Opinion
00 Civ. 2481 (LAK)
November 2, 2000
ORDER
The Lexent defendants in this sexual harassment case have sought a protective order determining that notes by a private investigator hired by defendants' counsel of her interviews with the plaintiff prior to the commencement of the litigation are not subject to discovery because they work product. They have submitted the notes to the Court for in camera inspection. They also seek to block a deposition of the investigator. Plaintiff, on the other hand, seeks an order compelling disclosure of the notes and, it appears, wishes to proceed with the deposition.
Rule 26(b)(3) of the Civil Rules limits disclosure of materials prepared in anticipation of litigation, typically requiring a showing of substantial need by the adversary. It provides further, however, that "[a] party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party." The rule then goes on to define "statement" in terms used also in the Jencks Act, 18 U.S.C. § 3500: "(A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded."
Clause (A) is entirely inapplicable here, as there is no suggestion that the plaintiff adopted or approved the investigator's notes. The question therefore reduces to whether the notes are a "recording, . . . which is a substantially verbatim recital of an oral statement by the" plaintiff.
The investigator contends that the notes "were not intended to constitute and do not constitute anything approaching verbatim transcripts of the conversations at issue and do not fully reflect everything" that was said in them. (Neville Decl. ¶ 5) That no doubt is literally true. Moreover, it is equally clear that no one who was not present during the conversations ever can know with certainty exactly how close the notes come to the precise words that were used in the discussions. Nevertheless, the Court, having examined the notes in their entirety, concludes that they are "substantially" verbatim recitals of critical points made by the plaintiff to the investigator. Accordingly, the notes are to be produced, though defendants may redact notations reflecting conversations between the investigator and persons other than the plaintiff as well as the numerical and time notations referred to in Ms. Massey's October 31, 2000 letter to the Court. Defendants need not, however, produce the notes until after the conclusion of plaintiff's deposition.
The deposition is another matter. Defendants have established that the investigator was retained by their counsel to assist counsel in advising the defendants. In consequence, virtually everything she has learned about this case is protected by the attorney-client privilege or is work product. There is one notable exception, however, and that is her conversations with the plaintiff. Accordingly, following the completion of plaintiff's deposition, plaintiff may conduct a deposition of the investigator limited to the content of her communications with the plaintiff.
SO ORDERED.