Gerber v. Down East Community Hospital

266 F.R.D. 29, 2010 U.S. Dist. LEXIS 24054
CourtDistrict Court, D. Maine
DecidedMarch 12, 2010
DocketCivil No. 09-351-B-W
StatusPublished
Cited by10 cases

This text of 266 F.R.D. 29 (Gerber v. Down East Community Hospital) is published on Counsel Stack Legal Research, covering District Court, D. Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gerber v. Down East Community Hospital, 266 F.R.D. 29, 2010 U.S. Dist. LEXIS 24054 (D. Me. 2010).

Opinion

ORDER

MARGARET J. KRAVCHUK, United States Magistrate Judge.

On March 1, 2010,1 conducted a telephone conference to address discovery disputes between the parties and ordered the parties to brief a dispute over Plaintiffs’ assertion of a work product privilege in documents constituting interviews of non-party witnesses designed to produce statements and/or affidavits. Based on these briefs and my own review of persuasive precedent, I overrule Defendant’s request that I compel production of said documents, subject to Plaintiffs’ compliance with certain directives related to initial and supplemental disclosures and submission of an amended privilege log that itemizes documents by date, though not by witness name, and that clarifies the nature of the documents created by Plaintiffs Duval and Gerber, which have most recently been described as Plaintiffs’ notes rather than correspondence.

Nature op Dispute

This dispute is based on a privilege log produced by Plaintiffs in which they report that they are withholding from discovery “electronic and paper documentation relating to [their] efforts to investigate the case and collect evidence in anticipation of and in furtherance of litigation.” The log identifies three groups of such documents. The first group is described as documents created by Attorney Chad Hansen and received by potential witnesses. The second group is described as documents created by Plaintiff Gerber and received by potential witnesses. The third group is described as documents created by Plaintiff Duval and received by potential witnesses. Plaintiffs now report that the documents in the first group “primarily consist of email interviews conducted by Plaintiffs’ counsel with potential witnesses” (email communication chains). Additional documents consist of paper letters sent to potential witnesses by counsel requesting documents and the preservation of documents, and a single letter to one potential witness enclosing a draft affidavit. Plaintiffs now report that the documents in the second and third groups are actually electronic documents created by the Plaintiffs during conversations with potential witnesses but not shared or exchanged with potential witnesses or anyone else, other than Plaintiffs’ counsel. [31]*31(Pis.’ Brief at 2, Doe. No. 43.) In Plaintiffs’ view, all of these documents are protected from disclosure by the work-product privilege.

For its part, Defendant Down East Community Hospital argues that the privilege log is inadequate because it does not itemize the communication by each individual recipient or by date. In particular, Defendant maintains that Plaintiffs are required, minimally, to separately itemize every document sent and to disclose the identity of every potential witness who received or responded to an email communication. (Def.’s Brief at 2-3, Doc. No. 42.) Defendant argues that potential waiver of the work product privilege cannot be determined without this minimal level of disclosure. (Id. at 3.) Defendant views the identity of every potential witness contacted by Plaintiffs as factual information subject to disclosure in the course of discovery conducted under Rule 26(b). (Id. at 4.) Defendant also maintains that Plaintiffs have probably waived any work product privilege to the extent that email communications may have disclosed work product to the non-party witnesses in question. (Id. at 5.) Defendant does not dispute that these documents are a product of this litigation or were produced in anticipation of litigation. Rather, Defendant contends that the log is inadequate as a matter of law because it does not name names and that an adequate log might reflect a waiver of the privilege because it would name one or more non-party witnesses whom Defendant might consider as adverse to Plaintiffs’ cause.

The discovery initiative that gives rise to the instant dispute consists of a request for production of “[a]ny and all documents concerning any statements made by any witness or witnesses or persons interviewed in connection with this Lawsuit and/or concerning your claims in this Lawsuit.”

Discussion

Protection of witness interviews has been one of the focuses of the attorney work-product privilege since its inception in American law. Hickman v. Taylor, 329 U.S. 495, 497, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (concerning “the extent to which a party may inquire into oral and written statements of witnesses, or other information, secured by an adverse party’s counsel in the course of preparation for possible litigation after a claim has arisen.”) The Supreme Court’s description of the privilege in Hickman remains instructive to this day on the bounds of the work product privilege, though the privilege has been incorporated into and defined by the Rules of Civil Procedure.1 See United States v. Textron Inc., 577 F.3d 21, 26-27, 29-30 (1st Cir.2009). The scope of the work-product privilege is defined in Rule 26(b)(3), which provides:

(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 ... those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has a 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.

Fed.R.Civ.P. 26(b)(3)(A), (B). The attorney work-product privilege is designed to ensure counsel a “certain degree of privacy, free from unnecessary intrusion by opposing parties and them counsel,” in the absence of [32]*32which “the interests of the clients and the cause of justice would be poorly served.” Hickman, 329 U.S. at 510-11, 67 S.Ct. 385.

It is the proponent of the privilege who bears the burden of demonstrating that the privilege applies to the materials or information at issue. Pursuant to the Rules, that party must “expressly make the claim” of privilege and “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.” Fed. R.Civ.P. 26(b)(5)(A). This obligation is carried out by means of a privilege log. How particularized a privilege log must be is a matter of contention. The First Circuit does not appear to have dictated the level of specificity a district court must require with respect to privilege logs and the Rules give the Court discretion in this regard. Klonoski v. Mahlab,

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Bluebook (online)
266 F.R.D. 29, 2010 U.S. Dist. LEXIS 24054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gerber-v-down-east-community-hospital-med-2010.