United States District Court, D. Maine
TRACI L. RICKARDS, Plaintiff
CORIZON HEALTH, INC., Defendant
MEMORANDUM DECISION AND ORDER ON MOTION TO COMPEL AND
MOTION FOR PROTECTIVE ORDER
H. RICH III UNITED STATES MAGISTRATE JUDGE.
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.
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
Applicable Legal Standard
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).
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)).
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
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).