Opinion
No. 00-CV-737.
November 15, 2004
MEMORANDUM ORDER
AND NOW, this 15th day of November, 2004, after consideration of non-party witness Susan K. Elliott's Motion to Compel Production of Interview Memoranda (Doc. 265), and Plaintiffs' Response thereto (Doc. 269), the motion is HEREBY DENIED, as follows.
1. Ms. Elliott was subpoenaed to testify at a deposition in this case. On July 26, 2004, two (2) days prior to the deposition, Ms. Elliott was interviewed by an investigator working for the United States Attorney's Office, and by Amy Kirby, an agent for the government's Office of Personnel Management. Ms. Kirby took handwritten notes during the interview and subsequently prepared a formal memorandum of the interview. Ms. Elliott was deposed on July 28, 2004. Ms. Elliott was not represented by counsel at the time of the interview or the deposition, and at no time did Plaintiffs' counsel allow Ms. Elliott to view a copy of the agents' notes or memorandum.
Copies of the agents' notes and memorandum, as well as Ms. Elliott's deposition transcript, were provided to the Court by Plaintiffs for in camera review.
2. On or about August 27, 2004, Ms. Elliott retained private counsel, who subsequently contacted Plaintiffs' counsel to request copies of the agents' notes and/or memorandum. Plaintiffs' counsel denied the request.
3. On September 1, 2004, Plaintiffs filed a motion to compel additional testimony from Ms. Elliott. By Order dated October 12, 2004, the Court granted Plaintiffs' motion, but limited Ms. Elliott's second deposition to four (4) discrete topics. Ms. Elliott's second deposition is scheduled for November 17, 2004, and an additional request for copies of the agents' notes and/or memorandum has been denied.
4. The Federal Rules of Civil Procedure provide that a person who is not a party to an action may obtain copies of his or her own statements previously made in relation to the matter. Specifically, Rule 26(b)(3) provides in relevant part:
Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. If the request is refused, the person may move for a court order. . . . For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it; or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
Fed.R.Civ.P. 26(b)(3). The definition of "statement" contained in Rule 26(b)(3) is adapted from 18 U.S.C. 3500(e), popularly known in Criminal Law as the Jencks Act.
5. Here, there is no question that Ms. Elliott requested copies of the agents' notes and/emorandum, and that the requests were refused. Also, there is no question that Ms. Elliott did not sign or otherwise adopt or approve the notes or memorandum and, therefore, subsection (A) is not applicable. Therefore, the only issue is whether Ms. Elliott is entitled to the notes and/or memorandum under subsection (B).
6. Upon in camera review of the agents' handwritten notes and typed memorandum, I conclude that the materials do not meet the criteria of subsection (B). The materials do not constitute an "other recording," nor "a transcription thereof." See Fed.R.Civ.P. 26(b)(3). Even were a pen and paper deemed to be an "other recording," and the typed memorandum somehow "a transcription thereof," it is clear from the face of the documents that they do not constitute a "substantially verbatim recital" of what Ms. Elliott may have said to the agents. Because the notes and memorandum do not amount to a "statement" as defined by Rule 26(b)(3), Ms. Elliott's motion to compel is denied.
In any event, the Court notes that the four (4) discrete topics permitted in the upcoming re-deposition of Ms. Elliott relate to her discussions with counsel for Medco before and during her July 28, 2004, deposition, and that she met with counsel for Medco after she was interviewed by Plaintiffs' agents.
It is so ordered.