Protecting litigation support materials from discovery.

Courts should protect from discovery the documents and databases generated by lawyers working in collaboration with litigation support organizations.

Products liability litigation has become increasingly complex. Lawyers who represent plaintiffs and defendants in litigation involving mass-produced products have learned they cannot go it alone and expect to win. In recent years, they are increasingly seeking help from professional organizations--like ATLA and the Defense Research Institute--that provide a number of member benefits, including litigation support.

For years, courts have recognized that the collaborative efforts of lawyers' professional organizations can help to reduce the amount of time and money plaintiffs and defendants must spend on litigation.(1) These benefits have been jeopardized recently by requests by defendants to discover information that plaintiff attorneys have obtained as a result of their membership in these organizations.(2)

The legal question at issue is whether the information is discoverable once it is turned over to the attorney or whether it constitutes protected attorney work product. The judicial analysis has not been consistent. In fact, the courts appear split on the issue.

In a recent article, one defense attorney concluded that the "reasoned" view should be that data obtained in litigation that is generated by support groups in anticipation of litigation is not work product and is discoverable.(3) I disagree.

Allowing discovery would have a chilling effect on the practice of law, which would, in turn, jeopardize the zealous representation attorneys are bound to provide their clients.(4) What an attorney has learned about a product during trial preparation is clearly outside the realm of discovery.(5)

Courts must preserve the privacy of trial preparation. Without that protection, attorneys may be forced to forgo both the analytical work that leads to the selection of documents and the organizational tasks essential to handling complex litigation.(6)

Discovery is intended to allow for disclosure of information that leads to a just and cost-effective resolution of legal disputes. A defendant's request for information an opponent has acquired in anticipation of litigation from a support group is intended to have the opposite result. Allowing a defendant to use discovery to limit its responses to the items already in the plaintiff's possession cannot possibly aid in the just resolution of litigation.

Turning the tables illustrates the unfairness of this discovery request. In every products liability motor vehicle case, the defendant's lawyer collaborates with colleagues and other lawyers handling similar cases to acquire depositions, trial transcripts, and other documents relevant to the cross-examination of the plaintiff's experts. Likewise, the defense lawyer has the benefit of searching all the manufacturer's documents for relevant materials.

Should defense attorneys be prepared to disclose this information in response to a plaintiff's discovery request? They would, of course, say no. Yet this request is analogous to those that defendants make when they seek to learn what a plaintiff's lawyer has obtained from a litigation support group.

Timely objections

The issue usually arises when a defendant seeks to discover which of its documents the plaintiff's lawyer has acquired from a litigation support group. A request like this should be challenged immediately on the ground that it will not produce evidence relevant to the case.

What possible relevance to a defendant's case is the identity of materials--which have been generated by the defendant--that the plaintiff's counsel has obtained as a result of membership in a litigation support group? The defense lawyer's knowledge of the existence of these documents is not relevant because it will not lead to the acquisition of admissible evidence in support of the defendant's case.

In fact, this discovery is intended merely to establish the extent of the plaintiff attorney's knowledge of existing materials. Once the defendant knows this, it can limit its own responses to discovery requests by identifying or producing only the information that the plaintiff's counsel possesses --much of which is already in the public domain.

Another ground for objections is the work product rule. The seminal case defining attorney work product is Hickman v. Taylor.(7) In that case, the U.S. Supreme Court acknowledged that there is a privilege against discovery of certain materials prepared in anticipation of litigation. The Court said,

   Proper preparation of a client's case demands that [the attorney] assemble
   information, sift what he considers to be the relevant from the irrelevant
   facts, prepare his legal theories, and plan his strategy without undue and
   needless interference.... This work is reflected, of course, in interviews,
   statements, memoranda, correspondence, briefs, mental impressions, personal
   beliefs, and countless other tangible and intangible ways....(8)

The privilege protects both materials and opinions. Opinion work product includes a lawyer's selective process of compiling documents from voluminous files in preparation for litigation or trial. The privilege extends to the lawyer's mere knowledge that the documents exist.(9)

Many litigation support groups merely serve as a repository of documents that are on loan from members. In cases like these, the documents clearly remain each contributing member's work product.

In some organizations, members agree to help organize and synthesize documents held by the group. That is, counsel are employed to spend their time going through the documents, weighing their importance, and determining their "cross over" value in other litigation in which members have an interest.

The development of document repositories, the methods used to rank the importance of documents within the repositories, the evaluation of individual documents, and the indexing of these data--like the information itself--are attorney work product.(10)

In Sporck v. Peil, the Third Circuit found that a lawyer's selection of documents he used to prepare a witness for deposition constituted opinion work product.(11) In reaching this conclusion, the court relied on sound analysis provided by a federal district court in Delaware: "In selecting and ordering a few documents out of thousands, counsel could not help but reveal important aspects of his understanding of the case. Indeed, in a case such as this, involving extensive document discovery, the process of selection and distillation is often more critical than pure legal research."(12)

Consequently, an argument by a defendant that a request for mere identification of documents that a plaintiff's lawyer has selected does not violate the work product rule is meritless. The work product doctrine applies to any request for document identification that could reveal counsel's mental impressions and trial strategy.(13) The same reasoning applies to plaintiff requests that reveal what defense counsel is thinking.

   Without the protection that the work product doctrine accords his
   preparation, defense counsel may have forgone a sifting of the documents,
   or at the very least chosen not to show the documents to petitioner. As a
   result, petitioner may not have been as well prepared for his deposition,
   and neither plaintiff nor defendant would have realized the full benefit of
   a well-prepared deponent's testimony. For these reasons, Rule 26(b)(3)
   placed an obligation on the trial court to protect against unjustified
   disclosure of defense counsel's selection process.(14)

In some discovery disputes, defendants have claimed that information a lawyer gets from a litigation support group is not attorney work product because it was prepared by the group, not the attorney representing the plaintiff. This argument ignores the agency relationship between the group and its members.

Because attorneys must rely on others to compile materials in preparation for trial, it is essential that the protective cloak of the work product privilege cover the work of these agents as well as that of the attorney.(15) When the discovery of documents selected by a lawyer or his or her agent will reveal the selection process, this, by its very nature, discloses the lawyer's mental impressions.(16)

Attorneys are certainly free to retain others to select critical documents without jeopardizing the confidentiality of the materials.(17) In fact, many courts have found that documents that have been sorted and selected in preparation of litigation by lawyers working collaboratively are entitled to work product protection.(18)

A federal court in Wyoming stated the reasoning succinctly:

   Disclosure of work product to friendly litigants in related cases or to
   others with friendly interests is not beyond the scope of such privilege
   and will not constitute a waiver of the same.... This limitation is
   necessary to assure joint defense efforts are not inhibited or even
   precluded by the fear that a party to joint defense communications may
   subsequently unilaterally waive the privileges of all participants, either
   purposefully in an effort to exonerate himself, or inadvertently.(19)

The same logic ought to apply to joint trial preparation on behalf of plaintiffs.

Pro and con 

Defendants typically cite four cases in support of their efforts to pierce the work product privilege and gain access to information gathered from a plaintiff lawyers' litigation support group.

Bohannon v. Honda Motor Co.(20) In this all-terrain vehicle (ATV) lawsuit, the defendant requested copies of documents obtained from an ATV litigation group. The plaintiff's attorney did not argue that he had prepared or had these documents prepared for his use. In fact, the opinion notes that the plaintiff did not provide any supporting affidavits showing that the materials were grouped or synthesized in anticipation of litigation.

Under these circumstances, the court found that allowing discovery would not disclose attorney work product.(21) After acknowledging a split of authority, the court found disclosure was warranted because any other alternative would allow a party to extend the protection of the work product umbrella over any document.

The flawed reasoning of this court is that the work product rule is not a fanciful convenience for protecting documents obtained through counsel's work process. In fact, the court's conclusion could not have been sustained had the plaintiff satisfied the evidentiary requirements for asserting the privilege.

Miller v. Ford Motor Co.(22) The defendant sought documents the plaintiff's attorney acquired from ATLA concerning Ford-manufactured vehicles and alleged transmission problems that caused some vehicles to automatically shift out of park when the engine was running. The plaintiff responded by stating that the information originated with ATLA and was work product. The court looked at the bare pleading response of the plaintiff and concluded that the documents were not prepared by the plaintiff's counsel or her representative. On that basis alone, the court found the documents were not subject to the work product privilege.(23)

Here, the court ignored the right of counsel to rely on others to assist in selecting documents that might be used in a lawsuit. The court appeared concerned that the plaintiff's lawyer wanted to treat as confidential court pleadings and depositions, as well as "discovery in other cases."

The lessons learned from this case are twofold. To avoid having to make the agency argument, plaintiff lawyers should, when possible, do the work in gathering and selecting critical documents. And, of course, lawyers should claim work product privilege only with regard to materials that really are work product.

Bartley v. Isuzu Motors Ltd.(24) In this case, the defendants requested production of documents and depositions obtained by the plaintiff's counsel from various sources, including the ATLA Exchange. In resisting this motion, the plaintiff did not provide a list of the documents that the court should deem protected from disclosure. The court also observed that the documents at issue were not prepared for or at the request of plaintiff's counsel.

Despite ruling that the documents did not constitute work product, the court decided that since the materials in the plaintiff's possession were already in the defendant's possession (depositions and internal Isuzu documents from other cases), the plaintiff was only required to furnish a list of the materials requested.

Hendrick v. Avis Rent A Car System, Inc.(25) The defendant, General Motors Corp. (GM), asked for all statements in the plaintiff's possession that were made by GM employees. In ruling that this information was discoverable, the court noted that the plaintiff was not being required to reveal to GM a precise list of every document plaintiff's counsel examined or obtained from other lawyers who had had similar cases. Instead, the court found, the plaintiff was only being ordered to identify statements made by or attributable to an adverse party.

Even after making this ruling, the court agreed that the disclosure of these statements should be delayed until after the author of each statement or document had been deposed. The court candidly stated that this delay in disclosure was intended to make it difficult for a witness to tailor his or her testimony to conform to the prior statement.

The following cases have analyzed the issue of work product and affirmed that the principle is alive and well.

Chastain v. General Motors Corp.(26) GM asked to see all documents in plaintiff counsel's possession that it believed were relevant to the claims filed, including documents obtained from ATLA and the National Highway Traffic Safety Administration. GM referred the court to the Bohannon decision and others to support its claim that documents not generated by a party's attorney or representative are not protected by the work product privilege.

The court disagreed with GM's argument and concluded that

   by their very wording, GM's requests ... seek only those documents in
   plaintiff's possession ... which, in counsel's judgment, are relevant to
   the issues material to this lawsuit. [This inquiry asks] counsel to "group
   or synthesize" GM's own documents as well as those of others into that
   group which opposing counsel finds relevant.(27)

Such an inquiry, the court concluded, is improper because it seeks opposing counsel's opinion. The court also found that its conclusion was not altered by the fact that some of the requested documents came from ATLA or other third parties. The court found that work product does not vanish simply because third parties helped gather the data.

Somerville v. General Motors Corp.(28) General Motors sought copies of its own documents that plaintiff's counsel had acquired from other people or entities. The court noted that the materials were obtained from the Attorneys Information Exchange Group (AIEG), an organization of plaintiff attorneys that is based in Birmingham, Alabama, which assists members in the preparation and trial of products liability cases.

The court reviewed the affidavit of AIEG's chief legal officer, which detailed how the group stored documents and disseminated them to members for specific cases. The court also observed that it was undisputed that General Motors had copies of all the documents.

The court found that a compilation of documents sent to an attorney by others who prepared or prioritized these materials for the attorney was entitled to work product protection. The court distinguished the case from Hendrick, which involved statements made by General Motors employees.

The court said,

   The court cannot ignore the agency relationship between plaintiff's counsel
   and the litigation support group which provided the documents to counsel.
   The fact that the documents here were not prepared by counsel to the
   requested party is not an impediment to invocation of the work product
   privilege, as GM claims. The documents that are the subject of this motion
   to compel are a selective compilation of GM documents produced by GM in
   other roll-over cases litigated throughout the country.... Moreover, the
   work product doctrine applies to the identification of documents that
   reveal counsel's mental impressions and trial strategy.(29)

Basey v. General Motors Corp.(30) In this defective seat belt case, GM wanted the plaintiff to disclose company documents that the plaintiff's lawyer had obtained from independent sources. The court denied this request, and in doing so it observed that a lawyer's selection and compilation of documents are mental processes protected from discovery by the work product principle.

Under circumstances where a plaintiff lawyer acquires documents for potential use against a defendant, the court found, those documents are not discoverable. Allowing discovery would constitute an unwarranted inquiry into the files and mental impressions of the attorney.

Young v. J.I. Case Co.(31) In this defective machine case, the defendant sought to discover all documents the plaintiff's lawyer had obtained from ATLA regarding the defects at issue. Denying the defendant's motion to compel, the court noted (and cited a number of cases directly on point) that the "exchange of information between attorneys for parties sharing in a common interest does fall under the work product privilege."(32)

Common goal

Almost all the cases discussed establish that when an attorney personally selects materials from a larger group of data for possible use in litigation, the selection process and the documents that are chosen are protected.

Plaintiff lawyers must defend against sweeping discovery requests for this information by showing that they or their representatives selected the material. Plaintiff lawyers also should cite to the better reasoned decisions establishing that the work product doctrine is implicated whenever a party acquires documents from a litigation support group in the prosecution or defense of a case.(33)

Plaintiff lawyers should also point out the motive for the request and that there can be no compelling reason for the defendant to penetrate the shield of work product to discover documents it already has in its possession. "[W]here a request is made for documents already in possession of the requesting party, with the precise goal of learning what the opposing attorney's thinking or strategy may be, even third-party documents may be protected."(34)

Finally, plaintiff lawyers should explain to judges the strong public policy reasons for protecting this material from discovery. Defendant corporations often resist what they perceive as "overreaching" discovery by producing volumes of typically useless data. To avoid having to sort through this material in every case against the same defendant, plaintiff lawyers have learned to network with other attorneys and enlist the help of litigation support groups.

There is no better way to acquire the few nuggets of relevant data than by participating in litigation support groups. Doing this allows plaintiff lawyers to acquire documents that are typically not produced in the ordinary discovery process. And a defendant inclined to withhold data may think twice before doing so if it knows its "hide and seek" approach to discovery will be uncovered.

Attorneys for product manufacturers can network with every lawyer representing the same defendants, giving them access to all the documents that are used in other cases. It seems inappropriate for these same attorneys to seek to destroy plaintiff lawyers' opportunity to do the same. The joint prosecution or joint defense approach is vital to the acquisition and presentation of relevant facts to a jury and should be preserved.(35)

Notes

(1.) See, e.g., Ward v. Ford Motor Co., 93 F.R.D. 579, 580 (D. Colo. 1982); Patterson v. Ford Motor Co., 85 F.R.D.152 (W.D. Tex. 1980).

(2.) See, e.g., Miller v. Ford Motor Co., 184 F.R.D. 581 (S.D.W. Va. 1999); McDaniel v. Freightliner Corp., No. 99-CIV 4292 (S.D.N.Y. Mar. 22, 2000); Somerville v. General Motors Corp., No. CV-97-7366 (E.D.N.Y. July 7, 1999); Hendrick v. Avis Rent A Car Sys., Inc., 916 F. Supp. 256 (W.D.N.Y. 1996); Basey v. General Motors Corp., No. CIV 93-1413 PHX (D. Ariz. Aug. 1, 1995); Bartley v. Isuzu Motors Ltd., 158 F.R.D. 165, 166-67 (D. Colo. 1994); Young v. J.I. Case Co., No. C.A. 3:90CV00630 (E.D. Va. Mar. 26, 1991); Bohannon v. Honda Motor Co., 127 F.R.D. 536 (D. Kan. 1989); Smith v. Florida Power & Light Co., 632 So. 2d 696 (Fla. Dist. Ct. App. 1994); Chastain v. General Motors Corp., No. 93-4414-NP (Mich., Macomb County Cir. Ct. Mar. 15, 1999).

(3.) Jill Goldsmith, Are the Documents of a Corporate Defendant Plaintiffs Work Product? 27 Prod. Safety & Liab. Rep. (BNA) (Mar. 1999).

(4.) ATLA and many other litigation support groups have developed legal briefs to assist practitioners in defending against this onslaught.

(5.) Cf. Smith v. BIC Corp., 121 F.R.D. 235, 244-45 (E.D. Pa. 1988), aff'd in part, rev'd in part, on other grounds, 869 F.2d 194 (3d Cir. 1989).

(6.) Sporck v. Peil, 759 F.2d 312, 316-17 (3d Cir.), cert. denied, 474 U.S. 903 (1985).

(7.) 329 U.S. 495 (1947).

(8.) Id. at 511.

(9.) See Shelton v. American Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986); Somerville, No. CV97-7366.

(10.) Shelton, 805 F.2d 1323, 1326; MYRNA A. RAEDER, FEDERAL PRETRIAL PRACTICE [sections] 18.13 (1987).

(11.) 759 F.2d 312 (3d Cir. 1985).

(12.) Id. at 316 (quoting James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982)).

(13.) Id.

(14.) Id.

(15.) United States v. Nobles, 422 U.S. 225, 238-39 (1975).

(16.) Sporck, 759 F.2d 312, 315-17.

(17.) Nobles, 422 U.S. 225, 238-39.

(18.) See, e.g.,Western Fuels Ass'n v. Burlington N.R.R., 102 F.R.D. 201 (D. Wyo. 1984).

(19.) Id.

(20.) 127 F.R.D. 536.

(21.) The court noted that the plaintiff's argument that it had signed a confidentiality agreement not to disclose these documents to defense counsel was not a basis for objection. Id. at 540. The court was not asked to address the issue of competing interests (between the defendant and the plaintiff) that plaintiff counsel's membership agreement required immediate return of any documents obtained from the litigation support group in the event a court ordered their disclosure.

(22.) 184 F.R.D. 581.

(23.) The court allowed the plaintiff to provide a list of the documents unless Ford wanted to obtain copies at its expense.

(24.) 158 F.R.D. 165.

(25.) 916 F. Supp. 256.

(26.) No. 93-4414-NP.

(27.) Id. at 4-5.

(28.) No. CV-97-7366.

(29.) Id. at 5-6.

(30.) No. CIV93-1413 PHX.

(31.) No. C.A. 3:90CV00630.

(32.) Id. at 4.

(33.) See, e.g., Petersen v. Douglas County Bank & Trust Co., 967 F.2d 1186, 1189 (8th Cir. 1992); Sporck, 759 F.2d 312, 316; In re Grand Jury Subpoena Dated Nov. 8, 1979, 622 F.2d 933 (6th Cir. 1980) (per curiam); Omaha Pub. Power Dist. v. Foster Wheeler Corp., 109 F.R.D. 615, 616 (D. Neb. 1986).

(34.) In re Grand Jury Subpoenas, 959 F.2d 1158, 1166 (2d Cir. 1992).

(35.) The proposition put forth here is not different in jurisdictions where voluntary disclosure is required. Violation of the work product rule remains a valid objection in every jurisdiction.

Larry E. Coben practices law in Scottsdale, Arizona.