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John M. Floyd & Associates, Inc. v. Superior Federal Bank

November 14, 2005



Pending before the Court is Plaintiff's Motion to Compel. (Docket entry #24.)*fn1 For the reasons set forth herein, the Motion will be denied.

I. Background

This case involves breach of contract and unjust enrichment claims asserted between the parties. (Docket entries #6 and #7.) In its Motion to Compel, Plaintiff contends that, during their depositions, otherwise-unidentified defense witnesses testified that they previously had reviewed various documents with defense counsel, which refreshed their recollection for the purpose of testifying. (Docket entry #24.) Plaintiff's counsel requested Defendant's counsel to identify those documents so that he could examine them before proceeding with further questioning.*fn2 Defendant's counsel objected on the grounds of attorney-client privilege and the work-product doctrine. Id.

In Plaintiff's Motion to Compel, it argues that Defendant has failed to carry its burden of demonstrating that any documents reviewed by the deponents are privileged, and that the deponents waived any privilege by admitting in their depositions that the documents they reviewed with defense counsel refreshed their recollection pursuant to Fed. R. Evid. 602. By way of relief, Plaintiff requests that: (1) Defendant be compelled to produce the specific documents its attorneys reviewed with each deponent in advance of their respective depositions; (2) it be allowed to redepose the defense witnesses in question, at Defendant's expense, in order to inquire about matters related to the specific documents they reviewed with defense counsel; and (3) the discovery deadline be extended two weeks from the date of the Court's ruling on this Motion.

In its Response, Defendant argues that the identification of the specific documents that its attorneys reviewed with the deponents, prior to their depositions, is protected from disclosure under the work product doctrine.

II. Discussion

Rule 26(b)(3) of the Federal Rules of Civil Procedure expressly protects discovery of documents "prepared in anticipation of litigation or for trial[.]" The party seeking protection of work product must show that the materials in question were prepared in anticipation of litigation. The party seeking discovery of work product must then demonstrate that he has a substantial need for the materials and that he cannot obtain the substantial equivalent of the materials by other means. PepsiCo, Inc. v. Baird, Kurtz & Dobson LLP, 305 F.3d 813, 817 (8th Cir. 2002) (citing Fed. R. Civ. P. 26(b)(3)).

Work-product material has been extended to include an attorney's selection and compilation of documents "[i]n cases that involve reams of documents and extensive document discovery[.]" Shelton v. American Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986). In Shelton, the defendant's in-house counsel was deposed and asked to acknowledge the existence or nonexistence of certain categories of defendant's documents related to an allegedly defective product. The Eighth Circuit held that, where "deponent is opposing counsel and opposing counsel has engaged in a process of selecting and compiling documents in preparation of litigation, the mere acknowledgment of the existence of those documents would reveal counsel's mental impressions, which are protected by work product." Shelton, 805 F.2d at 1329. See also Peterson v. Douglas County Bank & Trust Co., 967 F.2d 1186, 1189 (8th Cir. 1992) ("Documents 'prepared in anticipation of litigation' may include business records that were specifically selected and compiled by the other party or its representative in preparation for litigation and that the mere acknowledgment of their selection would reveal mental impressions concerning the potential litigation").

In this case, Defendant's attorneys reviewed and selected certain materials, from among the 7,000 page universe of documents produced to Plaintiff's counsel, and then reviewed those materials with Defendant's witnesses prior to their depositions. If Plaintiff's counsel were allowed to compel Defendant's attorneys to produce the subset of documents they selected for review with their witnesses, it would provide him with a clear picture of opposing counsel's "professional judgment of the issues and defenses involved." As the Court held in Shelton, "[t]his mental selective process reflect's [counsel's] legal theories and thought processes, which are protected as work product." See Shelton, 805 F.2d at 1329 (citing Sprock v. Peil, 759 F.2d 312, 316 (3rd Cir. 1985), cert. denied, 474 U.S. 903 (1985)).*fn3

Plaintiff goes on to argue that, even if the identification of the documents is otherwise protected, the deponents waived that protection in affirming that the document review refreshed their recollection. In support of this argument, Plaintiff cites Fed. R. Evid. 612 and Wheeling-Pittsburgh Steel Corp. v. Underwriters Laboratories, Inc., 81 F.R.D. 8, 9-10 (N.D. Ill. 1978). In Wheeling-Pittsburgh, the district court granted defendant's motion to compel the production of documents which the deponent had used to refresh his recollection immediately prior to his deposition. Wheeling-Pittsburgh, 81 F.R.D. at 9. The court concluded that such documents were discoverable under Fed. R. Evid. 612 and, to the extent such documents were otherwise protected by the attorney-client privilege, plaintiff had waived the privilege by using the documents to refresh his recollection. Id. at 10-11.*fn4

While Plaintiff is correct that some courts have held Fed. R. Evid. 612 operates as a waiver, with respect to a writing used to refresh memory, "[m]ost courts now reject the absolute-waiver approach in favor of a test that balances the interests promoted by recognizing Rule 612 rights in the adverse party against the burden those rights impose on work-product and privilege protections." WRIGHT & MILLER, 28 Fed. Prac. & Proc. Evid. § 6188 (Supp. 2005). The Court concludes that, in this case, the balancing of those interests weighs in favor of protecting the work product of Defendant's attorneys from disclosure to Plaintiff's counsel.

III. Conclusion

For all of the foregoing reasons, the Court concludes that the documents sought by Plaintiff in its Motion to Compel are protected work product under Fed. R. Civ. P. 26(b)(3) and that Plaintiff is not otherwise entitled to the ...

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