Summary
holding that attorney client privilege and work product doctrine do not protect questionnaires returned by putative class member from discovery
Summary of this case from YOLTON v. EL PASO TENNESSEE PIPELINE COOpinion
No. 98 C 7108
March 19, 2002
MEMORANDUM OPINION AND ORDER
Defendants' motion to compel plaintiffs to supplement their responses to defendants' interrogatories and document request is granted. If those who returned questionnaires were putative class members, no privilege would have attached. In re McKesson HBOC, Inc., 126 F. Supp.2d 1239, 1245 (ND. Cal. 2000); Penk v. Oregon State Board of Education, 99 F.R.D. 511, 516 (D. Or. 1983). And even if there were an attorney-client privilege, it would not protect the factual content of the questionnaires even though it protected the way factual content was expressed in any particular response Penk supra. Nor is there a work product privilege because the responses were prepared by the persons responding, not by attorneys, to a previously disclosed form questionnaire.
Should we confine discovery to the factual content of the questionnaires but not require the production of the responses themselves? Plaintiffs contend that we should; because an attorney-client relationship was established by the solicitation accompanying the questionnaire and only the client can waive the privilege. It was, however, an improper solicitation; the relationship, however it can be described, was aborted before it ever was really established; and obviously, a purpose of the questionnaire was discovery. In those circumstances, we do not believe the responses are privileged or that we should distinguish between the factual content and the expression of the factual content.