706
Case Name: Petco Animal Supplies Stores, Inc. v. The Five Fifty Two Corp., 8:14CV280, 2015 U.S. Dist. LEXIS 23621 (D. Neb. Feb. 25, 2015)
(finding that the work product doctrine did not protect documents prepared by a contractor and an engineering company that plaintiff hired to repair premises; "Plaintiff has not met its burden to show that the work product doctrine is applicable to the requested discovery. Other than self-serving affidavits from Plaintiff's representative and attorney, Plaintiff has not submitted any evidence demonstrating that WDS and Excel were retained in anticipation of litigation. To the contrary, the evidence of record indicates that WDS and Excel were not retained to advise Plaintiff's attorney in preparation of this lawsuit, but rather were hired to repair the leased premises. Moreover, there is no evidence which suggests that WDS and Excel are consulting experts. Given that the primary issue in this case is whether Plaintiff complied with the lease by properly maintaining the leased premises, and the role WDS and Excel played in remedying the alleged defects, it appears that WDS and Excel are actually fact witnesses in this case.")

Case Date Jurisdiction State Cite Checked
2015-02-25 Federal NE

Chapter: 34.706
Case Name: Hexion Specialty Chems., Inc. v. Huntsman Corp., 95 A.2d 47, 50-51, 51 (Del. Ch. 2013)
(holding that defendant's financial advisor Merrill Lynch would not receive the protection given specially-retained litigation-related non-testifying experts, because it played a substantive role in the underlying events; "[I]f Huntsman was actually interested in having Merrill Lynch provide litigation services to its attorneys (instead of cloaking its financial services from discovery), Huntsman had both the time and the occasion to ask Merrill Lynch to form a separate team of litigation consultants. Had that happened, Merrill Lynch might then have maintained adequate internal controls to prevent the fact witnesses serving on the investment banking team from gaining knowledge of the litigation consultant team's work. In that case, Huntsman might have gained the protections of Rule 26(b)(4)(B) for the work of those litigation consultants."; "[I]t is plain that Merrill Lynch has continued to perform financial advisory services, including giving advice to the Huntsman board, during the period since the litigation was filed. Huntsman should not be able to throw a cloak of secrecy over Merrill Lynch's advisory activities by the simple expendiency of purporting to hire the same team of Merrill Lynch employees as its counsel's so-called litigation consultants.")

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

Chapter: 34.706
Case Name: Yeda Research & Dev. Co. v. Abbott GMBH & Co. KG, 292 F.R.D. 97, 109, 107, 108, 109 (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; "Rule 26(b)(4)(D) (former Rule 26(b)(4)(B)) expressly addresses the case of non-testifying experts and sets an 'even higher barrier' for discovery of their work product." (footnote and citation omitted); "This case presents the issue of 'whether, and to what extent, the work-product privilege applies when an expert alternately dons and doffs the 'privileged hat' of a litigation consultant and the 'non-privileged hat' of the testifying witness. In other words, does a litigant forfeit the privilege that would otherwise attach to a litigation consultant's work when he offers that expert as a testifying witness?'" (citation omitted); "Because the 2010 amendments were intended (as relevant here) to limit discovery only with regards to certain types of attorney work product, the same approach remains valid after the amendments. That is, courts should apply the 'broader discovery for testifying experts . . . to everything except 'materials generated or considered uniquely in the expert's role as consultant,' being sure to avoid compelling production of any of the materials now expressly protected by Rule 26. See Sara Lee [Corp. v. Kraft Foods, Inc.], 273 F.R.D. [416,] 419-20 [(N.D. Ill. 2011)] (quoting [SEC v.] Reyes, [No. C 06-04435 CRD,] 2007 U.S. Dist. LEXIS 27767, 2007 WL 963422, at *2 [(N.D. Cal. Mar. 30, 2007)]). At least one court has applied the exact same standards set forth in Reyes to a dual-hat expert after the 2010 amendments. See Sara Lee, 273 F.R.D. at 419-20.")

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

Chapter: 34.706
Case Name: Carroll Co. v. Sherwin-Williams Co., Case No. WMN 11 1700, 2012 U.S. Dist. LEXIS 145871, at *11, *13, *15 (D. Md. Oct. 10, 2012)
("[W]hen an individual serves as a litigation consultant and an expert witness, the party asserting the work product protection must demonstrate a 'clear distinction' between the individual's roles and information considered in those roles." (citation omitted); "Sherwin-Williams must illustrate the distinction between the information considered by Rafalko as an expert and as a litigation consultant. . . . Even if the distinction between Rafalko's roles is ambiguous, the ambiguity 'should be resolved in favor of the party seeking discovery.'" (citation omitted); "There is no 'clear distinction' between information relevant to Rafalko's role as a litigation consultant and as an expert witness. As such, Sherwin-Williams cannot withhold documents considered by Rafalko as work product privileged, and Plaintiffs' Motion to Compel is granted.")

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

Chapter: 34.706
Case Name: EEOC v. Wal-Mart Stores, Inc., Civ. No. 01-339-KKC, 2008 U.S. Dist. LEXIS 127953 (E.D. Ky. Aug. 5, 2008)
(analyzing a non-testifying expert who also had historic knowledge; "Perilous though it may be relative to the parameters of discovery and privilege, an expert can theoretically serve both testifying and consulting roles relative to the same piece of litigation. . . . A party can segregate those roles -- and preserve a work product or other privilege claim as to the consultative role -- but material germane in any way to the testifying role must be produced, and a court will resolve all doubts in favor of disclosure."; "The Court has carefully analyzed the redacted documents tendered by Wal-Mart. None of the redacted references overtly cites involvement in settlement analysis. Certain entries on pages from the period of negotiations between the EEOC and Wal-Mart may arguably include partial-reference to settlement-related or other tasks distinct from Freeman's duties as a testifying expert. However, the vast majority of entries plainly appear to relate to the subject matter of Freeman's Report and his ultimate role as a testifying expert for Wal-Mart. At a minimum, even for the invoice pages that may involve some duties not within the testifying role, the delineation between the testifying and consultative roles is, at best for Wal-Mart, blurry and ambiguous. Under the cases, those characteristics require that the Court resolve the controversy in favor of production. The Court is not convinced that the activities enumerated within the redactions are clearly distinct from the subject matter of Freeman's testimonial role and Report, and as such, the Court compels production.")

Case Date Jurisdiction State Cite Checked
2008-08-05 Federal KY

Chapter: 34.707
Case Name: Hexion Specialty Chems., Inc. v. Huntsman Corp., 95 A.2d 47, 50-51, 51 (Del. Ch. 2013)
(holding that defendant's financial advisor Merrill Lynch would not receive the protection given specially-retained litigation-related non-testifying experts, because it played a substantive role in the underlying events; "[I]f Huntsman was actually interested in having Merrill Lynch provide litigation services to its attorneys (instead of cloaking its financial services from discovery), Huntsman had both the time and the occasion to ask Merrill Lynch to form a separate team of litigation consultants. Had that happened, Merrill Lynch might then have maintained adequate internal controls to prevent the fact witnesses serving on the investment banking team from gaining knowledge of the litigation consultant team's work. In that case, Huntsman might have gained the protections of Rule 26(b)(4)(B) for the work of those litigation consultants."; "[I]t is plain that Merrill Lynch has continued to perform financial advisory services, including giving advice to the Huntsman board, during the period since the litigation was filed. Huntsman should not be able to throw a cloak of secrecy over Merrill Lynch's advisory activities by the simple expendiency of purporting to hire the same team of Merrill Lynch employees as its counsel's so-called litigation consultants.")

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

Chapter: 34.708
Case Name: Kurlander v. Kroenke Arena Company, LLC, Civ. A. No. 16-cv-02754-WYD-NYW, 2017 U.S. Dist. LEXIS 113145 (D. Colo. July 20, 2017)
(finding that the work product doctrine did not protect a non-testifying expert's survey, or responses to the survey; holding that disclosing work product did not automatically trigger a subject matter waiver; holding that one testifying expert's opinion was protected, but that the plaintiff had established exceptional circumstances; "The third-party responses to the Survey Questions similarly do not constitute attorney or non-testifying expert work product. KAC and the third parties have no relationship, such as those identified in Rule 26(b)(3), that justifies the extension of the work product doctrine to the survey responses. Additionally, the responses to the Survey Questions are not the work of Ms. Knutson. The third parties did not prepare their responses on behalf of Defendant in anticipation of litigation or trial. Rather, they responded to non-confidential questions posed by Defendant's non-testifying expert. Even Ms. Knutson's own statements regarding confidentiality, which vary between the different email chains, are ambiguous at best about how long the third parties' responses would remain confidential. . . . Defendant cites no cases, and this court could find none, that suggest a party can claim work product protection over communication authored by third parties with whom it has no relationship. All of these factors lead this court to conclude that the third parties' survey responses are not attorney work product under Rule 26(b)(3). To the extent that correspondence authored by the third parties could constitute facts held by the non-testifying expert, this court again finds that the issue is more appropriately considered under Rule 26(b)(4)(D).")

Case Date Jurisdiction State Cite Checked
2017-07-20 Federal CO

Chapter: 34.708
Case Name: Wreal LLC v. Amazon.com, Inc., Case No. 14-21385-CIV, 2015 U.S. Dist. LEXIS 35082 (S.D. Fla. March 20, 2015)
(explaining that a litigant can use an expert's testimony in a preliminary injunction hearing, which did not render expert testifying at trial for purposes of the federal rules -- thus allowing the expert to return to a non-testifying status for the trial; "There is authority to support the proposition that an expert's participation in preliminary injunction proceedings is separate and apart from whether that expert is a testifying expert for purposes of trial.")

Case Date Jurisdiction State Cite Checked
2015-03-20 Federal FL

Chapter: 34.708
Case Name: Wreal LLC v. Amazon.com, Inc., Case No. 14-21385-CIV, 2015 U.S. Dist. LEXIS 35082 (S.D. Fla. March 20, 2015)
(explaining that a litigant can use an expert's testimony in a preliminary injunction hearing, which did not render expert testifying at trial for purposes of the federal rules -- thus allowing the expert to return to a non-testifying status for the trial; "At its root, this decision turns on the simple fact that Wreal is the master of its own case and can designate or de-designate experts for trial. Rule 26(a)(2)(A) requires disclosure of any expert that may be used 'at trial.' At this time, Wreal has not designated Dr. Maronick as an expert for use at trial. It has until June 15, 2015 to do so. For now, Dr. Maronick is simply a consulting, non-testifying expert, notwithstanding his prior role during the preliminary injunction phase."; "As of now, Dr. Maronick is not testifying at trial, and so barring discovery related to Dr. Maronick does not prejudice Amazon, as it does not have to prepare for his cross examination at trial.")

Case Date Jurisdiction State Cite Checked
2015-03-20 Federal FL

Chapter: 34.708
Case Name: Wreal LLC v. Amazon.com, Inc., Case No. 14-21385-CIV, 2015 U.S. Dist. LEXIS 35082 (S.D. Fla. March 20, 2015)
(explaining that a litigant can use an expert's testimony in a preliminary injunction hearing, which did not render expert testifying at trial for purposes of the federal rules -- thus allowing the expert to return to a non-testifying status for the trial; "Those cases that found waiver of the consulting expert witness privilege base the waiver on the fact that the expert in question has offered an opinion on something more closely related to trial or the ultimate resolution of a case (i.e. a summary judgment brief), that remains outstanding. Dr. Maronick's prior participation at the preliminary injunction phase does not fall into this category. Preliminary injunction matters are not necessarily related to 'trial' -- at least not for expert witness purposes, and, in any event, the preliminary injunction phase has passed.")

Case Date Jurisdiction State Cite Checked
2015-03-20 Federal FL

Chapter: 34.708
Case Name: Wreal LLC v. Amazon.com, Inc., Case No. 14-21385-CIV, 2015 U.S. Dist. LEXIS 35082 (S.D. Fla. March 20, 2015)
(explaining that a litigant can use an expert's testimony in a preliminary injunction hearing, which did not render expert testifying at trial for purposes of the federal rules -- thus allowing the expert to return to a non-testifying status for the trial; "Amazon has not demonstrated that the privilege afforded such non-testifying experts by Rule 26(b)(4)(D) has been waived. First, as other courts have found, whether such waiver is even possible appears subject to some debate. . . . Second, even if Dr. Maronick's status as a non-testifying expert was somehow waived by his participation in the preliminary injunction motion/hearing (or counsel's reference to his survey at the March 6, 2015 hearing), that status has likely now been restored.")

Case Date Jurisdiction State Cite Checked
2015-03-20 Federal FL

Chapter: 34.708
Case Name: JCP Merger Sub LLC v. Baker Eng'g & Risk Consultants, Inc., Civ. A. No. 12-2825 (MAS), 2013 U.S. Dist. LEXIS 84979, at *11 & n.2, *11-12 (D.N.J. June 18, 2013)
(holding that an engineering firm retained by plaintiff deserved protection as a nontestifying expert, even though the retainer letter was dated after the nontestifying expert's report, and even though the nontestifying expert had earlier been retained to conduct ordinary services; "JPC [Plaintiff] has submitted a letter which shows that Weidlinger [firm hired by general contractor that hired plaintiff for the project to become engineer of record for panels that were the subject of the suit] was retained 'to investigate the precast-wall panel design at the referenced project, to issue a report to this law firm on your findings, and to render expert testimony, if we so desire and advise you.'. . . Thus, Weidlinger would properly be considered a nontestifying expert within the meaning of Rule 26(b)(4)(D)."; noting that the retainer letter was dated after the nontestifying expert's report; "'That the letter is dated September 20, 2011 -- one week after the date of the Weidlinger Report -- does not change this conclusion. The Court's in camera review confirms that Weidlinger was, in fact, retained by JPC at an earlier date.'"; noting that the nontestifying expert had previously been engaged to provide ordinary engineering services; "That Weidlinger may have been retained in the ordinary course of business sometime in July 2010 does not change this conclusion. The Court makes no determination as to Weidlinger's earlier role. The Court merely concludes that at least as of the date of the Weidlinger Report, Weidlinger was acting as a consulting expert for JPC.")

Case Date Jurisdiction State Cite Checked
2013-06-18 Federal NJ B 4/14

Chapter: 34.709
Case Name: Wreal LLC v. Amazon.com, Inc., Case No. 14-21385-CIV, 2015 U.S. Dist. LEXIS 35082 (S.D. Fla. March 20, 2015)
(explaining that a litigant can use an expert's testimony in a preliminary injunction hearing, which did not render expert testifying at trial for purposes of the federal rules -- thus allowing the expert to return to a non-testifying status for the trial; "At its root, this decision turns on the simple fact that Wreal is the master of its own case and can designate or de-designate experts for trial. Rule 26(a)(2)(A) requires disclosure of any expert that may be used 'at trial.' At this time, Wreal has not designated Dr. Maronick as an expert for use at trial. It has until June 15, 2015 to do so. For now, Dr. Maronick is simply a consulting, non-testifying expert, notwithstanding his prior role during the preliminary injunction phase."; "As of now, Dr. Maronick is not testifying at trial, and so barring discovery related to Dr. Maronick does not prejudice Amazon, as it does not have to prepare for his cross examination at trial.")

Case Date Jurisdiction State Cite Checked
2015-03-20 Federal FL

Chapter: 34.709
Case Name: AMCO Ins. Co. v. Mark's Custom Signs, Inc., Case No. 12-2065-CM-KGG, 2013 U.S. Dist. LEXIS 53803, at *8 (D. Kan. Apr. 16, 2013)
(analyzing issues in an insurance subrogation case; "Although the Court does not agree that Rule 26(b)(4)(A) requires discovery concerning testifying experts, other than depositions, must await the formal identification of the experts, there are good practical reasons for imposing that limitation. . . . In its memorandum, the Plaintiff explains that although it expects to designate these experts for testimony, it may not. If either of these experts is not expected to testify at trial, and thus becomes only a 'consulting expert,' some of these materials may be protected from discovery under Rules 26(b)(4)(D) or 26(b)(3). Plaintiff's expert disclosures are due May 31, 2013. Under these facts, the Court agrees that it would be premature to resolve the present issues before the experts are designated.")

Case Date Jurisdiction State Cite Checked
2013-04-16 Federal KS B 3/14

Chapter: 34.709
Case Name: Yeda Research & Dev. Co. v. Abbott GMBH & Co. KG, 292 F.R.D. 97, 109, 104 (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; "[T]he 2010 amendment to Rule 26(a)(2)(B) was accompanied by several other changes to the expert discovery rules governing privilege. The 2010 amendment was, in essence, an effort to reign in courts that had held that the disclosure requirement of Rule 26(a)(2)(B) trumped all claims of privilege.")

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

Chapter: 34.709
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 Jurisdiction State Cite Checked
2013-01-01 Federal DC B 4/14

Chapter: 34.710
Case Name: State ex rel. Malashock v. Jamison, No. SC95606, 2016 Mo. LEXIS 329 (Mo. Nov. 1, 2016)
(holding that a testifying expert who had been de-designated was now considered a non-testifying expert and therefore immune from discovery; "Plaintiff designated Mr. Newbold as a trial witness and rescinded that designation without disclosing Mr. Newbold's opinions or conclusions regarding the case. Consequently, this Court holds that there was no disclosing event that waived the work product privilege.")

Case Date Jurisdiction State Cite Checked
2016-11-01 Federal MO

Chapter: 34.710
Case Name: Wreal LLC v. Amazon.com, Inc., Case No. 14-21385-CIV, 2015 U.S. Dist. LEXIS 35082 (S.D. Fla. March 20, 2015)
(explaining that a litigant can use an expert's testimony in a preliminary injunction hearing, which did not render expert testifying at trial for purposes of the federal rules -- thus allowing the expert to return to a non-testifying status for the trial; "Amazon has not demonstrated that the privilege afforded such non-testifying experts by Rule 26(b)(4)(D) has been waived. First, as other courts have found, whether such waiver is even possible appears subject to some debate. . . . Second, even if Dr. Maronick's status as a non-testifying expert was somehow waived by his participation in the preliminary injunction motion/hearing (or counsel's reference to his survey at the March 6, 2015 hearing), that status has likely now been restored.")

Case Date Jurisdiction State Cite Checked
2015-03-20 Federal FL

Chapter: 34.710
Case Name: Wreal LLC v. Amazon.com, Inc., Case No. 14-21385-CIV, 2015 U.S. Dist. LEXIS 35082 (S.D. Fla. March 20, 2015)
(explaining that a litigant can use an expert's testimony in a preliminary injunction hearing, which did not render expert testifying at trial for purposes of the federal rules -- thus allowing the expert to return to a non-testifying status for the trial; "Those cases that found waiver of the consulting expert witness privilege base the waiver on the fact that the expert in question has offered an opinion on something more closely related to trial or the ultimate resolution of a case (i.e. a summary judgment brief), that remains outstanding. Dr. Maronick's prior participation at the preliminary injunction phase does not fall into this category. Preliminary injunction matters are not necessarily related to 'trial' -- at least not for expert witness purposes, and, in any event, the preliminary injunction phase has passed.")

Case Date Jurisdiction State Cite Checked
2015-03-20 Federal FL

Chapter: 34.710
Case Name: Wreal LLC v. Amazon.com, Inc., Case No. 14-21385-CIV, 2015 U.S. Dist. LEXIS 35082 (S.D. Fla. March 20, 2015)
(explaining that a litigant can use an expert's testimony in a preliminary injunction hearing, which did not render expert testifying at trial for purposes of the federal rules -- thus allowing the expert to return to a non-testifying status for the trial; "At its root, this decision turns on the simple fact that Wreal is the master of its own case and can designate or de-designate experts for trial. Rule 26(a)(2)(A) requires disclosure of any expert that may be used 'at trial.' At this time, Wreal has not designated Dr. Maronick as an expert for use at trial. It has until June 15, 2015 to do so. For now, Dr. Maronick is simply a consulting, non-testifying expert, notwithstanding his prior role during the preliminary injunction phase."; "As of now, Dr. Maronick is not testifying at trial, and so barring discovery related to Dr. Maronick does not prejudice Amazon, as it does not have to prepare for his cross examination at trial.")

Case Date Jurisdiction State Cite Checked
2015-03-20 Federal FL

Chapter: 34.710
Case Name: In re Jourdanton Hosp. Corp., No. 04-14-00356-CV, 2014 Tex. App. LEXIS 8209 (4th Dist. App. Tex. July 30, 2014)
(finding that de-designating a testifying expert did not waive any work product protection; "Here, the Hospital de-designated Castillo promptly after the exception argument was made, before the trial court ruled on the asserted privilege and before Castillo provided any expert testimony. The trial court acknowledged Castillo's de-designation on the record at the hearing, and Riley does not complain that the de-designation was improper. In addition to providing an affidavit testifying that the Report was not provided to her in anticipation of any expert testimony she might give, Castillo is no longer a testifying expert witness. Therefore, the Investigation Report remains privileged.")

Case Date Jurisdiction State Cite Checked
2014-07-30 State TX

Chapter: 34.710
Case Name: Para v. Anderson, 290 P.3d 1214, 1215, 1216 (Ariz. 2012)
("This special action requires us to decide whether redesignation of an expert witness in a civil case from 'testifying' to 'consulting' operates to insulate the expert from discovery. We previously issued an order accepting jurisdiction with a written opinion to follow. This is that opinion. We hold that a party may not reinstate the privileges and discovery protections that apply to consulting experts by redesignating an expert as a consultant once the expert's opinions have been disclosed."; "Federal courts have split on the question whether redesignation of an expert works to prevent discovery from that expert after the expert's report or opinion has been disclosed.")

Case Date Jurisdiction State Cite Checked
2012-01-01 State AZ B 5/13

Chapter: 34.711
Case Name: Dover v. British Airways, PLC (UK), CV 2012-5567 (RJD) (MDG), 2014 U.S. Dist. LEXIS 114121 (E.D.N.Y. Aug. 15, 2014)
(analyzing a non-testifying expert; "Although defendant is correct that the spreadsheets contain information culled from publicly available facts, the spreadsheets were prepared by an expert who is not expected to be called as a witness at trial. Thus, the spreadsheets are 'subject to the more stringent discovery rules' of Rule 26(b)(4)(D) of the Federal Rules of Civil Procedure, which protects against disclosure of information from non-testifying, consulting experts. . . . The Rule also protects the identity of a non-testifying expert from disclosure."; "Defendant contends that plaintiffs waived any protection by putting the r-squared analysis and spreadsheets at issue in allegations in the Complaint and in submissions and at oral argument on the motion to dismiss."; "This Court finds significant that plaintiffs state they do not intend to use the same r-squared analysis at trial and have already provided the underlying data used by their consulting expert in his regression analysis. Importantly, plaintiffs also advise that they intend to use different experts at trial who will base their analyses on information obtained in discovery beyond what was publicly available pre-litigation.")

Case Date Jurisdiction State Cite Checked
2014-08-15 Federal NY

Chapter: 34.711
Case Name: AMCO Ins. Co. v. Mark's Custom Signs, Inc., Case No. 12-2065-CM-KGG, 2013 U.S. Dist. LEXIS 53803, at *10-11 (D. Kan. Apr. 16, 2013)
(analyzing issues in an insurance subrogation case; focusing on non-testifying experts; requiring a privilege log of documents prepared by non-testifying experts; "If one or more expert is not designated as a witness, the supplemental privilege log claiming any work product privilege must, to comply with Rule 26(b)(5), include enough information to enable the Defendant to evaluate any work product claim under Rule 26(b)(3) (documents prepared by party or consultants in anticipation of litigation) or Rule 26(b)(4)(D) (facts known or opinions held by non-testifying experts retained for trial preparation or in anticipation of litigation).")

Case Date Jurisdiction State Cite Checked
2013-04-16 Federal KS 3/14

Chapter: 34.711
Case Name: Little Hocking Water Ass'n v. E.I. Du Pont De Nemours & Co., Civ. A. 2:09-cv-1081, 2013 U.S. Dist. LEXIS 22213, at *25-26, *26 (S.D. Ohio Feb. 19, 2013)
("Little Hocking's privilege log does not identify 'litigation consultants' by name, referring to them simply as 'LC' or 'L/C.'. . . In other words, there is no way to distinguish one consultant from another or to ascertain from Little Hocking's privilege log whether or not the 'litigation consultant' appearing in a particular entry was the 'particular litigation consultant' purportedly retained to assist in formulating legal strategy. As the party resisting production, Little Hocking bears the burden of establishing the existence of the attorney client privilege. See, e.g., United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999). For the reasons discussed supra, Little Hocking's cryptic privilege log does not provide sufficient information to enable the Court to determine if the consultant notes are privileged."; "Accordingly, viewing this record as a whole, the Court concludes that Little Hocking has not established that the attorney client privilege protects the notes and compilations authored by 'litigation consultants.'")

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

Chapter: 34.801
Case Name: Millsaps College v. Lexington Ins. Co., Civ. A. No. 3:16CV193-CWR-LRA, 2017 U.S. Dist. LEXIS 114849 (S.D. MS. July 24, 2017)
(holding that a testifying expert must produce factual communications; "A party is not entitled to discover facts known or opinions held by a non-testifying expert. Fed. R. Civ. P. 26(b)(4)(D). In the case of a testifying expert, however, communications between a party's attorney and its expert are protected, unless the communications relate to the expert's compensation, identify facts or data that the attorney provided and the expert considered in forming his opinion, or identify the attorney's assumptions that were relied upon by the expert. Fed. R. Civ. P. 26(b)(4)(C). Millsaps argues that even those communications could be withheld under another claim of privilege, relying on this sentence, 'The rule does not exclude protection under other doctrines, such as privilege or independent development of the work-product doctrine.' The Court disagrees.")

Case Date Jurisdiction State Cite Checked
2017-07-24 Federal MS

Chapter: 34.802
Case Name: Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1194, 1194-95, 1195 (11th Cir. 2013)
(analyzing work product issues relating to Chevron's testifying expert; "To alter the outcome of these cases, the 2010 Amendments did two things. First, as outlined above, the drafters added Rules 26(b)(4)(B) and (C) to protect draft expert reports and attorney-expert communications as work product. Second, the drafters changed the language of Rule 26(a)(2)(B) from 'data or other information' to 'facts or data.' This change rejects the outcome reached by cases that relied on the old 'other information' language in Rule 26(a)(2)(B) to compel the production of draft expert reports and communications between attorneys and experts. Rule 26(a)(2)(B) was changed so that it would not conflict with new Rules 26(b)(4)(B) and (C), which now expressly exempt draft reports and attorney-expert communications from discovery."; "None of this suggests the drafters' intent to confer work-product status on the notes of a testifying expert or on a testifying expert's communications with other experts. Rather, the 2010 Amendment to Rule 26(a)(2)(B) was intended to protect the opinion work-product of attorneys in the context of expert discovery."; "Notably here, Chevron and Dr. Hinchee do not argue that the discovery materials at issue in this case contain the core opinion work-product of Chevron attorneys. Instead, by withholding Dr. Hinchee's personal notes and communications with other experts, Chevron and Dr. Hinchee attempt to shield the theories and mental impressions of Dr. Hinchee and his fellow testifying experts. Rule 26 provides no basis for this, neither before nor after the 2010 Amendments."; "To the extent any attorney core opinion work-product is embedded in the 1,200 documents at issue here, Chevron and Dr. Hinchee may appropriately redact such portions -- subject to providing a privilege log under Rule 26(b)(5) and submitting the materials for in camera review if requested by the Republic and directed by the district court. Any redaction beyond attorney core opinion work-product is not allowed.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal B 7/14

Chapter: 34.802
Case Name: Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1189, 1190, 1192 (11th Cir. 2013)
(analyzing work product issues relating to Chevron's testifying expert; "At issue in this appeal are (1) Dr. Hinchee's personal notes prepared for his own use and (2) email communications between Dr. Hinchee and a group of non-attorneys consisting primarily of other Chevron experts. The question is whether the Republic may discover these documents."; finding that testifying experts' materials are governed by the specific testifying expert rule rather than the general work product rule; "The text, structure, and background of Rule 26 suggest otherwise. While Rule 26(b)(3)(A) mentions a 'party or its representative,' including an 'attorney, consultant, surety, indemnitor, insurer, or agent,' the word 'expert' is noticeably absent. This silence speaks volumes, in light of the fact that right after subsection (b)(3), Rule 26 contains another provision expressly dealing with experts."; "There is good reason why the general work product doctrine of Rule 26(b)(3)(A) does not cover a testifying expert. . . . The focus of the work-product doctrine in Hickman [Hickman v. Taylor, 329 U.S. 495 (1947)] was to protect the work of lawyers."; "In sum, neither the text of Rule 26(b)(3)(A) nor its structure, history, and rationale support extending the work-product doctrine to all testifying expert materials.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal B 7/14

Chapter: 34.803
Case Name: Frappied v. Affinity Gaming Black Hawk, LLC, Civ. A. No. 17-cv-01294-RM-NYW, 2018 U.S. Dist. LEXIS 125232 (D. Colo. July 26, 2018)
(analyzing discoverability of an alternative analysis considered by plaintiff's testifying expert; ultimately finding the related documents discoverable; "After the 2010 amendments, a specially retained expert is generally required to provide the following: a written report that reflects a complete statement of all opinions to be presented and the basis thereof; the facts or data considered by the witness in forming the opinions; any exhibits that will be used to summarize or support the expert's opinion; the witness's qualifications, including a list of all publications authored in the previous ten years; a list of all other cases in which, during the previous four years, a witness testified as an expert in deposition or at trial; and a statement of the compensation to be paid for the study and testimony in the case. Fed. R. Civ. P. 26(a)(2)(B). The Local Practice of this District also requires parties to disclose within the report of a specially retained expert the principles and/or methodology used by the expert in coming to his or her opinion."; "Defendant contends that the Advisory Committee Notes to the 2010 amendments to Rule 26 make clear that it may inquire as to whether Dr. Bardwell performed 'alternate analyses,' which were not ultimately included in the final expert report. In particular, Defendant relies upon the following statement: 'Counsel are also free to question expert witnesses about alternative analyses, testing methods, or approaches to the issues on which they are testifying, whether or not the expert considered them in forming the opinions expressed.' Fed. R. Civ. P. 26(a)(2)(B) advisory committee's notes to 2010 amendment (emphasis added)."; "And Rule 26(b)(4)(C) was added to provide work-product protection for attorney-expert communications regardless of the form of communications, whether oral, written, electronic, or otherwise." Id. The Notes indicate that '[t]he protection is limited to communications between an expert witness required to provide a report under Rule 26(b)(4)(B) and the attorney for the party on whose behalf the witness will be testifying, including any 'preliminary' expert opinions.' Id. Both Rule 26(b)(4)(B) and (C) apply to all forms of discovery, including deposition. Id."; "In its discovery dispute chart, Defendant argues that some of the allegations contained in the operative Third Amended Complaint derive from statistical analyses that are not reflected in Dr. Bardwell's expert report. Plaintiffs disputed this assertion during the Telephonic Discovery Conference, arguing that none of the allegations contained in the operative pleading are based on statistical analyses performed by Dr. Bardwell but not included in his final report. The court has no reason to doubt the accuracy of counsel's representation as an officer of the court. However, Affinity Gaming is entitled to confirm with Dr. Bardwell that he did not perform any analyses that resulted in the allegations asserted in the Third Amended Complaint. And to the extent that Plaintiffs relied upon any analysis by Dr. Bardwell to assert allegations in the Third Amended Complaint (or respond to any written discovery), Defendant should be permitted to discover the analysis performed (assumptions, methodology, and results), though not the communications between counsel and Dr. Bardwell even if Plaintiffs no longer wish to pursue the same theories."; "The more nuanced question is whether Defendant can discover information about analyses performed by a testifying expert when the information is not included in the final expert report and will not be offered by Plaintiffs at trial. Put another way, in terms of the language of the Advisory Committee, are any other statistical analyses that Dr. Bardwell performed in the course of his engagement 'preliminary expert opinions,' which are protected from disclosure under Rule 26(b)(4)(B), or are they 'alternate analyses,' which do not fall within the protections of Rule 26(b)(4)(B) and (C)? To answer this question, the court again begins by considering the intent of Rule 26(b)(4) and its foundation in the attorney work product doctrine."; "[T]his court concludes that Defendant is entitled to depose Dr. Bardwell about other statistical analyses he performed on the facts and data provided to him about Defendant's workforce and termination decisions. To that end, Defendant may inquire as to the facts and data that form the basis for such analyses, the assumptions made by Dr. Bardwell, the methodology used or principles applied by Dr. Bardwell, and the outcome of any such analyses. These categories of questions properly serve to ascertain information regarding the reliability of an expert's methodology and the credibility of an expert, and thereby assist the factfinder as well as the court in its function as a gatekeeper for expert opinions. Defendant may not inquire about what information was conveyed to Plaintiffs' counsel, or whether such analyses appeared in draft reports, or why such analyses did not appear in the final reports, as all of these categories of questions implicate and impinge upon the communications between a party's counsel and a specially retained expert in contravention of Rule 26(b)(4). Nor may Defendant inquire about any of Dr. Bardwell's opinions that are not reflected in the final report, though Defendant may examine Dr. Bardwell about whether any alternate analyses support or detract from his opinions as reflected in his report.")

Case Date Jurisdiction State Cite Checked
2018-07-26 Federal CO
Comment:

key case


Chapter: 34.803
Case Name: NRDC, Inc. v. Ill. Power Resources Generating, LLC, No. 13-cv-1181, 2018 U.S. Dist. LEXIS 116873 (C.D. Ill. July 13, 2018)
(holding that a testifying expert's staff are not totally immune from discovery, but instead will be governed by the same rules that apply to materials created or shared with the testifying expert herself; "Rule 26(b) was amended in 2010 to add work product privilege protections of draft reports and testifying expert communications with attorneys. The change allows attorneys to interact with experts more freely in order to prepare the case. Prior to the change, all documents provided to testifying experts were discoverable, even documents that would have otherwise been protected as attorney work product. . . . Prior to the amendment, attorneys limited their contact with testifying experts to avoid disclosure of confidential information. Attorneys often hired separate, nontestifying experts as consultants, thereby increasing litigation expenses. The 2010 amendment sought to eliminate these added expenses and allow attorneys to use testifying experts more efficiently."; "The 2010 Amendment does not provide a blanket work product privilege for all documents generated by testifying experts."; "The Rule strikes the balance by limiting work product protection to draft reports and communications with counsel. The term 'draft report' includes any type of draft in any form. The term may include drafts of materials, such as charts, graphs, tables, etc., incorporated into the report. . . . The Advisory Committee states that the protection of attorney-expert communications extends to attorney communications with the expert's staff."; "In light of the language of Rule 26(b)(4) and the Advisory Committee Notes, the Court concludes that expert-staff communications sought by Plaintiffs in this case should not be subject to a blanket work product privilege. The expert does not get blanket protection by the rule, so neither should the staff member. The expert must produce notes of test results and other such documentation that underlies his or her expert opinions. The staff member's communication of such notes to the expert should not convert those notes into work product. The expert's communication with third parties are not protected. The expert's staff member's communications of the substance of such third-party conversations to the expert should not convert the communications into work product."; "Rather, the Rule 26(b)(4)(B)-(C) privilege extends to expert-staff communications that constitute drafts of the expert report, or portions thereof; and expert-staff communications that would reveal the mental impressions, conclusions, or legal theories of the party's attorneys that do not fit into the three exceptions set forth in Rule 26(b)(4)(C)(i)-(iii).")

Case Date Jurisdiction State Cite Checked
2018-07-13 Federal IL

Chapter: 34.803
Case Name: Ross v. City of Rockford, 15 CV 50064, 15 CV 50065, 2018 U.S. Dist. LEXIS 51398 (N.D. Ill. March 27, 2018)
("A plain reading of the rule establishes three important points. First, subsection (B) applies to drafts of reports and disclosures. The protection from disclosure does not apply to the final report or disclosure. By definition, a final document, be it a report or disclosure, is not a draft. See MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/draft (last visited Mar. 26, 2018) (defining 'draft' as a preliminary sketch, outline, or version); see also BOUVIER'S LAW DICTIONARY 939 (1914) (defining 'draft' as 'the rough copy of a legal document'). Final documents are fodder for discovery."; "Second, the broad protections for communications between an attorney and the expert witness captured by subsection (C) are limited by specified exceptions. Accordingly, by definition, if a party is seeking protection under subsection (C), the communication could only be protected if (1) it were made by an attorney, and (2) it does not fall within one of the three specified exceptions."; "Third, there is a distinction between subsections (C)(ii) and (C)(iii). Subsection (C)(ii) exempts from protection facts or data the expert considered in forming the opinions. In contrast, subsection (C)(iii) exempts from protection assumptions the expert relied on in forming the opinions. So subsection (C)(ii) exempts from protection facts or data considered, but subsection (C)(iii) exempts from protection assumptions relied upon."; "The 2010 amendments to Rule 26 added the protection for drafts of reports as well as communications between attorneys and experts. Fed. R. Civ. P. 26 advisory committee's note to 2010 amendment ('Rule 26(b)(4)(B) is added to provide work-product protection under Rule 26(b)(3)(A) and (B) for drafts of expert reports and disclosures. . . Rule 26(b)(4)(C) is added to provide work-product protection for attorney-expert communications. . .'). But the protection for attorney-expert communications does not apply to the extent the lawyer and the expert communicate about matters that fall within the three exceptions. Id. Consequently, discovery is permitted to identify facts or data the party's attorney provided to the expert and that the expert considered in forming the opinions to be expressed. Id. Likewise, discovery is permitted as to attorney-expert communications to identify any assumptions that counsel provided to the expert and that the expert relied upon in forming the opinions to be expressed. Id. Additionally, the 2010 amendments to Rule 26 did not alter the definition of 'considered.". . . As a result, after the 2010 amendments, 'theories or mental impressions' might be protected, but everything else is fair game."; "Case law has defined the terms 'considered' and 'relied upon.' The term 'considered' is broader than the term 'relied upon.'"; "Likewise the term 'relied on' possesses a specific meaning. In this context, 'relied upon' means that the expert's opinion depended upon the assumptions provided by the attorney.")

Case Date Jurisdiction State Cite Checked
2018-03-27 Federal IL
Comment:

key case


Chapter: 34.803
Case Name: United States of Am. for the Use of Donald B. Murphy Contractors v. Travelers Casualty and Surety Co. of Am., 8:15CV48, 2017 U.S. Dist. LEXIS 115874 (D. Neb. July 25, 2017)
(holding that plaintiff's in-house lawyer acted in a legal capacity, not just a risk management capacity; also noting that he acted as a testifying expert, and therefore was required to disclose documents under that rule; "[I]t appears that some of the documents identified as privileged relate to the subject matter of Stylos' expert opinion, i.e., the REA [Request for Equitable Adjustment]. These documents contain factual information regarding scheduling problems and delays experienced on the project. Moreover, several of these documents, and the information contained therein, were likely considered by Stylos in forming his expert opinion. DBM [Plaintiff] contends that privilege has not been waived because Stylos avers he did not rely on any of the documents when preparing the REA. However, '[w]here the expert has acquired information relevant to his opinion, defendants should not be bound by his statement that he did not consider it.". . . Because the Court's in camera review reveals that certain of the withheld documents contain factual information that relates to the subject matter of Stylos' expert testimony, the Court will order that these documents be produced.")

Case Date Jurisdiction State Cite Checked
2017-07-25 Federal NE

Chapter: 34.803
Case Name: Millsaps College v. Lexington Ins. Co., Civ. A. No. 3:16CV193-CWR-LRA, 2017 U.S. Dist. LEXIS 114849 (S.D. MS. July 24, 2017)
(holding that a testifying expert must produce factual communications; "A party is not entitled to discover facts known or opinions held by a non-testifying expert. Fed. R. Civ. P. 26(b)(4)(D). In the case of a testifying expert, however, communications between a party's attorney and its expert are protected, unless the communications relate to the expert's compensation, identify facts or data that the attorney provided and the expert considered in forming his opinion, or identify the attorney's assumptions that were relied upon by the expert. Fed. R. Civ. P. 26(b)(4)(C). Millsaps argues that even those communications could be withheld under another claim of privilege, relying on this sentence, 'The rule does not exclude protection under other doctrines, such as privilege or independent development of the work-product doctrine.' The Court disagrees.")

Case Date Jurisdiction State Cite Checked
2017-07-24 Federal MS

Chapter: 34.803
Case Name: Kurlander v. Kroenke Arena Company, LLC, Civ. A. No. 16-cv-02754-WYD-NYW, 2017 U.S. Dist. LEXIS 113145 (D. Colo. July 20, 2017)
(finding that the work product doctrine did not protect a non-testifying expert's survey, or responses to the survey; holding that disclosing work product did not automatically trigger a subject matter waiver; holding that one testifying expert's opinion was protected, but that the plaintiff had established exceptional circumstances; "As to the electronic correspondence exchanged between Ms. Knutson and the Putative Class Members, Plaintiff obtained those communications through the voluntarily disclosure of information from Defense counsel in the context of this dispute. Although the language of the Rule mentions only interrogatories or deposition as impermissible, this court finds that the documents belonging to Ms. Knutson, and which reflect facts and opinions known to her, should not be the subject of requests for production directed at Defendant. To hold otherwise risks that parties will circumvent the protections of Rule 26(b)(4)(D) by simply using a different discovery mechanism than those described in the Rule.")

Case Date Jurisdiction State Cite Checked
2017-07-20 Federal CO

Chapter: 34.803
Case Name: In re Western States Wholesale Natural Gas Antitrust Litig., MDL Dkt. No. 1566, Base Case No. 2:03-cv-01431-RCJ-PAL, 2017 U.S. Dist. LEXIS 108444 (D. Nev. July 12, 2017)
(analyzing communications between a lawyer and a testifying expert; "The majority view that all materials provided to an expert were required to be disclosed in discovery led the American Bar Association ('ABA') to adopt a resolution in 2006 urging rule changes to preclude discovery of privileged materials exchanged between lawyers and experts. The ABA resolution recommended that until the rules were amended, lawyers should enter into voluntary stipulations protecting draft reports and communications between attorneys and experts which were related to an expert report. Id."; "The 2010 Amendment to Rule 26 changed the Rule 26(b)(2)(B) disclosure requirements from 'data or other information' considered by the expert witness to require disclosure of 'facts or data.'"; "The 2010 Amendment to Rule 26(b)(4) added Rule 26(b)(4)(B) to extend explicit protection to draft reports. It also amended Rule 26(b)(4)(C) to provide work product protection to communications between the party's counsel and testifying experts with three exceptions. The three exceptions are attorney-expert communications, regardless of form, that: (1) 'relate to compensation for the expert's study or testimony;' (2) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed;' and (3) 'identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.' Fed. R. Civ. P. 26(b)(4)(C)(i)-(iii)."; "The parties' current dispute requires the court to determine whether the summaries, spreadsheet and documents marked or annotated by counsel provided to Mr. Donkin are 'facts and data' and/or assumptions plaintiffs' counsel provided that he considered and/or relied on in reaching his opinions or opinion work product containing attorney mental impressions, conclusions, opinions or legal theories. The former is discoverable. The latter is not."; "Having reviewed and carefully considered the moving and responsive papers and supporting declarations and exhibits, the court will deny defendants' motion to compel plaintiffs to produce opinion work product in the evidence notebooks provided to Mr. Donkin."; "The court finds that Mr. Donkin's answer to a single question that he 'relied on' materials provided to him in the evidence notebooks is insufficient to overcome work-product protection for core or opinion work product of plaintiffs' counsel. Plaintiffs have provided a complete list of the entire content of the evidence notebooks. Defense counsel had an opportunity to inquire at Mr. Donkin's deposition whether his report and opinions relied on any assumptions provided by plaintiffs' counsel. Mr. Donkin clearly relied on the facts and data in the notebook as well as a few other materials he reviewed on his own, which he identified at his deposition. However, nothing in the record supports a finding that Mr. Donkin relied on the mental impressions, conclusions, and theories of counsel or on assumptions provided by counsel in reaching his opinions.")

Case Date Jurisdiction State Cite Checked
2017-07-12 Federal NV

Chapter: 34.803
Case Name: Luminara Worldwide, LLC v. RAZ Imports, Inc., Case No. 15-cv-03028 (SRN/FLN), 2016 U.S. Dist. LEXIS 158183 (D. Minn. Nov. 15, 2016)
(holding that even after the 2010 federal rules amendments, testifying experts who are not obligated to file a report are governed by the pre-2010 waiver rules which therefore require the testifying expert t produce any communications from counsel that the testifying expert "considered"; "On the basis of the advisory committee notes to the 2010 amendments, as well as a particularly scholarly and well-considered opinion of the Eastern District of California analyzing those notes, Magistrate Judge Noel ultimately determined that the 2010 amendments to Rule 26 did not change the law of waiver of privilege existing prior to the amendments, at least as applied to non-reporting expert witnesses."; "As Magistrate Judge Noel noted in the October 5 Order, the waiver of privilege attached to Patton's status as a non-reporting expert extends to any documents and information he considered in connection with his proposed testimony. (October 5 Order at 4.) In this jurisdiction, as well as others, courts have clearly and repeatedly recognized that the term 'considered' is to be interpreted broadly in this context."; "This rule recognizes that part of the purpose of expert discovery is to discover not just the information that the expert used in reaching his conclusions, but also what information he ignored or failed to properly incorporate into his analysis."; In the alternative, Luminara asks the Court to grant it leave to re-designate Patton as a reporting expert pursuant to Rule 26(a)(2)(B). . . . Magistrate Judge Noel carefully considered this same request in his October 5 Order and rejected it, concluding that Luminara was amply advised in both the February 25 and May 18 orders of the duties imposed by designating Patton as a non-reporting expert witness. Such decisions are well within the discretion of the magistrate judge.")

Case Date Jurisdiction State Cite Checked
2016-11-15 Federal MN
Comment:

key case


Chapter: 34.803
Case Name: Davita Healthcare Partners, Inc. v. United States, No. 11-297C, 2016 U.S. Claims LEXIS 1427 (Fed. Cl. Sept. 29, 2016)
("Testifying experts' documents and tangible things prepared and provided to counsel in anticipation of litigation are not protected under the general work-product doctrine embodied in Rule 26(b)(3)(A), but rather are protected under a more specific provision, Rule 26(b)(4)(C), addressing communications between counsel and testifying experts.")

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

Chapter: 34.803
Case Name: Davita Healthcare Partners, Inc. v. United States, No. 11-297C, 2016 U.S. Claims LEXIS 1427 (Fed. Cl. Sept. 29, 2016)
("The fact that the redacted information relates to tasks for which the expert was compensated does not alter that information's privileged status. Of course, details of work revealed in the expert's work description would relate to tasks for which she was compensated, but Plaintiffs have established that this description itself reveals protected communications with counsel. This situation is analogous to protecting attorney-client privileged information contained in counsel's bills describing work performed. An attorney's description of work performed for a client in an invoice itself reflects privileged information that is routinely protected as privileged, despite the fact that it appears in a bill."; "Plaintiffs disclosed all required information relating to the expert's compensation. As Plaintiffs note in their Appendix, they produced Ms. Ryan's [Testifying expert] engagement letter, retainer, fee arrangement, and emails discussing her compensation. Further, in her expert report, Ms. Ryan notes that she is being paid $725 per hour. . . . These disclosures comport with the exception to the work-product protection for expert compensation. Additional disclosures of privileged communications on the invoices are not required.")

Case Date Jurisdiction State Cite Checked
2016-09-29 Federal

Chapter: 34.803
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 Jurisdiction State Cite Checked
2016-09-29 Federal Other

Chapter: 34.803
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 Jurisdiction State Cite Checked
2016-09-29 Federal Other

Chapter: 34.803
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 Jurisdiction State Cite Checked
2016-09-29 Federal Other

Chapter: 34.803
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 Jurisdiction State Cite Checked
2016-09-29 Federal Other

Chapter: 34.803
Case Name: Davita Healthcare Partners, Inc. v. United States, No. 11-297C, 2016 U.S. Claims LEXIS 1427 (Fed. Cl. Sept. 29, 2016)
("The fact that the redacted information relates to tasks for which the expert was compensated does not alter that information's privileged status. Of course, details of work revealed in the expert's work description would relate to tasks for which she was compensated, but Plaintiffs have established that this description itself reveals protected communications with counsel. This situation is analogous to protecting attorney-client privileged information contained in counsel's bills describing work performed. An attorney's description of work performed for a client in an invoice itself reflects privileged information that is routinely protected as privileged, despite the fact that it appears in a bill."; "Plaintiffs disclosed all required information relating to the expert's compensation. As Plaintiffs note in their Appendix, they produced Ms. Ryan's [Testifying expert] engagement letter, retainer, fee arrangement, and emails discussing her compensation. Further, in her expert report, Ms. Ryan notes that she is being paid $725 per hour. . . . These disclosures comport with the exception to the work-product protection for expert compensation. Additional disclosures of privileged communications on the invoices are not required.")

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

Chapter: 34.803
Case Name: Bingham v. Baycare Health System, Case No. 8:14-cv-73-T-23JSS, 2016 U.S. Dist. LEXIS 127933 (M.D. Fla. Sept. 20, 2016)
(being a testifying expert to produce a disclosure statement, after redacting opinion work product; "In moving to strike Mr. Bingham's supplemental expert disclosure, Defendant argues that Mr. Bingham failed to disclose the Written Disclosure Statement as material he considered in forming his expert opinion. However, the requirement to disclose material considered by a testifying expert is applicable to experts who are required to prepare a written report under Rule 26(a)(2)(B), not experts disclosed under Rule 26(a)(2)(C)."; "Under Rule 26(a)(2)(C), Mr. Bingham was required to disclose all facts related to his opinion, in summary form. . . . Notably, Defendant does not argue that Mr. Bingham's disclosure was insufficient or that it failed to contain a summary of the facts and opinions to which Mr. Bingham is expected to testify, as required under Rule 26(a)(2)(C). Therefore, Defendant fails to show that Mr. Bingham's testimony should be precluded for failure to comply with the expert disclosure rules based on the disclosure he provided in accordance with Rule 26(a)(2).")

Case Date Jurisdiction State Cite Checked
2016-09-20 Federal FL
Comment:

key case


Chapter: 34.803
Case Name: Bingham v. Baycare Health System, Case No. 8:14-cv-73-T-23JSS, 2016 U.S. Dist. LEXIS 127933 (M.D. Fla. Sept. 20, 2016)
(being a testifying expert to produce a disclosure statement, after redacting opinion work product; "In his expert disclosures, Mr. Bingham identified the Written Disclosure Statement as material he considered in forming his opinions, but he did not produce the Written Disclosure Statement in response to Defendant's request for production on the grounds that it is protected by the work-product doctrine, as determined by the Court in its prior order. However, the Court's prior order was based on Mr. Bingham's role as a party to this litigation, rather than as a testifying expert witness. Plaintiff now wears two hats -- one as a party and one as a testifying expert -- and attempts to shield material protected under one hat that is not protected under the other. Such a result, however, is inconsistent with Rule 26(b)(3)(A), which does not extend work-product protection to all materials of a testifying expert, and Rule 26(a)(2), which protects only the opinion work product of attorneys in the context of expert disclosures. As a testifying expert, Mr. Bingham cannot use the work-product doctrine as a sword and shield in this litigation."; "As the name indicates, the sword-and-shield doctrine prevents a party from using privileged information to prove a claim or defense while simultaneously hiding behind the shield of privilege to prevent the opposing party from effectively challenging such evidence.")

Case Date Jurisdiction State Cite Checked
2016-09-20 Federal FL

Chapter: 34.803
Case Name: Bingham v. Baycare Health System, Case No. 8:14-cv-73-T-23JSS, 2016 U.S. Dist. LEXIS 127933 (M.D. Fla. Sept. 20, 2016)
(requiring a testifying expert to produce a disclosure statement, after redacting opinion work product; "The protection afforded to draft expert reports is designed to protect the mental impressions and theories of the attorney, not the expert. . . . This protection, in turn, allows the focus of the expert discovery rules to be restored to discovering the substance of an expert's opinion, rather than the evolution of the expert's report or the attorney's role in preparing the expert.")

Case Date Jurisdiction State Cite Checked
2016-09-20 Federal FL

Chapter: 34.803
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 Jurisdiction State Cite Checked
2016-06-10 Federal NY

Chapter: 34.803
Case Name: Deangelis v. Corzine, 12 MD 2338, 2016 U.S. Dist. LEXIS 1856 (S.D.N.Y. Jan. 7, 2016)
(in an opinion by Judge Francis, concluding defendant's withheld documents were standalone documents rather than drafts, but they deserved privilege protection because they were originally to be included in a testifying expert's report but were then dropped; "Thus, the provisions of Rule 26 relating to expert disclosures, as modified by the 2010 amendment, seek to strike a balance. On the one hand, the expert disclosure requirements added to the Rules in 1993 stem from the notion that 'fundamental fairness requires disclosure of all information supplied to a testifying expert in connection with his testimony.'. . . On the other hand, 'the driving purpose of the 2010 amendment' to Rule 26 was to protect 'attorney mental impressions, conclusions, opinions, or legal theories' from discovery; '[t]he protections for draft reports and attorney-expert communications were targeted at the areas most vulnerable to the disclosure of opinion work product.'")

Case Date Jurisdiction State Cite Checked
2016-01-07 Federal NY

Chapter: 34.803
Case Name: Tessera, Inc. v. UTAC (Taiwan) Corp., Case No. 10-cv-04435-EJD (HRL), 2015 U.S. Dist. LEXIS 118803 (N.D. Cal. Sept. 4, 2015)
("Tessera might possess some photos that must be disclosed. FRCP 26(a)(2)(B)(ii) requires the production of 'facts or data considered' by an expert to form his opinions. An expert 'considered' information that he 'reviewed' even if the expert did not ultimately rely on that information in his final report. . . . If Tessera sent Dr. Bravman any unproduced photos of UTC packages and Dr. Bravman ultimately declined to rely on them in his report, then Dr. Bravman nonetheless considered those photos and they must be produced.").

Case Date Jurisdiction State Cite Checked
2015-09-04 Federal CA

Chapter: 34.803
Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
(analyzing work product protection for materials created by a testifying expert; "In 2010, Rule 26 was amended to 'address concerns about expert discovery,' including by adding Rule 26(b)(4)(B) protecting drafts of export reports required under Rule 26(a)(2)(C). See adv. Comm. Notes (2010). Also added was Rule 26(b)(4)(C), which 'protect[s] communications between the party's attorney and any [expert] witness required to provide a report under Rule 26(a)(2)(B),' with three exceptions into which discovery is permitted: 'communications [that] (i) relate to compensation for the expert's study or testimony; (ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.' The advisory committee notes accompanying the 2010 amendments state: 'The addition of Rule 26(b)(4)(C) is designed to protect counsel's work-product and ensure that lawyers may interact with retained experts without fear of exposing these communications.'")

Case Date Jurisdiction State Cite Checked
2014-10-31 Federal DE

Chapter: 34.803
Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
(analyzing the waiver effect of lawyers' communications to testifying experts; "This misapprehends the scope of Rule 26(b)(4)(C)'s protection, which extends only to communications between a party's attorney and a testifying expert. Rule 26(b)(4)(C) does not erase the general rule that work-product protection is waived when material is disclosed to a testifying expert.")

Case Date Jurisdiction State Cite Checked
2014-10-31 Federal DE

Chapter: 34.803
Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
(analyzing the waiver effect of lawyers' communications to testifying experts; "Taxpayer has not met its burden, however, to show that Privilege Log No. 82 is protected. This document consists of an email from Taxpayer's counsel at Cleary Gottlieb to Xroads which, by its own language, puts forth 'facts' for Xroads' consideration in preparing its valuation letters. Accordingly, this document must be produced. See Fed. R. Civ. P. 26(b)(4)(C)(i)-(iii).")

Case Date Jurisdiction State Cite Checked
2014-10-31 Federal DE

Chapter: 34.803
Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
(analyzing work product protection for materials created by a testifying expert; "Several of the Privilege Log documents are just that. Privilege Log Nos. 275 and 277, authored by Xroads [Valuation firm], and Nos. 315-17, authored by Duff & Phelps [Valuation firm], are draft reports on the fair market value of WASCO, and come within the ambit of Rule 26(b)(4)'s protection. These documents were shared among employees of the testifying expert firms, Taxpayer, VE, outside counsel, and (for the Duff & Phelps reports) with outside tax advisors PricewaterhouseCoopers LLP ('PWC') As noted in the previous Memorandum Order, the Court is persuaded that 'Taxpayer . . . Had common interests with its parent and other affiliated entities' and there was no waiver of protection by virtue of these documents being shared among members of the VE corporate family . . . In particular with regard to Nos. 315-17, the Duff & Phelps reports, the Court finds no waiver of privilege because PWC is not an adversary nor a conduit to an adversary. On the contrary, PWC was regularly consulted as a non-testifying expert.")

Case Date Jurisdiction State Cite Checked
2014-10-31 Federal DE

Chapter: 34.803
Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
(analyzing the waiver effect of lawyers' communications to testifying experts; "These documents are protected, as each contains attorney mental impressions and theories regarding the creation of the valuation report, and each comes within the scope of Rule 26(b)(4)(C)'s protection for an attorney's mental impressions when contained in a communication with a testifying expert.")

Case Date Jurisdiction State Cite Checked
2014-10-31 Federal DE

Chapter: 34.803
Case Name: United States v. Veolia Environment N.A. Operations, Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 15417 (D. Del. Oct. 31, 2014)
(finding that corporate affiliates had a common interest, and therefore did not waive privilege protection by sharing privileged communications; "This misapprehends the scope of Rule 26(b)(4)(C)'s protection, which extends only to communications between a party's attorney and a testifying expert. Rule 26(b)(4)(C) does not erase the general rule that work-product protection is waived when material is disclosed to a testifying expert. . . . Other courts addressing the issue of whether the work-product doctrine extends to communications between a non-attorney or agent and the testifying expert have concluded that it does not."; "The Courts finds these cases instructive. By enlisting Xroads and Duff & Phelps as expert witnesses in its litigation with the IRS, Taxpayer has placed them 'in a position to serve as a conduit to transmit' either these documents 'or at least [their] conclusions' to the IRS; the reason Taxpayer is submitting documents to these experts is the hope that the experts will agree with their content, incorporate them into an expert report, and thereby provide Taxpayer an opportunity to persuade the IRS to agree with Taxpayer's position. . . . Consequently, the documents submitted to the testifying experts here lose their work-product protection, unless the protection is otherwise preserved by Rule 26(b)(4)(C).")

Case Date Jurisdiction State Cite Checked
2014-10-31 Federal DE

Chapter: 34.803
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 Jurisdiction State Cite Checked
2014-08-25 Federal IL

Chapter: 34.803
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)
("Thus, the court rejects the CFTC's argument that the court should undertake a detailed analysis of Mr. Iavarone's involvement in the drafting of the experts' reports and declare that defendants have forfeited the protection of Rule 26(b)(4)(B) and (C) based on some quantitative or qualitative threshold of attorney involvement.")

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

Chapter: 34.803
Case Name: Republic of Ecuador v. MacKay, 742 F.3d 860, 866-67 (9th Cir. 2014)
("Rule 26(b)(3) extends protection to 'Materials.' Rule 26(b)(4) then separately provides some protection for 'Experts.' This strongly suggests that experts were intended to be treated separately from the 'materials' protected under Rule 26(b)(3). Indeed, the fact that the Committee used the term 'expert' in Rule 26(b)(4) but not in the list of representatives in Rule 26(b)(3) suggests that the omission of 'experts' in the text of Rule 26(b)(3) was intentional.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 6/14

Chapter: 34.803
Case Name: Republic of Ecuador v. MacKay, 742 F.3d 860, 865 n.1 (9th Cir. 2014)
("'Parties must also disclose the subject matter and a summary of facts and opinions for testifying experts who fall outside the report requirement. Fed. R. Civ. P. 26(a)(2)(C). These experts typically include treating physicians or a party's employees who do not regularly provide expert testimony.'")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 6/14

Chapter: 34.803
Case Name: United States v. Veolia Envt'l N. Am. Operations, Inc., Civ. No. 12-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245, at *10 n.4 (D. Del. Oct. 25, 2013)
(applying relatively new federal rules in protecting communications between testifying experts and the client's lawyer, but not other client representatives; "It appears that courts have largely taken a narrow view of the protections from discovery provided in the post-2010 Rules 26(b)(4)(B) and (C).")

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal DE B 5/14

Chapter: 34.803
Case Name: AMCO Ins. Co. v. Mark's Custom Signs, Inc., Case No. 12-2065-CM-KGG, 2013 U.S. Dist. LEXIS 53803, at *10 (D. Kan. Apr. 16, 2013)
(analyzing issues in an insurance subrogation case; focusing on non-testifying experts; "Because the Rule protects only communications with Plaintiff's attorney, notes by Plaintiff's non-attorney agents regarding communications with a testifying expert are not protected.")

Case Date Jurisdiction State Cite Checked
2013-04-16 Federal KS B 3/14

Chapter: 34.803
Case Name: Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1190, 1191, 1192, 1194-95 (11th Cir. 2013)
(explaining materials created by experts are not covered by the work product rule, but instead are covered by the special expert rule; "While Rule 26(b)(3)(A) mentions a 'party or its representative,' including an 'attorney, consultant, surety, indemnitor, insurer, or agent,' the word 'expert' is noticeably absent. This silence speaks volumes, in light of the fact that right after subsection (b)(3), Rule 26 contains another provision expressly dealing with experts. Concurrent with the enactment of Rule 26(b)(3)(A) in 1970, the drafters also implemented an entirely new provision in Rule 26(b)(4)(A) to address specifically the discovery of facts known and opinions held by a testifying expert that were 'acquired or developed in anticipation of litigation or for trial.' Fed. R. Civ. P. 26(b)(4) (1970)."; "[A] reading of Rule 26(b)(3)(A) to include testifying experts would render parts of Rule 26(b)(4) superfluous, a result disfavored by our canons of statutory (or here rule) interpretation."; "Indeed, an overbroad reading of Rule 26(b)(3)(A) would undermine the drafters' deliberate choice in Rules 26(b)(4)(B) and (C) to extend work-product protection to only draft expert reports and attorney-expert communications."; "There is good reason why the general work-product doctrine of Rule 26(b)(3)(A) does not cover a testifying expert."; "Cloaking all materials prepared by or for a testifying expert under the work-product doctrine inhibits the thorough and sharp cross examination that is vital to our adversary system."; "In sum, neither the text of Rule 26(b)(3)(A) nor its structure, history, and rationale support extending the work-product doctrine to all testifying expert materials."; "None of this suggests the drafters' intent to confer work-product status on the notes of a testifying expert or on a testifying expert's communications with other experts. Rather, the 2010 Amendment to Rule 26(a)(2)(B) was intended to protect the opinion work-product of attorneys in the context of expert discovery. As the 2010 Advisory Committee put it, '[t]he refocus of disclosure on "facts or data" is meant to limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel.'" [Advisory Comm. Note on 2010 Amendments to Fed. R. Civ. P. 26] (emphasis added))

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

Chapter: 34.803
Case Name: Carrion v. For Issuance of Subpoena Under 28 U.S.C. § 1782(a) (In re Republic of Eduador), 735 F.3d 1179, 1187 (10th Cir. 2013)
(analyzing the relatively new federal work product rule, and finding that work product protection was limited to the terms of the the rule and did not include documents provided to a testifying expert; "Thus, the underlying purpose of the 2010 revision was to return the work-product doctrine to its traditional understanding. The drafters articulated: 'The refocus of disclosure on "facts and data" is meant to limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel.' Fed. R. Civ. P. 26(a)(2)(B) (2010 Comments).")

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

Chapter: 34.803
Case Name: Carrion v. For Issuance of Subpoena under § 28 U.S.C. 0782(a) (In re Republic of Ecuador), 735 F.3d 1179, 1186, 1187 (10th Cir. 2013)
(holding that the testifying experts' materials are governed by the specific testifying expert rule rather than the general work product rule; "Some courts held that drafts of expert reports were discoverable under Rule 26(a)(2)(B)(ii). . . . Other courts held that communications between an expert and a party's attorney -- even communications containing the attorney's mental impression -- were discoverable under Rule 26(a)(2)(B)(ii). . . . These decisions, according to the Advisory Committee, had the effect of raising the cost of litigation and causing attorneys to be overly cautious in their interaction with experts.."; "Thus, in 2010 the Advisory Committee abandoned the 'facts or other information' standard for expert reporting and adopted the 'facts or data' standard found in the current version of the Rules. . . . Through this change, the Advisory Committee 'intended to alter the outcome in cases that have relied on the 1993 formulation in requiring disclosure of all attorney -- expert communications and draft reports.'"; "Contrary to Chevron's assertion that these revisions were intended to have wide-ranging effects, the revisions appear to alter only the outcome of cases either allowing discovery of draft reports or attorney -- expert communications."; "Other comments make clear that the protections of Rules 26(b)(4)(B) and (C) are the exclusive protections afforded to expert trial-preparation materials. 'Rules 26(b)(4)(B) and (C) do not impede discovery about the opinions to be offered by the expert or the development, foundation, or basis of those opinions.' Fed. R. Civ. P. 26(b)(4) (2010 Comments). If Rules 26(b)(4)(B) were not exclusive, then such a statement would be unlikely."; "Thus, Rule 26(b)(4), especially subdivision (C), restores the core understanding that the work-product doctrine solely protects the inner workings of an attorney's mind.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal B 7/14

Chapter: 34.803
Case Name: Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1194, 1194-95, 1195 (11th Cir. 2013)
(analyzing work product issues relating to Chevron's testifying expert; "To alter the outcome of these cases, the 2010 Amendments did two things. First, as outlined above, the drafters added Rules 26(b)(4)(B) and (C) to protect draft expert reports and attorney-expert communications as work product. Second, the drafters changed the language of Rule 26(a)(2)(B) from 'data or other information' to 'facts or data.' This change rejects the outcome reached by cases that relied on the old 'other information' language in Rule 26(a)(2)(B) to compel the production of draft expert reports and communications between attorneys and experts. Rule 26(a)(2)(B) was changed so that it would not conflict with new Rules 26(b)(4)(B) and (C), which now expressly exempt draft reports and attorney-expert communications from discovery."; "None of this suggests the drafters' intent to confer work-product status on the notes of a testifying expert or on a testifying expert's communications with other experts. Rather, the 2010 Amendment to Rule 26(a)(2)(B) was intended to protect the opinion work-product of attorneys in the context of expert discovery."; "Notably here, Chevron and Dr. Hinchee do not argue that the discovery materials at issue in this case contain the core opinion work-product of Chevron attorneys. Instead, by withholding Dr. Hinchee's personal notes and communications with other experts, Chevron and Dr. Hinchee attempt to shield the theories and mental impressions of Dr. Hinchee and his fellow testifying experts. Rule 26 provides no basis for this, neither before nor after the 2010 Amendments."; "To the extent any attorney core opinion work-product is embedded in the 1,200 documents at issue here, Chevron and Dr. Hinchee may appropriately redact such portions -- subject to providing a privilege log under Rule 26(b)(5) and submitting the materials for in camera review if requested by the Republic and directed by the district court. Any redaction beyond attorney core opinion work-product is not allowed.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal B 7/14

Chapter: 34.803
Case Name: Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1189, 1190, 1192 (11th Cir. 2013)
(analyzing work product issues relating to Chevron's testifying expert; "At issue in this appeal are (1) Dr. Hinchee's personal notes prepared for his own use and (2) email communications between Dr. Hinchee and a group of non-attorneys consisting primarily of other Chevron experts. The question is whether the Republic may discover these documents."; finding that testifying experts' materials are governed by the specific testifying expert rule rather than the general work product rule; "The text, structure, and background of Rule 26 suggest otherwise. While Rule 26(b)(3)(A) mentions a 'party or its representative,' including an 'attorney, consultant, surety, indemnitor, insurer, or agent,' the word 'expert' is noticeably absent. This silence speaks volumes, in light of the fact that right after subsection (b)(3), Rule 26 contains another provision expressly dealing with experts."; "There is good reason why the general work product doctrine of Rule 26(b)(3)(A) does not cover a testifying expert. . . . The focus of the work-product doctrine in Hickman [Hickman v. Taylor, 329 U.S. 495 (1947)] was to protect the work of lawyers."; "In sum, neither the text of Rule 26(b)(3)(A) nor its structure, history, and rationale support extending the work-product doctrine to all testifying expert materials.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal B 7/14

Chapter: 34.803
Case Name: Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1194, 1195 (11th Cir. 2013)
(explaining materials created by experts are not covered by the work product rule, but instead are covered by the special expert rule; "[T]he 2010 Amendments did two things. First, as outlined above, the drafters added Rules 26(b)(4)(B) and (C) to protect draft expert reports and attorney-expert communications as work product. Second, the drafters changed the language of Rule 26(a)(2)(B) from 'data or other information' to 'facts or data.' This change rejects the outcome reached by cases that relied on the old 'other information' language in Rule 26(a)(2)(B) to compel the production of draft expert reports and communications between attorneys and experts. Rule 26(a)(2)(B) was changed so that it would not conflict with new Rules 26(b)(4)(B) and (C), which now expressly exempt draft reports and attorney-expert communications from discovery."; "To the extent any attorney core opinion work-product is embedded in the 1,200 documents at issue here, Chevron and Dr. Hinchee may appropriately redact such portions -- subject to providing a privilege log under Rule 26(b)(5) and submitting the materials for in camera review if requested by the Republic and directed by the district court. Any redaction beyond attorney core opinion work-product is not allowed.")

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

Chapter: 34.803
Case Name: In re Republic of Ecuador, Case No. 4:11mc73 RH/WCS, 2012 U.S. Dist. LEXIS 157497, at *7, *8, *9 (N.D. Fla. Nov. 2, 2012)
("For purposes of this rule [Fed. R. Civ. P 26(b)(4)(C)], an attorney may communicate through others in the office -- another attorney, a paralegal, or another staff member -- as may an expert. Communications between Chevron's attorneys or staff members and Dr. Hinchee or his staff members are protected -- even if other experts or their staff members participated in or incidentally received copies of the communications -- unless the communications come within the three exceptions set out in the rule. But a qualification is in order: sending a copy of an unprotected communication to an attorney -- that is, incidentally copying an attorney on a communication between others -- does not change the communication to a protected one."; "That brings us to materials not described in the 2010 amendments. The amendments do not speak to an expert's own notes that are not sent to an attorney and are not part of a draft report. And the amendments do not speak to an expert's communications only with other testifying experts, not also with attorneys. The better view is that under the rules as they now stand, these materials are not protected."; "Two unassailable points support this conclusion. First, before the 2010 amendments, the attorney-client privilege and work-product doctrine did not protect a testifying expert's own notes or communications with another testifying expert. This apparently was the widespread view."; "Second, the 2010 amendments clearly specify the materials they protect -- draft reports and communications between the expert and the party's attorney -- and do not mention the expert's own notes or communications with other testifying experts. The care with which rules amendments are crafted and reviewed makes it virtually impossible that this was an oversight.")

Case Date Jurisdiction State Cite Checked
2012-11-02 Federal FL B 5/13

Chapter: 34.804
Case Name: Frappied v. Affinity Gaming Black Hawk, LLC, Civ. A. No. 17-cv-01294-RM-NYW, 2018 U.S. Dist. LEXIS 125232 (D. Colo. July 26, 2018)
(analyzing discoverability of an alternative analysis considered by plaintiff's testifying expert; ultimately finding the related documents discoverable; "After the 2010 amendments, a specially retained expert is generally required to provide the following: a written report that reflects a complete statement of all opinions to be presented and the basis thereof; the facts or data considered by the witness in forming the opinions; any exhibits that will be used to summarize or support the expert's opinion; the witness's qualifications, including a list of all publications authored in the previous ten years; a list of all other cases in which, during the previous four years, a witness testified as an expert in deposition or at trial; and a statement of the compensation to be paid for the study and testimony in the case. Fed. R. Civ. P. 26(a)(2)(B). The Local Practice of this District also requires parties to disclose within the report of a specially retained expert the principles and/or methodology used by the expert in coming to his or her opinion."; "Defendant contends that the Advisory Committee Notes to the 2010 amendments to Rule 26 make clear that it may inquire as to whether Dr. Bardwell performed 'alternate analyses,' which were not ultimately included in the final expert report. In particular, Defendant relies upon the following statement: 'Counsel are also free to question expert witnesses about alternative analyses, testing methods, or approaches to the issues on which they are testifying, whether or not the expert considered them in forming the opinions expressed.' Fed. R. Civ. P. 26(a)(2)(B) advisory committee's notes to 2010 amendment (emphasis added)."; "And Rule 26(b)(4)(C) was added to provide work-product protection for attorney-expert communications regardless of the form of communications, whether oral, written, electronic, or otherwise." Id. The Notes indicate that '[t]he protection is limited to communications between an expert witness required to provide a report under Rule 26(b)(4)(B) and the attorney for the party on whose behalf the witness will be testifying, including any 'preliminary' expert opinions.' Id. Both Rule 26(b)(4)(B) and (C) apply to all forms of discovery, including deposition. Id."; "In its discovery dispute chart, Defendant argues that some of the allegations contained in the operative Third Amended Complaint derive from statistical analyses that are not reflected in Dr. Bardwell's expert report. Plaintiffs disputed this assertion during the Telephonic Discovery Conference, arguing that none of the allegations contained in the operative pleading are based on statistical analyses performed by Dr. Bardwell but not included in his final report. The court has no reason to doubt the accuracy of counsel's representation as an officer of the court. However, Affinity Gaming is entitled to confirm with Dr. Bardwell that he did not perform any analyses that resulted in the allegations asserted in the Third Amended Complaint. And to the extent that Plaintiffs relied upon any analysis by Dr. Bardwell to assert allegations in the Third Amended Complaint (or respond to any written discovery), Defendant should be permitted to discover the analysis performed (assumptions, methodology, and results), though not the communications between counsel and Dr. Bardwell even if Plaintiffs no longer wish to pursue the same theories."; "The more nuanced question is whether Defendant can discover information about analyses performed by a testifying expert when the information is not included in the final expert report and will not be offered by Plaintiffs at trial. Put another way, in terms of the language of the Advisory Committee, are any other statistical analyses that Dr. Bardwell performed in the course of his engagement 'preliminary expert opinions,' which are protected from disclosure under Rule 26(b)(4)(B), or are they 'alternate analyses,' which do not fall within the protections of Rule 26(b)(4)(B) and (C)? To answer this question, the court again begins by considering the intent of Rule 26(b)(4) and its foundation in the attorney work product doctrine."; "[T]his court concludes that Defendant is entitled to depose Dr. Bardwell about other statistical analyses he performed on the facts and data provided to him about Defendant's workforce and termination decisions. To that end, Defendant may inquire as to the facts and data that form the basis for such analyses, the assumptions made by Dr. Bardwell, the methodology used or principles applied by Dr. Bardwell, and the outcome of any such analyses. These categories of questions properly serve to ascertain information regarding the reliability of an expert's methodology and the credibility of an expert, and thereby assist the factfinder as well as the court in its function as a gatekeeper for expert opinions. Defendant may not inquire about what information was conveyed to Plaintiffs' counsel, or whether such analyses appeared in draft reports, or why such analyses did not appear in the final reports, as all of these categories of questions implicate and impinge upon the communications between a party's counsel and a specially retained expert in contravention of Rule 26(b)(4). Nor may Defendant inquire about any of Dr. Bardwell's opinions that are not reflected in the final report, though Defendant may examine Dr. Bardwell about whether any alternate analyses support or detract from his opinions as reflected in his report.")

Case Date Jurisdiction State Cite Checked
2018-07-26 Federal CO
Comment:

key case


Chapter: 34.804
Case Name: NRDC, Inc. v. Ill. Power Resources Generating, LLC, No. 13-cv-1181, 2018 U.S. Dist. LEXIS 116873 (C.D. Ill. July 13, 2018)
(holding that a testifying expert's staff are not totally immune from discovery, but instead will be governed by the same rules that apply to materials created or shared with the testifying expert herself; "Rule 26(b) was amended in 2010 to add work product privilege protections of draft reports and testifying expert communications with attorneys. The change allows attorneys to interact with experts more freely in order to prepare the case. Prior to the change, all documents provided to testifying experts were discoverable, even documents that would have otherwise been protected as attorney work product. . . . Prior to the amendment, attorneys limited their contact with testifying experts to avoid disclosure of confidential information. Attorneys often hired separate, nontestifying experts as consultants, thereby increasing litigation expenses. The 2010 amendment sought to eliminate these added expenses and allow attorneys to use testifying experts more efficiently."; "The 2010 Amendment does not provide a blanket work product privilege for all documents generated by testifying experts."; "The Rule strikes the balance by limiting work product protection to draft reports and communications with counsel. The term 'draft report' includes any type of draft in any form. The term may include drafts of materials, such as charts, graphs, tables, etc., incorporated into the report. . . . The Advisory Committee states that the protection of attorney-expert communications extends to attorney communications with the expert's staff."; "In light of the language of Rule 26(b)(4) and the Advisory Committee Notes, the Court concludes that expert-staff communications sought by Plaintiffs in this case should not be subject to a blanket work product privilege. The expert does not get blanket protection by the rule, so neither should the staff member. The expert must produce notes of test results and other such documentation that underlies his or her expert opinions. The staff member's communication of such notes to the expert should not convert those notes into work product. The expert's communication with third parties are not protected. The expert's staff member's communications of the substance of such third-party conversations to the expert should not convert the communications into work product."; "Rather, the Rule 26(b)(4)(B)-(C) privilege extends to expert-staff communications that constitute drafts of the expert report, or portions thereof; and expert-staff communications that would reveal the mental impressions, conclusions, or legal theories of the party's attorneys that do not fit into the three exceptions set forth in Rule 26(b)(4)(C)(i)-(iii).")

Case Date Jurisdiction State Cite Checked
2018-07-13 Federal IL

Chapter: 34.804
Case Name: Deangelis v. Corzine, 12 MD 2338, 2016 U.S. Dist. LEXIS 1856 (S.D.N.Y. Jan. 7, 2016)
(in an opinion by Judge Francis, concluding defendant's withheld documents were standalone documents rather than drafts, but they deserved privilege protection because they were originally to be included in a testifying expert's report but were then dropped; "First, the defendants argue that, because the documents at issue 'exist only in early, draft versions of the expert report that were clearly marked as 'drafts,'" the documents' existence within those drafts confers draft status on the documents. . . . This argument fails for the simple reason that its factual premise lacks support in the evidence the defendants submitted."; "'It is evident from Mr. Markham's deposition testimony that he requested that Cornerstone provide both a 'write-up' or 'summary of the last week of October' and a 'chart' of 'the Chicago operations' and that those documents exist (or existed) separate and apart from the draft reports in which they were later included. Moreover, the documents the defendants submitted for in camera review do not persuade me that the write-up and the chart 'exist only in early, draft versions' of Mr. Markham's report. With regard to the write-up, the simple fact that the defendants have submitted both (1) a document that they say 'is the 'write-up'" -- meaning, presumably, the document that Cornerstone prepared -- and (2) a separate document (which they characterize as 'a full draft of [Mr.] Markham's report') incorporating the write-up, undercuts the defendants' position. As for the chart, the draft report that the defendants submitted contains comments and editing marks which suggest that the chart exists as a document independent of the report itself.")

Case Date Jurisdiction State Cite Checked
2016-01-07 Federal NY

Chapter: 34.804
Case Name: Deangelis v. Corzine, 12 MD 2338, 2016 U.S. Dist. LEXIS 1856 (S.D.N.Y. Jan. 7, 2016)
(in an opinion by Judge Francis, concluding defendant's withheld documents were standalone documents rather than drafts, but they deserved privilege protection because they were originally to be included in a testifying expert's report but were then dropped; "[I]t seems clear that, when he requested the documents, Mr. Markham anticipated that those documents would form a part of the report he was drafting. My in camera review of the documents at issue confirms that Mr. Markham did in fact insert the write-up and the chart into his draft report, providing persuasive evidence that these documents were created as preliminary versions of portions of Mr. Markham's expert report."; "An expert's notes setting out in detail the content and structure of her report, or even just a section of her report, could properly be shielded from disclosure by Rule 26(b)(4)(B) . . . (setting out factors that distinguish protected and discoverable expert notes). To the extent that the CFTC suggests that only drafts of an entire report, rather than portions thereof, are protected under Rule 26(b)(4)(B), that contention lacks merit. . . . Such a distinction is nowhere implied in the rule itself and would be at odds with the advisory committee's note, as it might unnecessarily interfere with the drafting of expert reports by, for example, preventing an expert from drafting a report one section at a time."; "'[O]ne of the CFTC's arguments is so illogical that it hardly merits acknowledgment. The agency suggests that, because Mr. Markham excluded the write-up and the chart from his final report, those documents cannot be deemed drafts. . . . As the defendants point out, 'the very nature of a draft [is] to change through the addition and/or subtraction of material.'. . . A rule that shields draft reports while requiring the disclosure of material excluded from the final report would be self-defeating.'")

Case Date Jurisdiction State Cite Checked
2016-01-07 Federal NY

Chapter: 34.804
Case Name: Numatics, Inc. v. Balluff, Inc., Case No. 13-11049, 2014 U.S. Dist. LEXIS 176759 (E.D. Mich. Dec. 16, 2014)
(criticizing a lawyer for having ghostwritten a testifying expert's report; "Rule 26 of the Federal Rules of Civil Procedure states that expert testimony 'must be accompanied by a written report -- prepared and signed by the witness.' Fed. R. Civ. P. 26(a)(2)(B) (emphasis added). Nothing in the rule prohibits counsel from helping the witness prepare the report. . . . The Rule does not permit a party to 'prepare the report for the witness.'"; "Determining whether counsel crosses the line separating permissible assistance from improper participation in the expert's report writing calls for 'a fact-specific inquiry.'"; "In this case, Justice conceded at his deposition that he did not draft the report. Instead, Ann G. Schoen, counsel for the defendants, drafted the report and gave it to Justice to review and sign. When questioned by the Court at oral argument, Ms. Schoen eventually acknowledged that she was the author of the first draft of the report. The defendants assert that on June 16, 2014, Justice met with counsel for the defendants for about eight hours to review the report, correcting parts of the report that did not reflect Justice's views of the case, and reviewing the prior art and patent. But Justice acknowledged that he made 'fairly minor' changes and otherwise adopted the attorney's report -- that is the only reasonable way to describe it -- in its entirety. Had he drafted the report, he said, it would not have consumed sixty-five pages. He would have 'boiled [it] down' to 'five pages' after removing 'the legalness out of it.'. . . The report does not represent Justice's own commentary on the evidence; in fact, it is several degrees removed from his own work."; "In total, Justice devoted less than 30 hours developing his opinions about the case, nearly half of which was spent at or traveling to the law office of Balluff's attorneys."; "Section H of the report illustrates the point. That section is nearly indistinguishable from Balluff's third supplemental invalidity contentions, which were disclosed on May 7, 2014, several months before Justice apparently signed the report. The pictures, charts, and diagrams are the same. The citations are identical. The prose is indistinguishable down to the punctuation, leading to only one possible conclusion: the report was ghost-written by Balluff's attorneys as a legal brief disguised (thinly) as an expert disclosure."; "Because Mr. Justice did not furnish a report that even approximated his original work in this case, and he could not apply the facts of the case to the principles upon which an obviousness opinion necessarily is based, he cannot testify as an expert in this case. See Fed. R. Evid. 702. Proper application of the Court's gatekeeping role requires this result. Unfortunately, dispensing justice in this case calls for dispensing with Justice.")

Case Date Jurisdiction State Cite Checked
2014-12-16 Federal MI

Chapter: 34.804
Case Name: U.S. Commodity Futures Trading Commission v. Newell, Case No. 12 C 6763, 2014 U.S. Dist. LEXIS 117734, at *9 (N.D. Ill. Aug. 25, 2014)
October 8, 2014 (PRIVILEGE POINT)

“Can an Adversary Explore Lawyers' Role in Drafting Their Testifying Experts' Reports?”

Under the 2010 changes to the Federal Rules of Civil Procedure, work product protection generally extends to testifying experts' draft reports. How does that general approach apply if the adversary believes that a party's lawyer helped draft those reports?

In U.S. Commodity Futures Trading Commission v. Newell, Case No. 12 C 6763, 2014 U.S. Dist. LEXIS 117734, at *9 (N.D. Ill. Aug. 25, 2014), plaintiff argued that defendants could not rely on the new rule extending work product protection — because defendants' lawyers had "commandeered" the drafting process. The court rejected this argument, concluding that any exploration of the lawyers' role would necessarily "require an analysis of the degree of counsel involvement (both quantity and quality) in the drafting of the report." Id. at *14. This in turn would "necessarily require production of all of the drafts of the report for comparison," as well as production of communications between the testifying expert and the defendants' lawyers. Id. The court concluded that the 2010 rules changes intended "to protect against that discovery." Id.

Not all courts might be so protective, so lawyers should still take a wary approach in this context.

Case Date Jurisdiction State Cite Checked
2014-08-25 Federal IL
Comment:

key case


Chapter: 34.804
Case Name: United States v. Veolia Envt'l N. Am. Operations, Inc., Civ. No. 12-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245, at *20-21 (D. Del. Oct. 25, 2013)
(applying relatively new federal rules in protecting communications between testifying experts and the client's lawyer, but not other client representatives; "On this issue the Court agrees with the government. Rule 26(b)(4)(C) only protects 'communications between the party's attorney' and that party's testifying expert (i.e., a Rule 26(a)(2) expert). Communications of 'facts or data . . . that the expert considered in forming the opinions to be expressed' that were provided to the expert by sources other than 'the party's attorney' are not protected by Rule 26(b)(4)(C). Nor, here, has the Taxpayer identified any other source of protection from disclosure of such 'facts or data.'")

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal DE B 5/14

Chapter: 34.804
Case Name: Grimaldi v. Burgess, 78 Va. Cir. 104, 106-107, 107 (Va. Cir. Ct. 2009)
(finding that a doctor who supplied a certifying opinion required by statute could testify on behalf of Plaintiff as an expert, and continue to withhold notes that the expert prepared in connection with the certification she prepared; "In looking to this statute [Va. Code § 8.01-20.1] the Court finds that the statue in its clear language states that when a certifying expert is identified as an expert to testify at trial, that expert's opinion becomes discoverable under Rule 4:1 of the Rules of the Supreme Court of Virginia. The only exception is that the expert's status as the certifying expert is not covered by 4:1. This Court reads the statute as saying once the expert is identified to testify at trial his certifying opinions and the bases for those opinions are still not discoverable and remain confidential. The language in the last sentence of the second paragraph of the statute indicates that only once the certifying expert becomes a designated expert are his opinions and the bases for those opinions then discoverable under Rule 4:1. The end of the last sentence of the second paragraph serves as a qualifier. It states that the expert's status as a certifying expert is to remain confidential and is not subject to discovery under Rule 4:1."; "While this Court may be troubled that the certifying expert can become the designated expert and his earlier opinion, report, and other documentation remain non-discoverable, it is not the role of this Court to substitute its opinion for that of the General Assembly. The Court believes the language of the statute speaks clearly as to its intent. That intent is to keep the identity of the certifying expert and his or her opinion confidential. It is clear that it was the intent of the General Assembly to protect the identity of the certifying expert. It was also the clear intent of the General Assembly to protect the opinions and the bases for those opinions.")

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

Chapter: 34.804
Case Name: Trigon Ins. Co. v. United States, 204 F.R.D. 277, 283 (E.D. Va. 2001)
("Given that drafts may be used for cross-examination and other purposes, and are not protected by another doctrine of privilege, drafts should be disclosed where, as here, they are not solely the product of the experts own thoughts and work.")

Case Date Jurisdiction State Cite Checked
2001-01-01 Federal VA

Chapter: 34.804
Case Name: Trigon Ins. Co. v. United States, 204 F.R.D. 277, 283 & n.8 (E.D. Va. 2001)
(citing the 1993 amendments to Federal Rule 26 in concluding that materials shared with the testifying expert must be produced; holding that because "drafts [of the expert's reports] may be used for cross examination and other purposes, and are not protected by another doctrine of privilege, drafts should be disclosed where, as here, they are not solely the product of the experts own thoughts and work" (footnote omitted); concluding that there was no reason to decide whether experts must retain drafts that they themselves create, but noting that "there are cogent reasons which militate against such a requirement")

Case Date Jurisdiction State Cite Checked
2001-01-01 Federal VA

Chapter: 34.804
Case Name: Trigon Ins. Co. v. United States, 204 F.R.D. 277, 289 (E.D. Va. 2001)
(finding that experts had engaged in wrongful spoliation of evidence by destroying their communications with counsel and their drafts)

Case Date Jurisdiction State Cite Checked
2001-01-01 Federal VA

Chapter: 34.804
Case Name: Trigon Ins. Co. v. United States, 204 F.R.D. 277, 295 (E.D. Va. 2001)
("The burden of proving ghost writing rests with Trigon. To prove ghost writing, Trigon must use the available documents to show that AGE provided the substance of the opinions of the testifying experts, not just editorial assistance.")

Case Date Jurisdiction State Cite Checked
2001-01-01 Federal VA

Chapter: 34.1001
Case Name: Acceleration Bay LLC v. Activision Blizzard, Inc., Civ. A. Nos. 16-453 to -455-RGA, 2018 U.S. Dist. LEXIS 21506 (D. Del. Feb. 9, 2018)
April 18, 2018 (PRIVILEGE POINT)

"Courts Debate Work Product Issues: Part I"

Ironically, federal courts interpreting the two-sentence work product rule in Fed. R. Civ. P. 26(b)(3)(A) take more varied views than when they apply the federal common law attorney-client privilege protection. Among other things, federal courts disagree about whether work product protection can apply only to materials created by a "party" to the litigation in which an adversary seeks those materials. Of course, the term "party" could either mean a formal litigant or a third party.

All or nearly all courts allow non-litigants who anticipate litigation to create protected work product, even if they are never sued. Most courts also extend work product protection to non-litigants who themselves may not anticipate litigation, but who act as a litigant's or would-be litigant's "representative" or otherwise have an interest in the litigation. But some courts take a narrower view. In Acceleration Bay LLC v. Activision Blizzard, Inc., Civ. A. Nos. 16-453 to -455-RGA, 2018 U.S. Dist. LEXIS 21506 (D. Del. Feb. 9, 2018), the court quoted a treatise and cited another case in concluding that "work product protection does not apply, even if the nonparty is a party to closely related litigation." Id. at *6. A few courts take this frighteningly narrow approach to the extreme. For instance, in Bryant v. Ferrellgas, Inc., Civ. A. Nos. 07-10447 & -13214, 2008 U.S. Dist. LEXIS 47148 (E.D. Mich. June 17, 2008), individual plaintiffs and an insurance company sued the same defendants in separate cases (which were later consolidated) arising from the same incident. The defendants issued a subpoena in the individual plaintiffs' case – seeking the insurance company's work product. Remarkably, although the cases had been consolidated, the court ordered production – because the insurance company was not a "party" to the individual plaintiffs' case in which the defendants issued their subpoena.

Fortunately, this illogical interpretation represents the minority, if not aberrational, view. But because courts apply their own work product approach without a choice of laws analysis, corporations may not know whether they will be sued in a court applying such a restrictive view. This highlights the wisdom of writing all documents very carefully. Next week's Privilege Point will explore another variable in courts' work product application.

Case Date Jurisdiction State Cite Checked
2018-02-09 Federal DE
Comment:

key case


Chapter: 34.1001
Case Name: Bellamy v. City of New York, CV-12-1025 (WFK) (VVP), 2015 U.S. Dist. LEXIS 67366 (E.D.N.Y. May 22, 2015)
(holding that a non-party can create protected work product; "[T]he court rejects the plaintiff's argument that the work-product protection asserted by the Queens County District Attorney does not apply because they are not a party and because the rationale underlying the work product doctrine no longer exists with respect to the documents at issue. Although it is true that the District Attorney is not a named party, its work product may nevertheless be protected if it has interests that are likely to be affected in the litigation. . . . Here, the conduct of the Queens District Attorney forms the basis of some of the claims for which the plaintiff seeks to hold the City of New York liable, and in that sense that office has the same interest as if they were a party in this case.")

Case Date Jurisdiction State Cite Checked
2015-05-22 Federal NY

Chapter: 34.1001
Case Name: Cambridge Place Inv. Mgmt., Inc. v. Morgan Stanley & Co., Op. No.: 125974, Dkt. No.: SUCV2010-02741-BLS1, 2014 Mass Super. LEXIS 23, at *5-6, *6, *7-8, *8, *10 (Mass. Super. Ct. Jan. 23, 2014)
(holding that the work product doctrine protects documents prepared by a party's lawyer while representing another client; explaining that the word "party" in the work product rule is not limited to litigation parties; "Whether or not the Rule imposes a 'same client' (or 'same party') requirement is a closer question. The plaintiff argues that it does not, because the Rule limits a party's ability to obtain otherwise discoverable materials if they were 'prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney . . .") . . ., without requiring a showing that the attorney represented the present party when the materials were prepared. At first glance, this seems a plausible interpretation, particularly inasmuch as 'the lawyer holds the work product privilege,' and may assert it 'to the extent that his interests may be affected.'" (citation omitted); "It is not, however, an interpretation which has gained much traction in the caselaw or among commentators."; "As the Wright & Miller treatise recognized, this is a 'problem' where, for example, 'A and B are bringing independent antitrust actions against the same defendant based on the same charges. Documents that A has prepared in anticipation of the litigation would be within the qualified immunity in his own suit but would be freely discoverable by defendant on a subpoena duces tecum issued in connection with the suit brought by B. Such a result would be intolerable.' Wright & Miller, §2024 at 523-24 [8 C. Wright & A. Miller, Federal Practice & Procedure, §2024 (3d Ed. 2010)] (emphasis supplied)."; "We live the era of 'mass tort' and other serial, multi-plaintiff litigation. A specialty law firm may represent many clients pursuing closely related claims against the same defendant or defendant group, but in separate actions, in the same or multiple jurisdictions. The investigative materials from the first case may have continuing utility in the tenth, or the hundredth. The first case may even still be pending when counsel for the same defendant seeks, in a later case, to discover the fruits of the original investigation, in hope of capitalizing 'on wits borrowed from the adversary.'" (citation omitted); "[B]ecause the investigators' memos of witness interviews at issue here were prepared for BLBG [plaintiff's law firm], in anticipation of this case or for cases closely related to it both factually and legally, and because discovery of the memos would be inimical to the interests that Hickman [Hickman v. Taylor, 329 U.S. 495 (1947)] and the many cases following it have sought to protect, they are protected work product.")

Case Date Jurisdiction State Cite Checked
2014-01-23 State MA B 8/14

Chapter: 34.1001
Case Name: Serrano v. Chesapeake Appalachia, LLC, 298 F.R.D. 271, 276, 277, 278, 279, 278, 280 (W.D. Pa. 2014)
(analyzing documents created during a post-accident investigation, and application of the common interest doctrine; "Patterson [employer of a worker who died on an oil rig] is not a party to this litigation and can never be a party because it is immune from suit under the Pennsylvania Workers' Compensation Act, 77 P. S. § 481(b). A majority of courts have held that non-parties cannot invoke the work-product privilege embodied in Rule 26(b)(3)."; "Plaintiff's contention that Patterson may not avail itself of the work-product privilege because it is not a party to this litigation is unavailing. Plaintiff correctly notes that Patterson cannot invoke the privilege under Rule 26(b)(3) because by its terms the protection does not apply to third parties. And plaintiff also correctly notes that the majority of courts to have considered that protection have held the Rule only extends to parties."; "But a growing number of courts have recognized that the protection afforded by Hickman [Hickman v. Taylor, 329 U.S. 495 (1947)] extends beyond that of the Rule. These courts have utilized or endorsed the approach set forth in In re Student Finance Corp., 2006 U.S. Dist. LEXIS 86603, 2006 WL 3484387 (E.D. Pa. Nov. 29, 2006)."; "The court drew on three sources for its authority to issue the protective order: the authority in Rule 45(c)(3)(A)(iii) for a court to quash or modify a subpoena issued under its own authority; the authority in Rule 26(c) to issue protective orders for 'good cause shown;' and the settled understanding that Hickman 'itself provides authority to protect work product outside the terms of Rule 23(b)(6), whether as to intangible work product or work product produced by third parties.'" (citation omitted); "A growing number of courts have followed In re Student Finance Corp."; "Here, Patterson is within the scope of the work product privilege established in Hickman and an extension of it is warranted under the circumstances. First, Chesapeake is alleged to be the entity that owned, operated and controlled the drilling rig where the event occurred. Patterson had the potential to indemnify Chesapeake for liability against it arising out of the event. Upon learning of the event Patterson immediately retained outside counsel."; "Second, the report and related communications are or encompass materials prepared by Patterson's counsel. These materials were prepared as part of Attorney Shu's undertakings to represent his client in the face of legal proceedings on multiple fronts. Thus, they are or relay attorney work product."; "Third, the potential for Patterson to have to indemnify the rig operator for its liability to plaintiff gives Patterson a sufficient nexus with the instant litigation."; "Fourth, extending protection to Patterson serves the purposes of the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal PA B 8/14

Chapter: 34.1001
Case Name: Castro v. Sanofi Pasteur Inc., No. 13 C 2086, 2013 U.S. Dist. LEXIS 56287, at *5-6, *7-8, *8 (N.D. Ill. Apr. 19, 2013)
(holding that only a party can create protected work product, and ordering plaintiff to produce communications between her law firm and Navigant Consulting created in connection with other litigation; "A problem presented by reading the rule to apply only to parties in litigation is that it is inconsistent with a traditional tenet of work product doctrine, namely the rule that work product protection is not contingent on whether the anticipated litigation actually materializes. . . . The text of Rule 26(b)(3) undermines this rule because documents that constitute work product -- that is, that were prepared by or for an attorney in anticipation of litigation -- are not protected from discovery unless litigation actually ensues; otherwise, the attorney's client would never become a 'party' to whom the rule applies."; "The Court therefore concludes that the rule means what it says. By its terms, Rule 26(b)(3) applies only to 'parties' to the litigation, and therefore Castro's request to modify the Court's prior order to reflect the date that non-party clients retained B&M [Plaintiff's law firm] to investigate claims against Sanofi is denied."; "[T]hat they [documents] are not 'work product' if they were not created (by a party in this case) in anticipation of litigation, and they cannot have been prepared in anticipation of litigation if B&M had yet to be retained.")

Case Date Jurisdiction State Cite Checked
2013-04-19 Federal IL B 3/14

Chapter: 34.1001
Case Name: Egiazaryan v. Zalmayev, 290 F.R.D. 421, 437 (S.D.N.Y. 2013)
(analyzing a situation in which a defamation plaintiff's law firm had first worked with and later represented the plaintiff's public relations firm; holding that the PR agency was not within the privilege as the client's agent, and did not have a common interest with the plaintiff client; also holding that the PR agency could not create work product for the non-party, but that disclosing work product to the PR agency did not waive that protection; "BGR [public relations agency] asserts work product protection to e-mails related to its obligations under the subpoenas. . . . In light of the Court's prior rulings permitting the withholding of documents based on attorney-client privilege, the only documents at issue within this category are documents 26 and 27. There is no suggestion that these documents were prepared at the direction of FZWZ in its capacity as Egiazaryan's law firm. Rather, they relate to BGR in its capacity as a non-party. Because Fed. R. Civ. P. 26(b)(3) does not apply to non-parties . . . no protection pursuant to Rule 26 attaches to these documents. Inasmuch as BGR has not argued that the common law work product doctrine otherwise shields these document from disclosure, they must be produced.")

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

Chapter: 34.1001
Case Name: Bryant v. Ferrellgas, Inc., Civ. A. Nos. 07-10447 & -13214, 2008 U.S. Dist. LEXIS 47148 (E.D. Mich. June 17, 2008)
April 18, 2018 (PRIVILEGE POINT)

"Courts Debate Work Product Issues: Part I"

Ironically, federal courts interpreting the two-sentence work product rule in Fed. R. Civ. P. 26(b)(3)(A) take more varied views than when they apply the federal common law attorney-client privilege protection. Among other things, federal courts disagree about whether work product protection can apply only to materials created by a "party" to the litigation in which an adversary seeks those materials. Of course, the term "party" could either mean a formal litigant or a third party.

All or nearly all courts allow non-litigants who anticipate litigation to create protected work product, even if they are never sued. Most courts also extend work product protection to non-litigants who themselves may not anticipate litigation, but who act as a litigant's or would-be litigant's "representative" or otherwise have an interest in the litigation. But some courts take a narrower view. In Acceleration Bay LLC v. Activision Blizzard, Inc., Civ. A. Nos. 16-453 to -455-RGA, 2018 U.S. Dist. LEXIS 21506 (D. Del. Feb. 9, 2018), the court quoted a treatise and cited another case in concluding that "work product protection does not apply, even if the nonparty is a party to closely related litigation." Id. at *6. A few courts take this frighteningly narrow approach to the extreme. For instance, in Bryant v. Ferrellgas, Inc., Civ. A. Nos. 07-10447 & -13214, 2008 U.S. Dist. LEXIS 47148 (E.D. Mich. June 17, 2008), individual plaintiffs and an insurance company sued the same defendants in separate cases (which were later consolidated) arising from the same incident. The defendants issued a subpoena in the individual plaintiffs' case – seeking the insurance company's work product. Remarkably, although the cases had been consolidated, the court ordered production – because the insurance company was not a "party" to the individual plaintiffs' case in which the defendants issued their subpoena.

Fortunately, this illogical interpretation represents the minority, if not aberrational, view. But because courts apply their own work product approach without a choice of laws analysis, corporations may not know whether they will be sued in a court applying such a restrictive view. This highlights the wisdom of writing all documents very carefully. Next week's Privilege Point will explore another variable in courts' work product application.

Case Date Jurisdiction State Cite Checked
2008-06-17 Federal MI
Comment:

key case


Chapter: 34.1002
Case Name: Timmermann's Ranch and Saddle Shop, Inc. v. Pace, No. 11 C 1509, No. 13 C 818, 2016 U.S. Dist. LEXIS 40493 (N.D. Ill. March 28, 2016)
(holding that an exonerated criminal defendant who had filed a civil action against the person who alleged the criminal conduct could not obtain work product prepared by the prosecutor in the unsuccessful criminal case; "In Hobley v. Burge, for example, the Seventh Circuit opined that the work-product privilege would be applicable to a hypothetical involving a non-party law firm facing a subpoena duces tecum. 433 F.3d 946, 949 (7th Cir. 2006). See also Sandra T.E. v. South Berwyn School Dist. 100, 600 F.3d 612 (7th Cir. 2010) (applying the work product privilege to a non-party law firm's interview notes and legal memoranda prepared in connection to the defendant's pending litigation with the plaintiffs). Following this precedent, I find that the SA is entitled as a non-party to invoke the work-product privilege.")

Case Date Jurisdiction State Cite Checked
2016-03-28 Federal IL
Comment:

key case


Chapter: 34.1002
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 Jurisdiction State Cite Checked
2016-03-22 Federal PA

Chapter: 34.1002
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 619 (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; "The work-product doctrine protects materials if they were prepared for any litigation (even litigation which has terminated) as long as such materials were prepared for a party to the litigation in which the protection is being asserted.")

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

Chapter: 34.1003
Case Name: Beltran v. InterExchange, Inc., Civ. A. No. 14-cv-03074-CMA-CBS, 2018 U.S. Dist. LEXIS 22564 (D. Colo. Feb. 12, 2018)
(holding that only a party can prepare protected work product; "Work product privilege does not protect the Alliance's documents because the documents -- handwritten notes taken at meetings between the Alliance's staff members and Defendants -- were not 'prepared in anticipation of litigation or for trial by or for [a] party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).' See Fed. R. Civ. P. 26(b)(3)(A) (emphasis added)."; "Defendants fail to meet their burden to show that the documents were prepared 'by or for [a] party or its representative.' Every entry in Defendants' privilege log invokes 'work product' but indicates that Lisa Hines, Ilir Zherka, or another 'Alliance staff' member was the author of each redacted document. . . . In short, the documents were created by the Alliance's non-legal staff, as the Magistrate Judge found as a matter of fact. . . . The Alliance and its staff members are not party to this action. Nor is the Alliance a representative of Defendants in this action.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal CO

Chapter: 34.1003
Case Name: Acceleration Bay LLC v. Activision Blizzard, Inc., Civ. A. Nos. 16-453 to -455-RGA, 2018 U.S. Dist. LEXIS 21506 (D. Del. Feb. 9, 2018)
April 18, 2018 (PRIVILEGE POINT)

"Courts Debate Work Product Issues: Part I"

Ironically, federal courts interpreting the two-sentence work product rule in Fed. R. Civ. P. 26(b)(3)(A) take more varied views than when they apply the federal common law attorney-client privilege protection. Among other things, federal courts disagree about whether work product protection can apply only to materials created by a "party" to the litigation in which an adversary seeks those materials. Of course, the term "party" could either mean a formal litigant or a third party.

All or nearly all courts allow non-litigants who anticipate litigation to create protected work product, even if they are never sued. Most courts also extend work product protection to non-litigants who themselves may not anticipate litigation, but who act as a litigant's or would-be litigant's "representative" or otherwise have an interest in the litigation. But some courts take a narrower view. In Acceleration Bay LLC v. Activision Blizzard, Inc., Civ. A. Nos. 16-453 to -455-RGA, 2018 U.S. Dist. LEXIS 21506 (D. Del. Feb. 9, 2018), the court quoted a treatise and cited another case in concluding that "work product protection does not apply, even if the nonparty is a party to closely related litigation." Id. at *6. A few courts take this frighteningly narrow approach to the extreme. For instance, in Bryant v. Ferrellgas, Inc., Civ. A. Nos. 07-10447 & -13214, 2008 U.S. Dist. LEXIS 47148 (E.D. Mich. June 17, 2008), individual plaintiffs and an insurance company sued the same defendants in separate cases (which were later consolidated) arising from the same incident. The defendants issued a subpoena in the individual plaintiffs' case – seeking the insurance company's work product. Remarkably, although the cases had been consolidated, the court ordered production – because the insurance company was not a "party" to the individual plaintiffs' case in which the defendants issued their subpoena.

Fortunately, this illogical interpretation represents the minority, if not aberrational, view. But because courts apply their own work product approach without a choice of laws analysis, corporations may not know whether they will be sued in a court applying such a restrictive view. This highlights the wisdom of writing all documents very carefully. Next week's Privilege Point will explore another variable in courts' work product application.

Case Date Jurisdiction State Cite Checked
2018-02-09 Federal DE
Comment:

key case


Chapter: 34.1003
Case Name: Robinson Mechanical Contractors Inc. v. PTC Group Holding Corp., Case No. 1:15-CV-77 SNLJ, 2017 U.S. Dist. LEXIS 72636 (E.D. Mo. May 12, 2017)
(holding that a parent and a wholly-owned subsidiary were jointly represented by the same lawyer; "Here, PTC Group [parent of now-dissolved former subsidiary Seamless, possessing Seamless's documents] claims that it can independently assert the attorney-client privilege shared by it and Seamless in the alleged joint-client representation. This is so because, as PTC Group alleges, essentially at all times and for all matters relevant to this action, PTC Group and Seamless shared a common interest and shared in-house counsel, making them joint-clients. This Court agrees that PTC Group may assert the joint-client privilege, on behalf of itself and Seamless, for documents that otherwise qualify as privileged and relate to matters of common interest of the two corporations. For the same reasons, PTC Group can assert Seamless' work product doctrine privilege.")

Case Date Jurisdiction State Cite Checked
2017-05-12 Federal MO
Comment:

key case


Chapter: 34.1003
Case Name: Rigas v. United States, 11-CV-6964 (KMW), 2016 U.S. Dist. LEXIS 113914 (S.D.N.Y. Aug. 24, 2016)
(finding that the work product doctrine did not protect documents taken during the lawyer's client's interview with government prosecutors; explaining that the lawyer had represented a Buchanan Ingersoll lawyer during the interviews, which focused on Buchanan Ingersoll's representation of Adelphia, the company for which the two criminal defendants worked; also finding that the criminal defendants could overcome any possible work product protection; "[B]ecause McLaughlin [Lawyer for the Buchanan Ingersoll lawyer being interviewed by the government] is a non-party, he is not entitled to claim the protection against disclosure articulated in Federal Rule of Civil Procedure 26(b)(3). . . . Rather, he may benefit from work product protection only if the Court, in its discretion, chooses to apply the broader work product doctrine first articulated in Hickman through a Rule 26(c) protection order. . . . In exercising this discretion, courts are guided by the underlying purposes of the work product doctrine, as described in Hickman, including: (1) 'protecting an attorney's ability to formulate legal theories and prepare cases'; (2) 'preventing opponents from 'free-loading' off their adversaries' work'; and (3) 'preventing interference with ongoing litigation.'"; "None of these considerations is implicated here, for substantially the same reasons discussed in this Court's previous decision. . . . As with the Buchanan Ingersoll documents, disclosure of the McLaughlin notes will not facilitate free-loading by Petitioners, who were not able to attend the meeting and take notes for themselves, nor is there any indication that disclosure will interfere with ongoing litigation. And disclosure will not impair any attorney's ability to formulate legal theories or prepare cases, because the Court finds that the notes do not reveal, in any meaningful way, the mental processes or legal theories of McLaughlin."; "An attorney's contemporaneous notes of a witness's statements do not rise to the level of opinion work product, even if those notes do not record every word spoken or every point discussed during the interview.")

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

Chapter: 34.1003
Case Name: Montesa v. Schwartz, 12 Civ. 6057 (CS) (JCM), 2016 U.S. Dist. LEXIS 80822 (S.D.N.Y. June 20, 2016)
(finding that a litigant waived the work product protection by disclosing work product to a journalist; "[T]he Court's in camera review of this communication indicates that Mr. Forrest was not acting as a consultant to counsel in sending this communication to Plaintiff White, but was instead seeking Plaintiff White's advice on Mr. Forrest's own case. As a result, this is work product created by a non-party to this action, in anticipation of Mr. Forrest's own anticipated litigation, which is not protected by Rule 26(b)(3).")

Case Date Jurisdiction State Cite Checked
2016-06-20 Federal NY

Chapter: 34.1003
Case Name: Montesa v. Schwartz, 12 Civ. 6057 (CS) (JCM), 2016 U.S. Dist. LEXIS 80822 (S.D.N.Y. June 20, 2016)
("The Court's analysis is different, however, where the creator of the work product is truly a non-party to this action, and not a plaintiff or the attorney's agent or consultant. '[C]ourts have repeatedly held that Rule 26(b)(3) does not shield work product produced for non-parties.'")

Case Date Jurisdiction State Cite Checked
2016-06-20 Federal NY

Chapter: 34.1003
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; "Here, the teardown reports were prepared by Rambus pursuant an agreement with Acacia [the company which purchased the patents from Rambus, and who in turn conveyed them to plaintiffs]. . . . Neither Rambus nor Acacia is a party to this case. Despite the existence of a patent assignment agreement between Acacia and Plaintiffs, Acacia is neither DDG nor IDT. Therefore, it is unclear to me how Plaintiffs could possibly claim work product protection in documents prepared by a third party for another third party. . . . Since the teardown reports were not prepared for another party to this litigation, they cannot be protected by the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2016-02-23 Federal DE

Chapter: 34.1003
Case Name: Broadrock Gas Svcs., LLC v. AIG Specialty Ins. Co., 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. March 2, 2015)
(analyzing privilege issues in a first party bad faith case; "It also bears emphasis that documents created because of a lawsuit in which the creator of the document was not itself involved are not covered by work-product protections.")

Case Date Jurisdiction State Cite Checked
2015-03-02 Federal NY
Comment:

key case


Chapter: 34.1003
Case Name: Salser v. Dyncorp International, Inc., No 12-10960, 2014 U.S. Dist. LEXIS 172056 (E.D. Mich. Dec. 12, 2014)
(finding a non-party therapist cannot create protected work product; "'One short section of Mr. Cape's [Plaintiff's therapist] notes . . . reflects a conversation between Ashley's attorney himself and Mr. Cape. This would not fall within the attorney-client privilege, since it does not involve communications between attorney and client. Moreover, Ashley would find no solace in the work-product doctrine, because 'the work product doctrine does not shield from discovery documents created by third parties.'")

Case Date Jurisdiction State Cite Checked
2014-12-12 Federal MI

Chapter: 34.1003
Case Name: In re Superior Nat'l Ins. GR v. JP Morgan Chase, Chapter 11, Case No.: 1:00-bk-14099-GM, Adv No: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885, at *8 (C.D. Cal. Sept. 11, 2014)
("[T]he work product doctrine protects materials prepared for any litigation or trial so long as they were prepared by or for a party to the subsequent litigation.")

Case Date Jurisdiction State Cite Checked
2014-09-11 Federal CA

Chapter: 34.1003
Case Name: In re Gulf States Long Term Acute Care of Covington, L.L.C., Case No. 09-11116, Sec. A, Ch. 11, 2014 Bankr. LEXIS 1972 (E.D. La. May 1, 2014)
("F.R.C.P. 26(b)(3)(A) clearly only prevents discovery of work product prepared 'by or for another party or its representative.' The attorney's client does not fall into that category, and the Disbursing Agent is standing in the shoes of the client.")

Case Date Jurisdiction State Cite Checked
2014-05-01 Federal LA

Chapter: 34.1003
Case Name: In re Myers, Ch. 7 Case No. 11-61426, 2013 Bankr. LEXIS 3468, at *15 (N.D. Ohio Aug. 8, 2013)
("The protection of Rule 26(b)(3) is limited to one who is a party to the litigation in which discovery is sought.")

Case Date Jurisdiction State Cite Checked
2013-08-08 Federal OH B 4/14

Chapter: 34.1003
Case Name: Castro v. Sanofi Pasteur Inc., No. 13 C 2086, 2013 U.S. Dist. LEXIS 56287, at *5-6, *7-8, *8 (N.D. Ill. Apr. 19, 2013)
(holding that only a party can create protected work product, and ordering plaintiff to produce communications between her law firm and Navigant Consulting created in connection with other litigation; "A problem presented by reading the rule to apply only to parties in litigation is that it is inconsistent with a traditional tenet of work product doctrine, namely the rule that work product protection is not contingent on whether the anticipated litigation actually materializes. . . . The text of Rule 26(b)(3) undermines this rule because documents that constitute work product -- that is, that were prepared by or for an attorney in anticipation of litigation -- are not protected from discovery unless litigation actually ensues; otherwise, the attorney's client would never become a 'party' to whom the rule applies."; "The Court therefore concludes that the rule means what it says. By its terms, Rule 26(b)(3) applies only to 'parties' to the litigation, and therefore Castro's request to modify the Court's prior order to reflect the date that non-party clients retained B&M [Plaintiff's law firm] to investigate claims against Sanofi is denied."; "[T]hat they [documents] are not 'work product' if they were not created (by a party in this case) in anticipation of litigation, and they cannot have been prepared in anticipation of litigation if B&M had yet to be retained.")

Case Date Jurisdiction State Cite Checked
2013-04-19 Federal IL B 3/14

Chapter: 34.1003
Case Name: In Castro v. Sanofi Pasteur Inc., No. 13 C 2086, 2013 U.S. Dist. LEXIS 56287 (N.D. Ill. Apr. 19, 2013)
June 5, 2013 (PRIVILEGE POINT)

"Court Holds that only a "Party" Can Create Protected Work Product"

On its face, the federal work product rule and its state parallel rules protect only documents "prepared in anticipation of litigation or trial by or for another party or its representative[s]." Fed. R. Civ. 26(b)(3)(A) (emphasis added). However, all courts recognize that the rule does not limit protection to only litigation "parties," and most courts extend the protection even to a non-party that did not itself anticipate being involved in any litigation -- if denying the protection would frustrate the rule's purpose.

A small number of courts apply the rule's language literally. In Castro v. Sanofi Pasteur Inc., No. 13 C 2086, 2013 U.S. Dist. LEXIS 56287 (N.D. Ill. Apr. 19, 2013), defendant sought communications between the plaintiffs' law firm and Navigant Consulting. Plaintiffs sought to exclude from the scope of discovery its law firm's communication with Navigant before the plaintiffs hired the law firm. The court acknowledged the judicial debate about the meaning of "party," but ultimately concluded that "the rule means what it says." Id. At *7. The court denied plaintiffs' request "to modify the Court's prior order to reflect the date that non-party clients retained [plaintiffs' law firm] to investigate claims against [defendant]." Id. At *7-8.

Such a narrow reading of the rule could result in real mischief. For instance, a would-be plaintiff might threaten litigation against five companies, but sue only four of them -- and then seek what would otherwise be protected work product created by the company that plaintiff deliberately left out of its complaint.

Case Date Jurisdiction State Cite Checked
2013-04-19 Federal IL
Comment:

key case


Chapter: 34.1003
Case Name: Egiazaryan v. Zalmayev, 290 F.R.D. 421, 437 (S.D.N.Y. 2013)
(analyzing a situation in which a defamation plaintiff's law firm had first worked with and later represented the plaintiff's public relations firm; holding that the PR agency was not within the privilege as the client's agent, and did not have a common interest with the plaintiff client; also holding that the PR agency could not create work product for the non-party, but that disclosing work product to the PR agency did not waive that protection; "BGR [public relations agency] asserts work product protection to e-mails related to its obligations under the subpoenas. . . . In light of the Court's prior rulings permitting the withholding of documents based on attorney-client privilege, the only documents at issue within this category are documents 26 and 27. There is no suggestion that these documents were prepared at the direction of FZWZ in its capacity as Egiazaryan's law firm. Rather, they relate to BGR in its capacity as a non-party. Because Fed. R. Civ. P. 26(b)(3) does not apply to non-parties . . . no protection pursuant to Rule 26 attaches to these documents. Inasmuch as BGR has not argued that the common law work product doctrine otherwise shields these document from disclosure, they must be produced.")

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

Chapter: 34.1003
Case Name: Bryant v. Ferrellgas, Inc., Civ. A. Nos. 07-10447 & -13214, 2008 U.S. Dist. LEXIS 47148 (E.D. Mich. June 17, 2008)
April 18, 2018 (PRIVILEGE POINT)

"Courts Debate Work Product Issues: Part I"

Ironically, federal courts interpreting the two-sentence work product rule in Fed. R. Civ. P. 26(b)(3)(A) take more varied views than when they apply the federal common law attorney-client privilege protection. Among other things, federal courts disagree about whether work product protection can apply only to materials created by a "party" to the litigation in which an adversary seeks those materials. Of course, the term "party" could either mean a formal litigant or a third party.

All or nearly all courts allow non-litigants who anticipate litigation to create protected work product, even if they are never sued. Most courts also extend work product protection to non-litigants who themselves may not anticipate litigation, but who act as a litigant's or would-be litigant's "representative" or otherwise have an interest in the litigation. But some courts take a narrower view. In Acceleration Bay LLC v. Activision Blizzard, Inc., Civ. A. Nos. 16-453 to -455-RGA, 2018 U.S. Dist. LEXIS 21506 (D. Del. Feb. 9, 2018), the court quoted a treatise and cited another case in concluding that "work product protection does not apply, even if the nonparty is a party to closely related litigation." Id. at *6. A few courts take this frighteningly narrow approach to the extreme. For instance, in Bryant v. Ferrellgas, Inc., Civ. A. Nos. 07-10447 & -13214, 2008 U.S. Dist. LEXIS 47148 (E.D. Mich. June 17, 2008), individual plaintiffs and an insurance company sued the same defendants in separate cases (which were later consolidated) arising from the same incident. The defendants issued a subpoena in the individual plaintiffs' case – seeking the insurance company's work product. Remarkably, although the cases had been consolidated, the court ordered production – because the insurance company was not a "party" to the individual plaintiffs' case in which the defendants issued their subpoena.

Fortunately, this illogical interpretation represents the minority, if not aberrational, view. But because courts apply their own work product approach without a choice of laws analysis, corporations may not know whether they will be sued in a court applying such a restrictive view. This highlights the wisdom of writing all documents very carefully. Next week's Privilege Point will explore another variable in courts' work product application.

Case Date Jurisdiction State Cite Checked
2008-06-17 Federal MI
Comment:

key case


Chapter: 34.1003
Case Name: Green v. Sauder Mouldings, Inc., 223 F.R.D. 304, 306-307, 307 (E.D. Va. 2004)
("[I]t was at the request of PMA [Pennsylvania Manufacturers Association Insurance Company] that EDT [Engineering Design & Testing Corporation], acting on behalf of Davis & Green, prepared the Report in anticipation of PMA's potential subrogation litigation. Therefore, the only two parties entitled to assert privilege over this document and thus to maintain a motion to protect it are PMA, which created the Report; and Davis & Green, for which the Report was created. For its part, PMA does not stand in relationship to Plaintiff such that Plaintiff may assert a claim of privilege over the Report. See Fed. R. Civ. P. 26(b)(3). See also Rickman v. Deere & Co., 154 F.R.D. 137 (E.D. Va. 1993). Accordingly, Plaintiff cannot lawfully assert work-product privilege, under Rule 26(b)(3), to protect the Report from disclosure. . . . (footnote omitted) Simply put, the plain meaning of the statute does not support Plaintiff's contention. Rule 26(b)(3) is limited in its application to those facts or opinions marshaled by a party's representative here, the consultant after he is retained by the litigating party and only when prepared in anticipation of that party's litigation. A contrary holding would undermine Rule 26 and would allow, as in this case, a party to manufacture privilege by hiring an expert who had already performed work for another party to the same litigation. . . . Plaintiff cannot logically argue that the Report, which Phillips compiled prior to working for Plaintiff, was prepared in anticipation of or in preparation for Plaintiff's future litigation. Any contrary conclusion would allow one party in a lawsuit first to 'purchase' both an opponent's expert and that expert's opinion and then to claim his adversary's Rule 26(b)(3) work-product privilege. Such an outcome was never intended by the plain language of Rule 26. Accordingly, Plaintiff cannot protect the Report from disclosure under Rule 26(b)(3).")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA

Chapter: 34.1003
Case Name: Collins v. Mullins, 170 F.R.D. 132, 137 (W.D. Va. 1996)
("[C]ourts have repeatedly held that only a party to the litigation can invoke Rule 26(b)(3). . . . Work product protection was intended to encompass documents prepared by a party or someone acting on the party's behalf to aid that party in the litigation."; holding that witness statements in the possession of a non-party were not protected work product)

Case Date Jurisdiction State Cite Checked
1996-01-01 Federal VA B 3/16
Comment:

key case


Chapter: 34.1003
Case Name: Johnson v. Standex Int'l Corp., 153 F.R.D. 80, 83 (E.D. Va. 1994)
(holding that the work product doctrine does not protect documents prepared by a non-party)

Case Date Jurisdiction State Cite Checked
1994-01-01 Federal VA

Chapter: 34.1003
Case Name: Rickman v. Deere & Co., 154 F.R.D. 137, 138 (E.D. Va. 1993)
("The protection accorded by Rule 26(b)(3), however, applies only to documents prepared by a "party" or a party's "representative." In this case, [the insurance company] is not a "party." Nor, as the workers' compensation carrier of plaintiff's employer, is it the "representative" or "insurer" of plaintiff Rickman himself, "any[]more than an insurance carrier of a person sued for negligence would be a 'representative' or 'insurer' of the injured party." (citing Bunting v. Gainsville Mach. Co., 53 F.R.D. 594, 595 (D. Del. 1971))), aff'd, 36 F.3d 1093 (4th Cir. 1994) (unpublished table decision)

Case Date Jurisdiction State Cite Checked
1993-01-01 Federal VA B 3/16
Comment:

key case


Chapter: 34.1004
Case Name: Vazquez v. City of New York, 10-CV-6277 (JMF), 2014 U.S. Dist. LEXIS 160270 (S.D.N.Y. Nov. 14, 2014)
(analyzing work product protection for witness interview statements; "Although that Rule does not apply here -- because the Documents were created by non-parties -- 'the work-product doctrine articulated in Hickman [v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947),] and its progeny, which is broader than the protection supplied by Rule 26(b)(3),' does apply.")

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

Chapter: 34.1004
Case Name: Cambridge Place Inv. Mgmt., Inc. v. Morgan Stanley & Co., Op. No.: 125974, Dkt. No.: SUCV2010-02741-BLS1, 2014 Mass Super. LEXIS 23, at *5-6, *6, *7-8, *8, *10 (Mass. Super. Ct. Jan. 23, 2014)
(holding that the work product doctrine protects documents prepared by a party's lawyer while representing another client; explaining that the word "party" in the work product rule is not limited to litigation parties; "Whether or not the Rule imposes a 'same client' (or 'same party') requirement is a closer question. The plaintiff argues that it does not, because the Rule limits a party's ability to obtain otherwise discoverable materials if they were 'prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney . . .") . . ., without requiring a showing that the attorney represented the present party when the materials were prepared. At first glance, this seems a plausible interpretation, particularly inasmuch as 'the lawyer holds the work product privilege,' and may assert it 'to the extent that his interests may be affected.'" (citation omitted); "It is not, however, an interpretation which has gained much traction in the caselaw or among commentators."; "As the Wright & Miller treatise recognized, this is a 'problem' where, for example, 'A and B are bringing independent antitrust actions against the same defendant based on the same charges. Documents that A has prepared in anticipation of the litigation would be within the qualified immunity in his own suit but would be freely discoverable by defendant on a subpoena duces tecum issued in connection with the suit brought by B. Such a result would be intolerable.' Wright & Miller, §2024 at 523-24 [8 C. Wright & A. Miller, Federal Practice & Procedure, §2024 (3d Ed. 2010)] (emphasis supplied)."; "We live the era of 'mass tort' and other serial, multi-plaintiff litigation. A specialty law firm may represent many clients pursuing closely related claims against the same defendant or defendant group, but in separate actions, in the same or multiple jurisdictions. The investigative materials from the first case may have continuing utility in the tenth, or the hundredth. The first case may even still be pending when counsel for the same defendant seeks, in a later case, to discover the fruits of the original investigation, in hope of capitalizing 'on wits borrowed from the adversary.'" (citation omitted); "[B]ecause the investigators' memos of witness interviews at issue here were prepared for BLBG [plaintiff's law firm], in anticipation of this case or for cases closely related to it both factually and legally, and because discovery of the memos would be inimical to the interests that Hickman [Hickman v. Taylor, 329 U.S. 495 (1947)] and the many cases following it have sought to protect, they are protected work product.")

Case Date Jurisdiction State Cite Checked
2014-01-23 State MA B 8/14

Chapter: 34.1004
Case Name: Serrano v. Chesapeake Appalachia, LLC, 298 F.R.D. 271, 276, 277, 278, 279, 278, 280 (W.D. Pa. 2014)
(analyzing documents created during a post-accident investigation, and application of the common interest doctrine; "Patterson [employer of a worker who died on an oil rig] is not a party to this litigation and can never be a party because it is immune from suit under the Pennsylvania Workers' Compensation Act, 77 P. S. § 481(b). A majority of courts have held that non-parties cannot invoke the work-product privilege embodied in Rule 26(b)(3)."; "Plaintiff's contention that Patterson may not avail itself of the work-product privilege because it is not a party to this litigation is unavailing. Plaintiff correctly notes that Patterson cannot invoke the privilege under Rule 26(b)(3) because by its terms the protection does not apply to third parties. And plaintiff also correctly notes that the majority of courts to have considered that protection have held the Rule only extends to parties."; "But a growing number of courts have recognized that the protection afforded by Hickman [Hickman v. Taylor, 329 U.S. 495 (1947)] extends beyond that of the Rule. These courts have utilized or endorsed the approach set forth in In re Student Finance Corp., 2006 U.S. Dist. LEXIS 86603, 2006 WL 3484387 (E.D. Pa. Nov. 29, 2006)."; "The court drew on three sources for its authority to issue the protective order: the authority in Rule 45(c)(3)(A)(iii) for a court to quash or modify a subpoena issued under its own authority; the authority in Rule 26(c) to issue protective orders for 'good cause shown;' and the settled understanding that Hickman 'itself provides authority to protect work product outside the terms of Rule 23(b)(6), whether as to intangible work product or work product produced by third parties.'" (citation omitted); "A growing number of courts have followed In re Student Finance Corp."; "Here, Patterson is within the scope of the work product privilege established in Hickman and an extension of it is warranted under the circumstances. First, Chesapeake is alleged to be the entity that owned, operated and controlled the drilling rig where the event occurred. Patterson had the potential to indemnify Chesapeake for liability against it arising out of the event. Upon learning of the event Patterson immediately retained outside counsel."; "Second, the report and related communications are or encompass materials prepared by Patterson's counsel. These materials were prepared as part of Attorney Shu's undertakings to represent his client in the face of legal proceedings on multiple fronts. Thus, they are or relay attorney work product."; "Third, the potential for Patterson to have to indemnify the rig operator for its liability to plaintiff gives Patterson a sufficient nexus with the instant litigation."; "Fourth, extending protection to Patterson serves the purposes of the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal PA B 8/14

Chapter: 34.1004
Case Name: Schomburg v. Bologna, 298 F.R.D. 138, 142, 143 (S.D.N.Y. 2014)
(holding a nonparty can create protected work product; "DANY [N.Y. County District Attorney's office] does not meet the third requirement, since it is not a party to the litigation."; "While Rule 26(b) does not apply, the work-product doctrine articulated in Hickman [v. Taylor], 329 U.S. 495, 508, 67 S. Ct. 385, 91 L. Ed. 451 (1947), and its progeny may."; "With regards to the factual work product in the Investigation File, work product protection has no application here. Many of the documents sought were prepared by prosecutors 'with the expectation that defense attorneys may obtain them as Rosario [People v. Rosario, 173 N.E.2d 881 (1961)] material.'"; "Plaintiff's request for the Investigative Files is also not an instance of 'free-loading'"; "With regards to the last factor, concern about interfering with a criminal case is moot because DANY has expressly decided not to pursue charges.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal NY B 8/14

Chapter: 34.1004
Case Name: Castro v. Sanofi Pasteur Inc., No. 13 C 2086, 2013 U.S. Dist. LEXIS 56287, at *4-5 (N.D. Ill. Apr. 19, 2013)
(holding that only a party can create protected work product, and ordering plaintiff to produce communications between her law firm and Navigant Consulting created in connection with other litigation; "Castro seeks two modifications to the Court's order. First, she asks that the order be modified to preclude discovery of documents created before any other client retained B&M [Plaintiff's law firm] to represent them in connection with potential litigation against Sanofi. B&M represents that 'Dr. Castro is not the only client on whose behalf Plaintiffs' counsel was communicating with Navigant as part of its investigation of possible antitrust claims against Sanofi, nor was Berger & Montague the only firm involved in conducting the pre-suit investigation.' . . . Sanofi argues, however, that Rule 26(b)(3) applies only to documents 'prepared in anticipation of litigation or for trial by or for another party or its representatives.' (emphasis added).")

Case Date Jurisdiction State Cite Checked
2013-04-19 Federal IL B 314

Chapter: 34.1005
Case Name: Beltran v. InterExchange, Inc., Civ. A. No. 14-cv-03074-CMA-CBS, 2018 U.S. Dist. LEXIS 22564 (D. Colo. Feb. 12, 2018)
(holding that only a party can prepare protected work product; "Work product privilege does not protect the Alliance's documents because the documents -- handwritten notes taken at meetings between the Alliance's staff members and Defendants -- were not 'prepared in anticipation of litigation or for trial by or for [a] party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).' See Fed. R. Civ. P. 26(b)(3)(A) (emphasis added)."; "Defendants fail to meet their burden to show that the documents were prepared 'by or for [a] party or its representative.' Every entry in Defendants' privilege log invokes 'work product' but indicates that Lisa Hines, Ilir Zherka, or another 'Alliance staff' member was the author of each redacted document. . . . In short, the documents were created by the Alliance's non-legal staff, as the Magistrate Judge found as a matter of fact. . . . The Alliance and its staff members are not party to this action. Nor is the Alliance a representative of Defendants in this action.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal CO

Chapter: 34.1005
Case Name: In re International Oil Trading Company, LLC, Case No. 15-21596-EPK, Ch. 7, 2016 Bankr. LEXIS 1856 (S.D. Fla. April 28, 2016)
("Even if the 'primary purpose' test exists in the manner presented by IOTC USA, it is satisfied by the Burford Communications. The question is not the purpose of Burford's involvement in communications with Mr. Al-Saleh and his counsel. It does not matter that Burford's obvious purpose is to obtain a return on its investment, just as it does not matter that counsel's purpose typically is to earn a fee. Only Mr. Al-Saleh's purpose in communicating with Burford matters here. Mr. Al-Saleh is attempting to collect a debt owed by IOTC USA. To do so, Mr. Al-Saleh must continue to litigate with IOTC USA. This requires him to retain counsel and to pay that counsel. Mr. Al-Saleh determined that it was necessary or advantageous for him to seek assistance of Burford to enable him to fund his litigation efforts, meaning to pay his lawyers and other professionals. Each of these actions is a link in the same chain, leading to collection of the debt owed by IOTC USA.")

Case Date Jurisdiction State Cite Checked
2016-04-28 Federal FL

Chapter: 34.1102
Case Name: Eagle Forum v. Phyllis Schlafly's American Eagles, Case No. 3:16-cv-946-DRH-RJD, 2018 U.S. Dist. LEXIS 53284 (S.D. Ill. March 29, 2018)
("The Seventh Circuit recognizes that '[u]nlike the attorney-client privilege the attorney has an independent privacy interest in his work product and may assert the work-product doctrine on hhis own behalf; the doctrine's protection is not waived simply because the attorney shared the information with his client.'. . . However, an attorney may not withhold work product from his or her own client.")

Case Date Jurisdiction State Cite Checked
2018-03-29 Federal IL

Chapter: 34.1102
Case Name: In re Fundamental Long Term Care, Inc., 489 B.R. 451, 473-74 (M.D. Fla. 2013)
(holding that a trustee's lawyer may seek files of a firm which also represented debtor's subsidiary and another company, based on the co-client privilege; "Florida law does not permit an attorney to refuse to turn over files to a client willing to pay for them.")

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

Chapter: 34.1102
Case Name: Gruss v. Zwirn, 296 F.R.D. 224, 227, 229, 230 (S.D.N.Y. 2013)
(analyzing the ability of Gibson Dunn to withhold its opinion work product prepared during an internal corporate investigation; explaining that Gibson Dunn had undertaken a corporate investigation that essentially blamed a CFO for a company's problems, after which the CFO sued the company for defamation; ordering Gibson Dunn to turn its opinion work product over to its client, the company; "Gruss sought production of attorneys' notes and summaries of all witness interviews conducted by Schulte Roth and Gibson Dunn attorneys during their respective investigations."; "[T]he Company has a presumptive right of access to Gibson Dunn's entire file, including the interview notes taken by Gibson Dunn attorneys."; " [B]ecause Defendant D.B. Zwirn & Co., L.P. is entitled to the Gibson Dunn interview notes . . ., they must be produced here. . . . Because Defendant D.B. Zwirn & Co., L.P. has a right to the interview notes held by its former counsel Gibson Dunn, these interviews notes are deemed to be under its control. Given that Defendants have waived attorney-client and work product protection as to those portions of the interview notes that constitute fact work product -- as explained in this Court's July 10, 2013 order -- Plaintiffs are entitled to production of those portions of the notes, and Gibson Dunn must produce the notes for in camera review.")

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

Chapter: 34.1102
Case Name: In re Equaphor Inc., Ch. 7 Case No. 10 20490 BFK, 2012 Bankr. LEXIS 2129, at *15-17 (Bankr. E.D. Va. May 11, 2012)
("But this is not a discovery dispute in the ordinary sense of the term. It is a motion to compel the turnover of the law firm's files under 11 U.S.C. § 542(e) to the party who now stands in the shoes of the former client, the Debtor. Under these circumstances, the courts have been uniform in holding that the work product doctrine does not prevent the turnover of the files. See Foster v. Hill (In re Foster), 188 F.3d 1259, 1272 (10th Cir. 1999) (rejecting work product claim in connection with turnover of attorney's files); Loeffler v. Lanser (In re ANR Advance Transp. Co.), 302 B.R. 607, 617 (E.D. Wis. 2003) ('To grant the law firms work product immunity under the circumstances present here would not serve the purpose of the work product doctrine. Clients are not adversaries of their lawyers, and the zone of privacy that the work product rule protects was designed to shield lawyers from their opponents, not their clients'); Gardner, Willis, Sweat & Handelman, LLP v. Kelly (In re Golden Grove Pecan Farm), 460 B.R. 349, 352-53 (Bankr. M.D. Ga. 2011); In re Ginn-LA St. Lucie Ltd., LLLP, 439 B.R. 801, 809 (Bankr. S.D. Fla. 2010) (holding that 'New York follows the majority view that upon termination of the attorney-client relationship, where no claim for unpaid legal fees is outstanding, the client is presumptively accorded full access to the entire attorney's file'); Rushton v. Woodbury & Kesler, P.C. (In re C.W. Mining Co.), 442 B.R. 44, 48 (Bankr. D. Utah 2010) (assuming that documents were work product, Trustee overcame the work product doctrine with a showing of need); Teleglobe Communs. Corp. v. BCE, Inc. (In re Teleglobe Commc'ns Corp., No. 02-11518 MFW, 2007 U.S. App. LEXIS 16942, 2006 WL 2568371, at *16 (D. Del. Feb. 22, 2006) ('Because work product is created for the benefit of the client, the interest in protecting documents from an adversary is not present in this case.' (citing Spivey v. Zant, 683 F.2d 881, 885 (5th Cir. 1992) 'the work product doctrine does not apply to the situation in which a client seeks access to documents or other tangible things created or amassed by his attorneys during the course of the representation'))); In re Am. Metrocomm Corp., 274 B.R. 641, 654-55 (Bankr. D. Del. 2002).")

Case Date Jurisdiction State Cite Checked
2012-05-11 Federal VA

Chapter: 34.1103
Case Name: Colley v. Dickenson County School Bd., Case No. 2:17-cv-00003, 2017 U.S. Dist. LEXIS 193243 (W.D. Va. Nov. 22, 2017)
("Because the work-product privilege protects not only the attorney-client relationship but also the interests of an attorney to her own work, the attorney, as well as the client, holds the privilege.")

Case Date Jurisdiction State Cite Checked
2017-11-22 Federal VA

Chapter: 34.1103
Case Name: Tucker Ellis LLP v. Superior Ct. of the City and County of San Francisco, A148956, 2017 Cal. App. LEXIS 571 (Cal. App. 3d June 21, 2017)
(analyzing ownership of work product prepared by a lawyer who worked with an expert, and then left the firm; explaining that the former firm received a subpoena and was able to produce the work product because the firm owned it; "In this writ proceeding, we are presented with a narrow question of law concerning the attorney work product privilege as codified in Code of Civil Procedure section 2018.030. Specifically, we are asked to determine, as between an employer law firm and a former attorney employee, who is the holder of the attorney work product privilege that attaches to documents created by the attorney employee during and in the scope of his employment? We conclude that under the circumstances of this case, the holder of the attorney work product privilege is the employer law firm, petitioner Tucker Ellis LLP (Tucker Ellis), and not the former attorney employee, real party in interest Evan C. Nelson (Nelson). As a corollary to our holding, we necessarily conclude that because Tucker Ellis is the holder of the attorney work product privilege, it had no legal duty to secure Nelson's permission before it disclosed to others documents he created during and in the scope of his employment. Because respondent court held to the contrary, finding that Tucker Ellis had a legal duty to take appropriate steps to ensure that the documents were not disclosed without Nelson's permission, we shall issue a peremptory writ of mandate directing respondent court to vacate its July 19, 2016, summary adjudication order, and enter a new order consistent with this decision."; "[A]n attorney can assert his work product privilege even though he is no longer in possession the document . . . and the contents of the documents may have been communicated to the client.")

Case Date Jurisdiction State Cite Checked
2017-06-21 State CA

Chapter: 34.1103
Case Name: McKinstry v. Genser (In re Black Diamond Mining Co., LLC), 507 B.R. 209, 215-16, 216-17, 217, 219 (E.D. Ky. 2014)
(holding that a litigation trustee could obtain files created by Jones Day while representing a predecessor company; "This is not an ordinary work-product dispute, however, because Jones Day effectively asserts protection against its former client. True, the Trust is not the full legal 'successor' to Black Diamond, nor is the Trustee a fiduciary for the entire bankruptcy estate. . . . And neither the Trust nor the Trustee is Jones Day's client. But the Trust is the legal successor to Black Diamond's claims against the A&M Parties: '[b]ecause the claims are property of the bankruptcy estate, the Trustee is the real party in interest.'. . . Whatever one calls the Trustee's relationship to Black Diamond, Jones Day's argument against turnover is equivalent to invoking work-product protection against its own client."; "But attorneys cannot invoke the work-product doctrine against their own clients. . . . That protection naturally does not cover situations such as this, where a client -- here the Trustee standing in for Black Diamond -- 'seeks access to documents . . . created or amassed by his attorney during the course of the representation.'" (citation omitted); "In a last ditch effort to defeat turnover, Jones Day asserts its own allegedly exclusive work-product privilege: complete protection for internal firm documents."; "Although Sage Realty [Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn L.L.P., 91 N.Y.2d 30, 689 N.E.2d 879, 881-83, 666 N.Y.S.2d 985 (N.Y. 1997)] is admittedly somewhat ambiguous, read most fairly, the opinion stands for only a modest right of attorney privacy from clients. Openness is the rule and secrecy the rare exception. A client has 'presumptive access' to the entire file on the representation." (citation omitted); "A privilege for internal firm documents also comes with unique costs aside from those generally associated with all privileges: damage to the attorney-client relationship. Withholding from a client documents prepared on billable time -- despite the client's demonstrated need -- is fundamentally inconsistent with an attorney's fiduciary duties."; "Since the benefits are not particularly compelling, 'reason and experience' counsel against recognizing the privilege Jones Day claims. Fed. R. Evid. 501. The interests served by a new privilege for internal law firm documents are simply not sufficiently important to overcome the public's strong interest in the search for truth.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal KY B 8/14

Chapter: 34.1103
Case Name: Gruss v. Zwirn, No. 09 Civ. 6441 (PGG) (MHD), 2013 U.S. Dist. LEXIS 165211 (S.D.N.Y. Nov. 19, 2013)
January 22, 2014 (PRIVILEGE POINT)

"Who Owns Lawyers' Work Product?"

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

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

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

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

key case


Chapter: 34.1103
Case Name: In re Cardinal Fastener & Specialty Co., Ch. 7 Case No. 11-15719, 2013 Bankr. LEXIS 452, at *23-24 (N.D. Ohio Feb. 4, 2013)
("[T]he work product doctrine generally does not apply in situations where it is the client asking for access to documents and information created or collected by his counsel during the course of the representation. The trustee in this case has stepped into the shoes of the debtor and is the client for these purposes; the work product doctrine cannot be asserted against him.")

Case Date Jurisdiction State Cite Checked
2013-02-04 Federal OH B 2/14

Chapter: 34.1103
Case Name: Waite, Schneider, Bayless & Chesley Co. v. Davis, Case No. 1:11-cv-0851, 2013 U.S. Dist. LEXIS 5253 (S.D. Ohio Jan. 14, 2013)
March 20, 2013 (PRIVILEGE POINT)

"Rare Court Decision Focuses on Document Discovery of a Litigant's Law Firm"

Surprisingly few decisions deal with litigants' document discovery of an adversary's law firm. Perhaps few parties seek such discovery because they fear a retaliatory document request.

In Waite, Schneider, Bayless & Chesley Co. v. Davis, Case No. 1:11-cv-0851, 2013 U.S. Dist. LEXIS 5253 (S.D. Ohio Jan. 14, 2013), plaintiff law firm sued a former client for fees, which triggered a malpractice counterclaim. The law firm issued a document subpoena to the law firm of Baker & Hostetler, which had represented the former client in some pertinent matters. Although not citing any case law or legal principles that prohibit such third-party discovery, the court obviously was not pleased. Acknowledging the former client's description of the subpoena as plaintiff law firm's "disingenuous behavior in seeking documents from a non-party which the [plaintiff law firm] knew to be within [former client's] custody and control," the court explained that "[o]f greater concern to the Court is the [plaintiff law firm's] conduct in issuing a subpoena to Baker & Hostetler for documents available from, and already provided in large part by, [former client]." Id. At *16-17. The court concluded that "[s]uch conduct seems at odds with the spirit of the federal rules relating to discovery," and indicated that it "declines to impose sanctions at this time but cautions counsel that it may well do so in the future." Id. At *17.

Litigants' law firms can take solace in decisions taking this approach.

Case Date Jurisdiction State Cite Checked
2013-01-14 Federal OH
Comment:

key case