holding that discovery of notes that reflect the impressions, opinion, and legal theories of counsel “goes to the core of the work product doctrine”
How later courts described this case
- holding that discovery of notes that reflect the impressions, opinion, and legal theories of counsel “goes to the core of the work product doctrine”
- reiterating that Fed. R. Civ. P. 26(b)(4), which addresses discovery of expert-related materials, cannot be used to undermine Fed. R. Civ. P. 26(b)(3), which addresses protection of attorney-generated materials
- stating that “opinion work product protection is not absolute, but requires a heightened showing of extraordinary circumstances.”
- “Litigation consultants retained to aid in witness preparation may qualify as non-attorneys who are protected by the work product doctrine.”
Written by the judges who cited it.
The opinion
GARTH, Circuit Judge.
I concur fully with the analysis and holding of the Court’s opinion authored by Chief Judge Scirica. There is no question but that Federal Rules of Civil Procedure 26(b)(3) and (4) do not permit the discovery of Dr. McGraw which Cendant sought.
I am also in accord with Chief Judge Scirica’s holding that the Special Discovery Master’s ruling and directions as to limited discovery are correct. In my view, that ruling- and those directions should govern the further discovery proceedings.
I write separately, however, for I am also of the opinion that the discovery which was sought in the instant context was precluded as well by the attorney-client privilege-an issue not reached • by Chief Judge Scirica in his opinion. See Maj. Op. at 661 n. 5. The parties extensively briefed, and presented oral argument on, the applicability of the attorney-client privilege.
While I recognize that in certain respects the attorney-client privilege has more narrow parameters than the work product doctrine, see, e.g., United States v. Nobles, 422 U.S. 225 , 238 n. 11, 95 S.Ct. 2160 , 45 L.Ed.2d 141 (1975), I nevertheless am satisfied that the attorney-client privilege was operative when Dr. McGraw, the client Wood, and E & Y’s counsel were engaged in contemporaneous and simultaneous discussions concerning the instant litigation. As counsel for E & Y stated in its brief, “the District Court’s attempt to ‘carve out’ allegedly non-privileged ‘two-way’ communications between a client and a trial consultant during a ‘three-way’ meeting among counsel, the client, and the trial consultant is ... impossible to execute.” (E & Y Br. at 15.) That view was expressed even more forcefully in Stanley D. Davis & Thomas D. Beisecker, Discovering Trial Consultant Work Product: A New Way to Borrow an Adversary’s Wits?, 17 Am. J. Trial Advoc. 581 , 626-27 (1994) (explaining that communications between a client practicing testimony and a consultant are not discoverable because “[i]ntertwined with the client’s responses to mock questions, and the consultant’s reactions thereto, will inevitably be client communications ... which are ... intended by the client to be a confidential part of the relationship with counsel. Extirpating the comments of the consultant from this context may well be impossible without bringing along these communications and thus frustrating the purpose of the attorney-client privilege.”).
The attorney-client privilege operates to protect from disclosure communications among the client, counsel, and in circumstances such as are present here, a third party (here, Dr. McGraw) who was assisting E & Y’s counsel in the formulation of legal advice. Thus, I am persuaded that in addition to the work product privilege, the attorney-client privilege also protected communications voiced at the meetings of Wood’s counsel and Dr. McGraw. As I *669 cannot conceive of how this three-way interchange of views among these three participants at their strategy conferences could be dissected or parsed, leaving only E & Y’s questions and advice, I would also hold that the attorney-client privilege was implicated.