Rexford v. Olczak

176 F.R.D. 90, 1997 U.S. Dist. LEXIS 17884, 1997 WL 713858
CourtDistrict Court, W.D. New York
DecidedNovember 5, 1997
DocketNo. 97-CV-234S(H)
StatusPublished
Cited by9 cases

This text of 176 F.R.D. 90 (Rexford v. Olczak) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rexford v. Olczak, 176 F.R.D. 90, 1997 U.S. Dist. LEXIS 17884, 1997 WL 713858 (W.D.N.Y. 1997).

Opinion

[91]*91DECISION AND ORDER

HECKMAN, United States Magistrates Judge.

This case has been referred to the undersigned for pretrial matters, in accordance with 28 U.S.C. § 636(b)(1)(A). Defendants have moved to compel discovery. For the following reasons, defendants’ motion is granted.

BACKGROUND

This action was filed on March 31, 1997. Plaintiff claims that individual members of the Starpoint Central School District Board of Education wrongfully denied her an appointment to a full-time teaching position because of her political support for certain school board candidates, in violation of her rights under the First and Fourteenth Amendments to the United States Constitution. She seeks monetary damages and injunctive relief pursuant to 42 U.S.C. §§ 1983, 1985 and 1986.

On May 27, 1997 defendants answered the complaint and asserted seven separate counterclaims for defamation. Also on May 27, 1997, defendants served various discovery demands. On July 29,1997, plaintiffs deposition was held, and she produced her responses to defendants’ document demands. However, she has refused to produce a personal journal which she kept from July, 1996 to May, 1997. Plaintiff claims that the information in the journal, including her notes of conversations that she had with school board members and others relating to the Board’s denial of her appointment, is protected from discovery as information prepared in litigation under Rule 26(b)(3).

On October 2, 1997, after hearing oral argument, the court reserved decision on defendants’ motion and directed plaintiffs counsel to submit the journal for in camera review. The court has now completed its review. What follows is the court’s ruling on the motion to compel.

DISCUSSION

Rule 26(b)(3) of the Federal Rules of Civil Procedure provides that a party may discover documents “prepared in anticipation of litigation ... only upon a showing that the party seeking discovery has substantial need of the materials in the 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.” In determining whether this qualified protection applies, the initial inquiry is “whether, in light of the nature of the documents and the factual situation in a particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.” Litton Industries, Inc. v. Lehman Bros. Kuhn Loeb Inc., 125 F.R.D. 51, 54 (S.D.N.Y.1989).

The protection from disclosure offered by Rule 26(b)(3) “requires a more immediate showing than the remote possibility of litigation.” Garfinkle v. Arcata Nat. Corp., 64 F.R.D. 688, 690 (S.D.N.Y.1974). “Litigation must at least be a real possibility at the time of preparation or, in other words, the document must be prepared with an eye to some specific litigation.” James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 143 (D.Del.1982); see also Reich v. Great Lakes Collection Bureau, Inc., 172 F.R.D. 58, 61 (W.D.N.Y.1997). Stated another way, “[w]hether material is prepared ‘in anticipation of litigation’ turns on whether the preparing party had a unilateral belief that litigation was likely and whether that belief was reasonable.” Chiquita Int’l, Ltd. v. M/V BOLERO REEFER, 1994 WL 263603, at *2 (S.D.N.Y. June 4, 1994); see also Martin v. Bally’s Park Place Hotel & Casino, 983 F.2d 1252, 1260 (3d Cir.1993).

According to Wright, Miller & Marcus:

Prudent parties anticipate litigation, and begin preparation prior to the time suit is formally commenced. Thus, the test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. But the converse of this is that even though litigation is already in prospect, there is no work-product immunity for documents prepared in the regular course of [92]*92business rather than for purposes of the litigation.

8 Wright, Miller & Marcus, Federal Practice & Procedure § 2024, at 343-46 (1994).

Defendants cite this court’s decision in Snyder v. Winter, 159 F.R.D. 14 (W.D.N.Y. 1994), in support of their argument that plaintiffs journal should be produced because it was prepared at a time when litigation was still a contingency. Indeed, in Snyder this court held that “[t]he mere contingency that litigation may result” does not give rise to work product protection. Id. at 15 (citing Willis v. Westin Hotel Company, 1987 WL 6155, at *1 (S.D.N.Y.1987), and Fustok v. Conticommodity Services, 106 F.R.D. 590, 592 (S.D.N.Y.1985)). However, Snyder involved a claim of work product protection for an accident report prepared in the normal course of the defendant’s business as a means of reporting the accident to its insurance company. While contingency of litigation was a factor in the court’s ruling that the accident report was not protected from disclosure under Rule 26(b)(8), it was not the sole determining factor.

Closer to the point is Carolan v. New York Telephone Co., 1984 WL 368 (S.D.N.Y. 1984), in which the court ordered the production of relevant portions of a diary kept by a plaintiff in an employment discrimination suit. The plaintiff in that case began her diary 2 years before she filed her lawsuit. She described the contents of the diary as a contemporaneous record of her “job assignments, job performance and job accomplishments, as well as a record of sex harassment and defamation of character that [she] received from District level personnel____’’ Id. at 1. The court found that litigation was not imminent until the plaintiff was given her notice of termination, and that diary entries made prior to that date were not protected from disclosure. The court also found that the employer had demonstrated substantial need for the information contained in the diary entries made after the prospect of litigation became imminent, primarily because of the contemporaneous nature of the diary entries and the fact that the plaintiffs prior recorded statements “may differ from her present account and yet, without the diary, defendants would be unable to determine whether this is the case.” Id. at *4. The court directed the plaintiff to produce all diary entries containing information relevant to the issues in the case, without requiring defendants to first attempt to obtain the substantial equivalent of that information by way of deposition.

In this case, the entire journal has been reviewed by the court in camera. The litigation formally commenced with the filing of the complaint on March 31, 1997. The entries in plaintiffs journal begin on July 15, 1996 and conclude on May 20,1997.

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Bluebook (online)
176 F.R.D. 90, 1997 U.S. Dist. LEXIS 17884, 1997 WL 713858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rexford-v-olczak-nywd-1997.