Opinion
No. 03-CV-4883.
March 30, 2005
ORDER
AND NOW, this ____ day of March 2005, it is ORDERED that defendant Highmark's Motion to Compel Documents from Relator (Doc. # 83) is DENIED.
In United States ex rel. Hunt v. Merck-Medco Managed Care, Civ. A. No. 00-737, 2004 U.S. Dist. LEXIS 7152 (E.D. Pa. Apr. 21, 2004), the only case in this district addressing the discoverability of a relator's disclosure statement, Magistrate Judge Scuderi held that the relator's disclosure statement was protected by work product privilege because it was clearly prepared "in anticipation of litigation." 2004 U.S. Dist. LEXIS 7152, at *6. Protected work product is divided into two categories: opinion work product, containing an attorney's mental impressions, conclusions, opinion or legal theories, and factual work product, containing merely the factual basis of a lawsuit.Id. at *4-5. Opinion work product enjoys "almost absolute protection," whereas factual work product may be discoverable if the party seeking discovery can show "substantial need" for the materials and that the party is unable without "undue hardship" to obtain the substantial equivalent of the materials by other means. Id.; see also F.R. Civ. P. 26(b)(3).
Judge Scuderi's analysis is applicable to the instant motion. Defendant Highmark's discovery request seeks all communication, oral or written, between relator Drescher and her co-party, the United States. Even though this material covers more than the relator's disclosure statement, Judge Scuderi's analysis is still applicable because these communications were made in anticipation of litigation. Therefore, they are protected by work product privilege. In denying Highmark's motion, I do not need to determine whether these communications are opinion work product or factual work product. Even if the communications are merely factual work product, Highmark has not made the substantial need and undue hardship showing required by Federal Rule of Civil Procedure 26(b)(3).