Clemmons v. Academy for Educational Development, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LYDIA CLEMMONS, :
:
Plaintiff, : Civil Action No.: 10-cv-911 (RC)
:
v. : Re Document No.: 43
:
ACADEMY FOR EDUCATIONAL
DEVELOPMENT, et al., :
:
Defendants. :

MEMORANDUM OPINION

GRANTING PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER

This action concerns Plaintiff’s claims of racial discrimination in employment. The

matter is before the court on Plaintiff’s motion for protective order. [Docket No. 43] The matter

is briefed and ripe for resolution. For the reasons set forth below, the Plaintiff’s motion is

granted.

1. Plaintiff produced the final, signed declarations of two third-party witnesses: Cheryl

Mayo and Lucy Shillingi. Defendant, Academy for Educational Development (“AED”), took the

deposition of Ms. Mayo. Ms. Shillingi is in Uganda and, apparently, unavailable for deposition.

Subsequently, defendant AED subpoenaed documents from Plaintiff’s counsel. The

subpoena called for, inter alia, the production of: drafts of the Mayo and Shillingi declarations;

correspondence between Plaintiff’s law firm and Mayo or Shillingi; and, the same for other

unidentified third-party witnesses. Plaintiff objects to such production on the basis of the work

product doctrine. Fed. R. Civ. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495 (1947). The court

finds that such materials are protected and need not be produced.
 “The work-product doctrine shields materials ‘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).’” Judicial Watch, Inc. v.

Department of Justice, 432 F.3d 366, 369 (D.C. Cir. 2005) quoting Fed. R. Civ. P. 26(b)(3).

Although the work product doctrine covers an attorney’s mental impressions, conclusions,

opinions, or legal theories, it also protects factual materials prepared in anticipation of litigation.

Tax Analysts v. I.R.S., 117 F.3d 607, 620 (D.C. Cir. 1997). Defendant does not challenge that the

materials were prepared by counsel or that they were prepared in anticipation of litigation.

Instead, Defendant AED argues that the materials are factual, were shared with a third-party

witness that counsel does not represent, and are, thus, simply not protected by the work product

doctrine. But, although the case law is not unanimous that such materials are covered by the

work product doctrine, the more persuasive line of cases find that they are. See, e.g., Randleman

v. Fidelity Nat’l Title Ins. Co., 251 F.R.D. 281, 285 (N.D. Ohio 2008) (draft affidavits and

communications with counsel relating to affidavits are covered by the attorney work product

doctrine); Tuttle v. Tyco Elec. Installation Servs., 2007 WL 4561530, at *2 (S.D. Ohio) (“the

work product doctrine does protect information relevant to the evolution of an affidavit,

including but not limited to communications with the counsel relating to the affidavit, prior

drafts of the affidavit, and any notes made by counsel while engaging in the process of drafting

the affidavit.”); see also Inst. For Dev. of Earth Awareness v. PETA, 272 F.R.D. 124, 125

(S.D.N.Y. 2011); 8 WRIGHT, MILLER, MARCUS, §2024, at 510, n. 23 (“Recent cases have

generally held that draft affidavits, and communications with counsel relating to affidavits, are

covered by the work-product rule.”). And this court agrees.

2
 Moreover, Defendant AED cannot overcome the application of the doctrine because it

cannot show that it has substantial need for the requested material to prepare its case and cannot,

without undue hardship, obtain its substantial equivalent by other means. Fed. R. Civ. P.

26(b)(3)(A)(ii). “A draft of a declaration to be executed by a party or witness denotes what a

lawyer thinks that party or witness should say and thereby exposes that lawyer’s mental

processes.” Judicial Watch v. Dep’t of Commerce, 201 F.R.D. 265, 269 (D.D.C. 2001). “[T]o

the extent that work product reveals the opinions, judgments, and thought processes of counsel, it

receives some higher level of protection, and a party seeking discovery must show extraordinary

justification.” Id. quoting In re Sealed Case, 676 F2d 793, 809 (D.C. Cir. 1982); see also

Randleman, 251 F.R.D. at 287 (opinion work product includes an attorney’s mental impressions,

conclusions, opinions or legal theories, receives near absolute protection, and can be discovered

only in very rare and extraordinary circumstances). Defendant AED has not met this standard.

With respect to the materials concerning Ms. Mayo, Defendant has already taken her

deposition. This is all to which it is entitled. Inst. For Dev. of Earth Awareness, 272 F.R.D. at

125 (no showing of substantial need because witnesses have been available to be examined at

deposition and no other special circumstances exist); Randleman, 251 F.R.D. at 286 (no

substantial need or undue hardship because plaintiffs can test the credibility of affiants through

depositions); Schipp v. General Motors Corp., 457 F.Supp.2d 917, 923-24 (E.D. Ark. 2006)

(substantial need not met when party took depositions of witnesses who provided previous

statements, and information sought is merely corroborative).1

1
Based on the deposition testimony, Defendant suggests some sort of over-reaching by
plaintiff’s counsel concerning what he had the witnesses testify to in their declarations. But the
record on this point is too weak to pursue further.

3
 The materials concerning Ms. Shillingi are a closer call because she is, apparently,

unavailable for deposition. However, because Defendant seeks this information for purposes of

impeachment of the allegations contained in the final version of the declaration, it has not

demonstrated substantial need for these materials either. McPeek v. Ashcroft, 202 F.R.D. 332,

339 (D.D.C. 2001) (“Plaintiff wants to see these documents to probe for inconsistencies in the

witnesses’ testimony between what they said in the draft and what they said in the final version

of their affidavits. . . . But, if the desire to impeach a witness with prior inconsistent statements

is a sufficient showing of substantial need, the work product privilege would cease to exist; there

is not a lawyer born who would not like to see opposing counsel’s files in order to search for

inconsistencies in opposing witnesses’ potential testimony.”); see also 1100 West, LLC v. Red

Spot Paint and Varnish Co., 2007 WL 2904073, at *3 (S.D. Ind.) quoting McPeek.2

2. Defendant also challenges the adequacy of Plaintiff’s privilege log. Defendant’s

chief, if not only, complaint concerns Plaintiff’s counsel’s use of alphanumeric identifiers to

differentiate between witnesses without disclosing their identities. But, because Defendant is not

entitled to learn the identity of which witnesses Plaintiff’s counsel thought important enough to

interview or communicate with, this method of alphanumeric identification is appropriate. See

Gerber v. Down East Comm. Hosp., 266 F.R.D. 29, 35-36 (D. Maine 2010) (“a party complies

with Rule 26(b)(5)(A)(ii) if it describes ‘the nature’ of a document or communication as an

2
And the draft declarations of, and communications with, any other unidentified potential
witnesses for which a final declaration has not been produced are protected even more strongly
by the work product doctrine because they would reveal plaintiff’s counsel’s mental impressions
of which witnesses he considered using but decided against. See also infra at p. 4.

4
interview with a potential witness, without specifically identifying which witness has just been

interviewed.”); see also In re SLM Corp. Sec. Lit., 2011 WL 611854, at *1 (S.D.N.Y.).3

CONCLUSION

For the foregoing reasons, Plaintiff’s motion for a protective order is hereby GRANTED.

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: November 13, 2013 RUDOLPH CONTRERAS
United States District Judge

3
Of course, to the extent that the witness has discoverable information that plaintiff may
use to support her claims or defenses and that witness has not been previously identified in initial
disclosures or in response to a discovery request seeking such information, plaintiff must
supplement her discovery pursuant to Fed. R., Civ. P. 26(e). Gerber v. Down East Comm. Hosp.,
266 F.R.D. 29, 35-36 (D. Maine 2010).

5