Summary
finding that statement from non-party witness, taken by investigator employed by investigative agency, not by defendants' attorneys, containing only facts, did not constitute work product
Summary of this case from Feacher v. Intercontinental Hotels GroupOpinion
Nos. 03 CV 2582, 02 CV 3029.
March 1, 2005
Law Office of Elisa Barnes, Elisa Barnes, Esq., New York, NY, for the Plaintiff Joan Truman Smith.
Taub Marder, Alison G. Fabella, Esq., New York, NY, for the Plaintiff Jacquione Johnson.
Renzulli, Pisciotti Renzulli, LLP, John F. Renzulli, Esq., Leonard S. Rosenbaum, Esq., New York, NY, for the Defendant Atlantic Gun Tackle, Inc.
MEMORANDUM AND ORDER
I. Introduction
This is an action in tort arising from the so-called "Wendy's Massacre." Criminals entered a Wendy's food store and attempted to kill all of the employees by shooting each of them in the back of the head at point-blank range; five of the seven victims died. Those harmed sue the distributor and retailer of the gun, claiming that it fell into the hands of the criminals because of defendants' negligence. Critical to the case is the testimony of one Angela Freeman who allegedly purchased the gun from the retailer.
At issue at the discovery stage is whether the production of this non-party witness's statement, which the retailer, defendant Atlantic Gun and Tackle Distributing Co, Inc. ("Atlantic") has in its possession, may be kept from other parties as attorney work-product. For the reasons stated below, the Magistrate Judge's ruling ordering the production of the statement is affirmed.
II. Facts
On January 27, 2005, during the course of a scheduling conference, plaintiffs' counsel sought an order from the Magistrate Judge requiring defendants to produce a written statement of Angela Freeman, a non-party witness, to defendant's investigators. Plaintiffs only became aware of the prior statement by Ms. Freeman during the course of her deposition. Defendants objected to the production of the statement, claiming work product privilege.
According to the Magistrate Judge,
[a]t the time of the conference, there appeared to be a dispute as to the nature of Ms. Freeman's statement. At first, defense counsel for Atlantic Gun and Tackle ("Atlantic Gun") indicated that Atlantic Gun sent an investigator to speak to Ms. Freeman, and stated, "[w]e have a report." Then, counsel explained that "[i]t's a signed statement by Ms. Freeman, sent by the lawyers to get specific information, which was the mental impression of us to get this statement from Ms. Freeman." When asked by the Court if Ms. Freeman's statement recited facts to which defendants sought to have Ms. Freeman agree, counsel for defendant AcuSport denied that the statement was prepared for Ms. Freeman to sign and instead represented that the document was Ms. Freeman's own statement and was "[m]emorialized . . . on her stationery."
Feb. 18, 2005 Order at 1-2 (citations omitted). The Magistrate Judge, concluding that in camera review of the statement was necessary, ordered defendants to provide a copy of the statement for in camera review.
Rather than complying with the order of the Magistrate Judge, Defendant Atlantic submitted a letter on February 10, 2005, in support of its view that the document was protected as work product.
Without having had an opportunity to review the statement, on February 18, 2005, the Magistrate Judge issued an order requiring defendants to provide a copy to plaintiffs' counsel. She held:
In this instance, defendants failed to submit a privilege log. Indeed, they failed to even notify plaintiffs of the existence of Ms. Freeman's statement. Plaintiffs did not learn that the statement existed until they took the non-party witness' deposition and learned that the witness had previously met on several occasions with defendant's representatives. Defendants's failure to identify Ms. Freeman's statement as a document for which they were asserting privilege was a violation of Rule 26(b)(5) and would alone justify an Order compelling defendant's to produce Ms. Freeman's statement.
However, this Court finds that disclosure of the statement is also warranted because defendants have failed to satisfy their burden of showing that the document is in fact covered by the work product privilege. Since defendants have failed to produce the document for in camera review, this Court cannot determine whether, as defendants assert, the document is in fact subject to the work product privilege and whether, as plaintiffs assert, the privilege should be overcome by plaintiffs' need for the information. While defendants may in fact have valid arguments as to why this document should be protected from discovery, their failure to comply with Rule 26(b)(5), and more importantly their failure to comply with this Court's explicit Order requiring production of the statement for in camera review, constitutes a basis for denial of the privilege.
Feb. 18, 2005 Order at 5-6 (citations omitted). Defendant Atlantic, appealing now for the first time, submits the statement for in camera review, as an attachment to their Rule 72 motion of appeal.
III. Law
A. Rule 72
Rule 72(a) of the Federal Rules of Civil Procedure provides:
Within 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made. The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law.
B. Work Product
1. Rule and Rationale
Absent a showing of substantial need the work-product rule shields from disclosure materials prepared in anticipation of litigation by a party, or a party's representative. The rule was developed in Hickman v. Taylor, 329 U.S. 495 (1947), and codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure. It covers a document "prepared in anticipation of litigation or for trial" by or for an attorney. FED. R. CIV. P. 26(b)(3). It may be obtained on a showing that the party seeking it has "substantial need" and "without undue hardship" cannot obtain a "substantial equivalent" "by other means." Id. Even if it orders production the court must "protect against disclosure of the mental impressions, conclusions, opinions, or legal theories" of the producer. Id. It reads:
Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only 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. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
"The purpose of the doctrine is to establish a zone of privacy for strategic litigation planning and to prevent one party from piggybacking on the adversary's preparation." United States v. Adlman, 68 F.3d 1495, 1501 (2d Cir. 1995). See also United States v. Nobles, 422 U.S. 225, 238 (1975) ("At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case."); Hickman v. Taylor, 329 U.S. 495, 516 (1947) (Jackson, J., concurring) (noting that work product rule is intended to insure that one side does not "perform its functions . . . on wits borrowed from the adversary.").
"Whether the work product of counsel gathered and devised in preparation for litigation . . . may be discovered is a highly controversial area of the law. . . ." In re Six Grand Jury Witnesses, 979 F.2d 939, 944 (2d Cir. 1992).
[T]he work-product rule reflects competing policies. On the one hand, it seeks to preserve a zone of privacy in which a lawyer can work free from intrusion by opposing counsel. On the other hand, discovery rules encourage disclosure of relevant information to facilitate a full and fair trial of issues.
RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS 5, 3 (2004). The "boundaries of the doctrine are far from fixed." 979 F.2d at 944. "[P]rinciples embodied in the . . . work product doctrine are to be applied in a common sense way in light of reason and experience as determined on a case-by-case basis." Id.
2. Burden of Proof
The party asserting work-product protection bears the burden of establishing that a document was "prepared principally or exclusively to assist in anticipated or ongoing litigation." United States v. Construction Prod. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996). Rule 26(b)(5) of the Federal Rules of Civil Procedure provides:
When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
FED. R. CIV. P. 26(b)(5). Description takes place by means of a "privilege log" which must be sufficiently detailed to provide a judgment on the need for a document's protection.
The privilege log should: identify each document and the individuals who were parties to the communications, providing sufficient detail to permit a judgment as to whether the document is at least potentially protected for disclosure. Other required information, such as the relationship between . . . individuals not normally within the privileged relationship, is then typically supplied by affidavit or deposition testimony. Even under this approach, however, if the party invoking the privilege does not provide sufficient detail to demonstrate fulfillment of all the legal requirements for application of the privilege, his claim will be rejected.73 F.3d at 473 (citations omitted). Where a party fails to comply with the requirements of Rule 26(b)(5) and either fails to submit a privilege log, or submits an inadequate privilege log, the claim of privilege may be denied. See, e.g., United States v. Construction Prod. Research, Inc., 73 F.3d at 474 (affirming district court's denial of privilege based on inadequacy of privilege log, where "descriptions and comments simply [did] not provide enough information to support the privilege claim, particularly in the glaring absence of any supporting affidavits or other documentation.").
3. Substantial Need
As already noted, the federal work-product doctrine provides only qualified protection. A party may attain disclosure of protected documents if it demonstrates a "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." FED. R. CIV. P. 26(b)(3). "[R]elevancy alone is not enough to establish substantial need. Nevertheless, substantial need is shown where the work product material at issue is central to the substantive claims in litigation." Madanes v. Madanes, 199 F.R.D. 135, 150 (S.D.N.Y. 2001). Impeachment material can, in some circumstances, support a claim of substantial need sufficient to pierce a claim of work-product protection. See, e.g., Varuzza v. Bulk Materials, Inc., 169 F.R.D. 254 (N.D.N.Y. 1996). In Varuzza, a plaintiff had provided a written statement to an investigator. In a subsequent deposition, the plaintiff was unable to recall significant details of and surrounding facts addressed in the statement. He also testified that he did not recall making the statement. The court found that the statement was a document prepared by a party or its representative in anticipation of litigation, and therefore deemed it protected by the work-product doctrine. It concluded, however, that given the plaintiff's inability to recall numerous details during his deposition, defendants required the statement to "assist in filling the gaps in [the witness's] testimony and for impeachment. This showing suffices to satisfy the requirement of substantial need." Id. at 257.
4. Cases Cited by Atlantic
Atlantic relies on two cases, In re John Doe Corp. v. United States, 675 F.2d 482 (2d Cir. 1982) and A.I.A. Holdings, S.A. v. Lehman Bros., Inc., 97 Civ. 4978, 2002 WL 31385824 (S.D.N.Y. Oct. 21, 2002) (unpublished). In the former case, the Court of Appeals for the Second Circuit analyzed a document as follows:
[W]e have examined in camera the notes of the [interview between an employee and the lawyer] and agree totally with Judge Sifton that their production will not trench upon any substantial interest protected by the work-product immunity. The notes recite in a paraphrased, abbreviated form, statements by [the employee.] To the extent that the statements imply the attorney's questions from which inferences might be drawn as to his thinking, those inferences merely disclose the concerns a layman would have as well as a lawyer in these particular circumstances, and in no way reveal anything worthy of the description "legal theory." We hold, therefore, that the notes of [the employee] must be produced.675 F.2d at 493. In the unpublished district court opinion, the court specifically noted the possibility that "impeachment material can, in some circumstances, support a claim of substantial need sufficient to pierce a claim of work product," but found that "the wealth of impeachment material already in this case . . . attenuates any [such] need." 2002 WL 31385824, at *9.
IV. Application of Law to Facts
As an initial matter, it is worth repeating that the work-product privilege is highly individualized in application, and inevitably turns on the factual particulars of the case at bar. See, e.g., In re Grand Jury Subpoena Dated Oct. 22, 2001, 282 F.3d 156 (2d Cir. 2002) ("Broad categorical statements about the scope of the work product privilege are risky, as individual applications are highly fact specific. In our view, analysis should proceed cautiously, case by case."). In the instant case, the court has reviewed, in camera, the statement that was not provided to the Magistrate Judge, in contravention of a January 27, 2005 order. It therefore has the benefit of information that the Magistrate Judge lacked. On its face the disputed document supports the conclusion that it is a straightforward description of events by the witness, showing no input from attorneys. The investigator, employed by an investigative agency, not the attorneys, simply asked for the facts surrounding the purchase, and nothing else. Those facts, and nothing else, were provided. See Appendix A, the statement in question. As a result, the information is not work product.
Contrary to the assertions of defense counsel, there are no indicia of the mental impressions or trial strategy of counsel. The policy rationale behind the work product doctrine — protecting litigation strategy from disclosure — is not triggered where, as here, the information provided comes from a witness whose narrative is critical to the case. Disclosure of this statement will not in any way force the defense to show its cards; it merely shows what everyone already knew, that the defense has a serious basis.
Assuming that this information were protected by the work-product doctrine, the plaintiffs have demonstrated a substantial need for the information contained in the statement. A prior statement by a witness — in this case, a central witness to the case — will provide plaintiffs with a critical piece of impeachment material, particularly if, as they have indicated, the witness's subsequent depositions have suggested inconsistencies or gaps in memory. The fact that plaintiffs' counsel were able to depose the witness does not obviate the need for the statement. The theory of the plaintiffs that Ms. Freeman was a straw purchaser is fixed. Plaintiffs therefore are not necessarily looking for Ms. Freeman to provide them with another theory. Any prior statement provides a clue to what may be a developing narrative with significant contradictions, that may bear on credibility.
That there is a special need for the statement is suggested by the fact that the witness refused to speak to plaintiff's counsel, apparently under the impression that the defense investigator was her lawyer. See Plaintiffs' Feb. 23, 2005 Ltr. at 2 ("[P]rior to the deposition, plaintiffs had tried to speak with Ms. Freeman, through our investigator and were told that she would not speak to us but to speak with her lawyer, who she believed was the defendant's investigator.").
Even if the statement were characterized as attorney work product, the Magistrate Judge's determination was not clearly erroneous or contrary to law. The Magistrate Judge stated:
Defendants' failure to identify Ms. Freeman's statement as a document for which they were asserting a privilege was a violation of Rule 26(b)(5) and would alone justify an Order compelling defendant's to produce Ms. Freeman's statement.
However, this Court finds that disclosure of the statement is also warranted because defendants have failed to satisfy their burden of showing that the document is in fact covered by the work product privilege.
Feb. 18, 2005 Order at 5 (citation omitted). The failure to provide a privilege log constitutes a sufficient independent ground for disclosure of the statement, particularly where the defendants now claim that the plaintiffs "have failed to argue and demonstrate a substantial need for the statement. . . ." Defendant's Feb. 22, 2005 Ltr. at 3. It would be unfair for a party to deny its adversary the information needed to challenge the withholding of a document — including the very existence of the document — only to support non-production with the claim that because the withholding was not challenged, it is permissible. Moreover, where here the Magistrate Judge specifically ordered the disclosure of the document and the defendants failed to produce it, the defendants denied the court, as well as other parties, the opportunity to assess the applicability of the privilege. This court does not base affirmance on this ground in view of the importance of the work-product doctrine.
The Magistrate Judge's finding that the defendants failed to object to the Magistrate Judge's order in a timely manner is not clearly erroneous or contrary to law. See Feb. 18, 2005 Order at 3 n. 2. Defendants, by their own admission, failed to object to the January 27, 2005 order, on the ground that they allegedly misunderstood it, concluding instead that the Magistrate Judge did not wish to see the statement in camera, despite her statement, "Let's see it. I want it produced in camera." See id. This court does not base affirmance on this ground since it need not reach it.
V. Conclusion
The Rule 72 motion is denied. The order of the Magistrate Judge is affirmed. Defendants are ordered to produce a copy of Ms. Freeman's written statement to plaintiffs' counsel.
SO ORDERED.
Appendix A