The Practicalities of Utah s Attorney Work- Product Doctrine

Transcription

1 The Practicalities of Utah s Attorney Work- Product Doctrine William H. Christensen LARSEN CHRISTENSEN & RICO, PLLC 170 S. Main Street, Suite 1150 Salt Lake City, Utah wchristensen@larsenrico.com Stacy J. McNeill BENNETT TUELLER JOHNSON & DEERE, LLC 3165 Millrock Drive, Suite 500 Salt Lake City, Utah smcneill@btjd.com Attorney Work-Product Doctrine Page 1

2 Table of Contents Elements...3 Purpose of the Privilege.3 Bases for the Privilege.3 Rules 4-7 Statutes..8 Restatement of the Law (3d) Governing Lawyers..8 Ordinary Work-Product & Opinion (Core) Work-Product 8 Documents & Tangible Things..9 Anticipation of Litigation Possibility of Litigation..9 Ordinary Course Investigations...9 Reports by Insurance Adjustors 10 Dual Purpose Documents Primary Motiving Purpose Fact Gathering..11 Pre-filing investigation Recordings or Declarations 11 Attorney Document Selection...12 Documents Shown To Witnesses to Prepare For Trial or Deposition..12 Specific Situations 13 Accident Site Changes Data Changes. 13 Interviews. 13 Surveillance Video..14 Photographs by Counsel.15 Non-Attorney Investigation.15 Tax Accrual Work Papers, Audit Documents.. 15 Experts. 15 Scope of Protection Not Bomb Proof...15 Waiver of the Privilege 15 Ethical violations..16 Assertion of Advice of Counsel.. 16 Inadvertent Disclosure.16 Ways to Create and Safeguard the Privilege.17 Lawyer Engagement Letters...17 Management Written Authorization...17 Treat Confidential Materials Confidentially.17 Keep Documents in Ordinary Course of Business. 18 Presume Disclosure to One is to All 18 Duration of Privilege. 18 Burden of Establishing Privilege 18 Work-Product Privilege Strictly Construed.. 18 Privilege Logs.. 18 Attorney Work-Product Doctrine Page 2

3 The Attorney Work-Product Privilege 1 Elements. Three essential requirements for materials to be protected by the work product doctrine under Rule 26(b)(3) of the Utah Rules of Civil Procedure: 1. The material must consist of documents or tangible things, 2. Prepared in anticipation of litigation or for trial o Applies in ADR and administrative actions 3. By or for another party or by or for that party s representative. Gold Standard, Inc. v. American Barrick Res. Corp., 801 P.2d 909, 910 (Utah 1990). Purpose of the Privilege. Featherstone v. Schaerrer, 2001 UT 86, 33, 34 P.3d 194 ( The work product privilege derives from dual policy goals aimed at preserving the adversary system and providing attorneys with a zone of privacy permitting effective client advocacy, and it thus follows that to the extent these goals are trampled on, the scope of the attorney work product privilege may be eroded. ) United States v. Nobles, 422 U.S. 225, 238 (1975) ( [T]he 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. ). In re Air Crash Disaster at Sioux City, 133 F.R.D. 515, 519 (N.D.Ill.1990) ( Work product includes [s]ubject matter that relates to the preparation, strategy, and appraisal of the strengths and weaknesses of an action, or to the activities of the attorneys involved, rather than to the underlying evidence. ). Bases for the Privilege. Codification of Hickman v. Taylor, 329 U.S. 495, (1947) (the material falls outside the arena of discovery.... Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney. ) 1 Utah Court s use the term privilege when referring to the doctrine. Featherstone v. Schaerrer, 2001 UT 86, 33, 34 P.3d 194 (2001). Some courts, however, refer to it as a doctrine or immunity rather than privilege. Some resist terming it a privilege because the protection is not absolute although core or opinion work product that encompasses the mental impressions, conclusions, opinion, or legal theories of an attorney or other representative of a party concerning the litigation is generally afforded near absolute protection from discovery. See In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir. 2003). Attorney Work-Product Doctrine Page 3

4 Rule 26 of the Utah Rules of Civil Procedure. (b)(5) Trial preparation materials. A party may obtain otherwise discoverable documents and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the party s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials and that the party is unable without undue hardship to obtain substantially equivalent materials by other means. In ordering discovery of such materials, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party. (b)(6) Statement previously made about the action. A party may obtain without the showing required in paragraph (b)(5) a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement about the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order under Rule 37. A statement previously made is (A) a written statement signed or approved by the person making it, or (B) a stenographic, mechanical, electronic, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded. (b)(7) Trial preparation; experts. (b)(7)(a) Trial-preparation protection for draft reports or disclosures. Paragraph (b)(5) protects drafts of any report or disclosure required under paragraph (a)(4), regardless of the form in which the draft is recorded. (b)(7)(b) Trial-preparation protection for communications between a party s attorney and expert witnesses. Paragraph (b)(5) protects communications between the party s attorney and any witness required to provide disclosures under paragraph (a)(4), regardless of the form of the communications, except to the extent that the communications: (b)(7)(b)(i) relate to compensation for the expert s study or testimony; (b)(7)(b)(ii) identify facts or data that the party s attorney provided and that the expert considered in forming the opinions to be expressed; or (b)(7)(b)(iii) identify assumptions that the party s attorney provided and that the expert relied on in forming the opinions to be expressed. (b)(7)(c) Expert employed only for trial preparation. Ordinarily, a party may not, by interrogatories or otherwise, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. A party may do so only: (b)(7)(c)(i) as provided in Rule 35(b); or (b)(7)(c)(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. Attorney Work-Product Doctrine Page 4

5 (b)(8) Claims of privilege or protection of trial preparation materials. (b)(8)(a) Information withheld. If a party withholds discoverable information by claiming that it is privileged or prepared in anticipation of litigation or for trial, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced in a manner that, without revealing the information itself, will enable other parties to evaluate the claim. (b)(8)(b) Information produced. If a party produces information that the party claims is privileged or prepared in anticipation of litigation or for trial, the producing party may notify any receiving party of the claim and the basis for it. After being notified, a receiving party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved. Rule 26(b) of the Federal Rules of Civil Procedure. 2 (3) Trial Preparation: Materials. (A) Documents and Tangible Things. Ordinarily, 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 its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation. (C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either: 2 In diversity cases the courts apply federal law to resolve work-product claims and state law to resolve attorneyclient claims. See Frontier Ref., Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695 n.10 (10 th Cir. 1998) ( Unlike the attorney client privilege, the work product privilege is governed, even in diversity cases, by a uniform federal standard embodied in Fed. R. Civ. P. 26(b)(3)... ); United Coal Cos. v. Powell Constr. Co., 839 F.2d 958, 966 (3d Cir. 1988); In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6 th Cir. 2006); Baker v. General Motors Corp., 209 F.3d 1051, 1053 (8th Cir. 2000); Fed. R. Evid. 501; Jewell v. Holzer Hosp. Found., Inc., 899 F.2d 1507, 1513 (6th Cir. 1990). Attorney Work-Product Doctrine Page 5

6 (i) a written statement that the person has signed or otherwise adopted or approved; or (ii) a contemporaneous stenographic, mechanical, electrical, or other recording or a transcription of it that recites substantially verbatim the person's oral statement. 3 (4) Trial Preparation: Experts. (A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided. (B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded. (C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications: (i) relate to compensation for the expert's study or testimony; (ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed. (D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only: (i) as provided in Rule 35(b); or (ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. (E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery: (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and (ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions. 3 Miles v. M/V Mississippi Queen, 753 F.2d 1349 (5 th Cir. 1985) (error where district court declined to compel production of Plaintiff s own prior witness statement obtained by defendant s investigators investigating other claims used at trial to impeach plaintiff exception to work-product protection). Attorney Work-Product Doctrine Page 6

7 (5) Claiming Privilege or Protecting Trial-Preparation Materials. (A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. (B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. Federal Rules of Criminal Procedure 16(a)(2). Information Not Subject to Disclosure. Except as permitted by Rule 16(a)(1)(A)-(D), (F), and (G), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C Utah Rules of Prof. Conduct, Rule 1.6. The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work-product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. Attorney Work-Product Doctrine Page 7

8 Statutes. Utah Code Ann. 63G-2-305(18) (Effective 07/01/14)(GRAMA). The following records are protected if properly classified by a governmental entity: * * * (18) records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding; Restatement of the Law (3d) Governing Lawyers. 87. Lawyer Work-Product Immunity (1) Work product consists of tangible material or its intangible equivalent in unwritten or oral form, other than underlying facts, prepared by a lawyer for litigation then in progress or in reasonable anticipation of future litigation. (2) Opinion work product consists of the opinions or mental impressions of a lawyer; all other work product is ordinary work product. (3) Except for material which by applicable law is not so protected. Work product is immune from discovery or other compelled disclosure to the extent stated in 88 (ordinary work product) and 89 (opinion work product) when the immunity is invoked as described in Ordinary Work Product When work product protection is invoked as described in 90, ordinary work product, ( 87(2)) is immune from discovery or other compelled disclosure unless either an exception recognized in applies or the inquiring party: (1) has a substantial need for the material in order to prepare for trial; and (2) is unable without undue hardship to obtain the substantial equivalent of the material by other means. Ordinary Work-Product & Opinion (Core) Work-Product. 4 Two tiers of protection: 1. Work prepared in anticipation of litigation by an attorney or his agent is discoverable only upon a showing of need and hardship; and 2. Core or opinion work product that encompasses the mental impressions, conclusions, opinion, or legal theories of an attorney or other representative of a party concerning the litigation is generally afforded near absolute protection from discovery. Core or opinion work product receives greater protection than ordinary work product and is discoverable only upon a showing of rare and exceptional circumstances. Southern Utah Wilderness Alliance v. Automated Geographic, 2008 UT 88, 24, 200 P.3d For a document to be protected under the work product privilege, it must reflect the thinking of the attorney by being an expression from her, or, if a communication to her, it must reflect back her inquiry. Adams v. Gateway, Inc., No. 2:02-CV-106, 2003 WL , 2003 U.S. Dist. LEXIS 28559, at *10 (D. Utah Dec. 30, 2003). Attorney Work-Product Doctrine Page 8

9 Documents & Tangible Things. Usually, attorney work product is considered to be documents, notes, photos, etc. but it may also apply to intangible items. Work-product consists not only of tangible material but also of its intangible equivalent in unwritten or oral form. Restatement (Third) of the Law Governing Lawyers 87. Intangible work product is equivalent work product in unwritten, oral or remembered form. For example, intangible work product can come into question by a discovery request for a lawyer s recollection derived from oral communications. Restatement (Third) of the Law Governing Lawyers 87, cmt. (f). McEwen v. Digitran Sys., Inc., 155 F.R.D. 678, 682 (D. Utah 1994). In re Seagate Tech., LLC 497 F.3d 1360, 1376 (Fed. Cir. 2007) (address advice of counsel). Anticipation of Litigation Possibility of Litigation. Frontier Ref. Inc. v. Gorman Rupp Co., 136 F.3d 695, (10 th Cir. 1998) (workproduct protection may apply in anticipation of any other subsequent litigation not just the pending or anticipated matter and even if matter is terminated) (citing FTC v. Gorleir Inc., 462 U.S. 19, 25 (1983)). U.S. v. Aldman, 134 F. 3 rd 1194, 1202 (2d Cir. 1998) (litigation need not have commenced to invoke work product privilege) Ordinary Course Investigations: Investigative reports may not be in anticipation of litigation and not privileged. Gold Standard, Inc. v. American Barrick Res. Corp., 805 P.2d 164, 170 (Utah 1990) ( the... memoranda were not written to assist in pending or impending litigation. Generally, a letter whose tone is threatening but does not state an intent to pursue litigation is insufficient to allow a party to invoke work product protection to protect an in-house report prompted by the letter. ) (citations omitted)). Madsen v. United Tel., Inc., 801 P.2d 912, 917 (Utah 1990) (addressing Salt Lake Police Department internal affairs files and holding work product doctrine does not apply to information collected or communications made in the normal course of business. It applies only to material generated primarily for use in litigation, material that would not have been generated but for the pendency or imminence of litigation ). Martin v. Valley Nat l Bank of Arizona, 140 F.R.D. 291, 304 (S.D.N.Y 1991) (investigative routine reports). Kelly v. City of San Jose, 114 F.R.D. 653, 659 (N.D. Cal. 1987) (same). Attorney Work-Product Doctrine Page 9

10 Reports by Insurance Adjustors: Among the most difficult documents to classify are those filling the files of insurance adjusters. Utah R. Civ. P. 26(b)(5): A party may obtain otherwise discoverable documents and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the party s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the material.... Green v. Louder, 2001 UT 62, 39, 29 P.3d 638 ( in Askew v. Hardman, 918 P.2d 469, 473 [Utah 1996], we held that rule [26] acknowledges that materials prepared by a party s insurance company... are protected from discovery if they are prepared in anticipation of litigation. Contrary to [plaintiff s] argument, Rule 26(b)(3) of the Utah Rules of Civil Procedure does not require that the materials be prepared by an attorney to qualify for such protection. Because State Farm clearly qualifies as an insurer under the rule, the protection under the workproduct privilege is triggered and the trial court did not err by denying [plaintiff] access to the letter. ) (emphasis added)). Majority Position: Insurance companies are not to receive special treatment and that work product privilege is determined after a fact-intensive, case-specific inquiry. o Christensen v. American Family Mut. Ins., Co., 2011 WL , 2011 U.S. Dist. LEXIS 96620; Case No. 1:09-cv-94 TS (D. Utah) ( It is presumed that a document or thing prepared before a final decision was reached on an insured s claim, and which constitutes part of the factual inquiry into or evaluation of that claim, was prepared in the ordinary and routine course of the insurer s business of claim determination and is not work product. The converse, of course, is presumed for documents produced after claims denial. ) (citing Harper v. Auto Owners Ins. Co., 138 F.R.D. 655, (S.D. Ind. 1991)). o S.D. Warren Co. v. Eastern Elec. Corp., 201 F.R.D. 280, (D. Me. 2001) ( unless and until an insurance company can demonstrate that it reasonably considered a claim to be more likely than not headed for litigation, the natural inference is that the documents in its claims file that predate this realization were prepared in the ordinary course of business, i.e., the business of providing insurance coverage to insureds. This approach realistically recognizes that at some point an insurance company shifts its activity from the ordinary course of business to anticipation of litigation, and no hard and fast rule governs when this change occurs. ) (citation omitted)). Minority Position: All materials in an insurance claims file are created in anticipation of litigation, because insurance companies are in the business of anticipating and preparing for litigation. o Fontaine v. Sunflower Beef Carrier, Inc., 87 F.R.D. 89, 92 (E.D. Mo. 1980). o Almaguer v. Chicago, R.I. & P.R. Co., 55 F.R.D. 147, 149 (D. Neb. 1972). Attorney Work-Product Doctrine Page 10

11 Dual Purpose Documents Primary Motiving Purpose : Test Adopted by Utah: McEwen v. Digitran Sys., 155 F.R.D. 678, 682 (D. Utah 1994) ( If it appears that the materials were prepared for mixed purposes, the privilege is available only if the primary motivating purpose behind the creation of the [materials was] to assist in pending or impending litigation.... " (citing United States v. Gulf Oil Corp., 760 F.2d 292, 296 (Temp. Emer. Ct. App. 1985)). Adams v. Gateway, Inc., No. 2:02-CV-106 TS, 2003 WL , 2003 U.S. Dist. LEXIS 28559, at *10 (D. Utah Dec. 30, 2003) ( If there is an independent sound reason for the document's creation a business purpose and the document does not reflect the assembly and sifting of information by counsel, or preparation and legal strategy, then there should be no work product protection. ). U.S. v. Aldman, 134 F.3rd 1194, 1202 (2d Cir. 1998) (document should not be denied privileged status merely because it was prepared to assist in a business decision). Fact Gathering: Questions: Witness Interviews (who keeps copy?) Signed? Corporate employees o Are they represented by counsel? o How do you know? o What if they are mistaken? See Utah R. Prof. Cond. 4.2(d) Current member of control group, or Representative whose acts could be imputed to the corporation, or Representative whose statements could bind the organization on the subject matter. Shearson Lehman Bros. v. Wasatch Bank, 139 F.R.D. 412 (D. Utah 1991). Pre-filing investigation Recordings or Declarations: Murphy v. Kmart Corp., 259 F.R.D. 421, 438 (D. S.D. 2009) (ordering disclosures of affidavits prepared by counsel in anticipation of litigation following interviews of witnesses) Question: o What if witness demands a copy or demands sharing with other counsel? Attorney Work-Product Doctrine Page 11

12 Attorney Document Selection (Needles from the Haystack): P.J. ex rel. Jensen v. Utah, 247 F.R.D. 664 (D. Utah 2007) (court finds interrogatories violative of the work-product privilege because they would require Plaintiffs counsel to engage in a process of selective compilation of documents they believe tend to prove their case) o Relied on Sporck v. Peil Sporck v. Peil, 759 F.2d 312, 315 (3d Cir. 1985) (in a case with voluminous discovery, identification of the documents as a group will reveal... counsel s selection process, and thus his mental impressions,... identification of the documents as a group must be prevented to protect... counsel s work product ). Shelton v. American Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986). United Oil Co., Inc. v. Parts Assocs., Inc., 227 F.R.D. 404, 414 (D. Md. 2005) (concluding that interrogatories seeking information that tend[ed] to support positions taken by the defendant appear[ed] to seek work-product in terms of requiring the responding counsel to decide what information tends to support a particular legal position ). But see City Consumer Serv., Inc. v. Horne, 100 F.R.D. 740 (D. Utah 1983) (80,000 document compilation by plaintiffs counsel ordered produced despite arguments that counsel s selection process revealed mental process that was privileged work product). Documents Shown To Witnesses To Prepare For Trial Or Deposition: Question: Is work product protection waived if the attorney shows selected documents to witness before deposition? o Utah does not appear to have a case reported on this point. Carter-Wallace, Inc. v. Hartz Mountain Indus., Inc., 553 F. Supp. 45 (S.D.N.Y. 1982) (work-product protection not waived where documents used to refresh witness s recollection for deposition). In re Managed Care Litigation, 415 F. Supp.2d 1378 (S.D. Fla. 2006) (privilege not waived where witness reviewed privileged documents in deposition preparation). James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138 (D. Del. 1982) (privilege not waived where witness reviewed privileged documents in deposition preparation). Shapiro v. U.S. Dept. of Justice, 969 F. Supp.2d 18, 32 (D. D.C. 2013). o Just as every document prepared by an attorney is not entitled to work product protection, not every compilation by an attorney is protected either. A crucial factor in determining whether the work-product doctrine applies to a compilation is whether the attorney s selection of the contents could reveal or provide insights into the mental processes of the attorney in the analysis and preparation of a client's case. Attorney Work-Product Doctrine Page 12

13 o The work-product doctrine, at its core, is intended to encourage effective legal representation within the framework of the adversary system by removing counsel's fears that his thoughts and information will be invaded by his adversary. Thus, when the act of culling, selecting or ordering documents reflects the attorney s opinion as to their relative significance in the preparation of a case or the attorney s legal strategy, then the workproduct doctrine may appropriately shield their disclosure. (quoting Jordan v. United States DOJ, 591 F.2d 753, 775 (D.C. Cir. 1978)). Compilations that merely reflect information, which is already or may be available to an adversary, or has no implications for the adversary process, are not entitled to protection. o In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007, 1016 (1st Cir. 1988) (holding that where the lawyer has had no justifiable expectation that the mental impressions revealed by the materials will remain private there is no reason for the work-product doctrine to apply). o SEC v. Collins & Aikman Corp., 256 F.R.D. 403, (S.D.N.Y.2009) ( compilations of documents that support the factual allegations of a complaint reveals no more than that already revealed by the filing of the complaint and not protected by work-product doctrine). o SEC v. Strauss, No. 09 Civ. 4150, 2009 WL , 2009 U.S. Dist. LEXIS , at *10 (S.D.N.Y. Oct. 28, 2009) ( Shared access to the electronic working paper database did not create work-product concern since this would not identify the type of coherent, consciously arranged, static set of documents subject to work-product protection, but only reveal a list of documents that the adversary viewed on ad hoc basis ) (citations omitted)). Specific Situations. Accident Site Changes: Data Changes: Interviews: Witness Death: o Copperweld Steel Co. v. Demag-Mannersmann-Boheler, 578 F.2d 953, 963 n.14 (3 rd Cir. 1978) (court order compelling production of attorney s memorandum about his interview with witness that died prior to deposition affirmed). o In re Grand Jury Investigation, 599 F.2d 1224, 1231 (3d Cir. 1979) (lawyer s interview memorandum with employee now deceased, hardship found, production ordered). Outside Jurisdiction: Hamilton v. Canal Barge Co., 395 F. Supp. 975, 976 (E.D. La. 1974) (witness statement given by eyewitness now in Scotland, and beyond subpoena power, ordered produced). Attorney Work-Product Doctrine Page 13

14 Passage of Time: o Banks v. Wilson, 151 F.R.D. 109, 113 (D.Minn.1993) (stating that if the mere passage of time was sufficient to create the substantial need required, then the express preconditions of Rule 26(b)(3), which requires that a witness be unavailable or that their statement or its equivalent could not be obtained by an alternative method without undue hardship, would be meaningless). o Tiernan v. Westext Transp., Inc., 46 F.R.D. 3, 5 (D.R.I.1969) (holding statements taken shortly after an incident are more accurate than depositions taken later in time, helping to overcome the work product privilege). Surveillance Video: Courts are divided on the timing of disclosure of surveillance video, pre-deposition or not. Questions: o What if defense investigator does surveillance video that proves that Plaintiff is actually injured, not malingering, etc. o Does video have to be disclosed if defense is not going to use it at trial? o How about disclosure of the name of the investigator? Roundy v. Staley, 1999 UT App 229, 17, 984 P.2d 404 ( The video tape and accompanying testimony were not rebuttal evidence, nor were they protected attorney work-product. Furthermore, the surveillance tape directly undermined Roundy s credibility a factor crucial to the determination of liability. Therefore, we conclude the error was harmful. ). The Tenth Circuit does not have appeared to have squarely addressed the issue of surveillance footage. Baker v. Canadian National/Illinois Cent. R.R., 536 F.3d 357 (5th Cir. 2008) ( Here, Illinois Central produced the surveillance footage in two supplemental responses to Baker's interrogatories approximately nine to ten months before trial.... were properly admitted as substantive evidence... Baker's post-accident quality of life was hotly disputed, and... severe post-accident limitations Baker faces.). Chiasson v. Zapata Gulf Marine Corp, 988 F.2d 513, 517 (5 th Cir. 1993) (before deposition). Evan v. Estell, 203 F.R.D. 172 (M.D. Pa. 2001) (exclusion of video). Ward v. SCX Transp. Inc., (E.D. N.C. 1995) (after deposition to preserve impeachment value). Attorney Work-Product Doctrine Page 14

15 Photographs by Counsel: Gonnuscio v. Seabrand Shipping Ltd., No FR, 1997 WL , 1997 U.S. Dist. LEXIS 3002 (D. Or. March 11, 1997) (held photographs of accident scene aboard vessel taken by attorney of injured seaman constituted attorney-client and work product material and that Defendant had not demonstrated that it had substantial need of the materials in 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. ) Non-Attorney Investigation: Privilege applies to members of bar or investigators, paralegals. Drayton v. Pilgrim s Pride Corp., No. 5: KKC, 2005 WL , 2010 U.S. Dist. LEXIS (E.D. Pa. 2005) ( The protective ambit of the work product doctrine extends to materials prepared by an attorney s consultant. ). Tax Accrual Work Papers, Audit Documents: may not be protected U.S. v. Textron Inc. & Subsidiaries, 577 F.3d 21, 31 (1 st Cir. 2009) (IRS seeking papers in investigation of abusive tax shelters forced to produce). Expert Consultants or Witnesses; Similarities between Utah Rules & Federal Rules. Utah R. Civ. P. 26(b)(7) compared with Fed. R. Civ. P. 26(b)(4)(B) (C) Draft expert opinions protected some communications between counsel and expert not protected Scope of Protection Not Bomb Proof. Featherstone v. Schaerrer, 2001 UT 86, 33, 34 P.3d 194 (2001) ( Attorney work product immunity is not absolute. ) (citing Salt Lake Legal Defender Ass n v. Uno, 932 P.2d 589, 590 (Utah 1997)). Admiral Ins. Co. v. U.S. District Ct. for Dist. of Arizona, 881 F.2d 1486, 1494 (9 th Cir. 1989) (the work product rule is not a privilege but a qualified immunity protecting from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation... ). Waiver of the Privilege. Failure to Invoke: Work-product protection must be asserted separately from the attorney-client privilege. See Carey-Canada, Inc. v. Aetna Cas. & Sur. Co., 118 F.R.D. 242, 248 (D.D.C. 1987). Attorney Work-Product Doctrine Page 15

16 Ethical violations: Featherstone v. Schaerrer, 2001 UT 86, 33, 34 P.3d 194 (2001) ( [I]n situations where a court has determined that an attorney asserting work product immunity committed an ethical violation in obtaining the evidence at issue, the court must determine any applicable work product privilege vitiated and thus order disclosure of the evidence so long as the disclosure would not traumatize the adversary process more than the underlying legal misbehavior. Parrott v. Wilson, 707 F.2d 1262, (11th Cir. 1983) (ordering disclosure of clandestinely recorded conversations with witnesses because the only effect of such disclosure would be the playing of the taped conversations at the beginning of the witnesses depositions). Assertion of Advice of Counsel. Selective Waiver May Be Total Waiver: U.S. ex rel Redacted v. Redacted, 209 F.R.D. 475, 480 (D. Utah 2001) ( partial disclosure of protected work product may waive work product protection of all related work product materials ) In re Sealed Case, 676 F.2d 793, 818 (D. D.C. 1982) (holding that partial disclosure of privileged material waives the privilege as to all other communications on the same subject). In re Commercial Fin. Servs., Inc., 247 B.R. 828, 848 (Bankr. N.D. Okla. 2000) ( Subject matter waiver is narrowly construed [and] applies only where partial waiver confers a tactical advantage. ). Quark, Inc. v. Harley, 141 F.3d 1185 (10th Cir. 1998) ( the district court s ruling that the attorney-client and work product protections are waived by selective disclosure comports with the law of this circuit ). Frontier Ref. Inc. v. Gorman-Rupp Co., 136 F.3d 695, 704 (10 th Cir. 1998) ( [A] litigant cannot use the work product doctrine as both a sword and shield by selectively using the privileged documents to prove a point but then invoking the privilege to prevent an opponent from challenging the assertion. ). Inadvertent Disclosure. Five elements to determine whether a disclosure constitutes waiver: 1. the reasonableness of the precautions to prevent inadvertent disclosure; 2. the time taken to rectify the error; 3. the scope of the discovery; 4. the extent of the disclosure; and 5. the overreaching issue of fairness. Gold Standard, Inc. v. American Barrick Res. Corp., 805 P.2d 164, 171 (Utah 1990). State v. Patterson, 2013 UT App 11, 13, 294 P.3d 662 ( waiver of a privilege occurs when the person who holds a privilege... (1) voluntarily discloses or consents to the disclosure of any significant part of the matter or communication, or (2) fails to take reasonable precautions against inadvertent disclosure. (quoting Utah R. Evid. 510(a)). Attorney Work-Product Doctrine Page 16

17 Fed. R. Evid. 502(b) contains a balancing rule stating that disclosure does not operate as a waiver if: 1. It is inadvertent; 2. The party took reasonable steps to prevent disclosure; and 3. The party acted promptly to rectify the error, including following Rule 26(b)(5)(B). Utah R. Evid. 510(a)(2) provides that waiver occurs if the holder of the privilege fails to take reasonable precautions against inadvertent disclosure. Ways To Create And Safeguard The Privilege. Key Indicators of Work Product Privilege 1) Identification of documents as work-product 2) Inclusion of attorney opinions in factual documents 3) Tight control over disclosure to third parties Lawyer Engagement Letters: BarclaysAmerican Corp. v. Kane, 746 F.2d 653, 656 (10th Cir.1984) ( The party seeking to assert the... work product privilege as a bar to discovery has the burden of establishing that [such] is applicable. ) Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir.1985) ( Clarity of purpose in the engagement letter would help to discharge that burden. ) McEwen v. Digitran Sys., Inc., 155 F.R.D. 678, 682 (D. Utah 1994). Management Written Authorization: Corporate resolutions for legal counsel to direct the investigation and the possibility of litigation. Letter from attorney to agents such as accountants clearly setting forth the purpose of the assignment. o BarclaysAmerican Corp. v. Kane, 746 F.2d 653, 656 (10th Cir.1984) ( materials produced by an accountant in anticipation of litigation and under the direction of an attorney have been protected by work product immunity. In this regard the Supreme Court has made it clear that the work product doctrine protects material prepared by agents for the attorneys as well as those prepared by the attorney himself. (citing United States v. Nobles, 422 U.S. 225, 239 (1975)). o United States v. Davis, 636 F.2d 1028, 1043 n. 17 (5th Cir. 1981). o In re Grand Jury Subpoena, 599 F.2d 504, 513 (2nd Cir. 1979). o In re Int'l Sys. & Controls Corp. Sec. Litig., 91 F.R.D. 552, 556 (S.D.Tex. 1981). Treat Confidential Materials Confidentially: Gold Standard, Inc. v. American Barrick Res. Corp., 801 P.2d 909, 911 n.3 (Utah 1990) ( merely labelling a document protected by either the work product doctrine or the attorney-client privilege does not make the document privileged. Any document for which protection from discovery is claimed must be independently analyzed to determine if the privilege actually applies. ). Attorney Work-Product Doctrine Page 17

18 Do Not Reorganize Documents from the Manner they Are Kept in the Ordinary Course of Business: Presume That Information Given to Anyone, Is Information That Will Be Available to Everyone: The most common reason that the work-product doctrine does not attach to internal investigations is that the documents comprising the investigation state (implicitly or explicitly) that the purpose for the investigation was a business purpose. Duration of Privilege. Frontier Ref. Inc. v. Gorman Rupp Co., 136 F.3d 695, 703 (10 th Cir 1998) (Attorney work product remains protected even after termination of the litigation for which it was created). Burden of Establishing Privilege. Southern Utah Wilderness Alliance v. Automated Geographic, 2008 UT 88, 200 P.3d 643 (2008) ( to utilize the privilege, [t]he party seeking to assert the... work product privilege as a bar to discovery has the burden of establishing that [such] is applicable. (quoting McEwen v. Digitran Sys., Inc., 155 F.R.D. 678, 683 (D. Utah 1994). ifreedom Direct Corp. v. First Tennessee Bank Nat. Ass n., No. 2:09-cv-205, 2012 WL , 2012 U.S. Dist. LEXIS 98714, at *3 (D. Utah July 16, 2012) ( the party asserting the work-product doctrine has the burden of proving its applicability to that party s situation. (citing In Re Grand Jury Proceedings, 616 F.3d 1172, 1184 (10 th Cir. 2010)). Work-product privilege strictly construed. ifreedom Direct Corp. v. First Tennessee Bank Nat. Ass n., No. 2:09-cv-205, 2012 WL , 2012 U.S. Dist. LEXIS 98714, at *3 (D. Utah July 16, 2012) ( When applying the work-product doctrine, it must be strictly construed by the court. ) (citations omitted)). Privilege Logs. Typically a privilege log: 1. identifies with particularity the documents withheld; 2. the date of the document s creation; 3. the author (and, if known, the author s relation to the matter at hand); 4. the addressee and all recipients; 5. a description of the document detailing the factual basis for the assertion of the privilege or immunity; and 6. specifies the particular privilege relied upon for each document. U.S. v. Badger, No. 2:10-cv-00935, 2013 WL , 2013 U.S. Dist. LEXIS (D. Utah March 31, 2013). Attorney Work-Product Doctrine Page 18