McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 163 of 163 results

Chapter: 44.1
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 250 (4th Cir. 2005)
("The privilege encompasses both 'fact' work product and 'opinion' work product. Fact work product, which consists of documents prepared by an attorney that do not contain the attorney's mental impressions, 'can be discovered upon a showing of both a substantial need and an inability to secure the substantial equivalent of the materials by alternate means without undue hardship.' In re Grand Jury Proceedings, 33 F.3d [342,] 348 [(4th Cir. 1994)]; see also In re John Doe, 662 F.2d 1073, 1076 (4th Cir. 1981).")

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

Chapter: 44.1
Case Name: Rakes v. Fulcher, 210 Va. 542, 546 172 S.E.2d 751, 755 (Va. 1970)
("Within the scope of the good cause rule is the 'work product' doctrine, which protects an attorney from opening his files for inspection by an opposing attorney. This doctrine, however, does not offer absolute immunity, and discovery will be permitted where a showing of necessity greater than the normal requirement for good cause is made.")

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

Chapter: 44.2
Case Name: In re Grand Jury Subpoena, No. 2013R00691-009, Dkt. 3:16-mc-00079-FDW-DCK, 2016 U.S. Dist. LEXIS 110274 (W.D.N.C. Aug. 16, 2016)
("Distinct from the attorney-client privilege, the work product doctrine belongs to the attorney and confers a qualified privilege on documents prepared by an attorney in anticipation of litigation.")

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

Chapter: 44.2
Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
("As Defendant notes, a core difference between the work-product doctrine and the attorney-client privilege is the ability for an opponent to pierce the veil of the work-product doctrine.")

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

Chapter: 44.2
Case Name: Baylor v. Mitchell Rubenstein & Associates, Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (U.S. D.D.C. 2015)
("The work-product doctrine is not a privilege but a qualified immunity provided under Federal Rule of Civil Procedure 26.")

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

Chapter: 44.2
Case Name: Brooks v. Mon River Towing, Inc., Civ. A. No. 11-1580, 2013 U.S. Dist. LEXIS 59417, at *10 (W.D. Pa. Apr. 3, 2013)
("The attorney-client privilege is absolute; however, the work product protection depends on the type of matter being sought as well as the adversary's need for the information, as set forth in the rule itself.")

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

Chapter: 44.2
Case Name: Solis v. Food Emp'rs Labor Relations Ass'n, 644 F.3d 221, 231-32 (4th Cir. 2011)
("Distinct from the attorney-client privilege, the work product doctrine belongs to the attorney and confers a qualified privilege on documents prepared by an attorney in anticipation of litigation. Hickman v. Taylor, 329 U.S. 495, 509-14, 67 S. Ct. 385, 91 L. Ed. 451 (1947); In re Grand Jury Proceedings, Thur. Special Grand Jury Sept. Term, 1991, 33 F.3d 342, 348 (4th Cir. 1994); Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480, 483, n.12 (4th Cir. 1973).")

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

Chapter: 44.2
Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 608 (E.D. Va. 2010)
("Kolon, of course, is not required to show substantial need for protection that is waived. However, it must do so to have access to protected fact work product that as to which there has been no waiver.")

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

Chapter: 44.2
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 66484, at *8 (E.D. Va. July 31, 2009)
(analyzing work product protection for materials created in connection with a patient's death at a hospital; "There are two types of work-product: one that is completely immune from discovery and one that is qualifiedly immune. Fire Ins. Co. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th Cir. 1992).")

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

Chapter: 44.2
Case Name: Rush v. Sunrise Senior Living, Inc., No. CL-07-11322, 2008 Va. Cir. LEXIS 12, at *14 (Va. Cir. Ct. Feb. 12, 2008)
(addressing the privilege implications of a company's former CFO's request for a protected document from his former employer, against which he had filed a breach of contract and defamation action; "Unlike the attorney client privilege, the doctrine is qualified: it may be overcome by showing that an opposing party has a substantial need for the materials and that the party would not be able to obtain the 'substantial equivalent' without 'undue hardship.'")

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

Chapter: 44.2
Case Name: Gutshall v. 5 New Prime, Inc., 196 F.R.D. 43, 45 n.2 (W.D. Va. 2000)
("The work product doctrine is not a 'privilege,' but a sort of 'qualified immunity' from discovery, originally established in Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947), and ultimately codified in Rule 26(b)(3). See Chiasson, 988 F.2d at 514 n.2")

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

Chapter: 44.4
Case Name: O'Dell v. Cedar Lakes, L.P., 44 Va. Cir. 164, 165 (Va. Cir. Ct. 1997)
("The O'Dell statement is a chronology of the events and problems the O'Dells allegedly experienced with Unit 2, lot 50, at Cedar Lakes Condominium. It was prepared at the O'Dells' counsel's request, and Mr. Brincefield asserts that it is protected by both the attorney-client privilege and the work product doctrine. Apparently, the document was also provided to one of Ms. O'Dell's physicians, Dr. Grace Ziem. The O'Dells signed a release, and Dr. Ziem produced the statement to defendants. There is no argument that Dr. Ziem was working with the O'Dells' lawyer, see Commonwealth v. Edwards, 370 S.E.2d 296, 301 (Va. 1988); thus the delivery of the statement to the doctor destroyed the confidentiality leg of the attorney-client privilege. Likewise, the work product doctrine does not preclude the defendants' use of the statement. Rule 4:1(a)(3) specifically exempts party statements from the work product doctrine. Thus Defendants may use the statement without running afoul of the doctrine."; finding that disclosure of a previously privileged document to a doctor waived the privilege because the doctor was not working with the parties' lawyer)

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

Chapter: 44.9
Case Name: Bacote v. Riverbay Corp., 16 Civ. 1599 (GHW) (AJP), 2017 U.S. Dist. LEXIS 35098 (S.D.N.Y. March 10, 2017)
(holding that a lawyer did not have to be a witness because he had recorded conversations of other police officers; analyzing New York Rule 3.7; "Federal courts also have discretion to exclude evidence unethically obtained by attorneys.")

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

Chapter: 44.9
Case Name: Scranton Products, Inc. v. Bobrick Washroom Equipment, Inc., No. 3:14-CV-00853, 2016 U.S. Dist. LEXIS 72802 (M.D. Pa. June 2, 2016)
August 17, 2016 (PRIVILEGE POINT)

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

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

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

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

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

key case


Chapter: 44.9
Case Name: United States v. Christensen, No. 08-50531, No. 08-50570, No. 09-50115, No. 09-50125, No. 09-50128, No. 09-50159, No. 10-50434, No. 10-50462, No. 10-50464, No. 10-50472, 2015 U.S. App. LEXIS 14961 (9th Cir. Aug. 25, 2015)
(analyzing work product protection; "Not surprisingly, it does not apply to foster a distortion of the adversary process by protecting illegal actions by an attorney. Because its purpose 'is to protect the integrity of the adversary process[,] . . . it would be improper to allow an attorney to exploit the privilege for ends that are antithetical to that process.'")

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

Chapter: 44.9
Case Name: Bahrami v. Maxie Price Chevrolet-Oldsmobile, Inc., Civ. A. File No. 1:11-CV-4483-SCJ-AJB, 2013 U.S. Dist. LEXIS 104040, at *13-14 (N.D. Ga. July 19, 2013)
(holding that a secret tape recording can be protected work product, after the ABA issued an opinion finding that such tape recording was not unethical; "The first question before the Court is whether the recordings are protected by the work product doctrine. As to all of the recordings, Defendant argues that the clandestine nature of the recordings -- in other words, the fact that the interviewees did not know that they were being recorded -- vitiates any such protection. The Court finds, however, that work product protection is not vitiated by the clandestine nature of the recordings. Defendant cites guidance from other jurisdictions on this matter, but the Court is unaware of precedent within this district or the Eleventh Circuit that would require such a determination here.")

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

Chapter: 44.9
Case Name: Haigh v. Matsushita Elec. Corp. of Am., Civ. A. No. 87-0455-R, 1987 U.S. Dist. LEXIS 12113 (E.D. Va. Dec. 28, 1987)
("While counsel did not tell Haugh to initiate or continue taping conversations, the old adage 'actions speak louder than words' comes to mind. Indeed, Haigh and his attorneys fell into a pattern of conduct whereby Haigh would tape conversations and almost immediately turn the tapes over to counsel for their use. This pattern of conduct continued over a period of approximately nine months, and included the taping of fifty-eight conversations."; "The Court would not be so troubled if it were faced with the situation where a party, in his exuberance over pending litigation, pursued such a course of conduct and delivered a handful of tapes to his counsel. In that situation, the lawyer's conduct could fairly be described as simply acquiescence in the situation created by the client's exuberance. There is a point, however, where acquiescence ceases to be passive and noncommittal, and becomes active encouragement and affirmative support. There is, and can be, no bright line to determine when this point is reached. Instead, the circumstances of each case must be viewed in their totality in an attempt to get a fix on that point. Here, the Court is certain that that point has been crossed. As such, the Court holds that the work product privilege has been vitiated."; "The ruling today should not be taken as an indictment of counsel's ethics or professionalism. To be sure, the law on this point is in an infant, perhaps even fetal, state. The Court in no way assumes or believes that counsel's intent was to run afoul of ethical strictures."; "Additionally, it should be noted that this ruling may be interpreted by some as punishment for Haigh's retention of counsel. Indeed, if Haigh were proceeding pro se, the privilege would not be vitiated. However, an attorney's clients may not reap the benefits of the attorney's expertise in a vacuum-like state. Rather, the client must realize that the attorney is bound by a Code of Professional Responsibility, and, when he retains the attorney, he also retains the responsibilities imposed on that attorney.")

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

Chapter: 44.9
Case Name: Haigh v. Matsushita Elec. Corp. of Am., 676 F. Supp. 1332 (E.D. Va. 1987)
(in light of the lawyer's unprofessional behavior, finding that the work product doctrine did not protect properly created tapes of conversations)

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

Chapter: 44.11
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: 44.11
Case Name: Doe v. Hamilton Cty. Bd. of Educ., Case No. 1:16-CV-373 (lead), Case No. 1:16-CV-497, 2018 U.S. Dist. LEXIS 11117 (E.D. Tenn. Jan. 12, 2018)
(analyzing the waiver effect of a school board releasing the results of an investigation into alleged sexual assaults by basketball team members; finding that the disclosure triggered a subject matter waiver that included internal communications between school board representatives and the school board's lawyer; analyzing an expert witness issue, and finding that a school board lawyer was not acting as an expert witness during the investigation, and the board did not deserve expert witness rule protections; "[T]he Board contends that the communications between the Board's attorney, Scott Bennett, and Courtney Bullard, its testifying expert, should be protected from disclosure because of the constraints imposed by Fed. R. Civ. P. 26(b)(4)(C). The Court disagrees. Attorney Bullard was not originally retained by the Board as an expert witness. Rather, she was retained to act as an attorney for the Board in anticipation of litigation. She was acting as counsel for the Board at the time she performed her investigation and prepared the Bullard Report. The documents identified in the Privilege Log were generated during the time that Attorney Bullard was acting as the Board's attorney, not after she had been designated as an expert witness. Defendant's belated designation of Attorney Bullard as an expert witness does not permit retroactive application of the disclosure protections of Fed. R. Civ. P. 26(b)(4)(C) to documents that were created while she was acting as the Board's attorney and prior to the time that she was designated as an expert witness. The Court will not impose such protections here."; "Attorney Courtney Bullard was not acting as an expert witness during her investigation and preparation of the Bullard Report. Further, it is the Court's understanding that she was not acting as an expert witness during the time period that the documents reflecting communications between her and Attorney Scott Bennett were generated. Her belated designation as an expert witness does not provide Fed. R. Civ. P. 26(b)(4)(C)'s protection retroactively to communications between Attorney Bullard and Attorney Bennett for the time period that both were acting as the Board's attorneys and before Attorney Bullard was designated as an expert witness.")

Case Date Jurisdiction State Cite Checked
2018-01-12 Federal TN
Comment:

key case


Chapter: 44.11
Case Name: Davita Healthcare Partners, Inc. v. United States, No. 11-297C, 2016 U.S. Claims LEXIS 1427 (Fed. Cl. Sept. 29, 2016)
("Plaintiffs assert that Ms. Ryan's [Testifying expert] spreadsheets, scripts, analyses, and presentations are protected 'communications from Plaintiffs' testifying expert, Ms. Ryan, to Plaintiffs' counsel about Ms. Ryan's preliminary claims data analyses and report strategies' protected under Rule 26(b)(4)(C)."; "Defendant mistakenly equates the expert's spreadsheets, graphs, and analyses in her presentations to counsel with 'facts and data.' These formulations, however, are interpretations of data that reflect counsel's mental impressions and result from the expert's and counsel's collaborative efforts to organize, marshal, and present data. This selective presentation of data is separate and distinct from the underlying facts and data themselves. . . . because Ms. Ryan included an extensive list of facts and data she considered in formulating her report in her description of 'Key Data Sources,' Defendant has obtained a full factual predicate for this expert's opinions and has what it needs to probe and test those opinions.")

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

Chapter: 44.11
Case Name: Davita Healthcare Partners, Inc. v. United States, No. 11-297C, 2016 U.S. Claims LEXIS 1427 (Fed. Cl. Sept. 29, 2016)
("The facts and data which Ms. Ryan considered in forming her opinions have already been produced to Defendant. . . . As discussed above, Ms. Ryan's [Testifying expert] report details every document and data set she considered in forming her analyses. Defendant does not argue that Ms. Ryan's report or her disclosures are somehow insufficient or incomplete, but instead seeks documents containing Ms. Ryan's preliminary analyses of claims data and various damages scenarios, reflecting Plaintiffs' counsel's mental processes in developing litigation strategy, or the iterations of the expert's preliminary analyses communicated to counsel. . . .These preliminary analyses are not discoverable. RCFC 26(b)(4)(C).")

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

Chapter: 44.11
Case Name: Davita Healthcare Partners, Inc. v. United States, No. 11-297C, 2016 U.S. Claims LEXIS 1427 (Fed. Cl. Sept. 29, 2016)
("The facts and data which Ms. Ryan considered in forming her opinions have already been produced to Defendant. . . . As discussed above, Ms. Ryan's [Testifying expert] report details every document and data set she considered in forming her analyses. Defendant does not argue that Ms. Ryan's report or her disclosures are somehow insufficient or incomplete, but instead seeks documents containing Ms. Ryan's preliminary analyses of claims data and various damages scenarios, reflecting Plaintiffs' counsel's mental processes in developing litigation strategy, or the iterations of the expert's preliminary analyses communicated to counsel. . . .These preliminary analyses are not discoverable. RCFC 26(b)(4)(C).")

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

Chapter: 44.11
Case Name: Davita Healthcare Partners, Inc. v. United States, No. 11-297C, 2016 U.S. Claims LEXIS 1427 (Fed. Cl. Sept. 29, 2016)
("Plaintiffs assert that Ms. Ryan's [Testifying expert] spreadsheets, scripts, analyses, and presentations are protected 'communications from Plaintiffs' testifying expert, Ms. Ryan, to Plaintiffs' counsel about Ms. Ryan's preliminary claims data analyses and report strategies' protected under Rule 26(b)(4)(C)."; "Defendant mistakenly equates the expert's spreadsheets, graphs, and analyses in her presentations to counsel with 'facts and data.' These formulations, however, are interpretations of data that reflect counsel's mental impressions and result from the expert's and counsel's collaborative efforts to organize, marshal, and present data. This selective presentation of data is separate and distinct from the underlying facts and data themselves. . . . because Ms. Ryan included an extensive list of facts and data she considered in formulating her report in her description of 'Key Data Sources,' Defendant has obtained a full factual predicate for this expert's opinions and has what it needs to probe and test those opinions.")

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

Chapter: 44.11
Case Name: Amtrust North America, Inc. v. Safebuilt Insurance Services, Inc., 14-CV-9494 (CM) (JLC), 2016 U.S. Dist. LEXIS 75906 (S.D.N.Y. June 10, 2016)
(holding that the work product doctrine protected an audit firm's documents, despite the absence of any lawyer involvement; concluding that the defendant's cannot overcome the work product protection; "Even if the Court assumes that Alan Gray's ['an audit firm that plaintiffs retained to review the billing practices of a third-party administrator that processed insurance claims for them'] analysis was helpful in plaintiffs' negotiations with Network, these facts do not strip away work-product protection. After all, 'where an expert is employed for 'dual purposes,' both to prepare for litigation and for some non-litigation purpose, work product protection still applies.'")

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

Chapter: 44.11
Case Name: Neuman v. The State, S15A0011, 2015 Ga. LEXIS 444 (Ga. June 15, 2015)
(reversing a murder conviction because the court had improperly allowed the state to discover defendant's non-testifying experts opinions; "Consistent with this general principle, and after a review of authority from other states on this issue, we join numerous other jurisdictions in holding that the (2) attorney-client privilege applies to confidential communications, related to the matters on which legal advice is being sought, between the attorneys, their agents, or their client, and an expert engaged by the attorney to aid in the client's representation; the privilege is not waived if the expert will neither serve as a testimony. . . . If counsel later elects to call the expert as a witness at trial, the cloak of privilege ends."; "Neither Dr. Thomas nor Dr. Rand Dorney conducted an independent investigation of the facts of the criminal case, nor did they review any discovery. Neither doctor prepared an evaluation of Neuman's mental capacity with regard to insanity to be used in court, nor did they professionally treat Neuman. Finally, neither of Neuman's expert witnesses at trial relied on Dr. Rand Dorney's or Dr. Thomas' notes in the formulation of their expert opinions."; "The State contends that Neuman signed a form, presented to him when Dr. Thomas and Dr. Rand Dorney met with him at the jail, waiving any confidentiality."; "When a client authorizes his lawyers or their agents, expressly or impliedly, to waive his confidential communications as necessary to carry out his representation, that does not authorize the other party to the litigation to demand that the waiver be exercised.")

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

Chapter: 44.11
Case Name: Perez v. El Tequila LLC, Case No. 12-CV-588-JED-PJC, 2015 U.S. Dist. LEXIS 34174 (N.D. Okla. March 19, 2015)
(finding that the work product doctrine protected oral communications between a government lawyer and a third party's employees; also analyzing the government's later retention of witnesses' experts; "Defense counsel contends that once the Casio witnesses were retained as experts in August 2014, it rendered their July 24 communications with Plaintiff's counsel discoverable. Counsel has provided no authority for this position and the Court rejects it. The Defendants are entitled to know what the expert witnesses considered and relied on in forming their opinions. That information was provided in the Rule 26 expert report provided to the defense a month before Speer's deposition.")

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

Chapter: 44.11
Case Name: United States Commodity Futures Trading Comm. v. Newell, Case No. 12 C 6763, 2014 U.S. Dist. LEXIS 117734 (N.D. Ill. Aug. 25, 2014)
("The purpose of amending Rule 26(b) in 2010, however, was to change the law about discovery regarding drafts of expert reports and counsel's communication with the expert . . . .")

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

Chapter: 44.11
Case Name: In re Methyl Tertiary Butyl Ether ('MTBE') Prods. Liab. Litig., 293F.R.D. 568, 576 (S.D.N.Y. 2013)
(in an opinion by Judge Shira Scheindlin, analyzing experts playing two roles in the same case; "Prior to the 2010 Amendment, Rule 26(a)(2)(B)(ii) permitted discovery of 'data or other information' considered by a testifying expert in connection with her opinion, leading many courts to conclude that 'Rule 26 creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts.' The 2010 Amendment to Rule 26 abrogates this bright-line approach in favor of the work-product doctrine's original function: protecting the 'orderly prosecution and defense of legal claims[]' by preventing 'unwarranted inquiries into the files and the mental impressions of attorneys. . . . Among other changes -- e.g., designating drafts of expert reports as work-product through Rule 26(b)(4)(B -- the 2010 Amendment: (1) clarifies that 'communications between [a] party's attorney and' a testifying expert are within the scope of the work-product doctrine; and (2) excepts from the work-product doctrine 'facts or data' considered by a testifying expert, rather than 'data or other information[,]' thereby clarifying that attorney theories and impressions are not discoverable." (citations omitted))

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

Chapter: 44.11
Case Name: In re Methyl Tertiary Butyl Ether ('MTBE') Prods. Liab. Litig., 293F.R.D. 568, 577 (S.D.N.Y. 2013)
(in an opinion by Judge Shira Scheindlin, analyzing experts playing two roles in the same case; "I conclude that the 2010 Amendment to Rule 26 does not alter the considerations applicable to dual-capacity experts in any way pertinent to this dispute. The 2010 Amendment did not change the rules (or policies) applicable to consulting expert discovery: a party seeking discovery of facts known or opinions held by a consulting expert must still demonstrate exceptional need to overcome the federal policy of encouraging parties to seek, and enabling parties to obtain, competent consultation."; "I conclude that the 2010 Amendment alters the analysis of privilege for dual-capacity experts only when 'core' work product -- e.g., attorney theories and impressions -- is involved.")

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

Chapter: 44.11
Case Name: Yeda Research & Dev. Co. v. Abbott GMBH & Co. KG, 292 F.R.D. 97, 109, 113, 114, 115 (D.D.C. 2013)
(in a patent case, ordering a testifying expert to produce his earlier work created when he was a non-testifying expert; holding that after federal rules changes, a testifying expert can withhold only those documents prepared "uniquely" in his or her non-testifying roles; "Yeda is correct to the extent that there is a temporal line of demarcation between the 2003 experiments and these proceedings. The documents at issue were clearly prepared by Dr. Engelmann in his capacity as a consultant. However, whether time has passed is not the pertinent inquiry; instead, the question is the extent of the substantive relationship between Dr. Engelmann's two expert roles. In so doing, 'the scope of the privilege must be narrowly construed against the expert's proponent,' . . . . The presumption in favor of the party seeking discovery means that 'if the subject matter directly relates to the opinion in the expert report, there will be at least an ambiguity as to whether the materials informed the expert's opinion,' and consulting materials should be disclosed." (citation omitted); "The Court finds the line of demarcation Yeda has drawn is more illusory than real."; "The Court finds that Yeda waived the work product protection of Dr. Engelmann's work as a consultant in this case by designating him as a testifying expert witness. Accordingly, Abbott's motion to compel as to the documents related to the 2003 experiment will be granted with respect to the five groups of documents Abbott seeks, subject to any attorney work product otherwise protected by amended Rule 26.")

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

Chapter: 44.302
Case Name: Portland Pipe Line Corporation v. City of South Portland, 2:15-cv-00054-JAW, 2017 U.S. Dist. LEXIS 135704 (D. Me. Aug. 14, 2017)
("[W]ork product protections persist from one matter to another as long as the product was prepared by or for a party to the subsequent litigation.")

Case Date Jurisdiction State Cite Checked
2017-08-14 Federal ME

Chapter: 44.302
Case Name: United States v. NeuroScience, Inc., 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572 (W.D. Wis. Feb. 10, 2015)
(rejecting defendant's claims that a billing audit was motivated by litigation and therefore deserved work product protection, and that the auditor was protected by the Kovel doctrine; "Bublitz's explanation leaves no doubt that Pharmasan/NeuroScience hired CodeMap for business reasons, namely, to review its billing system to ensure compliance with federal rules and regulations governing laboratories.")

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

Chapter: 44.303
Case Name: In re Abilify Aripiprazole Prods. Liab. Litig., Case No. 3:16-md-2734, 2017 U.S. Dist. LEXIS 213493 (N.D. Fla. Dec. 29, 2017)
("Plaintiffs advance the argument that work product only applies to litigation that is 'closely related.' This view is the minority view and is not in keeping with the more accepted view that '[d]ocuments produced in anticipation of litigating one case remain protected in a subsequent case [] if they were created by or for a party to the subsequent litigation.'"; "The view that work product extends to other litigation -- whether related or not -- makes the most sense. It is consistent with the Rule, which does not include any language limiting work-product to materials prepared in the litigation in which the privilege is asserted. Rather, Rule 26(b)(3) broadly states that documents are not discoverable '[t]hat are prepared in anticipation of litigation or for trial by or for another party . . .' By its express terms work product should apply to any litigation."; "This view is also consistent with the primary purpose of the work product privilege, which is "to assure that an attorney is not inhibited in his representation of this client by the fear that his files will be open to scrutiny upon demand of an opposing party.'"; "Accordingly, for these reasons, the work product protection is not limited only to 'closely related' litigation and applies to any litigation so long as the materials were prepared by or for a party to the subsequent litigation. Defendants' identification of other litigation (in conjunction with their declarations detailing the 'other litigation') is sufficient to invoke the work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2017-12-29 Federal FL
Comment:

key case


Chapter: 44.303
Case Name: Portland Pipe Line Corporation v. City of South Portland, 2:15-cv-00054-JAW, 2017 U.S. Dist. LEXIS 135704 (D. Me. Aug. 14, 2017)
("[W]ork product protections persist from one matter to another as long as the product was prepared by or for a party to the subsequent litigation.")

Case Date Jurisdiction State Cite Checked
2017-08-14 Federal ME

Chapter: 44.303
Case Name: United States v. All Assets Held at Bank Julius Baer & Company, Ltd., Civ. A. No. 04-798 (PLF/GMH), 2016 U.S. Dist. LEXIS 72534 (D.D.C. June 3, 2016)
(holding that the work product protection applied in unrelated later litigation)

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

Chapter: 44.303
Case Name: Charvat v. Valente, No. 12 CV 5746, 2015 U.S. Dist. LEXIS 85234 (N.D. Ill. July 1, 2015)
("Plaintiff contends that the work product doctrine cannot apply in this lawsuit because they were prepared in anticipation of separate litigation. . . . On the contrary, courts generally hold that when documents have been prepared in anticipation of litigation, but not in anticipation of the litigation in which work product protection is asserted, the documents should still be treated as work product.")

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

Chapter: 44.303
Case Name: Bethune-Hill v. Va. State Bd. of Elections, 114 F. Supp. 3d 323, 348 (E.D. Va. 2015)
("The protections of the work product doctrine extend beyond the litigation for which the materials were prepared.")

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

Chapter: 44.303
Case Name: Sedgwick Claims Management Services, Inc. v. Feller, Case No. 5D15-217, 2015 Fla. App. LEXIS 7286 (Fla. App. 5d May 15, 2015)
("[T]he trial court erred by finding the work product privilege to be inapplicable on grounds that the current case between these parties involves issues different than those presented in the prior litigation for which the documents were prepared. . . . ('It is well-established that 'work product retains its qualified immunity after the original litigation terminates, regardless of whether or not the subsequent litigation is related.'").")

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

Chapter: 44.303
Case Name: In re Sadler Clinic, PLLC v. Angelica Textile Svcs., Inc., Case No. 12-34546, Ch. 7, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369 (S.D. Tex. April 17, 2015)
(analyzing various work product issues; "Furthermore, the majority of circuit courts to have directly decided the issue apply the work-product doctrine to all subsequent litigation, related or not.")

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

Chapter: 44.303
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 12-5393, 2015 U.S. App. LEXIS 2559 (D.C. App. Feb. 20, 2015)
("A document prepared as work product for one lawsuit will retain its protected status even in subsequent unrelated litigation.")

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

key case


Chapter: 44.303
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., 778 F.3d 142 (D.C. Cir. 2015)
April 22, 2015 (PRIVILEGE POINT)

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

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

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

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

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

key case


Chapter: 44.303
Case Name: Wilson v. City of Phila., Civ. A. No. 04-5396, 2014 U.S. Dist. LEXIS 39863, at *7 (E.D. Pa. Mar. 26, 2014)
("As an initial matter, it is not entirely clear that that the work-product privilege applies in a proceeding unrelated to the litigation for which the work was prepared.")

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

Chapter: 44.303
Case Name: Cosmetic Warriors Ltd. v. Lush Day Spa, LLC, Civ. A. No. 13-1697 (WJM), 2013 U.S. Dist. LEXIS 144272, at *5 (D.N.J. Oct. 4, 2013)
(not for publication) (analyzing the work product doctrine's duration; explaining that plaintiff's lawyer discovered defendant's alleged trademark violation while investigating another possible infringer; concluding that the current lawsuit was not sufficiently related to the other litigation in which the lawyer discovered the possible infringement, so the work product doctrine did not protect his documents; "Mr. Clifford's [plaintiff's lawyer] investigation was of a separate, non-party's supposed infringement; he apparently simply stumbled onto LDS during that investigation. Because of the separate investigations, the question becomes whether work-product protection attaches when the information was generated in anticipation of a different, unrelated litigation.")

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

Chapter: 44.303
Case Name: Cosmetic Warriors Ltd. v. Lush Day Spa, LLC, Civ. A. No. 13-1697 (WJM), 2013 U.S. Dist. LEXIS 144272, at *8 (D.N.J. Oct. 4, 2013)
(not for publication) (analyzing the work product doctrine's duration; explaining that plaintiff's lawyer discovered defendant's alleged trademark violation while investigating another possible infringer; concluding that the current lawsuit was not sufficiently related to the other litigation in which the lawyer discovered the possible infringement, so the work product doctrine did not protect his documents; "The cases that generally carry work-product protection over from one proceeding to a second often have much more in common than is alleged here. . . . CWL does little other than state, in a perfunctory way, that the prior case Mr. Clifford [plaintiff's lawyer] was investigating involved alleged trademark infringement and that LUSH marks were at issue. However, no authority is cited that suggests that investigating one trademark infringer makes it closely related to another.")

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

Chapter: 44.303
Case Name: Cosmetic Warriors Ltd. v. Lush Day Spa, LLC, Civ. A. No. 13-1697 (WJM), 2013 U.S. Dist. LEXIS 144272, at *6 (D.N.J. Oct. 4, 2013)
(not for publication) (analyzing the work product doctrine's duration; explaining that plaintiff's lawyer discovered defendant's alleged trademark violation while investigating another possible infringer; concluding that the current lawsuit was not sufficiently related to the other litigation in which the lawyer discovered the possible infringement, so the work product doctrine did not protect his documents; "In dicta, the Third Circuit has endorsed the 'closely related' view. That is, when work-product is claimed on information generated in connection with a prior proceeding, there must be a sufficiently close relationship between the prior suit and the present action to justify work-product protection.")

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

Chapter: 44.303
Case Name: Sullivan v. Alcatel-Lucent USA, Inc., Case No. 12 C 7528, 2013 U.S. Dist. LEXIS 82407, at *29 n.1 (N.D. Ill. June 12, 2013)
("'Although the Seventh Circuit has not decided this issue, it has noted the majority view that the work product privilege 'endures after termination of the proceedings for which the documents were created, especially if the old and new matters are related.'")

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

Chapter: 44.303
Case Name: COMPTEL v. FCC, 910 F. Supp. 2d 100, 120 (D.D.C. 2012)
("Attorney work product is exempt from mandatory disclosure regardless of whether the litigation for which it was prepared has ended or was never brought.")

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

Chapter: 44.303
Case Name: Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234, 235 (Va. Cir. Ct. 2008)
("It appears that documents and tangible things prepared in anticipation of any litigation are protected, whether or not they were prepared in anticipation of this litigation.")

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

Chapter: 44.303
Case Name: Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 509 F.2d 730, 736 n.9 (4th Cir. 1974)
("[w]e thus adhere to and follow our holding in Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F2d 480 (4th Cir. 1973) (that the immunity extended to work product may extend in time beyond the litigation at hand) and hold here that the immunity extended to attorneys' mental impressions, conclusions, opinions, or legal theories by the last sentence of FRCP 26(b)(3) does not expire once the litigation for which they are prepared has been concluded."), cert. denied, 420 U.S. 997 (1975)

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

Chapter: 44.304
Case Name: Mortgage Resolution Servicing v. JPMorgan Chase Bank, 15 Civ. 0293 (LTS) (JCF), 2017 U.S. Dist. LEXIS 78217 (S.D.N.Y. May 18, 2017)
("The doctrine applies to work product generated in related cases as well as in the litigation where the information is sought.")

Case Date Jurisdiction State Cite Checked
2017-05-18 Federal NY

Chapter: 44.304
Case Name: Patel v. Kensol-Franklin, Inc., Civ. A. No. 3:14-1439, 2016 U.S. Dist. LEXIS 36684 (M.D. Pa. March 22, 2016)
(in a bad faith insurance case, analyzing privilege and work product protection for a post-accident investigation; finding that both protections applied; "This court agrees with Serrano [Serrano v. Chesapeake Appalachia, LLC, 298 F.R.D. 271 (W.D. Pa. 2014)], . . . And the cases it cites which held "that the non-parties could invoke the [work-product] privilege where the circumstances implicated 'all the purposes for the privilege articulated in Hickman: 'preventing discovery from chilling attorneys' ability to formulate their legal theories and prepare their cases, preventing opponents from free-loading off their adversaries' preparation, and preventing disruption of ongoing litigation.'" (citation omitted). Indeed, "[t]he doctrine 'extends to material prepared in anticipation of litigation by an attorney's 'investigators and other agents.'" Nor does it matter that the material was prepared in anticipation of different litigation "because such material 'will still be protected as work product if the anticipated litigation was related to the proceedings in which the material is to be produced.'")

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

Chapter: 44.304
Case Name: NL Industries, Inc. v. ACF Industries LLC, 10CV89W, 2015 U.S. Dist. LEXIS 86677 (W.D.N.Y. July 2, 2015)
("The litigation for which the documents were prepared need not be this particular case, but may be related actions.")

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

Chapter: 44.304
Case Name: Broadband iTV, Inc. v. Hawaiian Telecom, No. 15-mc-80053 HRL, 2015 U.S. Dist. LEXIS 51131 (N.D. Cal. April 17, 2015)
("Broadband argues that the information sought is not subject to work-product or attorney client privilege because Unified and Jakel are not parties to the patent lawsuit. However, 'work product is not limited to proceedings which are strictly related to each other.'")

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

Chapter: 44.304
Case Name: In re Sadler Clinic, PLLC v. Angelica Textile Svcs., Inc., Case No. 12-34546, Ch. 7, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369 (S.D. Tex. April 17, 2015)
(analyzing various work product issues; "Applying the work-product doctrine only to subsequent litigation which is closely related to the original litigation appears to contradict the plain language of the Federal Rules.")

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

Chapter: 44.304
Case Name: In re Sadler Clinic, PLLC v. Angelica Textile Svcs., Inc., Case No. 12-34546, Ch. 7, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369 (S.D. Tex. April 17, 2015)
(analyzing various work product issues; "Several courts have held or suggested that documents can only be treated as work product in subsequent litigation if the two lawsuits are 'closely related.")

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

Chapter: 44.304
Case Name: Bryan Corp. v. ChemWerth, Inc., Civ. A. No. 12-10446-MLW, 2013 U.S. Dist. LEXIS 152286 (D. Mass. Oct. 23, 2013)
December 4, 2013 (PRIVILEGE POINT)

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

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

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

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

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

key case


Chapter: 44.304
Case Name: Cosmetic Warriors v. Lush Day Spa, LLC, Civ. A. No. 13-1697 (WJM), 2013 U.S. Dist. LEXIS 144272, at *6 (D.N.J. Oct. 4, 2013)
December 4, 2013 (PRIVILEGE POINT)

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

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

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

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

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

key case


Chapter: 44.305
Case Name: United States v. Tailwind Sports Corp., Case No. 1:10-cv-00976 (CRC), 2015 U.S. Dist. LEXIS 4610 (D.D.C. Jan. 12, 2015)
(analyzing bicyclists Floyd Landis's qui tam action against Lance Armstrong, concluding that government agents' witness interview memoranda from the civil investigation deserved opinion work product protection, but that similar witness interview memoranda prepared during the government's criminal investigation deserved only fact work product protection, which Armstrong could overcome; "The Court previously ruled that Armstrong has demonstrated a substantial need for any law enforcement memoranda created during the now-closed criminal investigation that contain relevant fact work product only. . . . The Court explained that because the civil lawyers litigating this qui tam action have received a substantial advantage from having access to the fruits of the prior criminal investigation, fairness dictates that both sides have equal access to relevant witness statements developed by law enforcement in the prior criminal investigation. Id.")

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

Chapter: 44.305
Case Name: Billups v. Penn State Milton S. Hershey Med. Ctr., Civ. No. 1:11-CV-1784, 2013 U.S. Dist. LEXIS 111396, at *19 (M.D. Pa. Aug. 7, 2013)
(analyzing the duration of the work product protection; holding that the protection survived a criminal defendant's acquittal, and applied in a later civil case; "There is no dispute that the instant civil action is related to the prior criminal proceedings against Mr. Billups, and as such, the correspondence exchanged between the Franklin County District Attorney and the Hershey Defendants containing the opinions and legal theories of the prosecutor are subject to work product protection in this action. Furthermore, Plaintiffs fail to argue that they have a substantial need for the materials to prepare their case and cannot, without undue hardship, obtain the substantial equivalent by other means.")

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

Chapter: 44.305
Case Name: Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496 (W.D. Va. Apr. 15, 2008)
(holding work product prepared in a criminal case is not protected in a later civil case)

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

Chapter: 44.305
Case Name: Jondahl v. Gasper, 73 Va. Cir. 42, 43, 44 (Va. Cir. Ct. 2007)
(analyzing work product protection in a civil wrongful death action for documents prepared during an earlier criminal proceeding against the defendant; "The plaintiff argues that since the letters [from an investigator to defendant's criminal lawyer] were prepared in anticipation of the previous criminal litigation involving the defendant, not the civil litigation that is currently taking place, the work product doctrine should not apply."; "Though there does not appear to be any Virginia state law on the subject, the defendant has cited two federal cases that support his position that work product immunity does not expire upon the termination of the subject litigation."; "Here, the letters at issue were obviously prepared for the defendant in anticipation of the criminal litigation that took place involving the defendant and the plaintiffs' son. This case involves the exact same events and issues that were the subject of the criminal litigation. Given that federal courts have ruled that work product immunity can apply to unrelated subsequent litigation, it is logical that it should certainly apply in this instance, where the subsequent civil litigation is directly related to the previous criminal litigation. Accordingly, the letters are privileged under the work product doctrine and the plaintiffs' motion to compel with respect to these documents is overruled.")

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

Chapter: 44.305
Case Name: Jondahl v. Gasper, 73 Va. Cir. 42, 44 (Va. Cir. Ct. 2007)
(analyzing work product protection in a civil wrongful death action for documents prepared during an earlier criminal proceeding against the defendant; "The second two documents in the defendant's privilege log are both descriptions of the events that happened on the evening that the plaintiffs' son passed away. The first document, entitled 'Attention: Work Product of James Broccoletti' [defendant's criminal lawyer in the earlier criminal matter] is a description of events, prepared by the defendant for Mr. Broccoletti. The second document, entitled 'Narrative of Events,' is another description of the events, prepared by Mr. Broccoletti and his staff. The defendant argues that these documents are immune from discovery under both the work product doctrine and the attorney-client privilege. . . . The documents were obviously prepared by the defendant and his attorney in anticipation of the criminal litigation. The immunity of the documents from discovery should extend to this related, civil litigation.")

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

Chapter: 44.305
Case Name: Jondahl v. Gasper, 73 Va. Cir. 42, 44, 45 (Va. Cir. Ct. 2007)
(analyzing work product protection in a civil wrongful death action for documents prepared during an earlier criminal proceeding against the defendant; "[T]he plaintiffs also seek discovery of the audiotape of a telephone conversation between the defendant and Liana Workman, a potential witness in the case. The tape was made by the defendant, apparently at the suggestion of the investigator hired by his attorney, Mr. Broccoletti."; "[T]he defendant obviously recorded the conversation with Workman in anticipation of the criminal litigation, at least. And, following the rationale of the Supreme Court of Virginia in Rakes [Rakes v. Fulcher, 210 Va. 542, 547, 172 S.E.2d 751 (1970)] discovery should not be granted because both sides know of the witness. Additionally, the plaintiffs have not shown that they will be unable to obtain the substantial equivalent of this audiotape without undue hardship. Accordingly, the plaintiffs' motion to compel the audiotape is also overruled.")

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

Chapter: 44.501
Case Name: Virginia Supreme Court Rule 2:612 Writing or Object Used to Refresh Memory
("If while testifying, a witness uses a writing or object to refresh his memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.")

Case Date Jurisdiction State Cite Checked
State VA

Chapter: 44.503
Case Name: Hsingching Hsu v. Puma Biotechnology, Inc., Case No. 8:15-cv-00865-AG (SHK), 2018 U.S. Dist. LEXIS 103353 (C.D. Cal. June 20, 2018)
(analyzing the interplay of Rule 30(b)(6) and Rule 612; "Although the Ninth Circuit has not yet addressed the specific question of whether a corporate representative's review of documents that are protected by the attorney-client privilege or work-product doctrine that the corporate representative designee relied upon in preparation for testimony under a Rule 30(b)(6) deposition waives that privilege or protection, the Court adopts the balancing test from the set out in Adidas, 2017 U.S. Dist. LEXIS 193445, 2017 WL 5630038, at *8. The Court in Adidas laid out a three-part balancing test considering the following factors: (1) whether the documents that the designee used in preparation for a Rule 30(b)(6) deposition was used to refresh his or her recollection; (2) whether the documents were used for the purpose of testifying; and (3) whether the interests of justice require disclosure of such documents. 2017 U.S. Dist. LEXIS 193445, [WL] at *8-9.")

Case Date Jurisdiction State Cite Checked
2018-06-20 Federal CA
Comment:

key case


Chapter: 44.503
Case Name: Adidas America, Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445, at *15-16, *18 (D. Or. Nov. 22, 2017)
February 28, 2018 (PRIVILEGE POINT)

"Court Analyzes the Complex Interplay Between Federal Rule of Evidence 612 and Federal Rule of Civil Procedure 30(b)(6)"

Under Federal Rule of Evidence 612, courts concluding that "justice requires" it may order disclosure of privileged or work product protected documents that refreshed a witness's recollection before testifying. How does that rule apply to Rule 30(b)(6) witnesses, who generally have no recollection -- but instead absorb a corporation's collective knowledge before testifying as the corporation's representative?

In Adidas America, Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445, at *15-16, *18 (D. Or. Nov. 22, 2017), the court noted that (1) some courts "appl[y] an 'automatic' waiver under FRE 612" requiring Rule 30(b)(6) witnesses to produce every document they reviewed – an approach the court said had "some appeal," and (2) "many courts exercise discretion by applying a case-by-case balancing test." The court ultimately adopted its own standard, "a middle-ground approach between the automatic waiver rule and the balancing test." Id. at *20-21. Among other things, the court understandably held that in a Rule 30(b)(6) setting an individual witness "is not having his or her own personal knowledge refreshed" – so it is the corporation's knowledge that is being "refreshed" under FRE 612. Id. at *21.

Each of Rule 612 and Rule 30(b)(6) is complicated on its own, but their combination creates additional subtle issues.

Case Date Jurisdiction State Cite Checked
2017-11-22 Federal OR
Comment:

key case


Chapter: 44.503
Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)
(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; "Considering the issues and concerns of fairness and the attorney-client privilege and work-product protection, the Court finds that the balance favors disclosure of the documents selected by the company and provided to the corporate representative witnesses to prepare them for their depositions under FRCP 30(b)(6) on the specified topics. The identified topics are of significant importance to the defense, are narrow in scope, and involve only a subset of privileged and work-product protected documents selected by the company to educate and refresh the recollection of Plaintiffs' FRCP 30(b)(6) witnesses who otherwise did not have personal knowledge of the topics. The documents were reviewed for the specific purpose of deposition preparation, and the topics involved events that occurred years before the depositions took place. Accordingly, subject to the caveats and opportunities to seek further protection from the Court noted above, Plaintiffs must produce the documents that were shown to Mr. Federspiel and Ms. Vanderhoff to prepare them for their FRCP 30(b)(6) testimony on topics 5, 6, 40, and 42, regardless of attorney-client privilege or work-product protection.")

Case Date Jurisdiction State Cite Checked
2017-11-02 Federal OR
Comment:

key case


Chapter: 44.503
Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)
(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; "Considering the issues and concerns of fairness and the attorney-client privilege and work-product protection, the Court finds that the balance favors disclosure of the documents selected by the company and provided to the corporate representative witnesses to prepare them for their depositions under FRCP 30(b)(6) on the specified topics. The identified topics are of significant importance to the defense, are narrow in scope, and involve only a subset of privileged and work-product protected documents selected by the company to educate and refresh the recollection of Plaintiffs' FRCP 30(b)(6) witnesses who otherwise did not have personal knowledge of the topics. The documents were reviewed for the specific purpose of deposition preparation, and the topics involved events that occurred years before the depositions took place. Accordingly, subject to the caveats and opportunities to seek further protection from the Court noted above, Plaintiffs must produce the documents that were shown to Mr. Federspiel and Ms. Vanderhoff to prepare them for their FRCP 30(b)(6) testimony on topics 5, 6, 40, and 42, regardless of attorney-client privilege or work-product protection.")

Case Date Jurisdiction State Cite Checked
2017-11-02 Federal OR
Comment:

key case


Chapter: 44.503
Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)
(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; "Some courts, both before and after Sporck [Sporck v. Peil, 759 F.2d 312 (3rd Cir. 1985)], have applied an 'automatic' waiver under FRE 612, regardless of whether a deposition witness is a percipient witness or a corporate representative designated under FRCP 30(b)(6). . . . The Court sees some appeal to an automatic waiver rule, particularly in the context of a witness designated under FRCP 30(b)(6)."; "Parties have a 'heightened need to discover' documents used to prepare witnesses designated under FRCP 30(b)(6)."; "Moreover, when a corporation or other organization chooses to use attorney-client privileged or work-product protected documents to prepare its FRCP 30(b)(6) designee, the concern for fairness is heightened."; "In addition, '[a] finding of privilege would place the cross-examiner at an unfair disadvantage. Documents that the witness had consulted would be barred from being used to probe that testimony. An incentive would thereby be created for parties to use privileged documents to prepare witnesses as a means of limiting the preparation of the cross-examiner.'"; "The court also recognizes, however, that many courts exercise discretion by applying a case-by-case balancing test."; "Leading treatises also note that courts are divided between the balancing test and an automatic waiver rule, but generally support the balancing test. . . . Some courts and commentators argue that this approach is most consistent with the text of FRE 612, which supports mandatory waiver under the circumstances of FRE 612(a)(1), but only discretionary waiver under the circumstances of FRE 612(a)(2)."; "After reviewing numerous cases and several leading treatises involving FRE 612 and attorney-client privileged or work-product protected documents, and considering the purposes and requirements of depositions of a corporate representative designated under FRCP 30(b)(6), the Court finds that the application of FRE 612 should be different in the context of a witness designated under FRCP 30(b)(6) than in the context of a deposition of a percipient witness. The Court also does not adopt the application of an automatic waiver rule per se, but instead applies a middle-ground approach between the automatic waiver rule and the balancing test, in which a balancing test is applied but certain elements of the test are considered met with a rebuttable presumption in the context of a witness designated under FRCP 30(b)(6).")

Case Date Jurisdiction State Cite Checked
2017-11-02 Federal OR
Comment:

key case


Chapter: 44.503
Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)
(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; also analyzing documents that the two witnesses reviewed independently; "Defendants assert that they recently learned that Mr. Federspiel and Ms. Vanderhoff also independently reviewed privileged documents in preparing for their depositions, in addition to the documents selected by the company to prepare them for their testimony under FRCP 30(b)(6). Plaintiffs respond that Defendants fail to meet their burden to show that Mr. Federspiel and Ms. Vanderhoff actually reviewed any documents independently. Plaintiffs do not deny that these witnesses reviewed documents independently, but merely argue that Defendants do not sufficiently prove such review. Given the history of less-than-full candor in discovery by Plaintiffs in this case, the Court is not persuaded by this form-over-substance argument."; "The Court's application of the modified balancing test, however, is only applicable in the context of witnesses designated under FRCP 30(b)(6) for documents selected by the corporation. The presumption of disclosure (that arises from the rebuttable presumptions of elements one and two) is not supported for documents that a witness independently reviews. It is one thing for a corporation to select what documents will educate its FRCP 30(b)(6) witnesses. Those are documents that the company apparently has found to be of such importance to the topic and the need to educate its corporate representatives before their depositions that the company selected them in order to meet its obligations under FRCP 30(b)(6). Therefore, it is both logical and fair to rebuttably presume that those documents were intended to and did refresh the recollection of and influence the testimony of the witnesses and will be of such importance that the interests of justice support disclosure. When a witness independently decides to review a certain document, however, that presents a different matter."; "Documents that a witness -- particularly a witness who lacks personal knowledge of the relevant topic, came to the company after the relevant events, or who is an 'empty vessel' with respect to the relevant topic -- believes may be important to a topic may not be important at all. Presumably, if documents are important to a topic, the company would have selected those documents to meet its obligations under FRCP 30(b)(6). Accordingly, the Court does not find that a presumption of disclosure is appropriate for any documents that Mr. Federspiel or Ms. Vanderhoff may have independently reviewed relating to topics 5, 6, 40, and 42. Instead, the Court orders that, to the extent Mr. Federspiel or Ms. Vanderhoff independently reviewed documents, those documents must be produced to the Court in camera, along with the complete deposition transcripts for these two witnesses. The Court will make a determination as to whether those documents were appropriately designated as privileged or work-product protected and, if so, whether those documents appear to have influenced a witness's testimony such that they should be produced in the interests of justice.")

Case Date Jurisdiction State Cite Checked
2017-11-02 Federal OR
Comment:

key case


Chapter: 44.503
Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)
(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; also analyzing documents that the two witnesses reviewed independently; also analyzing the interplay of the rules for a non-Rule 30(b)(6) fact witness; "[T]he Court finds that witnesses designated under FRCP 30(b)(6) are unique based on the specific obligations and responsibilities placed on both the noticing party and responding party by that rule. The fact that a percipient witness is given a binder of documents to prepare for deposition does not create the same burdens and obligations of a witness designated under FRCP 30(b)(6)."; "Furthermore, Defendants fail to show that this 'binder' refreshed Ms. Rodal's recollection, included privileged documents, or could reasonably have influenced her testimony. Under Defendants' theory, every percipient witness who is given documents by an attorney to prepare for a deposition would be subject to having those documents disclosed under FRE 612 based on a showing of nothing more than the fact that documents were given to the percipient witness. The Court finds this to be an insufficient basis to trigger FRE 612. Accordingly, the Court denies Defendants' motion with respect to Ms. Rodal.")

Case Date Jurisdiction State Cite Checked
2017-11-02 Federal OR
Comment:

key case


Chapter: 44.503
Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("First Mercury relies on Sporck v. Peil, 759 F.2d 312, 315 (3d Cir. 1985) for the proposition that 'documents selected by counsel for review by a defendant are protected as opinion work product.'. . . But, as AAIC points out, courts within the Tenth Circuit have questioned whether this is so. . . . Moreover, Sutton testified that she used the documents provided to her to refresh her recollection in anticipation of testifying at her deposition. . . . Thus, to the extent First Mercury has not already done so, it must identify and produce the documents Sutton reviewed prior to her deposition under FED. R. EVID. 612.")

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

Chapter: 44.503
Case Name: McDaniels v. State Auto Property and Casualty Ins. Co., Civ. A. No. 3:15-CV-69 (GROH), 2016 U.S. Dist. LEXIS 62795 (N.D.W. Va. May 12, 2016)
(analyzing Federal Rule of Evidence 612; "Rule 612 is "silent with respect to whether it applies to work product [and other privileged] materials used to refresh recollection.'. . . Courts have adopted differing approaches to this issue, some holding that privileged materials reviewed by a witness prior to being deposed are subject to disclosure under Rule 612, while others have held that they are not."; "The undersigned finds that Plaintiff has not established the three foundational elements that must be met before an adverse party is required to produce documents pursuant to Rule 612. Regarding the first element, that the witness used a writing to refresh his or her memory, it is unclear from Mr. Lovrak's deposition testimony whether he actually used his notes to refresh his recollection. When initially asked whether the notes 'help[ed his] recollection,' Mr. Lovrak testified 'I don't think so.' However, later in the deposition, Mr. Lovrak testified that, 'at that time,' he was looking at the notes to help refresh his memory. Regardless of whether Mr. Lovrak used his notes to refresh his recollection, Plaintiff must establish all three foundational elements for documents to be produced pursuant to Rule 612."; "Regarding the second element, that the writing was used for the purpose of testifying, Mr. Lovrak testified that the purpose of the notes 'would deal with a discussion [he] had with counsel.' When asked if a purpose of the notes was to refresh his memory, Mr. Lovrak reiterated that the notes were for a meeting with Defendant's counsel. Furthermore, when asked what documents he reviewed 'for purposes of refreshing [his] memory or preparing [for the deposition],' Mr. Lovrak did not mention his notes. Finally, the undersigned reviewed the notes in camera during the evidentiary hearing and finds that Plaintiff clearly used his notes, not to prepare for his deposition, but to receive Defendant's counsel's advice and guidance. Therefore, Plaintiff has failed to establish the second foundational element."; "Plaintiff fails to establish the third element, that justice requires Defendant to produce the notes. When analyzing the third element, a court must initially determine whether the documents at issue are protected from disclosure. In this case, Defendant argues that Mr. Lovrak's notes are protected by the attorney-client privilege and work product doctrines. Although Plaintiff did not dispute that the notes constitute documents protected by the attorney-client privilege and work product doctrine at the evidentiary hearing, he argued that Defendant's claims of privilege and work product were waived when Defendant's counsel failed to raise these specific objections during the deposition. Defendant countered by arguing that, while it may have waived its work product claim, Mr. Lovrak asserted the attorney-client privilege during his deposition. Because the undersigned agrees that Mr. Lovrak clearly asserted the attorney-client privilege as to his notes during the deposition and had the authority as a Rule 30(b)(6) corporate representative to do so, the undersigned finds that Mr. Lovrak's notes are privileged."; "A thorough review of Mr. Lovrak's deposition testimony and an in camera review of Mr. Lovrak's notes revealed that the notes would only be marginally, if at all, useful for the purposes of cross-examination and impeachment.")

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

Chapter: 44.504
Case Name: Beach v. Touradji Capital Mgmt., LP, 949 N.Y.S.2d 666, 670 (N.Y. App. Div. 2012)
("[W]e clarify that the attorney work product privilege is not waived when a privileged document is used to refresh the recollection of a witness prior to testimony.")

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

Chapter: 44.505
Case Name: Accusoft Corp. v. Quest Diagnostics, Inc., Civ. A. No. 12-cv-400070-TSH, 2014 U.S. Dist. LEXIS 18976, at *12 (D. Mass. Feb. 14, 2014)
April 30, 2014 (PRIVILEGE POINT)

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

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

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

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

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

key case


Chapter: 44.505
Case Name: Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 319 P.3d 618, 623 (Nev. 2014)
April 30, 2014 (PRIVILEGE POINT)

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

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

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

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

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

key case


Chapter: 44.508
Case Name: Virginia Supreme Court Rule 2:612 Writing or Object Used to Refresh Memory
("If while testifying, a witness uses a writing or object to refresh his memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.")

Case Date Jurisdiction State Cite Checked
State VA

Chapter: 44.701
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; "Even accepting that the attorney-client privilege applies, Plaintiffs argue, 'there is a well-recognized exception . . . that allows shareholders access to communications between the corporation and its attorneys.'"; "Defendants argue that the Garner doctrine does not apply outside the context of derivative actions."; "The Seventh Circuit has not decided whether this fiduciary exception applies where shareholders are suing a corporation in a non-derivative action. The Third and Fifth Circuits have held that it does, as have several district courts."; "In this case, Plaintiffs have not filed a derivative action and their interests are clearly personal in that they seek to recover financially for Household's alleged fraud. In addition, Plaintiffs are seeking to recover for, and have charged Household with, injuries sustained by the investing public, not the corporation."; "Nevertheless, unlike the plaintiffs in In re Omnicom Group [In re Omnicom Group, Inc. Sec. Litig., 233 F.R.D. 400, 411 (S.D.N.Y. 2006)], Plaintiffs have presented evidence -- and Defendants do not dispute -- that the Class represents a substantial majority of shareholders who owned stock at the time of the communications in question. . . . Thus, it appears that Household did owe a majority of Plaintiffs a fiduciary duty. . . . On the limited facts of this case, the court finds that the fiduciary exception applies to the communications between E&Y and Household."; "This does not end the inquiry, however. Courts have declined to extend Garner [Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970)] to the work product doctrine, so the court must still determine whether the documents in question here are covered by that privilege as well.")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL
Comment:

key case


Chapter: 44.702
Case Name: Kushner v. Nationwide Mutual Insurance Co., Civ. A. No. 2:17-cv-715, 2018 U.S. Dist. LEXIS 119571 (S.D. Ohio July 18, 2018)
(analyzing the fiduciary exception's application in an ERISA case; "Although neither this Court nor the Sixth Circuit has squarely held that the fiduciary exception also applies to the work-product doctrine, other trial courts within the Sixth Circuit, as well as trial courts outside of this Circuit.")

Case Date Jurisdiction State Cite Checked
2018-07-18 Federal OH

Chapter: 44.702
Case Name: Durand v. The Hanover Ins. Group, Inc., Civ. A. No. 3:07-CV-00130-HBB, 2016 U.S. Dist. LEXIS 143064 (W.D. Ky. Oct. 17, 2016)
("The ERISA context differs from the corporate context and more closely involves fiduciary duties owed directly to participants and beneficiaries. . . . Several courts have applied the logic of common law trusts from which the fiduciary exception to the attorney-client privilege was extrapolated to the ERISA context, and they have found that the exception similarly applies to the work product doctrine. . . . Those courts have reasoned a trustee's attorney should not withhold work product from the actual client, the trust beneficiaries. . . . The Court finds these persuasive authorities demonstrate there is no legitimate basis on which to distinguish between the attorney-client privilege and the work product protection when applying the fiduciary exception in the ERISA context.")

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

Chapter: 44.702
Case Name: Solis v. Food Emp'rs Labor Relations Ass'n, 644 F.3d 221, 232, 233 (4th Cir. 2011)
("The Funds argue that the district court erred in finding that the fiduciary exception extends to require disclosure of mate-rial (sic) covered by the work product doctrine. In support of their contention, the Funds point to cases in which other courts have refused to apply the fiduciary exception to attorney work product. See, e.g., Jicarilla Apache Nation v. the United States, 88 Fed. Cl. 1, 11 (2009). . . . the ERISA context differs from the corporate context and more closely involves fiduciary duties owed directly to participants and beneficiaries. Applying the logic of common law trusts from which the fiduciary exception to the attorney-client privilege was extrapolated to the ERISA context, several courts have found that the exception similarly applies to the work product doctrine, reasoning that a trustee's attorney should not withhold work product from the actual client, i.e. the trust beneficiaries. See Everett v. USAir Group, Inc., 165 F.R.D. 1, 5 (D.D.C. 1995). . . . These persuasive authorities demonstrate that there is no legitimate basis on which to distinguish between the two privileges in the application of the fiduciary exception in the ERISA context.")

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

Chapter: 44.703
Case Name: Wal-Mart Stores, Inc. v. Indiana Elec. Workers Pension Trust Fund IBEW, No. 614, 2013, 2014 Del. LEXIS 336 (Del. July 23, 2014)
(applying the Garner doctrine in a Delaware § 220 action, in which union shareholders sought privileged documents about Wal-Mart's alleged Mexican corruption investigation; "The Garner doctrine applies to information protected by the attorney-client privilege, but not to work product. Instead, pursuant to Court of Chancery Rule 26(b)(3), a party may obtain access to non-opinion work product 'upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.'"; "Wal-Mart asserts that the Court of Chancery erroneously applied Garner, rather than Court of Chancery Rule 26(b)(3), to the work-product issue. A careful reading of the Garner factors demonstrates that they overlap with the required showing under the Rule 26(b)(3) work-product doctrine. One factor under Garner is 'the apparent necessity or desirability of the shareholders having the information and the availability of it from other sources.' In fact, this Court has utilized the Garner factors in the context of a work-product analysis in the past.")

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

Chapter: 44.801
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 251, 251-52 (4th Cir. 2005)
("Both the attorney-client and work product privileges may be lost, however, when a client gives information to an attorney for the purpose of committing or furthering a crime or fraud. . . . The party asserting the crime-fraud exception, the Government in our case, must make a prima facie showing that the privileged communications fall within the exception. . . . In satisfying this prima facie standard, proof either by a preponderance or beyond a reasonable doubt of the crime or fraud is not required."; "Our jurisprudence of the application of the crime-fraud exception to the work product privilege is less well-defined. We have explicitly held that the crime-fraud exception applies to opinion work product. . . . We have also found that because the attorney, as well as the client, has the right to assert the opinion work product privilege, a prima facie case of crime or fraud must also be made out against the attorney for the exception to apply. . . . Thus, while the attorney-client privilege may be vitiated without showing that the attorney knew of the fraud or crime, those seeking to overcome the opinion work product privilege must make a prima facie showing that the 'attorney in question was aware of or a knowing participant in the criminal conduct.' . . . If the attorney was not aware of the criminal conduct, a court must redact any portions of subpoenaed materials containing opinion work product.")

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

Chapter: 44.801
Case Name: United States v. Regan, 281 F. Supp. 2d 795 (E.D. Va. 2002)
(the crime fraud exception applies to work product as well as privileged material)

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

Chapter: 44.801
Case Name: United States v. Under Seal (In re Grand Jury Proceedings), 102 F.3d 748, 751-52 (4th Cir. 1996)
("the crime-fraud exception applies in the work-product context"; affirming the district court's finding that a prima facie case of crime-fraud vitiated the attorney-client privilege and work product doctrine protections)

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

Chapter: 44.801
Case Name: In re Grand Jury Proceedings, Thursday Special Grand Jury, Sept. Term, 33 F.3d 342, 348 (4th Cir. 1994)
("We have recognized the crime-fraud exception in the context of attorney-client privilege and in the context of the work product doctrine.")

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

Chapter: 44.802
Case Name: United States v. Hallinan, Crim. A. No. 16-130-01,-02, 2017 U.S. Dist. LEXIS 199490 (E.D. Pa. Dec. 5, 2017)
("The crime-fraud exception to the attorney-client privilege and the attorney work product privilege applies where "there is a reasonable basis to suspect (1) that the privilege holder was committing or intending to commit a crime or fraud, and (2) that the attorney-client communications or attorney work product was used in furtherance of that alleged crime or fraud.")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal PA

Chapter: 44.802
Case Name: United States v. Frostman, Crim No. 4:16cr55, 2016 U.S. Dist. LEXIS 147899 (E.D. Va. Oct. 25, 2016)
(holding that a criminal defendant's lawyer waived opinion work product protection by presenting the criminal defendant in pleading guilty, while declining to acknowledge that the lawyer provided all the necessary warnings to the client before the guilty plea; "Our Court of Appeals has explicitly recognized an exception to work product protection, which is referenced herein as the 'crime fraud exception' but also is sometimes referred to as the crime/fraud/tort exception. . . . When applying this exception, the Fourth Circuit has noted that prima facie evidence of a crime or fraud by a client vitiates an attorney's work product privilege as to non-opinion work product. . . . However, because an attorney has his own right to assert the opinion work product privilege, when an attorney asserts such privilege, 'those seeking to overcome the opinion work product privilege must make a prima facie showing that the 'attorney in question was aware of or a knowing participant in the criminal conduct. '")

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

Chapter: 44.802
Case Name: In re Application of International Mineral Resources B.V. For An Order To Take Discovery Pursuant To 28 U.S.C. § 1782, Civ. A. No. 14-mc-340 (GK), 2015 U.S. Dist. LEXIS 98414 (D.D.C. July 28, 2015)
(holding that the crime-fraud exception applied to non-testifying experts; "[T]he Court concludes that the non-testifying expert witness privilege contained in Fed. R. Civ. P. 26(b) (4) (D), like the attorney-client and work-product privileges, must give way to the crime-fraud exception.")

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

Chapter: 44.802
Case Name: United States v. Harris, Crim. No. 2:14cr76, 2014 U.S. LEXIS 140333 (E.D. Va. Oct. 1, 2014)
(analyzing the crime-fraud exception; pointing to In re Grand Jury Proceedings #5, 401 F.3d at 251; "The same standard applies to 'fact work product,' which is discoverable even if counsel was unaware of the client's ongoing crime or fraud. . . . In contrast, 'opinion work product' is only discoverable upon a prima facie showing that counsel knew of the client's ongoing crime or fraud.")

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

Chapter: 44.802
Case Name: In re Grand Jury Subpoena Dated March 20, 2013, 13-Mc189 (Part I) 2014 U.S. Dis. LEXIS 91901, *27 (S.D.N.Y. July 2, 2014)
("Neither the attorney-client privilege nor the work product doctrine will shield communications made in furtherance of a crime or fraud.")

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

Chapter: 44.802
Case Name: Ishee v. Federal National Mortgage Association, Civ. A. No. 2:13-cv-234-KS-MTP, 2014 U.S. Dist. LEXIS 71141 (S.D. Miss. May 23, 2014)
("The party seeking to invoke the crime-fraud exception bears the burden of establishing a prima facie case that the attorney-client relationship was intended to further criminal or fraudulent activity. . . . To make the necessary prima facie showing, Plaintiff 'must produce evidence such as will suffice until contradicted and overcome by other evidence' to establish the elements of a crime or fraud. . . . 'Allegations in pleadings are not evidence and are not sufficient to make a prima facie showing that the crime-fraud exception applies.'. . . Also, Plaintiff must show 'some valid relationship between the work product under subpoena and the prima facie violation' or that the 'material reasonably relate[s] to the fraudulent activity.'")

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

Chapter: 44.802
Case Name: Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 U.S. Dist. LEXIS 28483, at *10 (N.D. Tex. Feb. 27, 2014)
(analyzing the crime-fraud exception's applicability to work product; "This exception also applies to work product protections. . . . The party seeking discovery of privileged or protected information bears the burden of establishing a prima facie case that the attorney-client relationship was intended to further criminal or fraudulent activity.")

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

Chapter: 44.802
Case Name: Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 U.S. Dist. LEXIS 28483, at *12 13 (N.D. Tex. Feb. 27, 2014)
(analyzing the crime-fraud exception's applicability to work product; "But Plaintiff's allegations do not amount to a prima facie showing of fraud or contemplated fraud as required by the governing federal common law. And his allegations do not make the required showing that the text messages at issue were made in furtherance of any alleged contemplated or ongoing fraudulent conduct. Neither will the Court, at this point, engage in an in camera examination to determine the applicability of the crime-fraud exception, because Plaintiff has not made a sufficient showing of a factual basis adequate to support a good faith belief by a reasonable person that the crime-fraud exception applies.")

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

Chapter: 44.802
Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 691, 692, 693, 694 (3d Cir. 2014)
(concluding that the crime-fraud exception did not apply if the client formed a criminal intent after obtaining advice; "In delineating the connection required between the advice sought and the crime or fraud, we have repeatedly stated that the legal advice must be used 'in furtherance' of the alleged crime or fraud. We have rejected a more relaxed 'related to' standard." (citation omitted); "If the attorney merely informs the client of the criminality of a proposed action, the crime-fraud exception does not apply. For example, consider the situation where a client, intending to undertake an illegal course of action, consults a first attorney, tells the attorney the proposed course of action, and the attorney advises that the course of action is illegal. The client, dissatisfied with the first attorney's answer, then consults a second attorney. The client tells the attorney the same proposed course of action, but this attorney says yes, that course of action is legal. Both of these consultations would remain privileged, because the attorneys merely opined on the lawfulness of a particular course of conduct, and this advice cannot be used 'in furtherance' of the crime."; "A crime-fraud finding overcomes the work product privilege.")

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

Chapter: 44.802
Case Name: In re Park Cities Bank, 409 S.W.3d 859, 869 (Tex. Ct. App. 2013)
("The crime-fraud exception also applies to any work product created under circumstances within this exception.")

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

Chapter: 44.802
Case Name: In re Grand Jury, 705 F.3d 133, 151 (3d Cir. 2012)
(finding the crime fraud exception applicable; "We have held that this exception also applies to the work product doctrine.")

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

Chapter: 44.802
Case Name: United States v. Oracle Corp., Civ. A. No. 1:07cv529 (LMB/TRJ), 2011 U.S. Dist. LEXIS 72377, at *7 (E.D. Va. July 6, 2011)
("Defendants and Reed Smith further argued at the June 21, 2011 hearing that they should be given an opportunity to demonstrate how the fact work product contained in the documents presented for in camera review did not 'further the fraud.' As detailed supra, however, the Fourth Circuit test requires a 'close relationship,' not that the fact work product 'further the fraud.' The argument is therefore inapplicable.")

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

Chapter: 44.802
Case Name: United States v. Oracle Corp., Civ. A. No. 1:07cv529 (LMB/TRJ), 2011 U.S. Dist. LEXIS 72377, at *5-6 (E.D. Va. July 6, 2011)
("Defendants and Reed Smith urge that a second in camera review would be required, on the ground that some documents contain and/or reflect attorney-client communications, fact work product, and opinion work product in the same document. Defendants and Reed Smith argue that the magistrate judge's review occurred in the context of attorney-client privilege, and that the magistrate judge therefore did not examine the work product contained in the documents for the 'close relationship' required by the Fourth Circuit test for crime/fraud. As the April 21, 2011 memorandum opinion indicates, however, that the magistrate judge reviewed 'documents,' not simply communications. See United States ex rel. Frascella v. Oracle Corp., No. 1:07-cv-00529, 2011 U.S. Dist. LEXIS 43322 (E.D. Va. April 21, 2011) ('Many of the documents just reviewed . . . .'; '[T]he magistrate judge refers the district judge to the documents logged with the numbers listed in the footnote.'; 'The documents reviewed in camera . . . .'; '[T]hese documents are responsive . . . . The magistrate judge finds that they likewise bear a "close relationship" to the scheme alleged.') (emphasis added). The review that has been conducted is thus sufficient to support the application of the crime/fraud exception to fact work product.")

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

Chapter: 44.802
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 252-53 (4th Cir. 2005)
("Because fact work product enjoys less protection than opinion work product, it may be discovered upon prima facie evidence of a crime or fraud as to the client only and thus even when the attorney is unaware of the crime or fraud. While the attorney, along with the client, holds the fact work product privilege, the discovery of facts furnished to an attorney does not implicate the same concerns as does invading the necessary privacy of an attorney's opinion work product, an invasion only justified if the attorney himself knows of the fraud. We thus use similar standards when applying the crime-fraud exception to attorney-client and fact work product privileges.")

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

Chapter: 44.802
Case Name: United States v. Regan, 281 F. Supp. 2d 795, 803 (E.D. Va. 2002)
("[T]he Government must overcome the attorney work product privilege, which protects work done in preparation for litigation, before it may successfully assert the crime-fraud exception. See Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947); In re Grand Jury Proceedings, 33 F.3d 342.")

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

Chapter: 44.802
Case Name: United States v. Regan, 281 F. Supp. 2d 795, 804 (E.D. Va. 2002)
("The Fourth Circuit has also recognized that the crime-fraud exception can be invoked to vitiate the attorney work-product privilege. See In re John Doe, 662 F.2d 1073, 1079 (4th Cir. 1981), cert. denied, 455 U.S. 1000, 71 L. Ed. 2d 867, 102 S. Ct. 1632 (1982). However, the burden of overcoming the privilege is on the party opposing the privilege to show a 'substantial need' for the attorney's work product. The Government must make the same prima facie showing to overcome the work product privilege as is required to overcome the attorney-client privilege")

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

Chapter: 44.802
Case Name: Peterson v. Fairfax Hosp. Sys., Inc., 32 Va. Cir. 294 (Va. Cir. Ct. 1993)
(holding that the crime-fraud exception applies to work product materials)

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

Chapter: 44.803
Case Name: Drummond Company, Inc. v. Conrad & Scherer, LLP, Nos. 16-11090, 15-90031, 2018 WL (11th Cir. App. March 23, 2018)
(holding that the crime-fraud exception could apply even if the client was innocent of any wrongdoing; "'Our conclusion today is consistent with the holdings of other circuits that the crime-fraud exception may vitiate the protection afforded attorney work product in cases where an attorney commits a crime or fraud.'")

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

Chapter: 44.803
Case Name: Drummond Company, Inc. v. Conrad & Scherer, LLP, Nos. 16-11090, 15-90031, 2018 WL (11th Cir. App. March 23, 2018)
(holding that the crime-fraud exception could apply even if the client was innocent of any wrongdoing; "We hold that the district court properly concluded that the crime-fraud exception may be applied because illegal or fraudulent conduct by an attorney alone may suffice to overcome attorney work product protection."; "We resolve the pure legal issue presented in this interlocutory appeal by holding that the crime-fraud exception may be applied to eliminate work product protection based on attorney misconduct when the client is innocent. Accordingly, we affirm the district court's order.")

Case Date Jurisdiction State Cite Checked
2018-03-23 Federal
Comment:

key case


Chapter: 44.803
Case Name: Drummond Company, Inc. v. Conrad & Scherer, LLP, Nos. 16-11090, 15-90031, 2018 WL 1440069 (11th Cir. App. March 23, 2018)
(holding that the crime-fraud exception could apply even if the client was innocent of any wrongdoing; "We do address the other issue on which interlocutory review was granted, whether the crime-fraud exception may be applied to overcome C&S's assertion, as a defendant in this case, that its materials related to other lawsuits where it served as counsel are protected as attorney work product when the firm's clients in those lawsuits were innocent of any wrongdoing. This question presents the pure legal issue of whether work product may be invoked when a lawyer and law firm are found to have engaged in a crime or fraud but there is no such finding as to the client or clients they represented. Following our precedent and persuasive decisions from other circuits, we conclude that the crime-fraud exception may defeat work product protection in this circumstance. We thus affirm the part of the district court's order determining that the crime-fraud exception could be applied to overcome C&S's claim of work product protection for materials related to lawsuits where C&S served as counsel despite the fact that its clients were innocent of wrongdoing.")

Case Date Jurisdiction State Cite Checked
2018-03-23 Federal
Comment:

key case


Chapter: 44.803
Case Name: In re Grand Jury Subpoena: Under Seal 1; Under Seal 2; Under Seal 3 v. United States, No. 16-4096, No. 16-4099, 2017 U.S. App. LEXIS 15671 (4th Cir. App. Aug. 18, 2017)
("The crime-fraud exception provides a separate avenue for compelling production of both fact and opinion work product, but here again opinion work product enjoys greater protection."; "A party seeking to compel the production of opinion work product under the crime-fraud exception must demonstrate attorney knowledge of or participation in the client's crime or fraud, but no such showing is necessary to discover fact-work-product privileged materials related to a client's crime or fraud. . . . Because the government does not claim that the Defense Team was aware of the Defendant's alleged crime or fraud, the reach of the grand jury's subpoena under the crime-fraud exception is limited to fact work product. The distinction between fact and opinion work product, therefore, bears on the outcome of this case.")

Case Date Jurisdiction State Cite Checked
2017-08-18 Federal
Comment:

key case


Chapter: 44.803
Case Name: In re Grand Jury Subpoena: Under Seal 1; Under Seal 2; Under Seal 3 v. United States, No. 16-4096, No. 16-4099, 2017 U.S. App. LEXIS 15671 (4th Cir. App. Aug. 18, 2017)
(holding that the crime-fraud exception applied to work product if the lawyer was aware of the client's intended wrongful actions; "But to compel the Defense Team to answer questions one and two, it's not necessary for the United States to show that the Defense Team was aware of their client's alleged bad acts."; "The United States provided ample evidence that the Defendant likely engaged in 'perjury and production of a fraudulent document' and that the proposed questions seek information 'bear[ing] a close relationship to [that] possible criminal and fraudulent activity' -- specifically, the identity of the source of those documents. . . . The district court did not clearly err in concluding that the government made a prima facie showing of crime or fraud.")

Case Date Jurisdiction State Cite Checked
2017-08-18 Federal

Chapter: 44.803
Case Name: In re Grand Jury Matter #3 John Doe, No. 15-2475, 2017 U.S. App. LEXIS 1498 (3rd Cir. Jan. 27, 2017)
(reversing the district court's crime-fraud finding, because the government had not established that the defendant used privileged communications to further the crime or fraud; "[W]e turn to an important question involving the limits of the exception to the confidentiality normally afforded to attorney work product. It loses protection from disclosure when it is used to further a fraud (hence the carve-out is called the crime-fraud exception). The District Court stripped an attorney's work product of confidentiality based on evidence suggesting only that the client had thought about using that product to facilitate a fraud, not that the client had actually done so. Because an actual act to further the fraud is required before attorney work product loses its confidentiality and we know of none here, we reverse.")

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

Chapter: 44.803
Case Name: In re Grand Jury Matter #3 John Doe, No. 15-2475, 2017 U.S. App. LEXIS 1498 (3rd Cir. Jan. 27, 2017)
("Without the crime-fraud exception allowing the Government to show it to the grand jury, the email from Doe's lawyer is protected by the attorney work-product doctrine. That doctrine (often referred to as a privilege from or exception to disclosure), which is a complement to the attorney-client privilege, preserves the confidentiality of legal communications prepared in anticipation of litigation. Shielding work product from disclosure 'promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients.'. . . Though Doe waived the attorney-client privilege by forwarding the email to his accountant, the document still retained its work-product status because it was used to prepare for Doe's case against those suing him."; "This evidence is strong, but it is not sufficient by itself to pierce the work-product protection. We have been clear that 'evidence of a crime or fraud, no matter how compelling, does not by itself satisfy both elements of the crime-fraud exception.'. . . Rather, the second requirement -- use in furtherance -- exists for the same reason that certain conspiracy statutes require proof that a defendant engaged in an overt act to further the crime. In both settings we want to make sure that we are not punishing someone for merely thinking about committing a bad act. Instead, as Justice Holmes noted in the conspiracy context, we ask for evidence that the plan 'has passed beyond words and is [actually] on foot.'"; "To illustrate, if a client approaches a lawyer with a fraudulent plan that the latter convinces the former to abandon, the relationship has worked precisely as intended. We reward this forbearance by keeping the work-product protection intact. If, by contrast, the client uses work product to further a fraud, the relationship has broken down, and the lawyer's services have been 'misused.'. . . Only in that limited circumstance -- misuse of work product in furtherance of a fraud -- does the scale tip in favor of breaking confidentiality."; "Here the only purported act in furtherance identified by the District Court was Doe forwarding the email to his accountant. If he had followed through and retroactively amended his tax returns, we would have no trouble finding an act in furtherance. Even if Doe had told the accountant to amend the returns and later gotten cold feet and called off the plan before it could be effected, there might still be a case to be made. That is because the Government 'does not have to show that the intended crime or fraud was accomplished, only that the lawyer's advice or other services were misused.'"; "But none of that happened. Doe merely forwarded the email to the accountant and said he wanted to 'discuss' it. There is no indication he had ever decided to amend the returns, and before the plan could proceed further the lawyer told the accountant to hold off. Thus Doe at most thought about using his lawyer's work product in furtherance of a fraud, but he never actually did so. What happened is not so different than if Doe merely wrote a private note, not sent to anyone, reminding himself to think about his lawyer's suggestion. The absence of a meaningful distinction between these scenarios shows why finding an act in furtherance here lacks a limiting principle and risks overcoming confidentiality based on mere thought.")

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

Chapter: 44.803
Case Name: AKH Company, Inc. v. Universal Underwriters Ins. Co., Case No. 13-2003-JAR-KGG, 2016 U.S. Dist. LEXIS 178005 (D. Kansas Dec. 22, 2016)
("Paul Hastings contends that there is no crime-fraud exception to the work product doctrine under California law. . . . Rather, it contends that the exception applies only to the attorney-client privilege. According to Paul Hastings, work product documents belong to the attorney exclusively, not the client. . . . The Court does not find Paul Hastings' arguments to be persuasive for two reasons."; "First, the undersigned Magistrate Judge previously ruled in the present case that '[u]nlike the attorney-client privilege, which belongs to the client, '[t]he work-product privilege belongs to both the attorney and the client.'"; "Second, a review of the documents at issue identifies additional document(s) that provide evidence of a prima facie case of fraud and that, at a minimum, Paul Hastings was aware of said fraudulent activity.")

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

Chapter: 44.803
Case Name: United States v. Frostman, Crim No. 4:16cr55, 2016 U.S. Dist. LEXIS 147899 (E.D. Va. Oct. 25, 2016)
(holding that a criminal defendant's lawyer waived opinion work product protection by presenting the criminal defendant in pleading guilty, while declining to acknowledge that the lawyer provided all the necessary warnings to the client before the guilty plea; "Our Court of Appeals has explicitly recognized an exception to work product protection, which is referenced herein as the 'crime fraud exception' but also is sometimes referred to as the crime/fraud/tort exception. . . . When applying this exception, the Fourth Circuit has noted that prima facie evidence of a crime or fraud by a client vitiates an attorney's work product privilege as to non-opinion work product. . . . However, because an attorney has his own right to assert the opinion work product privilege, when an attorney asserts such privilege, 'those seeking to overcome the opinion work product privilege must make a prima facie showing that the 'attorney in question was aware of or a knowing participant in the criminal conduct. '")

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

Chapter: 44.803
Case Name: Lucas v. Jos. A. Bank Clothiers, Inc., Case No. 14-cv-01631-LAB-JLB, 2016 U.S. Dist. LEXIS 136198 (S.D. Cal. Sept. 30, 2016)
(analyzing the crime-fraud exception work product; "Fact work product must be produced if it is found to fall within the crime-fraud exception, even if the attorney asserting the work-product protection was unaware of the client's wrongdoing.")

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

Chapter: 44.803
Case Name: Lucas v. Jos. A. Bank Clothiers, Inc., Case No. 14-cv-01631-LAB-JLB, 2016 U.S. Dist. LEXIS 136198 (S.D. Cal. Sept. 30, 2016)
(analyzing the crime-fraud exception work product; "While Defendant is not seeking production per se at this time, the production of attorney opinion work product requires the Court to make a specific finding of wrongdoing or knowledge on behalf of the lawyers. . . . Defendant does not ask this Court to make such a finding, but anticipates that such a finding may be made by the District Judge on October 18.")

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

Chapter: 44.803
Case Name: Lucas v. Jos. A. Bank Clothiers, Inc., Case No. 14-cv-01631-LAB-JLB, 2016 U.S. Dist. LEXIS 136198 (S.D. Cal. Sept. 30, 2016)
(analyzing the crime-fraud exception work product; "The test for vitiating the work product privilege under the crime-fraud exception is different depending on whether the information sought constitutes fact work product or opinion work product. For fact work product, courts 'generally follow the same two-part approach used in applying the exception to the attorney-client privilege.'. . . '[F]act work product must be produced if it is found within the crime-fraud exception, even if the attorney asserting the work-product protection was unaware of the client's wrongdoing.'"; "In contrast, opinion work product -- internal communications or internal documents reflecting the mental impressions, opinions, conclusions, judgments or legal theories of counsel -- generally receives a higher degree of protection from discovery' than fact work product. . . . Opinion work product is afforded near absolute protection from discovery and the protection it receives may be vitiated in the rare instances 'when there is a prima facie showing that the attorney had knowledge of or participated in the crime or fraud.'")

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

key case


Chapter: 44.803
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015)
(finding the crime-fraud exception inapplicable because the ignition switch plaintiffs could not establish that the King & Spalding communications did not further any alleged General Motors wrongdoing; "Plaintiffs ask for in camera review of otherwise protected attorney work product on the ground that K&S -- not New GM -- committed various ethical violations in its representation of New GM. . . . As Plaintiffs note . . . Some courts have indeed held that the attorney work product doctrine can be vitiated by counsel's violation of professional rules of conduct.")

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

Chapter: 44.803
Case Name: Brooks v. Mon River Towing, Inc., Civ. A. No. 11-1580, 2013 U.S. Dist. LEXIS 59417, at *6 n.2 (W.D. Pa. Apr. 3, 2013)
("[T]he crime—fraud exception is only applicable to the attorney-client privilege and not to the work product doctrine.")

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

Chapter: 44.803
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 615 n.255 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "[N]or does the decision in Garner [Garner v. Wolfinbarger, 430 F. 2d 1093 (5th Cir. 1970)] (as to shareholder's access to privileged materials of a corporation) extend to work-product.")

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

Chapter: 44.803
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *11 (E.D. Va. Dec. 3, 2012)
("[W]hen applying the doctrine to opinion work product, 'a prima facie case of crime or fraud must also be made out against the attorney.' Id. at 252 (citation omitted) [In re Grand Jury Proceedings #5, 401 F.3d 247, 252 (4th Cir. 2005)]. 'Thus, while the attorney-client privilege may be vitiated without showing that the attorney knew of the fraud or crime, those seeking to overcome the opinion work product privilege must make a prima facie showing that the attorney in question was aware of or a knowing participant in the criminal conduct.'")

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

Chapter: 44.803
Case Name: In re Grand Jury, 705 F.3d 133, 158, 158-59 (3d Cir. 2012)
(finding the crime fraud exception applicable; "Because the work product doctrine protects the interests of attorneys separately from the interests of clients, there is at least some basis for the proposition that an innocent attorney should be able to prevent disclosure of work product that his client used to further a crime or fraud. Accordingly, other courts of appeals have afforded attorneys this protection in appropriate circumstances."; "We continue, however, to leave for another day whether we should join these courts. None of the in-house counsel has appealed the District Court's June Order. Indeed, the in-house counsel would likely need to disobey that Order for us to have jurisdiction over their purported work product claims. In the absence of their doing so, we cannot properly assess the existence and parameters of their independent interests in resisting disclosure of information.")

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

Chapter: 44.803
Case Name: United States v. Oracle Corp., Civ. A. No. 1:07cv529 (LMB/TRJ), 2011 U.S. Dist. LEXIS 72377, at *4-5 (E.D. Va. July 6, 2011)
("Overcoming the protection afforded to opinion work product requires a prima facie showing that counsel was aware of or a knowing participant in the wrongful conduct. Id. at 252 [In re Grand Jury Proceedings #5, 401 F.3d 247 (4th Cir. 2005)] (internal citation omitted). Overcoming the protection afforded to fact work product, however, requires no such showing. Id. Courts 'thus use similar standards when applying the crime-fraud exception to attorney-client and fact work product privileges.' Id. at 252-53; see also id. at 255-56 (ordering evaluation of work product under same standard as attorney-client communications). If a court finds that work product protection has been lost as to fact work product but not opinion work product, the documents should be produced with any portions containing opinion work product redacted. Id. at 256.")

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

Chapter: 44.803
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 252-53 (4th Cir. 2005)
("Because fact work product enjoys less protection than opinion work product, it may be discovered upon prima facie evidence of a crime or fraud as to the client only and thus even when the attorney is unaware of the crime or fraud. While the attorney, along with the client, holds the fact work product privilege, the discovery of facts furnished to an attorney does not implicate the same concerns as does invading the necessary privacy of an attorney's opinion work product, an invasion only justified if the attorney himself knows of the fraud. We thus use similar standards when applying the crime-fraud exception to attorney-client and fact work product privileges.")

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

Chapter: 44.803
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 251-52 (4th Cir. 2005)
("Our jurisprudence of the application of the crime-fraud exception to the work product privilege is less well-defined. We have explicitly held that the crime-fraud exception applies to opinion work product. . . . We have also found that because the attorney, as well as the client, has the right to assert the opinion work product privilege, a prima facie case of crime or fraud must also be made out against the attorney for the exception to apply. . . . Thus, while the attorney-client privilege may be vitiated without showing that the attorney knew of the fraud or crime, those seeking to overcome the opinion work product privilege must make a prima facie showing that the 'attorney in question was aware of or a knowing participant in the criminal conduct.' . . . If the attorney was not aware of the criminal conduct, a court must redact any portions of subpoenaed materials containing opinion work product.")

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

Chapter: 44.803
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 256 (4th Cir. 2005)
("[O]pinion work product is treated differently. While the Government did present evidence demonstrating that some violation of a federal criminal statute was ongoing or about to be committed under prong one, it did not demonstrate (or attempt to demonstrate at the in camera hearing) that the attorney knew of the violation. Therefore, on remand, the district court must also determine whether the Government has presented prima facie evidence of the crime-fraud exception as applied to the attorney. If the district court determines that a prima facie showing has not been made as to the attorney, but has as to the client, and thus orders the subpoenaed documents to be turned over, it must redact any portions of the documents that contain opinion work product. If the court makes such a finding, the attorney would also be entitled to assert work product privilege as to his testimony before the grand jury that contains opinion work product.")

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

Chapter: 44.803
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 256 (4th Cir. 2005)
(explaining what a district court must do on remand to determine if the crime-fraud exception applies to opinion work product; "[A]s noted, opinion work product is treated differently. While the Government did present evidence demonstrating that some violation of a federal criminal statute was ongoing or about to be committed under prong one, it did not demonstrate (or attempt to demonstrate at the in camera hearing) that the attorney knew of the violation. Therefore, on remand, the district court must also determine whether the Government has presented prima facie evidence of the crime-fraud exception as applied to the attorney.")

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

Chapter: 44.803
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 251, 251-52 (4th Cir. 2005)
("Both the attorney-client and work product privileges may be lost, however, when a client gives information to an attorney for the purpose of committing or furthering a crime or fraud. . . . The party asserting the crime-fraud exception, the Government in our case, must make a prima facie showing that the privileged communications fall within the exception. . . . In satisfying this prima facie standard, proof either by a preponderance or beyond a reasonable doubt of the crime or fraud is not required."; "Our jurisprudence of the application of the crime-fraud exception to the work product privilege is less well-defined. We have explicitly held that the crime-fraud exception applies to opinion work product. . . . We have also found that because the attorney, as well as the client, has the right to assert the opinion work product privilege, a prima facie case of crime or fraud must also be made out against the attorney for the exception to apply. . . . Thus, while the attorney-client privilege may be vitiated without showing that the attorney knew of the fraud or crime, those seeking to overcome the opinion work product privilege must make a prima facie showing that the 'attorney in question was aware of or a knowing participant in the criminal conduct.' . . . If the attorney was not aware of the criminal conduct, a court must redact any portions of subpoenaed materials containing opinion work product.")

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

Chapter: 44.803
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 251-52, 252-53 (4th Cir. 2005)
("Our jurisprudence of the application of the crime-fraud exception to the work product privilege is less well-defined. We have explicitly held that the crime-fraud exception applies to opinion work product. . . . We have also found that because the attorney, as well as the client, has the right to assert the opinion work product privilege, a prima facie case of crime or fraud must also be made out against the attorney for the exception to apply. . . . Thus, while the attorney-client privilege may be vitiated without showing that the attorney knew of the fraud or crime, those seeking to overcome the opinion work product privilege must make a prima facie showing that the 'attorney in question was aware of or a knowing participant in the criminal conduct.' . . . If the attorney was not aware of the criminal conduct, a court must redact any portions of subpoenaed materials containing opinion work product."; "Because fact work product enjoys less protection than opinion work product, it may be discovered upon prima facie evidence of a crime or fraud as to the client only and thus even when the attorney is unaware of the crime or fraud. While the attorney, along with the client, holds the fact work product privilege, the discovery of facts furnished to an attorney does not implicate the same concerns as does invading the necessary privacy of an attorney's opinion work product, an invasion only justified if the attorney himself knows of the fraud. We thus use similar standards when applying the crime-fraud exception to attorney-client and fact work product privileges.")

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

Chapter: 44.804
Case Name: Lucas v. Jos. A. Bank Clothiers, Inc., Case No. 14-cv-01631-LAB-JLB, 2016 U.S. Dist. LEXIS 136198 (S.D. Cal. Sept. 30, 2016)
(analyzing the crime-fraud exception work product; "The Court concludes that Defendant has met its burden to demonstrate that the crime-fraud exception applies here. As the district court recently held, it 'appears to be uncontested' both 'that Lucas didn't make the purchases that he alleged in the complaint' and that 'the document that Lucas offered to prove his purchases is fraudulent.'. . . Having independently considered the record for purposes of ruling on this discovery motion, including all evidence proffered by Jos. A. Banks, the Court finds Defendant has established by a preponderance of the evidence that Plaintiff was engaged in a fraudulent scheme and he sought the advice of counsel to further the scheme. In fact, the court is persuaded Mr. Lucas's entire participation in this litigation was to further the scheme of maintaining this lawsuit based on the false story that he had purchased Jos. A. Bank's suits.")

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

Chapter: 44.804
Case Name: United States v. Harris, Crim. No. 2:14cr76, 2014 U.S. LEXIS 140333 (E.D. Va. Oct. 1, 2014)
(analyzing the crime-fraud exception; pointing to In re Grand Jury Proceedings #5, 401 F.3d at 251; "The same standard applies to 'fact work product,' which is discoverable even if counsel was unaware of the client's ongoing crime or fraud. . . . In contrast, 'opinion work product' is only discoverable upon a prima facie showing that counsel knew of the client's ongoing crime or fraud.")

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

Chapter: 44.804
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 251-52, 252-53 (4th Cir. 2005)
("Our jurisprudence of the application of the crime-fraud exception to the work product privilege is less well-defined. We have explicitly held that the crime-fraud exception applies to opinion work product. . . . We have also found that because the attorney, as well as the client, has the right to assert the opinion work product privilege, a prima facie case of crime or fraud must also be made out against the attorney for the exception to apply. . . . Thus, while the attorney-client privilege may be vitiated without showing that the attorney knew of the fraud or crime, those seeking to overcome the opinion work product privilege must make a prima facie showing that the 'attorney in question was aware of or a knowing participant in the criminal conduct.' . . . If the attorney was not aware of the criminal conduct, a court must redact any portions of subpoenaed materials containing opinion work product."; "Because fact work product enjoys less protection than opinion work product, it may be discovered upon prima facie evidence of a crime or fraud as to the client only and thus even when the attorney is unaware of the crime or fraud. While the attorney, along with the client, holds the fact work product privilege, the discovery of facts furnished to an attorney does not implicate the same concerns as does invading the necessary privacy of an attorney's opinion work product, an invasion only justified if the attorney himself knows of the fraud. We thus use similar standards when applying the crime-fraud exception to attorney-client and fact work product privileges.")

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

Chapter: 44.804
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 251, 251-52 (4th Cir. 2005)
("Both the attorney-client and work product privileges may be lost, however, when a client gives information to an attorney for the purpose of committing or furthering a crime or fraud. . . . The party asserting the crime-fraud exception, the Government in our case, must make a prima facie showing that the privileged communications fall within the exception. . . . In satisfying this prima facie standard, proof either by a preponderance or beyond a reasonable doubt of the crime or fraud is not required."; "Our jurisprudence of the application of the crime-fraud exception to the work product privilege is less well-defined. We have explicitly held that the crime-fraud exception applies to opinion work product. . . . We have also found that because the attorney, as well as the client, has the right to assert the opinion work product privilege, a prima facie case of crime or fraud must also be made out against the attorney for the exception to apply. . . . Thus, while the attorney-client privilege may be vitiated without showing that the attorney knew of the fraud or crime, those seeking to overcome the opinion work product privilege must make a prima facie showing that the 'attorney in question was aware of or a knowing participant in the criminal conduct.' . . . If the attorney was not aware of the criminal conduct, a court must redact any portions of subpoenaed materials containing opinion work product.")

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

Chapter: 44.804
Case Name: In re Doe, 662 F.2d 1073, 1079 (4th Cir. 1981)
(applying the crime-fraud exception to opinion work product), cert. denied, 455 U.S. 1000 (1982)

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

Chapter: 44.1002
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: 44.1002
Case Name: B.M.I. Interior Yacht Refinishing, Inc. v. M/Y Claire, Case No. 13-62676-CIV-Williams/SIMONTON, 2015 U.S. Dist. LEXIS 91903 (S.D. Fla. July 15, 2015)
(analyzing waiver issues in connection with a non-testifying expert; "Based upon the facts presented at the hearing in the case sub judice, the undersigned concludes that Nautical has demonstrated the exceptional circumstances necessary to overcome the work product protection afforded to non-testifying experts, as to limited aspects of Mr. Clifford's Report. Specifically, Nautical contends that it is in need of Clifford's Report so that it may obtain information regarding temperature readings of the yacht taken in warmer weather. Nautical asserts that such information is necessary to determine if the air conditioning system was working during the summer months, after Nautical had completed work on the system."; "As stated above, a portion of the Clifford Report includes a chart which reflects temperatures taken at various locations on the M/Y Claire by the crew of that vessel. The temperature readings themselves appear to be factual in nature and thus do not reveal any opinion work product of either Mr. Clifford or Counsel for the M/Y Claire. While it is not entirely clear if the temperature readings taken in September as reflected in the Clifford Report vary greatly from those taken in November by Mr. Marshall, and whether any variance in those temperatures is of great significance in this case, it does appear that Nautical is unable to obtain those readings from another source. Thus, the object or condition observed by the non-testifying expert is no longer observable by an expert of the party seeking discovery. As such, although it is somewhat of a close call, the undersigned finds that Nautical has demonstrated that exceptional circumstances exist to warrant disclosure of the temperature readings from the M/Y Claire contained in Mr. Clifford's Report.")

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

key case


Chapter: 44.1002
Case Name: CSX Transportation, Inc. v. Chicago South Shore and South Bend Railroad, Cause No. 2:13-CV-285-RL-PRC, 2015 U.S. Dist. LEXIS 13090 (N.D. Ind. Feb. 4, 2015)
(analyzing both party's post-accident documents; concluding that some documents prepared by plaintiff CSX deserved work product protection and some did not; concluding that plaintiff CSX could not overcome defendant CSS's production for its non-testifying expert; "In addition, the Court finds that there are not exceptional circumstances that would require production of these documents notwithstanding their designation as privileged in that CSX has not shown that it is unable to obtain equivalent information essential to case preparation from other sources. CSX conducted its own investigation regarding the derailment and the alleged damages thereto.")

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

Chapter: 44.1002
Case Name: In re Morning Song Bird Food Litig., Lead Case No. 12cv1592 JAH (RBB), 2015 U.S. Dist. LEXIS 11333 (S.D. Cal. Jan. 23, 2015)
(finding a defendant waived work product protection by giving its non-testifying expert's report to the government; "Rule 26(b)(4)(D) 'creates a safe harbor whereby facts and opinions of nontestifying, consulting experts are shielded from discovery, except upon a showing of exceptional circumstances.'. . . Several policy considerations underlie the rule, including, (1) encouraging counsel to obtain necessary expert advice without fear that the adversary may obtain such information; (2) preventing unfairness that would result from allowing an opposing party to reap the benefits from another party's efforts and expense; (3) limiting any chilling effect on the use of experts as consultants if their testimony could be compelled; and (4) avoiding prejudice to the retaining party if the opposing party were allowed to call at trial an expert who provided an unfavorable opinion to the party who first retained them.")

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

Chapter: 44.1002
Case Name: Holland v. Nat'l Union Fire Ins. Co., No. 2:12-cv-1983 TLN AC, 2013 U.S. Dist. LEXIS 157161, at *15 (E.D. Cal. Oct. 31, 2013)
(analyzing standing issues; explaining that the defendant insurance company provided coverage for losses resulting from plaintiff's injury, and sought discovery from a personal injury lawyer who had represented plaintiff in an earlier action against the hospital and the doctor for medical malpractice following a work injury; further noting that the underlying malpractice case was resolved, after which the insurance company sought discovery from plaintiff's personal injury lawyer and defendants' lawyer; holding that plaintiff had standing to resist the insurance company's discovery of the former but not the latter; "Here, since defendant has not shown exceptional circumstances to obtain these reports, it is only due to them as provided in Federal Rule of Civil Procedure 35(b). Thus, plaintiff's motion is granted as to consulting experts." (footnote omitted))

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

Chapter: 44.1002
Case Name: Precision of New Hampton, Inc. v. Tri Component Prods. Corp., No. C12-2020, 2013 U.S. Dist. LEXIS 79847, at *12, *7 (N.D. Iowa June 5, 2013)
(analyzing the status of documents created by defendant's engineering expert; ultimately concluding that the non-testifying expert's work product claim was "dubious," but that plaintiff could not overcome any work product protection that did exist; "The purpose of Rule 26(b)(4)(D) is to promote fairness by precluding a party from using an opponent's expert to build his own case. . . . The rule aims to prevent a party from benefitting from the effort expended and costs incurred by the opposing party while preparing for litigation. . . . The rule also protects an 'important interest in allowing counsel to obtain the expert advice they need . . . without fear that every consultation with an expert may yield grist for the adversary's mill.' . . . Thus, the Rules set a high barrier for discovery of a non-testifying expert's opinions, with the only exceptions being medical examinations under FEDERAL RULE OF CIVIL PROCEDURE 35(b) or a showing of 'exceptional circumstances.'" (citation omitted))

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

Chapter: 44.1002
Case Name: Sloan Valve Co. v. Zurn Indus., No. 10 C 204, 2012 U.S. Dist. LEXIS 161749, at *6-7 (N.D. Ill. Nov. 13, 2012)
("[T]he Court would not require Sloan to produce a Rule 30(b)(6) witness to testify about the infringement contentions. First, Zurn has not shown that it needs to obtain information specifically from an attorney. Second, Zurn cannot show any exceptional circumstances justifying discovery of the 'facts known or opinions held by' Sloan's consulting experts who conducted the tests at issue. See Fed. R. Civ. P. 26(b)(4)(D)(ii).")

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

Chapter: 44.1002
Case Name: Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680, 684, 686 n.3 (N.D. Ga. 2012)
(analyzing the type of exceptional circumstances that would justify discovery of a non-testifying expert; "As the party asserting the work product privilege, Plaintiff bears the burden of establishing that the documents it seeks to protect were prepared in anticipation of litigation. . . . The work product privilege 'must be specifically raised and demonstrated rather than asserted in a blanket fashion.'. . . This burden may be satisfied through a detailed privilege log and affidavits from counsel, the party, or the expert, and also by any of the traditional ways in which proof is produced in pretrial proceedings. . . . Once Plaintiff has shown the application of the work product privilege, the burden shifts to Defendant to demonstrate the existence of exceptional circumstances for the discovery of otherwise privileged documents. . . . Defendant, as the party seeking to show exceptional circumstances under Rule 26(b)(4)(B)[,] carries a heavy burden."; "Courts have recognized four interests weighing against allowing an opposing party to depose or call at trial a consultative, non-testifying expert witness: (1) an 'important interest in allowing counsel to obtain the expert advice they need in order properly to evaluate and present their clients' position without fear that every consultation with an expert may yield grist for the adversary's mill,' which the court found underlies Fed.R.Civ.P.26(b)(4)(B)'s limitation on discovery of consultative, as opposed to testifying[,] experts; (2) unfairness of allowing an opposing party to benefit from a party's effort and expense incurred in preparing its case; (3) fear of restraint on the willingness of experts to serve as consultants if their testimony could be compelled; and (4) the substantial risk of 'explosive' prejudice stemming from the fact of the prior retention of any expert by the opposing party." (citation omitted))

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

Chapter: 44.1002
Case Name: Meadwestvaco Corp. v. Rexam PLC, Case No. 1:10cv511 (GBL/TRL), 2011 U.S. Dist. LEXIS 78028, at *17, *18 (E.D. Va. July 18, 2011)
("While parties may overcome this standard, the burden is very high. See 8A Charles Alan Wright et al., Federal Practice and Procedure § 2032, at 105 (3d ed. 2010) (recognizing that a party 'seeking discovery from non testifying retained experts faces a heavy burden'); see also Faller v. Faller, No. DKC 09-0889, 2010 U.S. Dist. LEXIS 102837, 2010 WL 3834865, at *16 (D. Md. Sept. 28, 2010) (affirming the grant of a motion to compel when the judge found that the Rule 26(b)(4)(D) 'exceptional circumstances' standard was met because it was not only 'impracticable' but 'impossible' for plaintiffs to obtain the information they sought). Finally, 'courts have "recognized the availability of other means of obtaining information sought under Rule 26(b)(4)(B) as a conclusive factor militating against a finding of exceptional circumstances."' 2010 U.S. Dist. LEXIS 102837, [WL] at *16. (citing 33 A.L.R. Fed. 403 § 18(a) (1977))." (footnote omitted); "Accordingly, Rexam is not required to disclose the materials at issue because non-testifying experts prepared this information at the direction of Defendant's counsel after MWV sent Rexam cease-and-desist letters, and Plaintiff is unable to demonstrate that it has an exceptional need for the information.")

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

Chapter: 44.1002
Case Name: Meadwestvaco Corp. v. Rexam PLC, Case No. 1:10cv511 (GBL/TRL), 2011 U.S. Dist. LEXIS 78028, at *11-12 (E.D. Va. July 18, 2011)
("Overcoming this burden is not lightly undertaken by a party seeking access to a non-testifying expert witness. See, e.g., Sanford v. Virginia, No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979, 2009 WL 2947377, at *2 (E.D. Va. Sept. 14, 2009) ('[D]iscovery of fact work product is permitted, but a party seeking disclosure must demonstrate [1] that its need is truly substantial, and [2] that there is no reasonable substitute for the documents they seek.'); see also In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994) (citing In re John Doe, 662 F.2d 1073, 1080 (4th Cir. 1981)) (demonstrating that fact work product 'can be discovered only in limited circumstances' and only 'upon a showing of both a substantial need and an inability to secure the substantial equivalent') (emphasis added). The Court has noted that the following factors may be considered to determine whether there is a 'substantial need' for work product: '(1) importance of the materials to the party seeking them for case preparation; (2) the difficulty the party will have obtaining them by other means; and (3) the likelihood that the party, even if he obtains the information by independent means, will not have the substantial equivalent of the documents he seeks.' Sanford, 2009 U.S. Dist. LEXIS 83979, 2009 WL 2947377, at *2.")

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

Chapter: 44.1002
Case Name: Atlantic Yacht Basin, Inc. v. Grimm, 79 Va. Cir. 476, 477 (Va. Cir. Ct. 2009)
("Typically, an opposing party may discover facts known or opinions held by a non-testifying expert as these are not privileged and work product. However, any further information, such as a non-testifying expert's report, is privileged and cannot be obtained absent exceptional circumstances.")

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

Chapter: 44.1002
Case Name: Atlantic Yacht Basin, Inc. v. Grimm, 79 Va. Cir. 476, 478 (Va. Cir. Ct. 2009)
("Under Rule 4:1(b)(4)(B), the party desiring information from the expert must make a showing of "exceptional circumstances" justifying the discovery. AYB has made no such showing in this case. AYB had its own surveyor inspect the vessel earlier in the same week, on September 11, 2007, and, further, when Giesel performed his survey, he was accompanied by a representative of AYB.")

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

Chapter: 44.1003
Case Name: Delaware Display Group LLC v. Lenovo Group Ltd., Civ. A. No. 13-2108-RGA, Civ. A. No. 13-2109-RGA, Civ. A. No. 13-2112-RGA, 2016 U.S. Dist. LEXIS 21461 (D. Del. Feb. 23, 2016)
(analyzing the common interest doctrine's applicability to communications between non-party Rambus (and who sold patents to a company who then sold them to plaintiff) and the plaintiff; finding that Rambus's royalty interest was a commercial rather than a legal interest, so the common interest doctrine did not apply; also finding the work product doctrine inapplicable because Rambus was not a party to the lawsuit between plaintiff and defendant; finding that the non-testifying consultant rule did not apply to Rambus, because it was not a assisting a party in the litigation; finding litigant had to disclose the identity of non-testifying experts without satisfying the "exceptional circumstances" standard; "From the Court's review, it is not evident how the documents reveal any information about Plaintiffs' non-testifying experts. The reports do not appear to reveal the identities of any consultants. Even if they did, however, that information is discoverable without showing exceptional circumstances."; "'The Court acknowledges that there is a split of authority regarding whether a party seeking the identity of a non-testifying expert must show 'exceptional circumstances.' See In re Welding Fume Prods. Liab. Litig., 534 F. Supp. 2d 761, 767-69 (N.D. Ohio 2008) (discussing split between Ager v. Stormont, 622 F.2d 496 (10th Cir. 1980) and Baki v. B.F. Diamond Constr. Co., 71 F.R.D. 179 (D. Md. 1976)). District courts in the Third Circuit, however, have generally embraced the view of Baki, and held that the 'disclosure of [an] expert's identity . . . Is not subject to a heightened showing of 'exceptional circumstances.'" Eisai Co. v. Teva Pharms. USA, Inc., 247 F.R.D. 440, 442 (D.N.J. 2007); see also Arco Pipeline Co v. S/S Trade Star, 81 F.R.D. 416, 417 (E.D. Pa. 1978); Butler v. Harrah's Marina Hotel Casino, 1987 U.S. Dist. LEXIS 8256, 1987 WL 16691, at *2-3 (E.D. Pa. Sept. 8, 1987).'")

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

key case


Chapter: 44.1003
Case Name: United States ex rel. Westrick v. Second Chance Body Armor, Inc., 288 F.R.D. 222, 228 (D.D.C. 2012)
("Exceptional circumstances 'may exist when a non-testifying expert's report is used by a testifying expert as the basis for an expert opinion, or where there is evidence of substantial collaborative work between a testifying expert and a non-testifying expert.'" (citation omitted))

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

Chapter: 44.1004
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 is concerned about the contact between Ms. Knutson and the Putative Class Members. While such contact is not prohibited per se, it is clear that in this instance, Ms. Knutson was communicating with the Putative Class Members based on talking points drafted by Defense counsel. . . . Indeed, counsel drafted not only the Survey Questions, but the 'introductory language, including a description of the lawsuit and its issues, as well as the questions to pose, with input from the consultant for cultural appropriateness to the Deaf community.'. . . Upon the court's review of the language used by Ms. Knutson, it finds potential that the language, however well-meaning, could potentially confuse, or even mislead, putative class members about not only the services offered by the Pepsi Center but the very nature of the lawsuit. . . . To the extent such language is inaccurate, as Plaintiff suggests, or raises issues with respect to the ability of Plaintiff or Plaintiff's counsel to represent the class . . . Plaintiff is entitled to discover the correspondence exchanged between Ms. Knutson and the Putative Class Members so as to explore such concerns. There is no practical way for Plaintiff to obtain such information except by viewing the actual electronic correspondence. And while Defendant contends that any prejudice arising from the contact between Ms. Knutson and the two Putative Class Members has been cured . . . this court has no way to independently verify that contention, and notes that Plaintiff did not concede lack of prejudice in either her briefing or at oral argument.")

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

Chapter: 44.1004
Case Name: Nix v. Holbrook, Civ. A. No. 5:13-cv-02173-JMC, 2015 U.S. Dist. LEXIS 56681 (D.S.C. April 30, 2015)
(analyzing protection for non-testifying experts; finding "exceptional circumstances" because one side's non-testifying expert had access to the pertinent scene several days before the other side's non-testifying expert; "The court is further unpersuaded by Defendants' new argument that they should not have to produce post-accident reconstruction investigation information developed by STI's independent adjuster because Plaintiff's own accident reconstruction engineer had access to the relevant area 5 days after the accident. The court reiterates that the basis for its exceptional circumstances finding in the February Order is that STI's independent adjuster gathered evidence by being 'at the scene of the collision immediately after the incident, presumably while vehicles were in the roadway, [and] witnesses were present, . . . .'. . . This finding is justified due to the extraordinarily superior nature of evidence collected by STI's independent adjuster immediately after the accident versus the evidence that was collected by Plaintiff's representative 5 days after the accident.")

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

Chapter: 44.1004
Case Name: In the Matter of New York City Asbestos Litig.: Weitz & Luxenberg P.C. v. Georgia-Pacific LLC, 40000/88,9535, 109 A.D. 3d 7, 966 N.Y.S. 2d 420, 2013 N.Y. App. Div. LEXIS 4036 (N.Y. Sup. Ct. 1d June 6, 2013)
(concluding that plaintiffs could satisfy the first step of the crime-fraud standard, and therefore ordering in camera review of defendant Georgia-Pacific's communications expert involved in authoring favorable articles; "GP funded these studies in 2005 to aid in its defense of asbestos-related lawsuits. The studies were performed by experts from various organizations, who, among other things, recreated GP's historical joint compound product for the purpose of testing its biopersistence and pathogenicity. To facilitate the endeavor, GP entered into a special employment relationship with Stewart Holm, its Director of Toxicology and Chemical Management, to perform expert consulting services under the auspices of its in-house counsel, who also was significantly involved in the prepublication review process."; "Holm coauthored nearly all of the studies, which were intended to cast doubt on the capability of chrysotile asbestos to cause cancer. On the two articles that he did not coauthor, he and GP's counsel participated in lengthy 'WebEx conferences" in which they discussed the manuscripts and suggested revisions. Despite this extensive participation, none of the articles disclosed that GP's in-house counsel had reviewed the manuscripts before they were submitted for publication."; "The foregoing constitutes a sufficient factual basis for a find that the relevant communications could have been in furtherance of a fraud, and the motion court properly confirmed the recommendation directing in camera review of the internal documents.")

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

Chapter: 44.1004
Case Name: Precision of New Hampton, Inc. v. Tri Component Prods. Corp., No. C12-2020, 2013 U.S. Dist. LEXIS 79847, at *12, *8 (N.D. Iowa June 5, 2013)
(analyzing the status of documents created by defendant's engineering expert; ultimately concluding that the non-testifying expert's work product claim was "dubious," but that plaintiff could not overcome any work product protection that did exist; "[C]ourts have found exceptional circumstances where the object or condition at issue cannot be observed by experts of the party seeking discovery.")

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

Chapter: 44.1004
Case Name: Precision of New Hampton, Inc. v. Tri Component Prods. Corp., No. C12-2020, 2013 U.S. Dist. LEXIS 79847, at *12, *8 (N.D. Iowa June 5, 2013)
(analyzing the status of documents created by defendant's engineering expert; ultimately concluding that the non-testifying expert's work product claim was "dubious," but that plaintiff could not overcome any work product protection that did exist; "Courts have interpreted exceptional circumstances to mean that the party cannot obtain equivalent information from another source.")

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

Chapter: 44.1004
Case Name: Atlantic Yacht Basin, Inc. v. Grimm, 79 Va. Cir. 476, 477 (Va. Cir. Ct. 2009)
("Typically, an opposing party may discover facts known or opinions held by a non-testifying expert as these are not privileged and work product. However, any further information, such as a non-testifying expert's report, is privileged and cannot be obtained absent exceptional circumstances.")

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

Chapter: 44.1004
Case Name: In re S3 LTD, No. 99-22531-S, 2000 WL 1239772, at *7 (Bankr. E.D. Va. Aug. 10, 2000)
(where a company in Chapter 11 bankruptcy hired a government contracts expert to assist it in a dispute with one of its major creditors, which it then settled and the bankrupt company later sought to lift a settlement-related protective order to disclose to government authorities what it alleged to be fraudulent billing of the government by the creditor; the creditor sought materials prepared by the expert, but the bankrupt company claimed that the materials were protected by the work product doctrine; discussing the interplay of Rule 26(b)(4)(B) (which allows discovery of a nontestifying expert "upon a showing of exceptional circumstances") and Rule 26(b)(3); explaining that Rule 26(b)(4) must be "narrowly construed in order to protect vigorously opinion work product"; holding that Rule 26(b)(4)(B) does not allow for the discovery of documents, but only permits interrogatories and depositions; finding that the consultant hired by the bankrupt company should also be deemed a non-testifying expert, so that the "substantial need" justifying discovery of nonopinion work product under Rule 26(b)(3) means that the creditor had also shown "exceptional circumstances" under Rule 26(b)(4)(B); "[t]hus, even if some or all of the Vander Schaaf Report [prepared by the consultant/non testifying expert] were not discoverable because of the work-product doctrine, MANCON [the creditor seeking the report] is not restricted from issuing interrogatories to Vander Schaaf or from deposing him in order to discover facts known or opinions held by the expert in conformity with Rule 26(b)(4)(B)"; holding that the portions of the report that are opinion work product would be protected from disclosure, except for the bankrupt company's action in providing the report to the Department of Defense, which waived the work product protection)

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

Chapter: 44.1005
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: 44.1005
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: 44.1005
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: 44.1202
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199 (S.D.N.Y. Jan. 15, 2015)
(finding that the attorney-client privilege and the work product doctrine protected notes and memoranda relating to the witness interviews conducted by the Jenner lawyers during the firm's investigation into General Motors ignition switch incidents; finding that plaintiffs could not overcome GM's work product protection; finding plaintiffs could try again to overcome GM's work product protection; ordering GM to disclose the identity of the witness interviewed in connection with the investigation but not named in the final report; "Plaintiffs request for the Interview Materials is denied on the independent ground that it constitutes attorney work product. That denial, however, is without prejudice to any future application (after conferring with counsel for New GM) for particular materials in the event that a witness who was interviewed by the Valukas team proves to be unavailable for deposition as a result of death, invocation of the Fifth Amendment privilege against self-incrimination, or otherwise. And to facilitate any such application, New GM is ordered to disclose, within two weeks, the names of all witnesses who were interviewed by the Valukas team but not mentioned by name in the Valukas Report itself.")

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

Chapter: 44.1202
Case Name: Blais v. Cheramie Marine Mgmt., Inc., Civ. A. No. 12-2736 SECTION "R" (2), 2013 U.S. Dist. LEXIS 111307, at *7-8 (E.D. La. Aug. 7, 2013)
("There is no indication that these three witnesses, who remain employed by defendant, are now unavailable to be deposed or to otherwise provide their version of relevant events without undue hardship or that their recollection is now so poor that only their previously obtained statements -- as opposed to their deposition testimony -- will suffice. Before compelling the production of what clearly appears to be work product, I will require plaintiff to take the depositions of these witnesses or obtain sworn statements of his own, reserving plaintiff's right to move again for production of one or more of the statements if the depositions fail to provide the substantial equivalent or their recollection of relevant events must be refreshed by the statements.")

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

Chapter: 44.1202
Case Name: Berks Behavioral Health LLC v. St. Joseph Reg'l Health Network, 500 B.R. 711, 725 (E.D. Pa. 2013)
("[B]efore demanding that the Plaintiff produce the 4 entries logged as relating to the litigation, Defendants must undertake other means of discovery in an attempt to obtain the same information. If that fails and Defendants continue to maintain that the withheld information is both highly relevant and the sole source of such evidence, then they may move to compel its production. In that event, the Court will conduct an in camera review to determine if the withheld information warrants protection.")

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

Chapter: 44.1204
Case Name: Taylor v. McCallister, 40 Va. Cir. 327, 327, 327-28 (Va. Cir. Ct. 1996)
(addressing work product protection for a hearing transcript plaintiff arranged to have created at a court hearing; ultimately concluding that the work product doctrine protected the transcript, but that the defendant could overcome the protection; "On August 5, 1996, plaintiff's counsel arranged to tape record and transcribe a hearing in General District Court relating to traffic offenses arising out of the accident which is the subject of this litigation. Defendant's representative was also present at the hearing but did not record the proceeding. Defendant seeks a copy of plaintiff's transcript."; "Even though the defendant had the same opportunity to tape and transcribe the proceeding, he did not do so. Especially since plaintiff has the transcript in question, the defendant also has a substantial need for the material in preparation of the case. In addition, there exists no other method to obtain the material by other means. Upon tender of reasonable costs of duplication, the defendant is entitled to a copy of the transcript.")

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

Chapter: 44.1205
Case Name: In re McDaniel, No. 14-13-00127-CV, 2013 Tex. App. LEXIS 4052, at *12 (Tex. App. Mar. 28, 2013)
(holding that tests conducted on a product deserved work product protection; "The party seeking discovery of non-core work product labors under a heavy burden to show both that a substantial need for the materials exists and that materials equivalent to those sought cannot be obtained without substantial hardship.")

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

Chapter: 44.1302
Case Name: In re Residential Capital, LLC v. Certain Underwriters at Lloyd's of London, Ch. 11, Case No. 12-12020 (MG), Jointly Administered, Adv. No. 15-01025 (SHL), 2017 Bankr. LEXIS 1951 (S.D.N.Y. July 14, 2017)
("In the insurance context, courts have noted the difficulty in determining 'whether documents prepared by an insurance company or its representatives are entitled to work-product protection because insurers are in the business of investigating and adjusting claims.'"; "The issuance of a reservation of rights letter is relevant but not dispositive of the date when litigation is anticipated."; "Looking at all the facts and circumstances here, the Court finds that the anticipated litigation date is October 17, 2008, the date of the Mitchell ROR.")

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