In McCarthy v. Slade Associates, Inc., 463 Mass. 181 (2012), the Supreme Judicial Court considered whether files maintained by lawyers representing the plaintiff in an underlying lawsuit must be disclosed in connection with arguments that the plaintiffs’ claims were time-barred. In the underlying action in the Land Court, the plaintiff asserted rights concerning certain Cape Cod property she had purchased more than 20 years earlier. In opposing the plaintiff’s claims for relief, the Land Court defendants filed a title report purporting to show the plaintiff held no title to the property at issue.

Separately from the Land Court action, the plaintiff sued her former attorneys, land surveyors, and others involved in her purchase of the property, alleging they committed malpractice and gave her improper advice. The defendants asserted the malpractice complaints were barred by the applicable statutes of limitations for tort actions, as they were filed more than three years after the plaintiff knew or should have known of her claims. To support that defense, the malpractice defendants sought documents from the plaintiff’s counsel in the underlying action, including:

  1. correspondence between the plaintiff and her counsel;
  2. answers to written questions; and
  3. deposition testimony from the plaintiff's counsel, in an effort to demonstrate when plaintiff or her counsel were on notice of the claim she had no title to the property.

The plaintiff objected to these discovery requests, asserting the documents are protected by the attorney-client privilege and/or the work product doctrine.

The Court first considered the defendants’ contention that the plaintiff had waived any attorney-client privilege protecting the documents by virtue of filing the malpractice lawsuit (an “at-issue waiver”). The Court indicated it will continue to recognize the concept of an at-issue waiver of the attorney-client privilege and that the at-issue waiver might apply where a statute of limitations defense is countered by the plaintiff's assertion that her claims did not accrue until she discovered them (the “discovery rule”). However, the Court determined the defendants had not shown the privileged information sought to be disclosed was not available from any other source.

With respect to the work product doctrine, however, the Court held the defendants had shown a "substantial need" of the materials qualifying as work product, based on the plaintiff's assertion of the discovery rule in opposing arguments for dismissal of the complaints as time-barred. The Court held that documents concerning when the plaintiff learned of the alleged boundary errors were "put in play" by the plaintiff's "injection of the discovery rule" and were "directly relevant."

Accordingly, the Court held that the defendants were entitled to discover the contents of the attorney’s billing records. They were also entitled to discovery of any title examination or report prepared by a title examiner retained by plaintiff's counsel. In doing so, the Court held that billing records are "usually the stuff of fact, not opinion" and ordered that billing records be produced in the circumstances of this case. To the extent billing records do contain “mental impressions of counsel,” the Court held, such portions may be redacted. The Court held the title report documentation was not protected opinion work product. The Court also held the plaintiff’s Land Court counsel could be compelled to identify (without describing the contents) documents he had reviewed and knowledge he had regarding the plaintiff’s interest in the Cape Cod property.

The Court’s holding underscores the complexities of conducting discovery in attorney malpractice matters where the knowledge of counsel may be used to prove when a claimant “discovered” her claims. The distinction between “fact” work product and “opinion” work product must be carefully balanced, and attorneys must not presume that documents are protected from discovery merely because they maintained in a lawyer’s file.