Opinion
No. 3-04-CV-1848-L.
July 12, 2005
MEMORANDUM ORDER
Defendant Lockheed Martin Corporation has filed a motion for protective order in connection with a Rule 30(b)(6) deposition notice served by plaintiff in this disability discrimination case. At issue is whether defendant must produce a witness to testify about its written response to plaintiff's EEOC charge and the company's decision not to mediate. Defendant contends that the subject matter of such testimony is protected by the work product doctrine. Plaintiff counters that factual representations made by defendant in its EEOC response do not constitute work product and should be the subject of further inquiry. The parties have briefed their respective positions in a joint status report filed on July 8, 2005, and the motion is ripe for determination.
Defendant also objected to the date and time of the deposition and to the scope of other topics specified in the Rule 30(b)(6) notice. Those objections were resolved by agreement. ( See Jt. Stat. Rep. at 1, ¶ (b)).
Fed.R.Civ.P. 26(b)(3) provides that documents and tangible things prepared "in anticipation of litigation" are exempt from discovery. See Dunn v. State Farm Fire Casualty Co., 927 F.2d 869, 875 (5th Cir. 1991). It follows that testimony about the preparation of such documents also is entitled to work product protection. Here, plaintiff either has obtained or presumably has access to defendant's formal response to the EEOC charge. ( See Plf. App. at 001). That response was made for the sole purpose of answering plaintiff's charge of discrimination and, thus, was made in anticipation of litigation. It would be manifestly improper to allow plaintiff to question Shannon Bowman, Senior Manager of Diversity/Equal Opportunity Programs for Lockheed Martin, or any other representative of the company, about the investigation into plaintiff's allegations which formed the basis of defendant's response. The factual investigation conducted by defendant constitutes fact or ordinary work product, which is protected from discovery absent a showing of "substantial need." See Southern Scrap Material Co. v. Fleming, 2003 WL 21474516 at *7 (E.D. La. Jun. 18, 2003), citing FED. R. CIV. P. 26(b)(3). Testimony regarding defendant's decision not to mediate involves the mental impressions of attorneys and representatives and is not discoverable absent a "compelling need." Id. Plaintiff has failed to demonstrate either a "substantial need" or a "compelling need" for the testimony he seeks.
Work product is not a substantive privilege within the meaning of Fed.R.Civ.P. 501. See Interphase Corp. v. Rockwell International Corp., 1998 WL 664969 at *4 (N.D. Tex. Sept. 22, 1998) (Kaplan, J.) (citing cases). Therefore, the resolution of this issue is governed by federal law. Id.
For these reasons, defendant's motion for protective order is granted. Defendant is not required to produce a witness to testify about its written response to plaintiff's EEOC charge or the company's decision not to mediate.
SO ORDERED.