In the last edition of the CRABS E-Newsletter we discussed the steps that were taken by Wells Fargo Bank, N.A. to protect records in its possession during the course of bankruptcy litigation with a Chapter 7 Trustee by using the attorney client privilege in McCarthy v. Wells Fargo Bank, N.A. (In re El-Atari), 2013 WL 593705 (Bankr. Va. 2013).  

That case is also important because it dealt with another protection to litigants in federal court proceedings being the Work Product Doctrine. Work product is not a substantive privilege but rather a qualified immunity from discovery that has its basis in federal law coming from the case of Hickman v Taylor, 329 U.S. 495, 509 – 14 (1947) and incorporated in Rule 26 of the Federal Rules of Civil Procedure. Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 476 (N.D. Tex. 2004). Unlike the Attorney Client Privilege that belongs to the client, the Work Product Doctrine is a privilege that can be invoked by an attorney or a client. The party claiming work product protection bears the burden of demonstrating that it applies.  

Primary Motivating Purpose

Federal Rule 26(b)(3)(A) and (B) provides that 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 representatives, including an attorney, consultant, surety, indemnitor, insurer, or agent. This doctrine applies when the primary motivating purpose behind the creation of the document was to aid in possible future litigation. United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir.1982); SEC v. Brady, 238 F.R.D. 429, 441–442 (N.D.Tex.2006); In re Hardwood P-G, Inc., 403 B.R. 445, 463 (Bankr. W.D. Tex. 2009).  

Opinion Work Product

The Fifth Circuit recognizes a distinction between ordinary and opinion work product. In re Int'l Sys. & Controls Corp. Sec. Litig., 693 F.2d 1235 (5th Cir. 1982). Opinion work product includes the mental impressions, conclusions, opinions, or legal theories of lawyers or other representatives of the party that is in litigation and has almost absolute protection. This can include investigatory reports containing summaries of witness interviews and documents, including business records, which were specifically selected and compiled by a party or its representative in preparation for litigation. These documents are protected from disclosure because the acknowledgment of their selection could reveal mental impressions concerning the potential litigation.

A party seeking opinion work product must establish a compelling need for the information. There is nearly an absolute protection of opinion work product. For example, legal counsel’s questionnaire and a handwritten draft of Schedule F of bankruptcy schedules could not be compelled to be produced to a Trustee in a bankruptcy case because it was “opinion work product.” In re McDowell, 483 B.R. 471, 494 (Bankr. S.D. Tex. 2012).

Ordinary Work Product

If the material sought is ordinary work product, a court may compel discovery if the party seeking the materials establishes (i) a substantial need for the materials in the preparation of the party's case, and that (ii) it is unable, without undue hardship, to obtain the equivalent of the materials by other means. Koenig v. Int'l Sys. & Controls Corp, Secs. Litig. (In re Int'l Sys. & Controls Corp. Secs. Litig., 693 F.2d 1235, 1240 (5th Cir.1982). Undue hardship can be demonstrated if witnesses cannot remember key facts or are unavailable for depositions or if there is unusual expense incurred of interviewing or discovering the sought-after person or information, as the case may be. Koenig, 693 F.2d at 1241. If the information can be discovered other than through the documents at issue, then substantial need does not exist. In the case of S.E.C. v. Cuban, 2013 WL 1091233 (N.D. Tex. 2013), Cuban was able to show a substantial need to compel the S.E.C. to produce factual portions of interview notes and summaries that did not contain opinions or mental impressions of witness.  

Documents Produced in Ordinary Course of Business or Public Requirements

Work product does not protect materials assembled in the ordinary course of business or pursuant to public requirements unrelated to litigation. United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982). The advisory committee notes to Federal Rule 26(b)(3) provide that materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other non-litigation purposes are not protected. If the document would have been created in the ordinary course of business without regard to the litigation or the retention of counsel and his involvement in the litigation, then the documents would be discoverable. Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 477 (N.D.Tex.2004)(investigation into unauthorized disclosure of information was unrelated to litigation); Electronic Data Systems Corp. v. Steingraber, 2003 WL 21653414 (E.D.Tex. 2003)(court ordered documents produced prior to litigation date regarding investigation into wrongdoing and why it was not discovered earlier).  

In the McCarthy v. Wells Fargo Bank, N.A. case, the bankruptcy Trustee moved to compel documents from Wells Fargo on the grounds that it was conducting an internal investigation on possible money laundering which it was required to do under banking regulations and not in anticipation of the litigation. The bankruptcy court noted that there could be documents created with a “dual purpose.” The court found that the Trustee’s arguments were “too all – encompassing and would result in the loss of work product protection whenever there is a parallel, non-litigation need to conduct an internal investigation.”

Communications with Experts

Not all communications between an attorney and an expert are protected from disclosure. A party can obtain discovery regarding: (i) compensation for the expert's study or testimony; (ii) facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.” Fed.R.Civ.P. 26(b)(4)(C).