Sea-Roy Corp. v. Sunbelt Equipment & Rentals, Inc.

172 F.R.D. 179, 1997 U.S. Dist. LEXIS 4296, 1997 WL 157553
CourtDistrict Court, M.D. North Carolina
DecidedMarch 31, 1997
DocketNo. 1:94CV00059
StatusPublished
Cited by3 cases

This text of 172 F.R.D. 179 (Sea-Roy Corp. v. Sunbelt Equipment & Rentals, Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sea-Roy Corp. v. Sunbelt Equipment & Rentals, Inc., 172 F.R.D. 179, 1997 U.S. Dist. LEXIS 4296, 1997 WL 157553 (M.D.N.C. 1997).

Opinion

ORDER

ELIASON, United States Magistrate Judge.

The parties present the following issue: Whether secretly recorded telephonic tape recordings of parties, witnesses, potential witnesses, or others, can be withheld from discovery as work product pursuant to Fed. R.Civ.P. 26(b)(3)? Defendants Multiquip, Inc. (“Multiquip”) and Rammax Maschinenbau, GmbH (“Rammax”) request the Court to compel plaintiffs to disclose secretly recorded audio tapes.

This action was filed in February 1994. In June, plaintiffs provided defendant Parts R Parts, Inc. (“PRP”) with a privilege log which indicated that plaintiffs had multi-page memoranda concerning conversations between plaintiffs, owners and their employees, and individuals in the construction industry. Plaintiffs told PRP that they would disclose the surreptitiously tape recorded conversations. There were also three multi-page transcripts of telephone conversations surreptitiously recorded in November 1992 and May 1993 and transcribed by plaintiffs’ counsel. Plaintiffs evidently showed a dozen of the tapes to defendant PRP in June 1994 and began copying the tapes. However, on July 15, 1996, plaintiffs informed PRP that they would not be providing the tapes.

On September 10, 1996, plaintiffs clarified their position and stated that they would withhold 83 of the 85 tapes as work product. [182]*182The two remaining tapes were recordings of conversations with Heinz Schutt of Rammax (June 1992) and with Hermann Greschner of Rammax (date unknown). In addition, plaintiffs have provided transcripts prepared by plaintiffs’ counsel’s office of four of the taped conversations. Two of the transcripts relate to two third-party deponents. Two other third-party deponents have not had their taped conversation or its transcript released. It is unclear whether the remaining tapes involve third-party witnesses or potential witnesses. Plaintiff listed the withheld calls which started in November 1992 and continued through 1995.

Chris R. Smith, the principal and owner of plaintiff Sea-Roy Corporation (“Sea-Roy”), provides an affidavit setting out the basis for the tape recordings made by him or other corporate personnel. He relates that in 1991, defendant Rammax was Sea-Roy’s key supplier. When Rammax appointed defendant Multiquip as a supplier, this eliminated Sea-Roy’s exclusive distributorship which had lasted for ten years. Other companies then decreased Sea-Roy’s discount on part orders. In November 1992, Rammax terminated all dealings with Sea-Roy. In December 1992, defendant PRP refused to sell engine parts to plaintiff.

Smith claims that he decided to tape conversations because of his belief that some or all of the current defendants were taking concerted action in order to injure plaintiffs. He states the taping was the direct result of his concern over the possibility of litigation after counsel advised him to keep track of rumors that were circulating about plaintiff Sea-Roy. Counsel did not suggest taping conversations. Tapes or transcripts of the tapes of the agents of current defendants have been surrendered to counsel. Plaintiffs changed their minds about turning over tapes to defendant PRP after they learned that defendant PRP was itself claiming work product protection with respect to tapes which it had made. (PRP is not a party to the motion to compel.)

Work product protection is not a privilege within the meaning of Federal Rules of Evidence 501. Rather, it is a tool of judicial administration to safeguard the adversarial process, and does not have an intrinsic value in itself outside the litigation area. Pete Rinaldi’s Fast Foods v. Great American Ins. Companies, 123 F.R.D. 198 (M.D.N.C.1988). As a result, in reviewing claims of work product protection, the Court will give the claim the narrowest construction consistent with the purpose of work product. The party (in this case plaintiffs) requesting protection bears the burden of proving entitlement. Id. at 201.

Defendants do not dispute that tape recorded conversations may, in fact, constitute work product material. See, e.g., Ward v. Maritz, Inc., 156 F.R.D. 592, 595-597 (D.N.J. 1994) (surreptitious recording of others); Suggs v. Whitaker, 152 F.R.D. 501 (M.D.N.C. 1993) (defendant’s own insured); Mason C. Day Excavating, Inc. v. Lumbermens Mut. Cas. Co., 143 F.R.D. 601 (M.D.N.C.1992) (plaintiffs President’s self-observations and impression of events at work site). Instead, they assert that unprofessional attorney conduct can constitute grounds to vitiate the work product protection. Moody v. IRS, 654 F.2d 795, 799-801 (D.C.Cir.1981). In fact, a number of courts have followed just that proposition with respect to the secret taping of conversations. Chapman & Cole, Ltd. v. Itel Container Intern. B.V., 865 F.2d 676, 686 (5th Cir.), cert. denied sub nom, 493 U.S. 872, 110 S.Ct. 201, 107 L.Ed.2d 155 (1989); Parrott v. Wilson, 707 F.2d 1262, 1270 (11th Cir.), cert. denied, 464 U.S. 936, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983); Ward v. Maritz, Inc., 156 F.R.D. 592, 598 (D.N.J.1994) (collecting cases); Wilson v. Lamb, 125 F.R.D. 142, 143 (E.D.Ky.1989); Haigh v. Matsushita Elec. Corp. of America, 676 F.Supp. 1332, 1357 (E.D.Va.1987); see H.L. Hayden Co. of New York, Inc. v. Siemens Medical Systems, Inc., 108 F.R.D. 686, 690-691 (S.D.N.Y.1985).

In each of those cases, the courts had relied in whole or in part on the American Bar Association’s Model Rules of Professional Conduct. Its ethics opinions hold that ABA rules prohibit attorneys from clandestinely tape recording conversations. In 1974, the ABA issued ABA Formal Op. 337 which holds that except for certain law enforcement matters, no attorney should record any conversation, whether by tape or electronic de[183]*183vice, without the consent or prior knowledge of all parties to the conversation. Opinion 337 cited the following history of prior related rulings: (1) 1936 — prosecution attorney could not ethically use a recording of a conversation between a defense attorney and client; (2) 1961 — attorneys must disclose to a court and opposing counsel before recording in court; and (3) 1967 — lawyer could not make a recording of a conversation with a client or opposing counsel without prior disclosure.

Opinion 337 surveyed state ethical opinions and found them to support the ABA pattern with only one exception. The decision was based on the appearance of impropriety and presumed public distaste for secret recordings even though the action of recording was not illegal. A year later, the ABA refused a request to reconsider Formal Op. 337. ABA Informal Op. 1320 (1975).

Plaintiffs first argue that even if this Court were to hold that the ABA Model Rules govern the ethical standards of attorneys appearing before it, those rules do not apply to this case because the client, not the attorney, did the taping.

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172 F.R.D. 179, 1997 U.S. Dist. LEXIS 4296, 1997 WL 157553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sea-roy-corp-v-sunbelt-equipment-rentals-inc-ncmd-1997.