United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
Order considers whether a party properly can invoke work
product protection to shield a document that it inadvertently
produced. Defendant Fireman's Fund Insurance Company of
Ohio argues that it can. Plaintiff Lloyds of London Syndicate
2003 takes the opposite position. After considering the
parties' arguments, the court concludes that work product
protection applies to the document and grants defendant's
Motion for Protective Order (Doc. 84).
November 7, 2016, plaintiff deposed defendant's retained
expert, Jack Murphy. Before the deposition, Mr. Murphy
produced his written report as Fed.R.Civ.P. 26(b)(2)(B)
requires. Mr. Murphy also produced-albeit inadvertently-an
email exchange as part of that written report. Before Mr.
Murphy produced his written report, defense counsel conferred
with him about what documents they considered to be protected
from disclosure and directed him not to produce those
documents to plaintiff's counsel. One of those protected
documents included the email now at issue. Doc. 84-2 ¶
5. Defendant asserts that the email is a work product
protected document under Fed.R.Civ.P. 26(b)(3)(A).
Mr. Murphy's deposition, defense counsel realized that
Mr. Murphy inadvertently had produced this email. Defense
counsel immediately notified plaintiff's counsel of the
inadvertent disclosure of the document and demanded its
return. Plaintiff's counsel refused, claiming that
defense counsel had waived work product protection by
disclosing the email in Mr. Murphy's written report.
parties then agreed to subject the email to a preliminary
protective order. Under the terms of this order,
plaintiff's counsel agreed not to question Mr. Murphy
about the document or provide the document to any of
plaintiff's witnesses. Also, plaintiff's counsel
marked the email document as Exhibit 4A at Mr. Murphy's
deposition, and then the court reporter labeled the document
as one subject to a protective order.
four months later, defendant filed a Motion for Protective
Order asking to: (1) bar plaintiff's counsel and
plaintiff's witnesses from reviewing or referring to the
email; (2) require plaintiff's counsel to return the
original email from the deposition and destroy any copies of
it; and (3) direct the court reporter to remove Exhibit 4A
from the record of the deposition. Doc. 85 at 7-8.
Supreme Court first recognized the work product doctrine in
Hickman v. Taylor. See 329 U.S. 495, 508-11
(1947). At its core, the work product doctrine serves to
“shield litigants' work-product from their
opponents, . . . thus freeing lawyers to create such material
without fear of discovery.” In re Grand Jury
Proceedings, 616 F.3d 1172, 1184 (10th Cir. 2010)
(citations omitted). This doctrine also “shelters the
mental processes of the attorney[, ]” United States
v. Nobles, 422 U.S. 225, 238 (1975), and protects
against disclosing an attorney's “mental
impressions, conclusions, opinions, or legal theories.”
Fed.R.Civ.P. 26(b)(3)(B). As such, the work product doctrine,
now codified in Rule 26(b)(3), prevents disclosure of
documents or tangible things that an attorney has prepared in
anticipation of litigation. Fed.R.Civ.P. 26(b)(3)(A). The
party asserting work product privilege bears the burden to
show that the doctrine applies to the document at issue.
In re Grand Jury Proceedings, 616 F.3d at 1184-85.
decide whether the email deserves protection under the work
product doctrine, the court must consider two questions.
First, does the email constitute work product? Second, if the
email is work product, did counsel's inadvertent
disclosure of the email waive work product protection? The
court addresses these two questions below.
Defendant's June 29, 2016 email qualifies for work
product protection under federal statute and controlling case
party asserting work product protection, defendant must show
each of the following: (1) the June 29, 2016 email is a
document or tangible thing prepared by or for the defendant
or its counsel; (2) the email qualifies as work product
material prepared in anticipation of litigation; (3) the
email does not qualify for an exception to the doctrine; and
(4) defendant properly claimed that the email was subject to
protection as trial-preparation material. Fed.R.Civ.P.
26(b)(3)-(5); see also Zapata v. IBC, Inc., 175
F.R.D. 574, 576 (D. Kan. 1997) (identifying burdens for work
product protection (citations omitted)). The parties do not
dispute the first requirement, so the next four subsections
address the other four requirements.
The email qualifies as defense counsel's “mental
impressions, conclusions, opinions, or legal theories”
about impending litigation.
qualify for protection as the attorney's work product,
the party or its attorney must show that it prepared
materials in anticipation of litigation or for trial.
Fed.R.Civ.P. 26(b)(3)(A). Our court has held that an
attorney's scattered, handwritten notations in an expert
report constituted “mental impressions, conclusions,
opinions, or legal theories, made with an eye toward
litigation.” Zapata, 175 F.R.D. at 576 (citing
Hickman, 329 U.S. at 508). In that case, the
attorney inadvertently provided the incorrect copy of a
report that contained her written notes. After reviewing
those notes, the court concluded that they were the type of
material protected by Rule 26(b)(3).
defendant asserts in its Reply that “the email
concerned correction of typographical errors in the
expert's draft report and requesting that Mr. Murphy
expand his discussion on two of the topics in his
report.” Doc. 94 at 2; see also Doc. 84-2
¶ 3. The email thus describes defense
counsel's impressions of the expert's report, and it
directs the expert to make certain changes to the
report's substance. So, like the notes in
Zapata, the email contains defense counsel's
mental impressions, conclusions, opinions, or legal theories.
Defense counsel also made the statements when anticipating
litigation. Indeed, the parties already were litigating this
lawsuit when defense counsel sent the email. The court thus
finds that the email satisfies the work product requirements
as codified in Rule 26(b)(3).
The email does not qualify for any of the three exceptions to
work product protection.
26(b)(4)(C) presumes that all communications between an
expert and a party's attorney are protected as work
product unless the communications fall within one of the
three exceptions. The rule provides no protection under these
exceptions if the communication: (i) addresses the
expert's compensation, (ii) identifies facts or data that
the attorney provided and that the expert considered to form
his opinion, or (iii) identifies assumptions that the