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Lloyds of London Syndicate 2003 v. Fireman's Fund Insurance Co. of Ohio

United States District Court, D. Kansas

July 6, 2017

LLOYDS OF LONDON SYNDICATE 2003, Plaintiff,
v.
FIREMAN'S FUND INSURANCE COMPANY OF OHIO, Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         This 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).

         I. Factual Background

         On 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).

         During 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.

         The 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.

         About 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.

         II. Legal Standard

         The 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.

         III. Analysis

         To 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.

         A. Defendant's June 29, 2016 email qualifies for work product protection under federal statute and controlling case law.

         As the 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.

         1. The email qualifies as defense counsel's “mental impressions, conclusions, opinions, or legal theories” about impending litigation.

         To 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).

         Here, 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.[1] 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).

         2. The email does not qualify for any of the three exceptions to work product protection.

         Rule 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 ...


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