This article is devoted to the not-so-uncommon situation in which a party to a specific litigation seeks the work-product of an attorney representing a party in a different, but closely allied litigation. To highlight the issue, a short background is necessary. The work-product privilege began with the 1947 Supreme Court decision in Hickman v. Taylor, where the Court ruled the requested discovery for statements taken by opposing counsel was “an attempt to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party’s counsel in the course of his legal duties.” Hickman v. Taylor, 329 U.S. 495 (1947). The Court held that absent a showing that the material was “essential to the preparation of one’s case,” the request would be denied. Id. The Court stated that where the requested product disclosed an attorney’s mental impressions, there was serious doubt whether this work-product would ever be produced. Id.
In 1970, the Hickman decision was codified in Federal Rule of Civil Procedure 26(b)(3). Rule 26(b)(3) permits discovery of documents and tangible things prepared in anticipation of litigation or for trial by another party only upon a showing that the seeking party has substantial need of the materials in preparation of that party’s case and is unable to obtain the materials without undue hardship. Fed. R. Civ. P. 26(b)(3). The rule protects against disclosure of “opinion work-product,” which is the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
The Third Circuit has never addressed the issue of whether a third party can assert the work-product privilege in response to a subpoena issued in a separate litigation. The Ninth Circuit has held that Rule 26(b)(3) was the sole source of work-product protection and courts were not free to suspend the requirement to protect third parties. See In re: Subpoena Served on Cal. Public Utility Commission, 892 F.2d 778 (9th Cir. 1989). Some courts follow this line of reasoning even where the ruling would cause inequity and hardship. For example, in the Eastern District of Pennsylvania, the Hunter v. Heffernan court stated in dicta that “documents prepared by non-parties to the present litigation are unprotected.” 1996 U.S. Dist. LEXIS 14071 (E.D. Pa. 1996).
In a recent Eastern District case, Judge McLaughlin found alternatives to a strict application of Rule 26(b)(6) regarding the assertion of the work-product privilege by a third party. In Stanziale v. Career Path Training (In re Student Fin. Corp.), the defendant in a District of Delaware Bankruptcy Court adversary proceeding served a subpoena issued in the Eastern District of Pennsylvania on a private investigation firm. See Stanziale v. Career Path Training (In re Student Fin. Corp.), 2006 U.S. Dist. LEXIS 86603 (E.D. Pa. 2006). The Career Path Training (“Career Path”) subpoena sought documents the James Mintz Group (the “Mintz Group”) prepared for Sonnenschein Nath & Rosenthal (“Sonnenschein”), a Chicago law firm that had retained the Mintz Group in a related bankruptcy proceeding in Delaware District Court. Sonnenschein represented Royal Indemnity Company (“Royal Indemnity”), the largest creditor in that bankruptcy proceeding. Although the situs of the litigation was the bankruptcy court in Delaware, the enforcement proceeding for the subpoena was adjudicated in the Eastern District where the subpoena was served.
Sonnenschein objected to the subpoena contending that the Mintz Group’s documents consisted of Sonnenschein’s work-product prepared for the bankruptcy litigation. Career Path argued that Sonnenschein’s client, Royal Indemnity, was not a party to the specific suit between the Bankruptcy Trustee and Career Path, and thus the work-product privilege was unavailable to Sonnenschein.
Although Royal Indemnity was involved in various aspects of the bankruptcy litigation, Judge McLaughlin held that Royal Indemnity was not a party to the case at bar for purposes of Rule 26(b)(3). Concluding that Rule 26(b)(3) is not the only means for asserting work-product protection, Judge McLaughlin held that the rule permits room for the privilege to be asserted by third parties in appropriate cases. Judge McLaughlin noted that Federal Rule of Civil Procedure 45(c)(3)(A)(iii) permits a court to quash or modify a subpoena if it requires disclosure of privileged or other protected matters and no exception or waiver applies. She also relied upon Federal Rule of Civil Procedure 26(c), which authorizes a court to issue a protective order to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense.
As a practical matter, strict enforcement of Rule 26(b)(3) could lead to absurd results. Wright and Miller describe the following circumstances which could result from a strict reading of Rule 26(b)(3):
Thus suppose A and B are bringing independent Antitrust actions against the same defendant based on the same charges. Documents that A has prepared in anticipation of litigation would be within the qualified immunity in his own suit but would be freely discoverable by defendant on a subpoena duces tecum issued in connection with the suit brought by B. Such a result would be intolerable.
Wright and Miller, Federal Practice and Procedure, Civil § 2024 (1970). The Court’s decision in Student Finance Corporation opens the door to a more realistic appraisal of situations where work-product is not prepared for a party involved in a particular matter, but for closely allied litigation, and a strict reading of Rule 26(b)(3) would require disclosure of material the work-product privilege was designed to protect.
The subpoena in Student Finance Corporation also raised issues of what constitutes opinion work-product. The Mintz Group, acting on behalf of the Sonnenschein attorneys, conducted a series of interviews of potential witnesses. The work-product privilege extends to material prepared in anticipation of litigation by investigators employed by the attorneys. See United States v. Nobles, 422 U.S. 225 (1975); Virginia Electric & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D. 397 (E.D. Va. 1975); Appeal of Hughes, 633 F.2d 282 (3d Cir. 1980) (government could not compel private investigator working for attorneys to testify about interview he conducted). Judge McLaughlin held that the majority of the work-product of the Mintz Group qualified for protection as it consisted mostly of reports of witnesses’ interviews.
The writer offers the following caution regarding treatment of interviews of witnesses by lawyers and non-lawyers employed by the lawyer. Generally, a report of interview is regarded as opinion work-product and given the highest form of protection because it usually invokes the thought processes of the attorneys or the investigators. See Upjohn Co. v. United States, 449 U.S. 383 (1981); In re: Cendant Corp. Sec. Litig., 343 F.3d 658 (3d Cir. 2003). The privilege also applies to oral recollection of attorneys. See In re: Linerboard Antitrust Litig., 237 F.R.D. 373 (E.D. Pa. 2006) (operative facts learned by an attorney during a corporate internal investigation he conducted were so thoroughly intertwined with his recollection of what was asked and learned as to constitute opinion work-product and an interview of that attorney could not be the basis of testimony by a Rule 30(b)(6) witness). If, however, the report of the witness interview is simply a verbatim recitation of the witness' oral statement, a court may deny the interview report the high degree of protection of opinion work-product. See Redvanly v. Nynex Corp., 152 F.R.D. 460, 466 (S.D.NY 1993) (in-house counsel’s notes of meeting were not impressions but a “running transcript of meeting in abbreviated form”).
In today’s computer driven society, for instance, there are often situations where a partner questions a witness and an associate or paralegal transcribes the interview on a laptop. Those notes may not qualify as opinion work-product because they may be construed as a verbatim transcript of the interview. See In re John Doe Corp., 675 F.2d 482 (2nd Cir. 1982) (in-house counsel’s notes of interview of employer in paraphrased, abbreviated form not opinion work-product); see also Grossman v. Schwarz, 125 F.R.D. 376, 389 (S.D.N.Y. 1989) (notes of interview revealed note taker was merely passive recorder of events). While these cases may be examples of a very strict interpretation, they point out the possible ramifications of a “laptop“ interview work-product. As a practical matter, the interviewer should take handwritten notes, transcribing them later if necessary, but maintaining the handwritten original. Experienced interviewers will intersperse the notes with observations or strategic evaluations. One of my former associates, of Greek descent, often made editorial comments within the report in Greek. In the event of a motion for a protective order asserting the work-product privilege, the handwritten notes should be presented to the court for an in camera inspection. The interspersed comments will demonstrate that the report of interview certainly reflects the attorneys’ thought processes.
