United States District Court, D. Maine
ORDER ON DISCOVERY ISSUE
C. Nivison U.S. Magistrate Judge.
action, Plaintiff contends Defendants, consisting of the
Maine Department of Transportation (MDOT), MDOT Commissioner
David Bernhardt, Director of MDOT Bureau Maintenance and
Operations Dale Doughty, Director of Multimodal Operations in
the MDOT Bureau of Maintenance Richard Dubois, and Manager of
the Maine State Ferry Service in the MDOT Bureau of
Maintenance and Operations John Anders, retaliated against
Plaintiff when he exercised his constitutionally-protected
right to free speech.
of their response to Plaintiff's request for documents,
Defendants produced four email communications they
subsequently claimed were protected by the work product
privilege and thus were inadvertently disclosed. Following a
telephonic conference on the issue, in accordance with the
Court's order (ECF No. 57), the parties filed written
argument (Plaintiff's Memorandum, ECF No. 59;
Defendants' Memorandum, ECF No. 60) and a stipulation as
to the facts regarding Defendants' production of
documents. (Joint Stipulated Facts, ECF No. 58.) The disputed
email communications are also part of the
record. (ECF No. 53.)
first issue is whether the documents are within the work
product privilege. The documents are part of one email thread
regarding two pending work-related grievances asserted by
Plaintiff regarding disciplinary action taken against
Plaintiff. The parties to the communications include
Defendant Dubois, Defendant Anders, and members of MDOT's
human resources department. The subject of the communications
is whether MDOT should attempt to resolve Plaintiff's
attorney work-product privilege protects from discovery
“documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another
party or its representative.” Fed.R.Civ.P. 26(b)(3).
The work product doctrine does not extend to
“[m]aterials assembled in the ordinary course of
business, or pursuant to public requirements unrelated to
litigation, or for nonlitigation purposes, ” even if
the materials were prepared by a lawyer and reflect
“legal thinking.” United States v. Textron
Inc., 577 F.3d 21, 30 (1st Cir. 2009) (quoting
Fed.R.Civ.P. 26 advisory comm.'s note (1970)). The issue
is “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.” 8 C. Wright, A. Miller
& M. Kane, Federal Practice and Procedure § 2024 (3d
ed.). Documents prepared in anticipation of an adversarial
grievance proceeding can be within the protection of the work
product privilege. Jumper v. Yellow Corp., 176
F.R.D. 282, 286 - 87 (N.D. Ill. 1997).
the work product privilege applies depends on the
circumstances of the particular case. Wilder v. World of
Boxing LLC, 324 F.R.D. 57, 62 (S.D.N.Y. 2018).
Importantly, a document need not be the work product of an
attorney for the privilege to apply. A document can be work
product if it was prepared by a party or its representative,
and the rule thus affords protection to materials gathered by
non-attorneys even where there was no involvement by an
attorney.” Id. at 63 (quoting Wultz v.
Bank of China Ltd., 304 F.R.D. 384, 394 (S.D.N.Y. 2015)
(citing cases)). Here, the internal communication at MDOT of
whether to settle Plaintiff's grievances is most
logically understood as a communication made by a party
“in anticipation of litigation.” Fed.R.Civ.P.
26(b)(3)(A); Fine v. Sovereign Bank, No.
1:06-cv-11450, 2008 WL 11388663, at *8 (D. Mass. Mar. 7,
2008) (collecting cases). To conclude otherwise would
discourage parties' candid and objective internal
communications regarding their litigation prospects. Such a
result would be inconsistent with the principles underlying
the work product privilege recognized by the United States
Supreme Court in Hickman v. Taylor, 329 U.S. 495,
510 - 11 (1947) (without the privilege, “much of what
is now put down in writing would remain unwritten”);
Fleet Nat. Bank v. Tonneson & Co., 150 F.R.D.
10, 14 (D. Mass. July 21, 1993) (without privilege, counsel
“will be far more circumspect in what they put
down” in writing).
contends that if the email communications are deemed to be
within the work product privilege, the documents are
nevertheless discoverable because he has a “substantial
need for the materials to prepare [his] case and cannot,
without undue hardship, obtain their substantial equivalent
by other means.” Fed.R.Civ.P. 26(b)(3)(A)(ii).
Plaintiff maintains the communication by Defendant Dubois is
of great significance.
argument is unpersuasive. First, the significance of the
communication is not as apparent as Plaintiff suggests.
Furthermore, Plaintiff is only entitled to the document with
Defendant Dubois's statement if the statement is
“otherwise discoverable.” Fed.R.Civ.P.
26(b)(3)(A)(i). If Defendant Dubois's statement is
otherwise discoverable, Defendant Dubois is presumably
available for a deposition. “[T]here is in general no
justification for discovery of the statement of a person
contained in work product materials when the person is
available to be deposed.” Gay v. P. K. Lindsay
Co., Inc., 666 F.2d 710, 713 (1st Cir. 1981)).
Plaintiff, therefore, has not demonstrated that the documents
must be produced under Federal Rule of Civil Procedure
Plaintiff argues the documents were not inadvertently
disclosed as Defendants maintain. Federal Rule of Evidence
502 provides that the disclosure of privileged information
does not constitute a waiver of the privilege if “(1)
the disclosure is inadvertent; (2) the holder of the
privilege or protection took reasonable steps to prevent
disclosure; and (3) the holder promptly took reasonable steps
to rectify the error.” Fed.R.Evid. 502(b).
contends the disclosure was not inadvertent because the
document was produced after Defendant had more than
sufficient time to review the documents before they were
produced, and had multiple opportunities to determine whether
the document was privileged. Plaintiff argues that a document
cannot be deemed inadvertently disclosed if it was produced
after counsel reviewed the document.
interpretation of the rule is too narrow. The inadvertent
disclosure rule recognizes that in the production of
information in discovery, which at times is voluminous,
parties on occasion mistakenly produce privileged material.
Consistent with the objective to litigate cases based on the
exchange of discoverable information, the rule is designed to
prevent prejudice to a party who engages in discovery in good
faith, but unintentionally discloses privileged information.
A party can inadvertently disclose a privileged document even
after the party reviews the document.
Defendant's counsel represented (1) that in part due to
the volume of documents counsel had to review in connection
with the production, the email communications were
inadvertently produced in discovery, and (2) that within days
of counsel learning of the disclosure, counsel notified
Plaintiff's counsel of the inadvertent disclosure, and
designated the email communications as privileged in
accordance with Federal Rule of Civil Procedure 26(b)(5)(B).