Opinion
C.A. No. 99C-09-168-JTV.
Submitted. July 9, 2003.
Decided. July 31, 2003.
Upon Consideration of Defendant's Motion To Compel Discovery DENIED
Olha N.M. Rybakoff, Esq., Department of Justice, Wilmington Delaware. Attorney for the State of Delaware.
C. Scott Reese, Esq., Cooch Taylor, Wilmington, Delaware. Attorney for Defendants Wellington Homes, 397 Properties and Albert Tina Marie Vietri.
Adam Balick, Esq., Balick Balick, Wilmington, Delaware. Attorney for Defendants Christiana Ventures and Joseph Capano.
Richard H. Cross, Jr., Esq., Wilmington, Delaware. Attorney for Defendant Joseph Capano.
ORDER
Upon consideration of the defendants' motion to compel discovery, the plaintiffs response, and the record of the case, it appears that:
1. This is an action in which the Attorney General seeks civil penalties against the defendants under Delaware's Consumer Fraud and Deceptive Trade Practices Acts. She alleges that the defendants committed numerous violations of both acts in the course of marketing, selling and constructing new homes in a residential subdivision known as Lea Eara Farms, which is located in the area of Middletown, New Castle County, Delaware. The defendants have moved for an order requiring the plaintiff to produce investigative files of Thomas Penoza, a special investigator employed within the office of the Attorney General. The plaintiff resists production of these files on the grounds that they are work product protected from discovery under Superior Court Civil Rule 26(b)(3). She opposes any pretrial production of the investigative files.
Rule 26(b)(3) provides in relevant part as follows: Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things, otherwise discoverable under (b)(1) of this Rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
2. The chain of events which led to this litigation began when some of the new home buyers in Lea Eara Farms expressed complaints about the conduct of the defendants relating to the marketing, sale and construction of the homes. These complaints made their way to the Consumer Protection Division of the office of the Attorney General. Thomas Penoza was assigned to investigate them. During the course of his investigation, he prepared a number of written reports, which are now the subject of defendants' motion.
3. Earlier in this proceeding, Mr. Penoza was deposed. However, according to his sworn answers, he did not review his reports in preparation for his deposition. As a result, he was unable to answer some questions and stated that he would have to review his reports before he would be prepared to testify at trial.
4. The plaintiffs submission in opposition to the motion indicates that the Consumer Protection Unit of the Attorney General's office receives approximately 20,000 complaints or other contacts each year. More than 95% of those complaints or contacts are handled by an intake unit. The remainder, less than 5%, are referred to the Director of the Consumer Protection Unit from the intake unit with an enforcement recommendation. If the Director, a deputy attorney general, agrees with the enforcement recommendation, the matter is referred to a special investigator for a formal investigation. The investigation is performed subject to the direction and supervision of the Director of the Consumer Protection Unit or an assigned staff deputy attorney general. The opening of a formal investigation represents a decision within the Division of Consumer Protection, at least preliminarily, that there is reason to be believe, or that it appears, that a violation of law has occurred. The plaintiff contends the work product protection should apply from that point forward.
5. Investigative reports prepared by government attorneys, or investigators utilized by government attorneys, in anticipation of litigation, are entitled to protection from discovery as work product. I agree with the plaintiff that, at least as to this case, reports prepared during a special investigation are prepared in anticipation of litigation. When the investigation commences, enforcement litigation becomes a very real possibility, depending upon the outcome of the investigation. I therefore conclude that the investigative reports prepared by Mr. Penoza are entitled to work product protection.
National Labor Relations Board v. Sears, Roebuck Co., 421 U.S. 132 (1975); 6 James W. Moore, Moore's Federal Practice §§ 26.70[3][d], 26.70[4].
To assist in the decision as to whether Mr. Penoza's reports were prepared in anticipation of litigation, the Court ordered that the reports be submitted for the Court's in camera inspection. The contents of the reports, however, have had no significant bearing on the decision that the Court has ultimately reached, that they were prepared in anticipation of litigation.
6. The defendants have not claimed that they should have discovery of the reports under the "substantial need" and "undue hardship" provision of Rule 26(b)(3). They contend that the plaintiff has waived work product protection for the reports by identifying Mr. Penoza as a witness for trial. This waiver, they contend, is based upon Rule 612 of the Delaware Rules of Evidence. Rule 612(a) provides that an adverse party is entitled to have a document produced if a witness uses it to refresh his memory while testifying at a trial, hearing or deposition. Rule 612(b) provides that an adverse party is entitled to have a document produced if a witness reviews it to refresh his testimony before testifying and the court determines that the interests of justice require its production. Since it appears to be a certainty that Mr. Penoza will have to review his investigative reports to prepare to testify, the defendants contend, the investigative reports should be produced now to allow for orderly discovery and to avoid the impracticality of interrupting his testimony at trial to allow them time to review the reports before proceeding with their cross-examinations. Rule 612(c), they contend, allows the court to order that documents be made available for inspection if production at trial is impracticable.
7. After considering the arguments of counsel, I have decided that production of the investigator's reports should not be ordered at this time because no waiver under Rule 612 has as yet occurred. Mr. Penoza did not use his investigative reports to refresh his memory for his deposition. Therefore, Rule 612 does not require that his investigative reports be produced because of his deposition. Although the plaintiff has identified Mr. Penoza as a trial witness, theoretically the plaintiff may decide not to call him. In addition, if the plaintiff does call him as a witness, under Rule 612 the analysis for production of the reports may differ depending upon whether he uses the reports to refresh his memory while testifying or before testifying. For these reasons, I have concluded that a decision as to whether the investigator's reports should be produced under Rule 612 should not be made until he testifies. Although I realize that this approach may cause some disruption at trial, I am not persuaded that disruption at trial in this case justifies a departure from what I believe to be the process contemplated by the rule.
8. This ruling applies only to production of the reports themselves. As the plaintiff readily concedes, facts contained within the reports are freely discoverable.
9. In its submission the Attorney General states that she has provided the defendants with verbatim transcripts of all witness interviews. The defendants state they have never received any transcripts. Counsel should confer to clear up these conflicting statements.
10. In their motion to compel, the defendants also contend that the plaintiff has not provided sufficient answers to interrogatories. Recently, in response to a previous order of the Court, the plaintiff filed a detailed, supplemental statement setting forth the acts or omissions for which civil penalties will be sought and summaries of anticipated witness testimony. This statement was filed after the parties' had completed their submissions in regard to the defendants' motion to compel. When the supplemental statement was filed, the defendants filed motions for sanctions, contending that the statement did not comply with the Court's order. The Court denied these motions on the grounds that the statement substantially complied with the Court's order and that sanctions were not appropriate. That order addressed sanctions only and was not an effort to address all remaining discovery issues, whether they be discovery issues referred to in the motions for sanctions or other discovery issues. Remaining issues concerning discovery from either the defendants or the plaintiff should be submitted to the Court by letter in advance of the August 12 pretrial conference.
11. The pending motion to compel discovery is denied.
IT IS SO ORDERED.