Otto v. Box U.S.A. Group, Inc.

177 F.R.D. 698, 41 Fed. R. Serv. 3d 405, 1997 U.S. Dist. LEXIS 22640
CourtDistrict Court, N.D. Georgia
DecidedDecember 2, 1997
DocketCiv.A. No. 1:96-CV-2296-JEC
StatusPublished
Cited by8 cases

This text of 177 F.R.D. 698 (Otto v. Box U.S.A. Group, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Otto v. Box U.S.A. Group, Inc., 177 F.R.D. 698, 41 Fed. R. Serv. 3d 405, 1997 U.S. Dist. LEXIS 22640 (N.D. Ga. 1997).

Opinion

MAGISTRATE JUDGE’S ORDER

HARPER, United States Magistrate Judge.

In this case the defendants have moved for an order compelling discovery of a secretly tape-recorded conversation between plaintiff and a third-party witness in this case. (Doc. No. 25). Plaintiff asserts that the tape is protected by the work-product doctrine announced in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947) and later codified through Fed.R.Civ.P. 26(b)(3). Based on the following analysis, the undersigned holds that, while the work-product doctrine may apply, by secretly recording the conversation plaintiff has brought the recordings outside of the protection of that doctrine. Therefore, the undersigned GRANTS defendant’s motion to compel and ORDERS plaintiff to release a copy of the tape to defendant by December 10,1997.

Plaintiff recorded the conversation with Ted Clark in January, 1996 — a short time before she hired her attorneys. On her own accord, plaintiff created what she now asserts to be work-product. It is the law of this District that a plaintiff who creates work-product material before hiring an attorney is still permitted to take advantage of the work-product doctrine. Moore v. Tri-City Hospital Authority, 118 F.R.D. 646, 649-50 (N.D.Ga.1988) (Hall, J.). In Moore, the plaintiff had started a diary which reflected his thoughts on “persons who could serve as witnesses, attorneys who could assist [him], and legal arguments that might be made on [his] behalf.” Id. at 650. Neither party disputes that it would be considered work-product for an attorney to consensually record an interview with a third-party witness.

Past cases have stripped such recordings of any work-product protection where the tapes were secretly recorded by an attorney, considering such actions to violate Bar ethics rules. The Eleventh Circuit Court of Appeals held that an attorney who clandestinely recorded conversations with witnesses violated the ethical rulings of the American Bar Association, denigrating the integrity of the adversarial process, and vitiating whatever work-product protection the tapes would otherwise deserve. Parrott v. Wilson, 707 F.2d 1262, 1271-72 (11th Cir.1983), cert, denied, 464 U.S. 936, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983)(citing ABA Committee on Professional Responsibility, Formal opinions, No. 337 (1974)). Parrott, a case which plaintiff notably does not mention in her response, held that disclosure would be an appropriate remedy since disclosure would not “traumatize[ ] the adversary process more that the underlying legal misbehavior.” Parrott, 707 F.2d at 1271-72 citing Moody v. Internal Revenue Service, 654 F.2d 795, 801 (D.C.Cir.1981). See also Wilson v. Lamb, 125 F.R.D, 142 (E.D.Ky.1989) (holding same).

[700]*700Since Parrott, cases facing similar facts have prohibited attorneys from profiting from ethically questionable behavior; however, no court has specifically applied this rule to pro se plaintiffs or plaintiffs who were not represented at the tine of the recording.1 Attorneys cannot encourage the secret taping of witnesses by plaintiff and then depend on the protection of the work-product shield. Bogan v. Northwestern Mutual Life Insurance Co., 144 F.R.D. 51, 54-56 (S.D.N.Y.1992) (“It is precisely such so-called hardball tactics which the Courts should be on guard against.”); Ward v. Maritz, Inc., 156 F.R.D. 592, 598 (D.N.J.1994). Attorneys cannot even acquiesce in the practice by accepting a large number of tapes made by the plaintiff. Haigh v. Matsushita Elec. Corp. of America, 676 F.Supp. 1332, 1356-57 (E.D.Va. 1987); Sea-Roy Corporation v. Sunbelt Equipment & Rentals, Inc., 172 F.R.D. 179, 183 (M.D.N.C.1997).

Yet, as plaintiff points out, all of the above cases are based on the ethics rules for attorneys. She argues .that such rules do not, and should not, apply to the layperson who is preparing for an imminent lawsuit. In essence, she wants the protection of the work-product doctrine — an offspring of the adversarial legal system — without the responsibilities that make the adversarial system more civil. The question thus facing this court is whether the rule in Parrott extends those responsibilities to the lay public. The undersigned believes that it does.

Recently, the District Court for the Middle District of North Carolina stated, in dicta, that since the rule providing for the work-product doctrine, Fed.R.Civ.P. 26(b)(3), extends the doctrine to both attorney and the client, there is not “even the remotest suggestion that a rule originally designed to protect an attorney’s work-product should now be construed to give greater protection to clients and pro se parties.” Sea-Roy Corporation, supra, 172 F.R.D. at 183. The court continues, stating that “if attorneys must disclose at the time of recording, the same duty should be imposed on the client and parties.” Id. However, unlike this ease, the attorneys in Sea-Roy acquiesced in the recording by accepting a steady stream of such tapes, although the lawyers did not actually direct the clients to make such secret tapes. Id. The North Carolina court then held that the witnesses could obtain their recorded and transcribed statements under Fed.R.Civ.P. 26(b)(3). Id. at 184-85. Thus, the court then concluded that it “need only resolve the less burdensome issue of relevancy untainted by work-product disputes.” Id. at 185. Yet, it still concluded that the tapes had lost the protection of the work-produet doctrine. Id.

Unlike in Sea-Roy, the attorneys here did not acquiesce to continuous, secret taping; in fact, the attorneys had not even been hired when plaintiff made this one tape. Furthermore, the third-party witness in this ease has not requested the statement under Rule 26(b)(3), thus closing that avenue of analysis.2 Thus, while Sea-Roy is persuasive, it is not conclusive.

The purposes of the work-produet doctrine were originally outlined in Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947). The doctrine provides an attorney with the ability to “work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Id. It maintains a balanced and fair adversarial competition, as “[discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.” 329 U.S. at 516, 67 S.Ct. at 396. As an officer of the court, the attorney gains the [701]*701protection of the work-product doctrine at the expense of certain ethical rules, as demonstrated by Parrott, 707 F.2d at 1270-72.

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177 F.R.D. 698, 41 Fed. R. Serv. 3d 405, 1997 U.S. Dist. LEXIS 22640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/otto-v-box-usa-group-inc-gand-1997.