Opinion
Case No. 00-1124-WEB.
February 14, 2001.
MEMORANDUM AND ORDER
This employment discrimination action is before the court on plaintiff's motion to compel production of a memorandum created by defendant's employee (Doc. 22). Defendant opposes the motion and argues that the memorandum was prepared in anticipation of litigation and should be protected under Fed.R.Civ.P. 26(b)(3). For the reasons stated below, the motion shall be denied.
Background
The facts concerning creation of the memorandum are undisputed. On August 4, 1999, Beverly Broxterman, Falley's Human Resources Director, learned that plaintiff had made a report of sexual harassment on Falley's "Alert-Line." On August 5, Broxterman called plaintiff to inquire about the complaint and was told "talk to [my] lawyer." On the same day, plaintiff's attorney sent Broxterman a letter advising that plaintiff had filed a charge of discrimination with EEOC and that any future communications concerning plaintiff's termination should be directed to her counsel.
Broxterman commenced an investigation of plaintiff's sexual harassment claim based on counsel's notice of an EEOC charge and the "Alert-Line" message. After interviewing several witnesses, Broxterman prepared a summary of her investigation and opinion about plaintiff's claims. During discovery the defendant provided plaintiff with the actual handwritten statements made by witnesses and plaintiff's motion seeks production of the memo containing Broxterman's summary and opinion. The discovery dispute has been narrowed to two issues: (1) whether the discovery exemption in Rule 26(b)(3) requires that the memo be prepared at the direction of an attorney, and (2) whether Broxterman's review of the memorandum prior to her deposition requires production under Fed.R.Evid. 612.
Analysis
I. Rule 26(b)(3)
Defendant contends that Rule 26(b)(3) protects Broxterman's memorandum from discovery. The Rule provides:
[A] party may obtain discovery of documents and tangible things otherwise discoverable under subsection (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for another 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.
Fed.R.Civ.P. 26(b)(3) (emphasis added). The party opposing discovery must show (1) that the material is a document or tangible thing, (2) that the material was prepared in anticipation of litigation, and (3) that the material was prepared by or for a party or by or for the party's attorney.Burton v. R.J. Reynolds Tobacco Co., 167 F.R.D. 134, 139 (Kan. 1996).
In this case, the first element (a document or tangible thing) has been clearly established because the discovery concerns a written memorandum. The second element (prepared in anticipation of litigation) has been satisfied by defendant's showing that the memorandum was prepared after notice that plaintiff was represented by counsel and had filed a discrimination claim.See e.g., EEOC v. General Motors, 1988 WL 170448 (Kan. August 23, 1988) (defendant justified in believing litigation imminent after charges filed with EEOC). The third element (by or for a party or by or for a party's representative) is established because Broxterman is defendant's employee and representative.
Plaintiff does not contest defendant's assertion that the memorandum was prepared in anticipation of litigation.
Rule 26(b)(3)'s definition of "representative" includes the party's attorney, consultant, surety, indemnitor, insurer, or agent.
Although defendant has satisfied the three elements in Rule 26(b)(3), plaintiff argues that defendant must also show that the memorandum was prepared at the direction of an attorney. The court disagrees. The 1970 amendments to Rule 26 expressly extended the work product protection to documents prepared for litigation by the adverse party itself or its agent. 6 Wright, Miller Marcus, Federal Practice and Procedure § 2024 at 364 (1994); Otto v. Gox U.S.A. Group, 177 F.R.D. 698 (Ga. 1997) (a party may create Rule 26(b)(3) material before securing the assistance of counsel); Augenti v. Cappellini, 84 F.R.D. 73 (M. D. Pa. 1979) (a party's pre-litigation notes may be work product). Plaintiff's argument is contrary to the express language of Rule 26(b)(3) and therefore rejected.
Research reveals few cases since the 1970 amendments where the absence of an attorney was even raised as an issue. See Spaulding v. Denton, 68 F.R.D. 342 (D. Delaware 1975) ("requirement of a lawyer's involvement raises a bump which the 1970 Amendments had smoothed over"). The more typical dispute is whether the pre-litigation document was truly "prepared in anticipation of litigation," an issue which has not been contested in this case.
Defendant has satisfied all three requirements of Rule 26(b)(3). After the party asserting Rule 26(b)(3) has made the necessary showing, the burden shifts to the party seeking discovery to show (1) a substantial need for the materials and (2) that the party is unable, without undue hardship, to obtain the substantial equivalent of the material by other means. Plaintiff has made no attempt to show either in its brief; thus, Broxterman's memorandum is protected from discovery by Rule 26(b)(3).
II. Fed.R.Evid. 612
Plaintiff argues in the alternative that she is entitled to discover the memorandum because Broxterman reviewed the document before giving her deposition. Fed.R.Evid. 612 provides that a party may obtain documents reviewed prior to testifying if (1) the witness uses the writing to refresh his or her memory, (2) the witness uses the writing for the purpose of testifying, and (3) the court determines that production "is necessary in the interests of justice." Butler Manufacturing Co. v. Americold Corp., 148 F.R.D. 275 (Kan. 1993). However, when seeking to compel disclosure of privileged documents, a moving party must thoroughly explore the extent to which the deponent relied on the document in testifying. Id. at 278.
After a careful review of relevant portions of Broxterman's deposition, the court is not persuaded that plaintiff sufficiently explored the extent to which Broxterman relied on the memorandum. Moreover, the court is not persuaded that disclosure is "necessary in the interests of justice." Defendant provided plaintiff with written statements by the witnesses whom Broxterman interviewed and plaintiff has made no showing of her inability to fully develop the facts concerning her case.
IT IS THEREFORE ORDERED that plaintiff's motion to compel (Doc. 22) is DENIED.