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Rickards v. Corizon Health, Inc.

United States District Court, D. Maine

June 1, 2019




         In this employment discrimination case, defendant Corizon Health, Inc. (“Corizon”) seeks to compel plaintiff Traci L. Rickards to testify about communications during a deposition preparation meeting between her, her counsel, and her daughter Kayla Rickards, a fact witness in this case who is separately represented by the plaintiff's counsel, see ECF No. 40. Following oral argument and post-argument letter briefs, see ECF Nos. 42, 44, 47-48, I deny the defendant's request, concluding that the discovery sought is protected attorney work product.

         To the extent that the defendant, in its letter briefs, seeks even broader relief in the form of an order to compel the testimony of both the plaintiff and her daughter as to all communications among themselves and their counsel and the production of all documents and tangible items relating to those communications, see ECF No. 48 at 3, and the plaintiff moves for a protective order barring the defendant from further inquiry into any such communications, see ECF No.42 at 1-2, I deny both motions without prejudice as premature and beyond the scope of the issue presented to me and for which briefing was permitted.[1]

         I. Applicable Legal Standard

         In Hickman v. Taylor, 329 U.S. 495 (1947), “the Supreme Court first recognized the work product doctrine as essential to the proper functioning of our adversarial system.” In re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d 379, 383 (2d Cir. 2003). That doctrine later was “codified in part in Rule 26(b)(3) of the Federal Rules of Civil Procedure[, ]” id., 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, subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has 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).

         However, Rule 26(b)(3) does not displace the broader common law work product doctrine. See, e.g., U.S. Info. Sys., Inc. v. Int'l Bhd. of Elec. Workers Local Union No. 3, No. 00Civ.4763(RMB)(JCF), 2002 WL 31296430, at *5 (S.D.N.Y. Oct. 11, 2002) (Hickman doctrine broader than Rule 26(b)(3)); Maynard v. Whirlpool Corp., 160 F.R.D. 85, 87 (S.D. W.Va. 1995) (contours of work product doctrine distinct from those of Rule 26(b)(3)).

         Hickman outlines the extent to which a party can seek the disclosure of “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.” Hickman, 329 U.S. at 497; see also, e.g., United States. v. Textron Inc., 577 F.3d 21, 26 (1st Cir. 2009). The Court protected a broad swath of otherwise discoverable materials because it recognized that work product “is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways[.]” Hickman, 329 U.S. at 511.

         “[A] party resisting discovery has the burden of showing some sufficient reason why discovery should not be allowed[.]” Flag Fables, Inc. v. Jean Ann's Country Flags & Crafts, Inc., 730 F.Supp. 1165, 1186 (D. Mass. 1989) (citation and internal quotation marks omitted). In addition, the proponent of a privilege bears the burden of demonstrating entitlement to its protection. See, e.g., In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003) (“Despite a grand jury's vaunted right to every man's evidence, it must, nevertheless, respect a valid claim of privilege. But the party who invokes the privilege bears the burden of establishing that it applies to the communications at issue and that it has not been waived.”) (citations omitted).

         II. ...

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