Fed.R.Civ.P. 26(b)(3)(A) and (B) guide federal courts asked to compel disclosure of trial preparation materials. In general trial preparation materials are protected by the work product doctrine. This doctrine is designed to “allow an attorney to ‘assemble information, sift what he considers to be relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference … to promote justice and to protect his client’s interests.’” Gruenbaum v. Werner Enterprises, Inc., 270 F.R.D. 298, 303 (S.D. Ohio 2010) (citing Tennessee Laborers Health & Welfare Fund v. Columbia/HCA Healthcare Corp., 293 F.3d 289, 294 (6th Cir. 2002)).
If a federal court orders production of trial preparation materials under Fed.R.Civ.P. 26(b)(3)(A), then pursuant to Fed.R.Civ.P. 26(b)(3)(B), which defines part of the work product doctrine, it must “protect against disclosure of mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” In Gruenbaum, Magistrate Judge King addressed Rule 26(b)(3)(A) and (B) in response to Plaintiff’s motion to compel production of in-house counsel’s handwritten notes taken while investigating the underlying accident.
The basic facts of the case are that the survivor of the deceased driver alleged that the Defendant tractor-trailer driver negligently operated his vehicle causing driver’s death. During discovery, Plaintiff learned that Defendant’s counsel had made handwritten notes as a part of his investigation. Plaintiff sought Defendant’s investigative file and handwritten notes on the collision alleging they were not protected by the work product doctrine because they were made for an ordinary business purpose. Id. at 303. The Defendant produced all of the file, except the handwritten notes, because it asserted the notes were protected by the work product doctrine and Rule 26(b)(3)(B).
Citing Fed.R.Civ.P 26(b)(3), the Court noted that the work product doctrine could be set aside where the information sought is otherwise discoverable under Rule 26(b)(1), and the party seeking the information shows a substantial need. Id. The Court then distinguished between fact work product and opinion work product, holding that “absent waiver, a party may not obtain the ‘opinion’ work product of his adversary; i.e., ‘any material reflecting the attorney’s mental impressions, opinions, conclusions, judgments or legal theories.’” Id. at 303 (citing Tennessee Laborers Health & Welfare Fund v. Columbia/HCA Healthcare Corp., 293 F.3d 289, 294 (6th. Cir.2002)).
The case lays out a four part analysis for a party seeking to obtain materials allegedly protected by the work product doctrine. The considerations are: (1) Is the information work product; (2) If so, is it fact work product and potentially discoverable; (3) Is it opinion work product and not discoverable unless waived; and (4) If it is fact work product, has the party seeking the information demonstrated a substantial need for it?
After establishing an analytical framework, the Court turned to the analysis of whether the Defendant’s assertion of the work product doctrine was appropriate. First, it noted that the party asserting the work product doctrine bore the burden of “establishing that the documents he or she seeks to protect were prepared in ‘anticipation of litigation.’” Id. (citing United States v. Roxworthy, 457 F.3d 590, 593 (6th Cir.2006)). To make this determination, the Court asked two questions: “(1) whether that document was created because of a party’s subjective anticipation of litigation, as contrasted with an ordinary business purpose; and (2) whether that subjective anticipation was objectively reasonable.” Id. at 304 (citing In re Professionals Direct Ins. Co., 578 F.3d 432, 439 (6th Cir.2009) (citing Roxworthy, 457 F.3d at 594)).
The Court noted that documents prepared for an ordinary business purpose were not entitled to work product protection, however, where such a document is also prepared in anticipation of litigation, then it does not lose its status. Id. The burden on the party seeking to establish that a document is protected by the work product doctrine is to show that the “‘anticipated litigation was the driving force behind the preparation of each requested document.’” Id. (citing In re Professionals Direct Ins. Co., 578 F.3d at 439 (6th Cir.2009) (quoting Roxworthy, 457 F.3d at 595)).
In concluding that the sought information was work product, the Court found that the threat of litigation was the “driving force” behind the in-house counsel’s handwritten notes. The Court stated that the Defendants had a “subjective fear of litigation,” that it was objectively reasonable (due to the seriousness of the accident) to anticipate litigation, that Defendant immediately obtained counsel and an investigator, and that in-house counsel confirmed that investigators are hired only when litigation is likely. Id. at 305.
The Court found that the Plaintiff had not articulated a substantial need for the documents. It found that the Plaintiff’s arguments focused on the assertion that the documents were made for an ordinary business purpose and were therefore not work product. Finding that the handwritten notes were work product, and that the Plaintiff had not demonstrated a substantial need for the documents, it did not examine whether the information sought was fact or opinion work product.
The holdings in this case provide a good analysis of how to assert or overcome the work product doctrine when seeking discovery from an opposing party. Fed.R.Civ.P. 26(b)(3) is substantially similar to Ohio’s Civ. R. 26(b)(3) and (6) and Kentucky’s CR 26.02(3).
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