holding that counsel’s selection process used to cull documents and place into a notebook for a party to examine before his deposition represents counsel’s mental impressions and legal opinion about “how the evidence in the documents relates to the issues and defenses in the litigation”
How later courts described this case
- holding that counsel’s selection process used to cull documents and place into a notebook for a party to examine before his deposition represents counsel’s mental impressions and legal opinion about “how the evidence in the documents relates to the issues and defenses in the litigation”
- holding that “deposing counsel failed to lay a proper foundation under Rule 612 for production of the documents selected by counsel” in that he “failed to establish either that petitioner relied on any documents in giving his testimony, or that those documents influenced his testimony”
- holding that the defendant’s counsel’s “selecting and ordering a few documents out of thousands ... could not help but reveal important aspects of his understanding of the case,” and therefore that counsel’s selection of documents constituted “highly-protected” opinion work product
- holding that counsel’s compilation of select documents in preparation for a deposition is work product because “in selecting the documents he thought relevant to [his client’s] deposition, defense counsel engaged in proper and necessary preparation of his client’s cases”
Written by the judges who cited it.
Distinguished
Distinguished by Kartman v. State Farm Mutual Automobile Insurance, 247 F.R.D. 561 (2007)
However, for the reasons set forth above, James Julian and Sporck are distinguishable.
Distinguished by New York v. Solvent Chemical Co., 166 F.R.D. 284 (1996)
But Sporck is inapplicable here: any work product protection that might have been available to ICC and Solvent under Sporck is vitiated by ICC’s improper action in retain
Distinguished by Castano v. American Tobacco Co., 896 F. Supp. 590 (1995)
Thus, in that important sense, Sporck is inapplicable to the present case.
Distinguished by Resolution Trust Corp. v. Heiserman, 151 F.R.D. 367 (1993)
Sporck is distinguishable.
The opinion
SEITZ, Circuit Judge,
dissenting.
The majority approves in effect the use of the work product doctrine to prevent an identification of documents reviewed by a witness in preparation for his deposition. I dissent because I am convinced that such a ruling is an impermissible expansion of the work product doctrine at the expense of legitimate discovery.
The plaintiffs-respondents sought in the district court the discovery of relevant objective facts: the identities of the documents that the deponent reviewed prior to testifying. These facts are not, in themselves, the opinion- or thought processes of an attorney. Nor were the contents of the documents, all of which had already been produced by the defendants, created by defendants’ attorney in anticipation of litigation.
Yet, the defendant-petitioner claims that the mere identification of the documents examined prior to his deposition would reveal his attorney’s litigation strategy. Presumably, the petitioner’s argument must be that if the respondents knew which documents were reviewed, they could, upon examination of the documents identified, draw conclusions as to why each document was chosen.
The problem with the petitioner’s theory is that it assumes that one can extrapolate backwards from the results of a selection process to determine the reason a document was selected for review by the deponent. There are many reasons for showing a document or selected portions of a document to a witness. The most that can be said from the fact that the witness looked at a document is that someone thought that the document, or some portion of the document, might be useful for the preparation of the witness for his deposition. This is a far cry from the disclosure of the a lawyer’s opinion work product. Even assuming that the documents were selected by the petitioner’s attorney, the subject matter is so undifferentiated that its potential for invasion of work product is miniscule at best. See In re Grand Jury Investigation, 599 F.2d 1224 (3d Cir.1979) (degree to which information reveals attorney’s thought processes is a factor in whether opinion work product is revealed). See also United States v. Amerada Hess Corp., 619 F.2d 980, 988 (3d Cir.1980) (list of employees interviewed, selected out of all the corporation’s employees, is not opinion work product).
Every act by a litigant or his attorney gives rise to similar vague inferences. For example, a typical interrogatory from a leading treatise would permit questions of the following form: “Identify each writing ... which relates or refers directly or indirectly to [a transaction in question]”. See, e.g., 2A L. Frumer & M. Waxner, Bender’s Federal Practice Forms, 420.11, question 19 (1984). It cannot seriously be contended that an answer is not required because it would reveal the fact that the attorney thought that certain documents were relevant to the transaction.
Moreover, in order to claim the shield of opinion work product, it must be established that it is the attorney’s thought processes that are revealed. In re International Systems and Controls Corp. Securities Litigation, 693 F.2d 1235, 1240 (5th Cir.1982). The respondents’ request did not require the identification of the person who selected the documents. The only disclosed connection to the petitioner’s attorney in our situation is that the petitioner *320 gratuitously volunteered the fact that his attorney selected the documents. To permit this volunteered information to provide a necessary link to attorney’s thought processes, as the majority has done, is to permit the petitioner to cloak the non-work product aspects of the information sought with work product protection. Certainly an attorney cannot cloak a document under the mantle of work product by simply reviewing it. Brown v. Hart, Schaffner & Marx, 96 F.R.D. 64, 68 (N.D.Ill.1982). It is difficult to see how an attorney or his witness may insulate the discoverable fact that the witness reviewed a particular document by volunteering that the attorney selected the document for deposition preparation purposes. See Bogosian v. Gulf Oil Corp., 738 F.2d 587, 595 (3d Cir.1984).
Finally, the petitioner contends that the information sought was “fact” work product, and that the respondents have made an insufficient showing of need to require its production. Assuming without deciding that the information sought was fact work product, I would not decide this issue on a petition for a writ of mandamus. To reach this issue would require us to review a decision committed to the discretion of the district court, In re International Systems and Controls Corp. Securities Litigation, 693 F.2d at 1240-41 , and such decisions do not constitute “clear and indisputable” legal error. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36 , 101 S.Ct. 188, 191 , 66 L.Ed.2d 193 (1980). Further, relevation of fact work product does not constitute the same sort of irreparable harm that would come from the revelation of opinion work product.
Because I find no disclosure of the attorney’s work product that would provide a basis for granting the writ, I would not reach the issue of whether a proper foundation had been established for the requested information under Federal Rule of Evidence 612 or the provision covering relevant evidence found in Federal Rule of Civil Procedure 26(b)(1). Decisions on such matters are not independently reviewable on a petition seeking the extraordinary remedy of mandamus.
Based on the record presented by the petitioner, I fail to see how any conclusions may be drawn as to what his attorney may or may not have thought about this litigation. The mere identification of documents used to prepare a witness for his deposition does not convey any meaningful information of the type entitled to protection under the work product doctrine. I would deny the petition.