Opinion
No. 01-2009-KHV.
January 22, 2002
MEMORANDUM AND ORDER
Plaintiff brings suit against Pepsico, Inc. and Bottling Group, LLC, for breach of contract, breach of fiduciary duty, tortious interference with contract and conspiracy. This matter comes before the Court onDefendant Pepsico, Inc.'s Motion To Review The Magistrate Judge's November 8, 2001 Memorandum And Order (Doc. #168) filed November 27, 2001. For reasons stated below, defendant's motion is overruled.
Factual Background
On August 14, 2001, plaintiff's counsel conducted the deposition of Gerald Casey, Vice President and General Counsel of defendant PepsiCo, Inc. ("Pepsico"). During the deposition, plaintiff's counsel asked Casey what documents he had reviewed in preparing for the deposition. Counsel for Pepsico objected on the grounds of attorney-client privilege and instructed Casey not to answer the question.
Plaintiff's counsel telephoned the magistrate judge and asked him to compel Casey to answer. Neither side provided any relevant legal citations. The magistrate judge denied plaintiff's oral motion to compel, relying upon Alexander v. Fed. Bureau of Investigations, 186 F.R.D. 200, 203 (D.D.C. 1999) (plaintiffs not entitled to know what documents counsel provided witness in preparation for deposition; plaintiff could use information "to piece together information about nature of legal advice"). On reconsideration, however, the magistrate judge granted plaintiff's motion, relying upon Audiotext Communications Network, Inc, v. U.S. Telecom, Inc., 164 F.R.D. 250 (D.Kan. 1996) ("[t]he selecting and grouping of information does not transform discoverable documents into work product"). Pepsico appeals that order.
Standards For Review Of A Magistrate Order Regarding Discovery
A party may object to a magistrate judge's order pertaining to a discovery matter. See Fed.R.Civ.P. 72(a). Upon objection, the district court may "modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a); see 28 U.S.C. § 636(b)(1)(A).
Analysis
Pepsico contends that the process of selecting the documents that a deponent reviews prior to a deposition is protected by the attorney opinion work product doctrine, relying on Aguinaga v. John Morrell Co., 112 F.R.D. 671, 683 (D.Kan. 1986) (J. Theis) (finding that counsel's process of selecting documents for deponent to review before deposition is protected by attorney opinion work product doctrine). "To constitute work product under Fed.R.Civ.P. 26(b)(3), the material must be documents and tangible things, prepared in anticipation of litigation or for trial, and prepared by or for another party or for that other party's representative." Henshaw v. Hennessy Ind., Inc., No. 91-2248-KHV, 1993 WL 818323 at *2 (D.Kan. 1993) (quoting Sunbird Air Servs., Inc., v. Beech Aircraft Corp., No. 89-2181, 1992 WL 739505, at *2 (D.Kan. Sept. 4, 1992)).
In finding that the identification of documents which Casey reviewed is not entitled to protection as work product, the magistrate judge relied upon Audiotext, supra. In Audiotext, defendant objected to producing a bound notebook of documents that its witness reviewed before his deposition. Defendant argued that the documents were privileged because counsel had assembled the documents in a notebook in anticipation of litigation and they reflected counsel's mental impressions. See id. at 252. The Audiotext opinion stated that the "selecting and grouping of information" by counsel did not transform discoverable documents into work product. Id. The court also noted that defendants had produced all of the documents in discovery, thereby demonstrating the discoverability of each of the documents. Id.
Pepsico argues that these statements in Audiotext are dicta, because Judge Rushfelt ultimately relied upon Rule 612, Fed.R.Evid., in compelling the deponent to answer the question. See id. at 253 (when document is used to refresh one's recollection, Rule 612 privilege gives way to need for full disclosure). This Court agrees that Audiotext ultimately relies upon Rule 612. The magistrate judge also relied, however, upon the rationale of Judge Seitz's dissenting opinion in Sporck v. Peil, 759 F.2d 312, 319 (3rd Cir. 1985). Judge Seitz found that the identity of documents which the deponent reviewed before testifying are not opinion or thought process of an attorney, nor are they created by defendant's attorney in anticipation of litigation. See id. at 319 (dissent). As Judge Seitz stated,
Presumably, the petitioner's argument must be that if the respondents know which documents were reviewed, they could, upon examination of the documents identified, draw conclusions as to why each document was chosen.
The problem with the petitioner's theory is that it assumes that one can extrapolate backwards from the results of a selection process to determine the reasons a document was selected for review by the deponent. There are many reasons for showing a document or selected portions of a document to a witness. The most that can be said from the fact that the witness looked at a document is that someone thought that the document, or some portion of the document, might be useful for the preparation of the witness for his deposition. This is a far cry from the disclosure of a lawyer's opinion work product. Even assuming that the documents were selected by the petitioner's attorney, the subject matter is so undifferentiated that its potential for invasion of work product is minuscule at best.
. . .
Moreover, in order to claim the shield of opinion work product, it must be established that it is the attorney's thought processes that are revealed.759 F.2d at 319 (Seitz, Circuit Judge, dissenting). Pepsico urges this Court to follow the majority opinion in Sporck, which reasoned that an attorney can learn about opposing counsel's mental impression and legal theories, as well as litigation strategy, by discovering what documents opposing counsel selected to review with the deponent. Based on this reasoning, the Sporck majority held that counsel's selection of documents is entitled to work product protection. See id. at 316.
The Court finds that the dissent in Sporck is persuasive and well reasoned. See also San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1018 (1st Cir. 1988) (compelled disclosure of document lists does not implicate opinion work product); Henshaw, 1993 WL 818323 at * 2 (rejecting argument that documents are work product because "as a result of the careful and meticulous selection, grouping and synthesis of these documents, disclosure of them would have the effect of disclosing the mental impressions, opinions, conclusions and legal theories of Plaintiff's attorneys concerning this litigation") (citing Bohannon v. Honda Mtr. Co. Ltd., 127 F.R.D. 536, 539-40 (D.Kan. 1989)). In this case, Judge Waxse determined that the identities of the documents that Casey reviewed before his deposition are objective facts and not the opinion or thought process of an attorney. Further, Pepsico's attorney did not create the contents of the documents — the documents had already been produced. The order which compelled Casey to answer the question is not clearly erroneous or contrary to law.
IT IS THEREFORE ORDERED that Defendant Pepsico, Inc.'s Motion To Review The Magistrate Judge's November 8, 2001 Memorandum And Order (Doc. # 168) filed November 27, 2001 be and hereby is OVERRULED.