The opinion
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
PEN AMERICAN CENTER INC,
et al.,
Plaintiffs,
vs. Case No.: 3:23cv10385/TKW/ZCB
ESCAMBIA COUNTY SCHOOL
BOARD,
Defendant.
/
ORDER
Currently before the Court is Defendant Escambia County School
Board’s Motion for Order Permitting Defendant to Retain and Use
Inadvertently Disclosed Information. (Doc. 110). Plaintiffs have
responded in opposition, and the Court held an oral argument hearing.
(Docs. 116, 133). For the reasons below, the Court will deny the School
Board’s motion.
I. Background
Plaintiffs have sued the School Board, arguing that its decision to
remove or restrict access to certain books in school libraries violated the
First Amendment. During discovery, the School Board noticed the Rule
30(b)(6) deposition of Plaintiff PEN American Center (“PEN”). PEN
selected Summer Lopez as its Rule 30(b)(6) deponent.
At the beginning of the deposition on August 1, 2024, the School
Board’s counsel asked Ms. Lopez what documents she had with her at the
deposition. (Doc. 110-1 at 5). Ms. Lopez responded by stating that,
among other things, she had a spreadsheet that contained information
about each of the books involved in the case. (Id.). Plaintiffs’ counsel
stated that the spreadsheet had been created to assist Ms. Lopez during
the deposition. (Id. at 5-6). The School Board’s counsel requested a copy
of the spreadsheet, and Plaintiffs’ counsel promptly sent it via email. (Id.
at 6-7). The spreadsheet was not discussed again during Ms. Lopez’s
deposition on August 1, 2024.
It did, however, come up on the second day of the deposition, August
2, 2024. At that time, the School Board’s counsel attempted to question
Ms. Lopez about the spreadsheet. (Id. at 8). Plaintiffs’ counsel objected,
stating that the document contained errors and had not been relied on by
Ms. Lopez. (Id. at 8-9). Plaintiffs’ counsel, therefore, asked the School
Board’s counsel to discard the spreadsheet. (Id. at 10). After a brief
recess in the deposition, Plaintiffs’ counsel sought to claw back the
spreadsheet because it inadvertently contained “attorney/client work
product information.” (Id. at 12). The School Board’s counsel refused to
return the spreadsheet. (Id. at 12-14).
The School Board subsequently filed the current motion, which asks
the Court to permit the School Board to retain and use the spreadsheet.
(Doc. 110). A copy of the 170-page spreadsheet was filed along with the
motion.1 (Doc. 122). In the motion, the School Board argues Plaintiffs
waived any work product protection. Plaintiffs disagree.
As explained below, the Court believes this matter is resolved by
the stipulated confidentiality order (Doc. 79) that was entered earlier in
this litigation. Consistent with the terms of that order, the School Board
should return the spreadsheet to Plaintiffs’ counsel.
II. Discussion
Under the work product doctrine, “[o]rdinarily, a party may not
discover documents and tangible things that are prepared in anticipation
of litigation or for trial by or for another party or representative . . . .”
Fed. R. Civ. P. 26(b)(3)(A). To overcome the protection afforded by the
work product doctrine for “fact work product,” a party “must show both a
1 Based on the claim that the spreadsheet contains privileged
information, the Court permitted it to be filed under seal. (Doc. 121).
substantial need for the information and that seeking the information
through other means would cause undue hardship.” United Kingdom v.
United States, 238 F.3d 1312, 1322 (11th Cir. 2001); see also Fed. R. Civ.
P. 26(b)(3)(A)(ii). But if the work product is “opinion work product” that
“reflects an attorney’s mental impressions, conclusions, opinions, or legal
theories,” then it “enjoys a nearly absolute immunity and can be
discovered only in very rare and extraordinary circumstances.” Cox v.
Admin. U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir. 1994). The
party invoking the work product doctrine bears the burden of showing
that it applies. Burrow v. Forjas Taurus S.A., 334 F. Supp. 3d 1222, 1227
(S.D. Fla. 2018).
In this case, the Court finds (and the School Board does not appear
to seriously contest) that the spreadsheet contains attorney work
product. Because the spreadsheet includes legal analysis/opinion from
the PEN attorney who prepared the document, it contains opinion work
product that enjoys “nearly absolute immunity” from discovery. Cox, 17
F.3d at 1422.
Like other privileges, the work product protection is subject to
waiver. Doe No. 1 v. U.S., 749 F.3d 999, 1008 (11th Cir. 2014). And the
School Board argues waiver occurred here when Plaintiffs’ counsel
emailed the spreadsheet to the School Board’s counsel on the first day of
Ms. Lopez’s deposition. Plaintiffs disagree, claiming that the disclosure
of the work product does not constitute waiver because it was
inadvertent. Because the disclosure was inadvertent, Plaintiffs say the
issue is resolved by the stipulated confidentiality order. Plaintiffs are
correct.
On May 1, 2024, Judge Wetherell signed a stipulated
confidentiality order that had been submitted by the parties. (Doc. 79).
Paragraph 15 of that order contains what is commonly referred to as a
“claw-back” provision. That provision states as follows:
At no time do the Parties intend to disclose information
subject to a claim of attorney-client privilege, work-product
protection, or any other privilege or protection. If,
nevertheless, a Party (“Disclosing Party”) inadvertently
discloses such privileged or protected information
(“Inadvertently Disclosed Information” to another Party
(Receiving Party), the following provisions will apply:
(a) Pursuant to Federal Rule of Evidence 502(d), the
disclosure shall not constitute or be deemed a waiver
or forfeiture in this proceeding or any other federal or
state proceeding of any claim of attorney-client
privilege, work product protection, or any other
privilege or protection that the Disclosing Party
would otherwise be entitled to assert with respect to
the Inadvertently Disclosed Information and its
subject-matter.
(b) If a Disclosing Party notifies the Receiving Party of
Inadvertently Disclosed Information, the Receiving
Party shall:
(i) immediately cease using, copying, or
distributing the Inadvertently Disclosed
Information; and
(ii) within five (5) days . . . , return or certify the
destruction of all copies of the Inadvertently
Disclosed Information, . . . .
(Doc. 79 at 11) (emphases added). The threshold question under the
stipulated confidentiality order is whether the disclosure of the
information covered by the work product doctrine was “inadvertent.”
Here, it was.
According to the information in the record, Plaintiffs’ counsel asked
a junior attorney for PEN to create a spreadsheet that could assist Ms.
Lopez during her deposition. (Docs. 116-1, 116-5, 116-7). It appears
undisputed that Plaintiffs’ counsel instructed the junior attorney that the
spreadsheet should contain only factual information that was publicly
available or had been previously disclosed in discovery. (Doc. 116-5). The
junior attorney sent the spreadsheet to Plaintiffs’ counsel at 10:20 p.m.
the night before Ms. Lopez’s deposition. (Id.). By her own admission,
Plaintiffs’ counsel did not review the spreadsheet in detail before Ms.
Lopez’s deposition the following morning. (Doc. 116-1).
When the School Board’s counsel requested that Plaintiffs’ counsel
email her any documents that Ms. Lopez had with her at the deposition,
Plaintiffs’ counsel agreed. She then promptly sent the spreadsheet to the
School Board’s counsel without reviewing it closely. At some point after
sending the spreadsheet, Plaintiffs’ counsel studied it and discovered
that the PEN junior attorney had included more than just factual
information in the spreadsheet—the junior attorney had added some of
her own analysis and opinions. (Doc. 116-1). The junior attorney had not
been asked to include that information in the spreadsheet. Nor was
Plaintiffs’ counsel aware such information was in the spreadsheet when
she emailed it to the School Board’s counsel. (Id.). Upon learning that
such information was in the spreadsheet, Plaintiffs’ attorney asked for it
back. (Docs. 116-3 at 12, 116-4).
There is nothing before the Court that calls into question the sworn
declarations of Plaintiffs’ counsel and PEN’s junior attorney. There is
also nothing in the record to suggest that Plaintiffs’ counsel made a
knowing and voluntary decision to send a spreadsheet with work product
information to the School Board’s counsel. What happened here was
clearly a mistake.
It was an inadvertent disclosure and, because of that, it falls within
paragraph 15 of the stipulated confidentiality order. That paragraph
expressly provides that an inadvertent disclosure of work product
information “shall not constitute or be deemed a waiver . . . .” (Doc. 79 at
11) (emphasis added). The confidentiality order further provides that
upon notice of an inadvertent disclosure, the disclosed document should
be returned. (Id.).
The School Board attempts to avoid the result dictated by the terms
of the stipulated confidentiality order by arguing that the Court should
apply the standard found in Fed. R. Evid. 502(b). Under Rule 502(b), an
inadvertent disclosure does not waive work product protection unless
“the holder of the privilege or protection took reasonable steps to prevent
disclosure.” The School Board says Plaintiffs’ counsel did not take
“reasonable steps” to prevent disclosure. The School Board’s argument
misses the mark, however, because Fed. R. Evid. 502(b)’s “reasonable
steps” requirement does not apply here. Thus, it is irrelevant whether
Plaintiffs’ counsel took reasonable steps to prevent the inadvertent
disclosure.
Although Rule 502(b) provides the default rule regarding when
inadvertent disclosures constitute waiver, Rule 502(d)2 permits
alteration of the default rule. This is commonly done through the entry
of a stipulated confidentiality order that has claw-back and non-waiver
provisions. See In re: Testosterone Replacement Therapy Litig., 301 F.
Supp. 3d 917, 924 (N.D. Ill. 2018); see also Frassetti v. BP Exploration &
Prod., Inc., No. 3:21cv551, 2023 WL 4099900, at *1 n.2 (N.D. Fla. June
20, 2023) (explaining that “Federal Rule of Evidence 502(d) specifically
provides that the court may enter a claw-back order” that governs
inadvertent disclosures instead of the standard in Rule 502(b)).
When the parties agree to a stipulated confidentiality order that
has claw-back and non-waiver provisions, the terms of that order control
over the requirements of Rule 502(b). See Ala. Aircraft Indus., Inc. v.
Boeing Co., No. 2:11cv03577, 2015 WL 13622155, at *7 (N.D. Ala. Oct. 5,
2015) (stating that the “Clawback Agreement does away with the [Rule]
502(b) portion of the default analysis entirely”). Indeed, the Advisory
2 Rule 502(d) states: “A federal court may order that the privilege or
protection is not waived by disclosure connected with the litigation
pending before the court—in which event the disclosure is also not a
waiver in any other federal or state proceeding.” Fed. R. Evid. 502(d).
Committee Notes to Rule 502(d) make clear that a claw-back order “may
provide for return of documents without waiver irrespective of the care
taken by the disclosing party.” Fed. R. Evid. 502(d), advisory committee’s
note (2007) (emphases added).
The parties here stipulated to the entry of a confidentiality order
with a claw-back and non-waiver provision that altered Rule 502(b)’s
default rule. The claw-back and non-waiver provision of the stipulated
confidentiality order specifically references Rule 502(d). And the order
does not require, as a condition precedent to return, that there be a
finding that reasonable steps were taken to prevent the inadvertent
disclosure of work product information. See generally Hon. Paul W.
Grimm, et al., Fed. R. of Evid. 502: Has It Lived Up To Its Potential?, 17
Rich. J.L. & Tech. 8, 102 (Spring 2011) (explaining that “under Rule
502(d) orders. . .that provide otherwise, the parties need not take
reasonable precautions to avoid disclosure of privileged or protected
information, because the reasonableness requirements of Rule 502(b)(2)
and (3) do not apply to disclosures made pursuant to a Rule 502(d) order
. . . .”). The claw-back provision in the stipulated confidentiality order
states that inadvertently disclosed work product should be returned upon
timely notice. Because the disclosed spreadsheet inadvertently
contained work product information and timely notice was provided, the
spreadsheet should be returned to Plaintiffs’ counsel as contemplated by
the claw-back provision of the stipulated confidentiality order.
In reaching this conclusion, the Court did not overlook the School
Board’s argument that Fed. R. Evid. 612 required Plaintiffs to disclose
the spreadsheet. Rule 612 requires the disclosure of a writing if it was
used by a witness “to refresh memory for the purpose of testifying
either—(1) while testifying, or (2) before testifying, if the court in its
discretion determines [that disclosure] is necessary in the interests of
justice . . . .” Fed. R. Evid. 612. Here, there is no dispute that Ms. Lopez
did not use the spreadsheet to refresh her recollection while she was
testifying. Instead, the issue is whether Ms. Lopez used it to refresh her
memory before testifying. And if she did, do the interests of justice
require the spreadsheet’s disclosure?
Assuming arguendo that Ms. Lopez “used” the spreadsheet to
refresh her memory before testifying, the School Board has not shown
that the interests of justice require the spreadsheet’s disclosure. The
“‘interests of justice’ language in Rule 612[(a)(2)] is synonymous with the
work product protection that privileged documents are only discoverable
when a party shows substantial need and that the equivalent of the
materials cannot be obtained without undue hardship.” Medtronic
Xomed, Inc. v. Gyrus ENT LLC, No. 304CV400J32MCR, 2006 WL
786425, at *5 (M.D. Fla. Mar. 27, 2006). That standard has not been met
here. The Court would note that Plaintiffs have offered to provide the
School Board with a copy of the spreadsheet with the attorney work
product redacted. The School Board, however, refused that offer.
Because the School Board has not shown that disclosure of the
spreadsheet is necessary to further the interests of justice, its Rule 612
argument is unpersuasive.
III. Conclusion
For the reasons above, the Motion for Order Permitting Defendant
to Retain and Use Inadvertently Disclosed Information (Doc. 110) is
DENIED. The School Board’s counsel shall return the spreadsheet in
question to Plaintiffs’ counsel and make no further use of it.
It is so ORDERED. This the 28th day of October 2024.
Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge