Opinion
No. CV 04-4556-MMM (PLAx).
April 21, 2005
ORDER DENYING DEFENDANT'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS
In this action filed by plaintiff Securities and Exchange Commission ("SEC") against defendant Talbot ("Talbot") alleging "insider trading," Talbot has filed a Motion seeking the production of certain attorney interview notes that the SEC used during its examination of the witnesses who provided those interviews, claiming that the SEC waived the attorney work product doctrine as to the notes. The Court has considered all of the documents filed in connection with Talbot's Motion, and has concluded that oral argument will not be of material assistance in determining the Motion. Accordingly, the hearing scheduled for April 26, 2005, is ordered off calendar (see Local Rule 7-15), and the Court rules as follows:
As presented by the parties in their Joint Stipulation, the SEC interviewed various individuals during its pre-lawsuit investigation in this matter. Notes of these interviews were made by the SEC. The SEC then took formal testimony, under oath, from these same individuals. During that testimony, counsel for the SEC on numerous occasions asked the witnesses about the witnesses' prior meetings with the SEC, and asked them to confirm what the SEC's notes reflect about the witnesses' various statements. Talbot seeks production of these notes from the SEC, and contends that this use of the notes during testimony amounted to a waiver of the work product doctrine.
The SEC contends that the notes prepared by their counsel from the interviews are protected by the work product doctrine. Rule 26(b)(3) of the Federal Rules of Civil Procedure may "protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney . . . concerning the litigation." The work product doctrine "is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy `with an eye toward litigation,' free from unnecessary intrusion by his adversaries." United States v. Adlman, 134 F.3d 1194, 1196 (2nd Cir. 1998) (quoting Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (1947)). Attorney's notes and interview memoranda of witnesses are protected by the work product doctrine. See Upjohn Company v. United States, 449 U.S. 383, 399 (1981) ("[f]orcing an attorney to disclose notes and memoranda of witnesses' oral statements is particularly disfavored because it tends to reveal the attorney's mental processes"), citing Hickman v. Taylor, 329 U.S. at 513; O'Connor v. Boeing North American, Inc., 216 F.R.D. 640, 643 (C.D. Cal. 2003) ("[n]otes and memoranda of an attorney . . . from a witness interview are opinion work product entitled to almost absolute immunity."). Protection of such notes is warranted in that the notes "reveal an attorney's legal conclusions because, when taking notes, an attorney often focuses on those facts that she deems legally significant." Baker v. General Motors Corp., 209 F.3d 1051, 1054 (8th Cir. 2000). See also Director, Office of Thrift Supervision v. Vinson Elkins, 124 F.3d 1304, 1307-08 (D.C. Cir. 1997). As such, the presence in a memorandum of factual information conveyed by the witness does not remove the protection. See Baker, 209 F.3d at 1054. Such information can be discovered "only in very rare and extraordinary circumstances, such as when the material demonstrates that an attorney engaged in illegal conduct or fraud." Id. No such rare exception is present here.
Based on the record before it, the Court finds that the notes from those interviews were prepared in anticipation of litigation and are subject to work product protection. See In re Grand Jury Subpoena, 357 F.3d 900, 908 (9th Cir. 2004). Talbot does not contest this assertion in this Motion, but rather argues that a waiver has occurred.
Talbot asserts that United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975), warrants production of the interview notes. There, defense counsel asked prosecution witnesses if they had spoken with an investigator and made certain statements that could call into question their in-court identifications of the defendant. One of the witnesses was allowed to refer to the investigator's interview notes to refresh his recollection, and the prosecutor briefly saw the relevant portions. The court then ruled that the investigator would not be allowed to testify for impeachment purposes about his interviews with the witnesses unless the report were given to the prosecution. Defense counsel did not produce the report. Id. at 228. In reversing the Court of Appeals' finding that the trial court had committed error, the Supreme Court concluded that once the author of the investigative notes had been called to testify about witness interviews a waiver of work product occurred. "[R]espondent sought to adduce the testimony of the investigator and contrast his recollection of the contested statements with that of the prosecution's witnesses. Respondent, by electing to present the investigator as a witness, waived the privilege with respect to matters covered in his testimony." Nobles, at 239. Significantly, however, counsel was not required to produce the notes based solely on his questioning of the witnesses about the witnesses' statements on a prior occasion. This makes sense. The attorney's questions concerning the prior statements — as contained in the notes — merely gave the witnesses a chance to reflect on and affirm or modify a previous answer. The attorney's questions are not evidence, and do not prove that what is in the notes is true. On the other hand, when the author of the notes testifies as to the notes' contents, the statements are then being offered to impeach the witness who made the prior statements. In such a circumstance, the work product privilege is rightly waived and production is required.
The Nobles court seems to refer to this use of notes as "testimonial use," in contrast to counsel's use of notes throughout trial to prepare the case and in examining witnesses.Nobles, 422 U.S. at 240, fn. 14.
In the present case, the SEC attorney asked questions that clearly referred to notes that were made during witness interviews. The witnesses were asked to confirm or deny whether certain statements were made. It is the witnesses' responses that are evidence, not the questions. Had the attorney who had taken the notes been called upon to impeach the witnesses — i.e., to say that the witnesses' testimony is inconsistent with what the witnesses previously said — then the situation would be like that presented in Nobles, and production would be required. Here, like the circumstances in O'Connor v. Boeing North American, Inc., 216 F.R.D. at 644, SEC counsel merely utilized information from investigation to "formulate questions" to the witnesses. "[C]ounsel's questions are not evidence" (id. at 644, quotingTolbert v. Queens College, 242 F.3d 58, 75 (2d Cir. 2001)), and use of information from the interviews to formulate questions is not "testimonial use." Boeing, 216 F.R.D. at 644. Without "testimonial use" of the notes, there has not been a waiver of the work product doctrine. See Rockwell Int'l Corp. v. Department of Justice, 235 F.3d 598, 605 (D.C. Cir. 2001) (Even "quoting portions of some [work product documents] is [not] inconsistent with a desire to keep the rest secret, particularly in view of the steps the [defendant] took to maintain their confidentiality . . .").
The Court finds the facts in Nobles far more similar to the present situation than those in United States v. Salsedo, 607 F.2d 318, 320 (9th Cir. 1979).
CONCLUSION
Consistent with the Supreme Court's holding in Nobles, the Court concludes that the SEC's use of its interview notes did not waive the protection of the work product doctrine. As such, Talbot's Motion to Compel Production of Documents is denied.