Attorney Work Product and Rule 612
The attorney work-product doctrine “can protect an attorney’s selection and arrangement of documents in certain narrow circumstances, despite the fact that the documents themselves are not privileged.” SEC v. Morelli, 143 F.R.D. 42, 47 (S.D.N.Y. 1992); see also Gould, Inc. v. Mitsui Mining & Smelting Co., 825 F.2d 676, 680 (2d Cir. 1987); Schwarzkopf Technologies Corp. v. Ingersoll Cutting Tool Co., 142 F.R.D. 420, 422-23 (D. Del. 1992). The Eighth and Third Circuits issued two major opinions regarding the selection and compilation theory. Shelton v. Am. Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986); Sporck v. Peil, 759 F.2d 312, 316 (3d Cir. 1985). In Shelton, the Eighth Circuit ruled that a car company’s attorney could refuse to answer questions in her deposition about documents related to a car model that was involved in a crash. 805 F.2d at 1328. Her acknowledgment of the existence or nonexistence of such documents would have revealed “her judgment as an attorney in identifying, examining, and selecting from AMC’s voluminous files” the documents most relevant to her client’s defense. Id. In Sporck, the court similarly protected a collection of documents pulled in preparation for a deposition. 759 F.2d at 318. (Sporck is discussed in detail below.) A review of decisions nationwide shows fairly broad support for the selection-and-compilation theory of the attorney work-product doctrine, especially when it involves the discovery of what documents were culled from hundreds of thousands of total discovery documents.
Lawyers who hope to present this theory to protect their selection, however, must reconcile the theory with the Federal Rules of Evidence. FRE 612, in particular, demands the production of items used to refresh a witness’s testimony, reading (in part):
if a witness uses a writing to refresh memory for the purpose of testifying, either—
(1) while testifying, or
(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
Federal Rules of Evidence 612.
Applying the Selection and Compilation Theory
The Delaware District Court laid out the conflict between the two in James Julian, Inc., v. Raytheon Co., 93 F.R.D. 138 (D. Del. 1982). In James Julian, the court applied FRE 612 and compelled production of a document collection despite acknowledging that the selection and compilation theory also applied. The plaintiff’s counsel had provided a binder with a small number of documents for select principals and corporate officers to review prior to their depositions. The defendants sought a copy of the binder’s contents, most of which had already been produced in the usual discovery process. In its opinion, the Delaware District Court first noted its support of the selection-and-compilation theory, but then applied Rule 612 of the Federal Rules of Evidence, holding that the binder had been used to refresh a witness’s recollection, and that the plaintiff had thus waived its attorney work-product protection by using it for such a purpose. The court’s concern was with how the binder may have “shaded” the witness’s testimony, and it demanded that the plaintiffs produce the binder.
However, the Third Circuit later distinguished James Julian in Sporck v. Peil, 759 F.2d at 316. In Sporck, the court declined to apply FRE 612, holding that the attorney who proposed its application had failed to lay the proper foundation. The facts were these: The corporate attorney in a securities-fraud case prepared defendant Sporck for his deposition by culling certain documents and reviewing them with him. During the deposition, counsel for Peil asked Sporck which documents he had reviewed, and he refused to answer. On a writ of mandamus, the Third Circuit upheld the refusal, saying “[i]n selecting and ordering a few documents out of thousands counsel could not help but reveal important aspects of his understanding of the case. Indeed, in a case such as this, involving extensive document discovery, the process of selection and distillation is often more critical than pure legal research.” Id. at 316 (quoting James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D.Del. 1982)).
The court went on to examine whether or not FRE 612 would apply, as it had in James Julian. The court laid out the three requirements of the rule: “1) The witness must use the writing to refresh his memory; 2) the witness must use the writing for the purpose of testifying; and 3) the court must determine that production is necessary in the interests of justice.” Id. at 317. Holding that Peil had failed to prove the first two requirements of FRE 612, the court ruled that Peil had not laid the proper foundation and that FRE 612 did not apply. In other words, to have prevailed using FRE 612, Peil would have to have shown that Sporck relied on the documents for his testimony and that they influenced his testimony. Although the court in Sporck did not reach the issue of the third element—whether production would be in the interests of justice—other courts have discussed this element in the context of a selection and compilation case. In one case, a court applied a balancing test, weighing the interests of justice that supported production under FRE 612 against the interests that supported the attorney work-product protection. Nutramax Labs., Inc. v. Twin Labs. Inc., 183 F.R.D. 458, 472 (D. Md. 1998). On balance, the court held that the interests of justice compelled production of the collected documents at issue and that the attorney work-product doctrine had been waived.
The attorneys seeking to compel production of documents must satisfy the three-part test of FRE 612; however, the party seeking to protect the documents also carries a burden of persuasion. Some district courts have narrowed the Sporck and Shelton holdings, requiring a party that has asserted the selection-and-compilation privilege to “come forward with some evidence that disclosure of the requested documents creates a real, non-speculative danger of revealing counsel’s thoughts.” Id. (citing, inter alia, Hunter’s Ridge Golf, Co., Inc. v. Georgia Pac. Corp., 233 F.R.D. 678, 681 (M.D. Fla. Mar. 3, 2006); Jackson v. Geometrica, Inc. (M.D. Fla. Mar 2, 2006); see also Calderon v. Reederei Claus-Peter Offen Gmbh & Co. (S.D. Fla. June 19, 2009). However, these cases involved parties attempting to use the selection-and-compilation theory of the work-product doctrine to prevent any discovery of certain documents at all. In both Calderon and Hunter’s Ridge, one party was trying to protect its own documents from being handed over to the other party, not trying to prevent the other party from learning which already-produced documents the opposing attorneys found relevant and important. Calderon; Hunter’s Ridge, 233 F.R.D. at 681. In Jackson, the court disallowed certain discovery requests that sought materials to be produced at trial, holding that such documents would reveal mental impressions of counsel. The court compelled the defendant to produce other documents pursuant to a discovery request that asked for documents that relate to the claims. Therefore, although the court declined to apply the selection-and-compilation theory to certain discovery requests, it did apply it to others.
An attorney will more likely have success in using the selection-and-compilation theory to object if the opposing party seeks a list of which of its own documents the corporate attorney finds relevant. The Florida appellate court in Smith v. Fla. Power & Light Co., 632 So.2d 696, 697–98 (Fla. App. 3 Dist. 1994), applying federal case law because the state and federal rules are almost exactly the same, found that in such circumstances, discovery will almost always be denied. In Smith, the plaintiffs had possession of certain sets of documents that had been generated by the defendant. (They had not been produced to the plaintiffs in discovery by the defendants, but had been procured from a third party.) 632 So.2d at 697. The court protected the documents, holding them immune from discovery under the selection-and-compilation theory of the work-product doctrine, because the defendant could not show undue hardship in obtaining the documents. The court in Smith noted “all the documents sought are in FPL’s possession. ‘[W]here a request is made for documents already in the possession of the requesting party, with the precise goal of learning what the opposing attorney’s thinking or strategy may be, even third-party documents may be protected.’” Id. (quoting In re: Grand Jury Subpoenas, 959 F.2d 1158, 1166 (2d Cir. 1992)).
The Rule 30(b)(6) deposition is a discovery tool rife with attorney work-product concerns. As a general rule, subject to local jurisdictional variation, a Rule 30(b)(6) deposition is particularly susceptible to attorney work-product protection under the selection-and-compilation theory. If your case involves a very large number of documents, be familiar with the three elements of FRE 612 and the selection-and-compilation theory, to protect your client’s interests in these complicated pretrial proceedings. The issue can come up in the deposition notice or even in the deposition itself, so it is important to know ahead of time how FRE 612 (or a parallel state rule) and the selection-and-compilation theory apply in your jurisdiction.
Keywords: litigation, pretrial practice and discovery, work product doctrine, Rule 30(b)(6), FRE 612
Gillian G.W. Egan is a third-year student at Tulane University School of Law. She thanks Betsy Collins of Burr Forman LLP, where she spent the summer as a law clerk, for her support and assistance on this article.