II. ARGUMENT¶
The work product doctrine is “an intensely practical one, grounded in the realities of litigation in our adversary system.” United States . Nobles, 422 U.S. 225, 238 (1975). Relying on Sporck . Peil, 759 F.2d 312 (3d Cir. 1985), and its progeny, Plaintiff contends that the compilation of non-privileged documents by attorneys is “opinion work product,” and seemingly asserts that the documents themselves, and not just the compilation, can be kept from the defense. These sweeping claims, belied as they are by the record in this case, should be rejected.¶
A. The Supposedly Unassailable Sporck¶
Plaintiff’s Memorandum makes it appear as though the principle announced in Sporck has been accepted as gospel throughout the federal court system. Nothing could be further from the truth. Not only was Sporck a 2-1 decision with a strong dissent, later cases and commentators have criticized its expansion of the work product doctrine.¶
In Sporck, a civil securities fraud case, the attorney for the plaintiff deposed a defendant and requested the “identification and production” of documents that the defendant’s attorney had used to prepare the defendant for the deposition. 759 F.2d at 313-14. The documents in question, which were not themselves protected from disclosure, had “previously been produced” to the plaintiff. Id. at 314-15. The defendant’s attorney refused to comply with the request, and sought mandamus relief on work product grounds when the district court ordered disclosure and production. A divided panel of the Third Circuit granted the petition, holding that the district court¶
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“should not have ordered the identification of the documents selected by [defense] counsel.” Id. at 315 (emphasis added). See also id. (agreeing with the defendant that “the identification of the documents as a group must be prevented to protect defense counsel’s work product”) (emphasis added). The majority ruled that the “selection and compilation of documents by counsel in this case in preparation for pretrial discovery falls within the highly-protected category of opinion work product,” explaining that without such work product protection an attorney might “forego[ ] a sifting of the documents.” Id. at 316, 317.¶
Judge Seitz dissented. He was “convinced that [the majority’s] ruling [was] an impermissible expansion of the work product doctrine at the expense of legitimate discovery.” Id. at 319. He pointed out that the documents in question were not themselves covered by the doctrine and “had already been produced by the defendants.” Id. Attacking the majority’s belief that the litigation strategy of the defendant’s attorney would be revealed by identification of the documents used to prepare for the deposition, Judge Seitz explained:¶
The problem with [this] 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 a witness looked at a document is that someone thought that the document, or some portion of the¶
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document, might be useful for the preparation of the witness for his deposition. This is a far cry from the disclosure of the lawyer’s opinion work product.¶
Id. at 319. See also id. at 320 (“Certainly an attorney cannot cloak a document under the mantle of work product by simply reviewing it.”). Finally, Judge Seitz criticized the majority’s characterization of the compilation as opinion work product, saying that at most it would be fact work product.¶
Sporck has not, contrary to Plaintiff’s implication, been universally accepted. $ ^{1} $ In In re Search Warrant for Law Offices, 153 F.R.D. 55 (S.D.N.Y. 1994), a case presenting facts very similar to those here, a district court in New York refused to follow Sporck.¶
The government in that case executed a search warrant at a law firm’s offices to obtain evidence concerning one of the firm’s corporate clients and its two principals. The materials taken during the search were provided to a taint prosecutor who was not involved in the underlying grand jury investigation. Id. at 56-57. The firm and its client filed a motion for return of the documents on work product and attorney-client privilege grounds. In support of the motion, one of the firm’s attorney’s submitted an affidavit (which the district court accepted as true) explaining that 14 of the cartons taken had been “segregated by [him] as part of a confidential, attorney-directed investigation into¶
Even one of the appellate decisions adopting Sporck involved a divided panel. See In re Allen, 106 F.3d 582 (4th Cir. 1997) (2-1 decision).¶
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possible illegal activity within and against [the corporate client].” Id. at 57. The investigation was begun “in preparation for litigation, including possible civil claims against … former employees and contractors of the corporate client, as well as defending against governmental claims and any federal criminal investigation of the corporate client.” Id. The district court refused to extend the work product doctrine to the compilation of non-privileged materials:¶
This court declines to extend the concept of work product so far as to protect otherwise non-privileged corporate documents, simply because the lawyer has separated and arranged them in a manner convenient to his intended study for one or more legal problems and which reflects his analysis and thoughts concerning the matter which he was investigating.¶
The argument on its face is slightly frivolous because it assumes that this lawyer investigating these documents could detect or perceive something in them or perceived the need to examine them, which was not readily apparent to a skilled special agent.¶
Id. at 58. Moreover, the court explained, “the policy consequences of permitting a client to insulate incriminating corporate documents which otherwise would have to be produced, by handing them over to an attorney who arranges them in some logical or illogical fashion, is simply too drastic to accept.” Id. The court therefore ordered that documents which were not themselves privileged or protected be “turned over to the [prosecutor] in charge of the prosecution of the matter.” Id.¶
Under the holding of Law Offices, the Court in this case should order that the documents in question be turned over to the defense. Like all other privileges against forced disclosure, the work product doctrine should not be “expansively construed” because it is in “derogation of the search for truth.” United States . Nixon, 418 U.S.¶
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683, 710 (1974).¶
Law Offices is not the only case to cast doubt on Sporck. See generally P. Grady, Discovery of Computer System Stored Documents and Computer Based Litigation Support Systems: Why Give Up More Than Necessary, 14 John Marshall J. of Comp. & Inf. Law 523, 551 (1996) (noting that “other courts have not accepted the Third Circuit’s position” in Sporck). Even those courts which have found some basis for agreement with Sporck have rejected its broad expansion of the work product doctrine.¶
For example, the First Circuit, in a complex case involving a hotel fire, permitted the pretrial disclosure of lists identifying exhibits to be used in depositions. In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007, 1017 (1st Cir. 1988). Although the panel held that the lists constituted fact work product, it criticized Sporck and refused to characterize the lists as opinion work product: “Th[e] [Sporck] reasoning, we suggest, is flawed because it assumes that the revelatory nature of the sought-after information is, in itself, sufficient to cloak the information with the heightened protection of opinion work product. That is simply not the case; much depends on whether the fruits of the screening would soon be revealed in any event.” Id. at 1018.² Thus, at most, the compilation of documents by Plaintiff’s counsel is fact work product which can be obtained by showing substantial need and undue hardship. Id. at 1015.¶
$$\textcircled{2}$$ Several district courts have opted to follow Dupont Plaza instead of Sporck. See, e.g., Castano . American Tobacco Co., 896 F.Supp. 590, 596 (E.D. La. 1995); Resolution Trust Corp. Heiserman, 151 F.R.D. 367, 375 (D. Colo. 1993); Bohannon . Honda Motor Co., 127 F.R.D. 536, 539 (D. Kan. 1989); In re Shell Oil Refinery, 125 F.R.D. 132, 133-34 (E.D. La. 1989).$$¶
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Similarly, in Gould Inc. Mitsui Mining & Smelting Co., 825 F.2d 676, 680 (2d Cir. 1987), the Second Circuit declined to embrace Sporck, explaining that the application of the Sporck principle “depends on the existence of a real rather than speculative concern that the thought processes of … counsel in relation to pending or anticipated litigation would be exposed.” In this case, given the number of documents involved, it is difficult to see how there can be a “real” danger that the thought processes of Plaintiff’s attorneys will be revealed. See also In re Joint Eastern & Southern District Asbestos Litigation, 119 F.R.D. 4, 5-6 (E.D.N.Y. & S.D.N.Y. 1988) (book of photographs, compiled by plaintiff’s attorney, showing various forms of asbestos to which plaintiff had been exposed, was discoverable as a fact compilation because it did not reveal attorney’s strategy); American Floral Services, Inc. Florists’ Transworld Delivery Ass’n, 107 F.R.D. 258, 260-61 (N.D. Ill. 1985) (plaintiff required to reveal identity of two of defendant’s employees whom it had interviewed and who apparently had knowledge concerning plaintiff’s claim). Cf. In re Grand Jury Subpoenas, 959 F.2d 1158, 1167 (2d Cir. 1992) (“With the advent of inexpensive photocopying, it seems likely that most sets of copied documents maintained by law firms will be sufficiently voluminous to minimize disclosure of the attorney’s identification of some occasional wheat among the chaff.”); In re Shell Oil, 125 F.R.D. at 134 (“it is highly unlikely that Shell will be able to discern the PLC’s ‘theory of the case’ or thought processes simply by knowing which 65,000 out of 660,000 documents have been selected for copying”).¶
Criticism of Sporck has not been limited to the judiciary. Commentators have also¶
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expressed their disagreement with the case. See K. Waits, Opinion Work Product: A Critical Analysis of Current Law and a New Analytical Framework, 73 Oregon L. Rev. 385, 450 (1994) (“Sporck is wrongly decided[.] Contrary to the assertions in Sporck, … the adversary system is not threatened by the revelation of materials that only indirectly reveal an attorney’s thinking.”); L. Orland, Observations on the Work Product Rule, 29 Gonzaga L. Rev. 281, 298 (1993-94) (“No opinion has been found that explains why the [Sporck] selection and compilation exception … should be carved out for preferential treatment.”).¶
For the reasons set forth in Judge Seitz’s dissent and the decision in Law Offices, this Court should reject Sporck as an unwarranted expansion of the work product doctrine. After all, “pre-existing documents which could have been obtained by court process from the client when he was in possession may also be obtained from the attorney by similar process following transfer by the client in order to obtain more informed legal advice.” Fisher . United States, 425 U.S. 391, 403-04 (1976) (addressing attorney-client privilege). Accord Shelton . American Motors Corp., 805 F.2d 1323, 1328 (8th Cir. 1986) (“AMC does not contend that the documents themselves, prepared by other departments for the purpose of analyzing AMC vehicles, are protected as work product simply because those documents now may be in the possession of AMC’s litigation department.”).¶
B. The Limitations on Sporck¶
Sporck does not, in any event, go as far as Plaintiff needs it to in order to shield the¶
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documents at issue from the taint team. Although Plaintiff says that Sporck controls, it fails to acknowledge significant factual differences between this matter and Sporck.¶
First, in Sporck, unlike here, the party seeking the list of certain documents already had the documents themselves in its possession because they had previously been produced. 759 F.2d at 314, 319. Indeed, the sine qua non of Sporck and its progeny is the protection of the list or index of the selected documents because the documents themselves are already in the hands of the opposition or can be obtained by normal legal channels. See Waits, Opinion Work Product, 73 Oregon L. Rev. at 450 n. 229 (“by definition in document selection cases like Sporck the opponent already possesses the documents”).³¶
When the Court reviews the documents in camera, it will see that they include original documents which must be turned over to the government. See Law Offices, 153 F.R.D. at 59 (lawyer cannot secure work product protection by highlighting an original corporate document that is not otherwise privileged). Thus, at least with respect to those original documents, the defendant does not have possession of them. The necessary predicate does not exist, and Sporck is not triggered. See Gould, 825 F.2d at 680 (“the equities may not favor the application of the Sporck exception if the files from which the documents had been culled … were not otherwise available … or were beyond¶
Plaintiff’s own cases recognize that the compiled documents must be in the possession of, or available to, the opposing party. See, e.g., In re Allen, 106 F.3d at 608 (adoption of Sporck “does not protect [the] personnel records from disclosure, just [the attorney’s] selection and arrangement of them”); James Julian, Inc. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982) (“Julian does not object to the defendants obtaining the documents contained in the binder[.]”).¶
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reasonable access”). And, as noted above, the compilation of documents is at most fact work product which can be obtained upon a showing of substantial need and undue hardship. The defendant can and will make that showing at the evidentiary hearing if and when Plaintiff meets its initial work product burden.¶
C. Plaintiff’s Burden and the Need for an Evidentiary Hearing¶
Plaintiff, as the party asserting the protection of the work product doctrine, has the burden of establishing its elements. See, e.g., Hodges, Grant & Kaufmann. U.S. Government, Dept. of the Treasury, 768 F.2d 719, 721 (5th Cir. 1985). Plaintiff has provided a general privilege log and an affidavit, but those submissions, under the circumstances, are insufficient to establish the applicability of the work product doctrine. The log describes only broad categories of documents, and the supporting affidavit completely fails to explain which attorneys compiled which documents. For reasons explained below, those particular facts are critical to the work product analysis in this case. Without those facts, the defendant cannot intelligently determine which of Plaintiff’s claims have merit. “Without identification of the documents, the party agains whom the privilege is claimed is completely unable to challenge the validity of th[e] claim.” Smith. Logansport Community School Corp., 139 F.R.D. 637, 648 (N.D. Ind. 1991) (citation omitted). Plaintiff simply has not carried its burden of establishing its entitlement to work product protection. Cf. Rabushka. Crane Co., 122 F.3d 559, 565 (8th Cir. 1997) (“Crane met its burden of providing a factual basis for asserting the [attorney-client and work product] privileges when it produced a detailed privilege log¶
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stating the basis of the claim privilege for each document in question, together with an accompanying explanatory affidavit of its general counsel.”) (emphasis added).¶
The Court “must require [Plaintiff] to assert [work product] with a document-by-document explanation as to why the [doctrine] shields the document from the [warrant’s] reach. The [Court] must then determine the validity of each assertion — either by conducting a hearing or inspecting the documents in camera.” In re Grand Jury Subpoena, 831 F.2d 225, 228 (11th Cir. 1987) (attorney-client privilege case). Whatever process the Court chooses, it must permit the defendant to participate and meaningfully litigate the applicability of the work product doctrine.¶
In this vein, we point out that, even if Sporck is followed, Plaintiff’s work product theory flounders with respect to at least certain of the categories of documents set forth in the privilege log.¶
Contrary to Plaintiff’s suggestion, even the most generous interpretations of the work product doctrine do not protect the selection of materials by a client; the doctrine protects attorney work product. See, e.g., Bloss . Ford Motor Co., 126 A.D.2d 804, 805, 510 N.Y.S.2d 304 (N.Y.App.Div. 1987) (documents which could have been prepared by a layman not entitled to work product protection). In any event, Plaintiff has no standing to assert any work product protection on behalf of an unidentified third party or his/her unidentified counsel. See, e.g., Bohannon, 127 F.R.D. at 539-40 (“work product status does not apply to documents submitted to or received from a third party”).¶
The fact that computer printouts — routine printouts available from the Plaintiff’s¶
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D. Plaintiff’s Failure to Establish Confidentiality and Lack of Waiver¶
“[W]hen an attorney freely and voluntarily discloses the contents of otherwise protected work product to someone with interests adverse to his or those of his client, knowingly increasing the possibility that an opponent will obtain and use the material, he may be deemed to have waived work product protection.” In re Doe, 662 F.2d 1073, 1081 (4th Cir. 1981).¶
Under the circumstances, any claim of privilege or work product cannot be accepted without further evidentiary substantiation. See United States . Aramony, 88 F.3d 1369, 1392 (4th Cir. 1996) (where the allegations against one party could not subject another to civil or criminal liability, joint defense privilege is inapplicable), cert. denied, 117 S. Ct. 1842 (1997); Sheet Metal Workers International Association . Sweeney, 29 F.3d 120, 124-25 (4th Cir. 1994) (any privilege arising from engaging in joint defense requires, as a threshold matter, a legitimate common interest about a legal matter); In re Bevill, Bresler & Schulman Asset Management Corp., 805 F.2d 120, 126 (3d Cir. 1986) (proponent bears burden of producing evidence establishing privilege). If Plaintiff is going to use the purported joint defense agreement as a weapon in its arsenal, it must be produced to the defendant so that its breadth and applicability can be fairly litigated.¶
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database that are routinely produced in the course of operating Plaintiff’s business — were made available to and used by attorneys does not protect them from disclosure or turn them into work product. See Santiago Miles, 121 F.R.D. 636, 642 (W.D.N.Y. 1988) (no work product protection where, although computer reports may have been prepared with pending litigation in mind, the primary motivation behind the creation of such reports was for use in the normal course of business); Colorado ex rel. Woodard Schmidt-Tiago Construction Co., 108 F.R.D. 731, 734-35 (D. Colo. 1985) (absent additional evidence, no work product protection for readouts from computer program established for use in regular course of business); Fauteck Montgomery Ward & Co., 91 F.R.D. 393, 398-99 (N.D. Ill. 1980) (ordering disclosure of personnel records from computer database where counsel merely raised conclusory claim that the database formulation “entail[ed] numerous strategic legal decisions”).¶
Plaintiff must of course meet its burden with respect to each of the categories of documents it claims are work product. Yet several of the categories it claims are work product have been denied such status. This is the case with training and attendance sheets, see, e.g., Burton . R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 486 (D.Kan. 1997) (document evidencing attendance of two company employees at meeting not work product under Kansas law), and with Congressional subcommittee testimony, see, e.g., LaMorte . Mansfield, 438 F.2d 448, 451-52 (2d Cir. 1971) (any privilege which may exist for testimony given at non-public SEC hearing belongs to SEC, and argument that transcripts were work product was meritless).¶