Andy Jones
In Federal Court, attorney communications with third-party witnesses are generally privileged as work-product.[1] So, imagine a scenario where you, representing Red Jaguars, LLC, email an unrepresented, third-party witness in a civil case about the facts surrounding the formation of a contract between Red Jaguar, LLC and Blue Barracudas, Inc. to create a company called Green Monkey Enterprises. The witness emails you back and provides their recollection of the factual information about the planned formation of Green Monkey Enterprises. That email is, more likely than not, privileged in Federal Court.[2]
Later, in your suit against Blue Barracudas, Inc., you show the email to the CEO of Blue Barracudas, Inc. in her deposition. Have you, as your opposing counsel claims, waived your attorney work-product privilege on the entire subject-matter of the formation of Green Monkey Enterprises? Has your opposing counsel finally found a way to request your attorney work-product pertain to Green Monkey Enterprises, notes from interviews or phone calls with the witness, internal communications regarding that witness, communications or documents exchanged with other third parties regarding the witness, time records pertaining to phone calls or meetings discussing or communicating directly with the witness, written summaries of interviews with or regarding the witness, drafts of e-mails, Power-Point slide decks discussing or referencing the witness, attorney outlines for interviews with the witness or meetings discussing the witness, all other descriptions of attorney communication with the witness (including those to and from your clients), all documents withheld pursuant to a privilege log, and other similar materials pertaining to the formation of Green Monkey Enterprises?
No, and their argument is probably eliminated on the Steps of Knowledge on this one. Here’s why.
Both core and ordinary work-product are protected from discovery.[3] Ordinary work-product is any document or tangible thing that is created in anticipation of or to aid litigation by or for a party’s representative.[4] Examples of ordinary work-product include non-party witness statements or emails between witnesses and counsel.[5] Opinion, or “core,” work-product must include the mental impressions, conclusions, opinions, or legal theories of the attorneys or their representatives.[6] Examples of opinion work-product are the notes and memoranda created by an attorney or his agent.[7] Notably, hand-written notes of a witness interview are almost, by definition, opinion work-product.[8]
Fed. R. Civ. P. 26 states that ordinary work-product is only discoverable if a party has a “substantial need” for the work-product and cannot obtain its equivalent “without undue hardship.”[9] Opinion work-product is only obtainable on a party’s demonstration of “compelling need.”[10] Moreover, bedrock case-law shows that a party cannot generally obtain an attorney’s work-product.[11]
Voluntary disclosure of work-product to a third-party does not waive the work-product privilege.[12] Opinion work-product cannot be obtained solely on the basis of waiver.[13] The burden to demonstrate waiver of the work-product protection is on the party asserting waiver.[14] Further, a subject-matter waiver is generally only found where “the quality or substance of the attorney’s work-product has been directly placed at issue in the litigation.”[15] A subject-matter waiver may only occur when the work-product itself is the subject of the litigation.[16] And, an impeachment purpose is insufficient to substantiate a work-product waiver.[17] Ultimately, even if any waiver of work-product privilege occurs, work-product protection is only waived as to the specific document actually disclosed.[18]
Applying this framework to your email with the witness and Green Monkey Enterprises, your work-product is secure. The email – which could have stayed privileged – is now no longer privileged. However, absent something more, the Blue Barracudas are stuck making The Temple Run of what you know about Green Monkey Enterprises the old-fashioned way – by propounding and participating in discovery. In the end, seeking a subject-matter waiver of the attorney work-product privilege requires exceptionally specific circumstances that are, most likely, not going to yield the Legends of the Hidden Temple.
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Andy Jones is a Trial Attorney at Sawicki Law and the 2022 President of the Dallas Association of Young Lawyers. He can be reached at ajones@sawickilawfirm.com.
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[1] Inst. for Dev. of Earth Awareness v. People for Ethical Treatment of Animals, 272 F.R.D. 124, 125 (S.D.N.Y. 2011); Gerber v. Down E. Cmty. Hosp., 266 F.R.D. 29, 32-33 (D. Me. 2010); United States v. Nobles, 422 U.S. 225, 238–39 (1975); In re Grand Jury Proceedings, 43 F.3d 966, 970 (5th Cir. 1994); United States ex rel. Univ. Loft Co. v. AGS Enterprises, Inc., SA-14-CA-528-OLG, 2016 WL 9462335, at *8 (W.D. Tex. June 29, 2016) (likening emails to notes taken by an attorney); Stoffels v. SBC Communications, 263 F.R.D 406, 417 (W.D. Tex. 2009).
[2] United States ex rel. Univ. Loft Co. v. AGS Enterprises, Inc., SA-14-CA-528-OLG, 2016 WL 9462335, at *8 (W.D. Tex. June 29, 2016) (likening emails to notes taken by an attorney).
[3] See Calderon v. Bank of Am., N.A., 2012 WL 12886604 * 2 (W.D. Tex. Oct. 16, 2012) (noting the Court has a duty to protect against disclosure of an attorney’s or his agent’s core work-product); see also S.E.C. v. Brady, 238 F.R.D. 429, 442 (N.D. Tex. 2006); Hickman v. Taylor, 329 U.S. 495, 510 (1947); Fed. R. Civ. P 26(b)(3)(A).
[4] Stoffels v. SBC Communications, Inc., 263 F.R.D. 406, 417 (W.D. Tex. 2009).
[5] Inst. for Dev. of Earth Awareness, 272 F.R.D. at 125; Gerber, 266 F.R.D. at 32-33.
[6] Id.
[7] Upjohn Co. v. U.S., 449 U.S. 282, 399–400 (1981); Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir. 1991).
[8] Hickman, 329 U.S. at 510; Dunn, 927 F.2dat 875.
[9] Fed. R. Civ. P. 26(b)(3)(A)(ii).
[10] Brady, 238 F.R.D. at 443 (internal citations omitted).
[11] Upjohn Co., 449 U.S. at 400; Hickman, 329 U.S. at 512; In re Grand Jury Proceedings, 43 F.3d at 970–71.
[12] Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir. 1989) (internal citations omitted); Ferko v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 218 F.R.D. 125, 136 (E.D. Tex. 2003) (internal citations omitted); Nance v. Thompson Med. Co., 173 F.R.D. 178, 181 (E.D. Tex. 1997) (internal citations omitted).
[13] Brady, 238 F.R.D. at 443 (N.D. Tex. 2006).
[14] LL’s Magnetic Clay, Inc. v. Safer Med. of Montana, Inc., A-17-CV-649-SS, 2018 WL 5733178, at *3 (W.D. Tex. Aug. 2, 2018), report and recommendation adopted, AU-17-CA-00649-SS, 2018 WL 5733145 (W.D. Tex. Aug. 24, 2018); Brady, 238 F.R.D. at 444 (citing Ferko, 218 F.R.D. at 136).
[15] Grigson, v. Farmers Group, Inc., 1:17-CV-00088-LY, 2019 WL 3781439, at *2 (W.D. Tex. Aug. 12, 2019).
[16] Id.
[17] Mir v. L-3 Communications Integrated Sys., L.P., 315 F.R.D. 460, 472 (N.D. Tex. 2016).
[18] Grigson, 2019 WL 3781439, at *2 (citing Brady, 238 F.R.D. at 444); US Equal Employment Opportunity Comm’n v. Nabors Indus., Ltd., 5-16-CV-00758-FB-RBF, 2018 WL 11195496, at *3 (W.D. Tex. Aug. 21, 2018) (internal citations omitted); YETI Coolers, LLC v. RTIC Coolers, LLC, A-15-CV-597-RP, 2016 WL 8677303, at *3 (W.D. Tex. Dec. 30, 2016) (internal citations omitted); United States ex rel. Univ. Loft Co., 2016 WL 9462335, at *8.
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