With its recent decision in Green v. Blitz U.S.A., Case No: 2:07-CV-372 (E.D. Tex. Mar. 1, 2011), the U.S. District Court for the Eastern District of Texas issued a wake-up call for litigators. U.S. District Judge T. John Ward laid down the law for a defendant that appeared oblivious to basic ESI discovery obligations. In this case, over two years after the defendant’s favorable jury verdict, the court imposed sanctions upon the defendant for discovery abuse.
Anticipation of Litigation Must be the “Driving Force” Behind Assertion of the Work Product Doctrine.
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)).
Effective December 1, 2010, FRCP 26(b)(4)(C) protects communications between a party’s attorney and expert witnesses who must provide a report pursuant to FRCP 26(a)(2)(B). Communications are discoverable only where they relate (i) to the expert’s compensation, (ii) to facts the expert considered in forming an opinion, and (iii) to assumptions the attorney provided and that the expert relied upon in forming an opinion.
A recent decision out of the Southern District of Texas offers guidance to an attorney tasked to assess the e-discovery burdens of a case. Judge Lee Rosenthal, chair of the Judicial Conference Committee on Rules of Practice and Procedure, authored the opinion. Her status as chair of the conference committee adds authority to her opinions on e-discovery issues.