Commercial Litigation and Arbitration

Are Witness Statements Subject to Rule 26(a)(1) Disclosure or Protected as Work Product? Affidavits Filed in Bad Faith — Rule 56(g) Sanctions

In responding to the plaintiff’s motion for summary judgment and in support of their own motion, the defendant filed false affidavits that had not previously been produced to the plaintiff, in Trustees of Plumbers & Steamfitters Local Union No. 43 v. Crawford, 2008 U.S. Dist. LEXIS 73914 (E.D. Tenn. Aug. 11, 2008). The Court held that both Rule 26(a)(1) and Rule 56(g) had been violated:

The affidavits were revealed to Plaintiffs for the first time in Defendant's summary judgment motion, which was filed on September 28, 2007, the same day as Plaintiffs' summary judgment motion. Defendant contends he was not required to disclose the affidavits earlier because they were protected from discovery by the work product doctrine. But, as this Court has already noted (Court File No. 130, p. 4 n.2), sworn witness statements and affidavits are evidence; they are a witness's own statement and are not protected by the work product doctrine. Tuttle v. Tyco Elecs. Installation Servs., No. 2:06-cv-581, 2007 WL 4561529, 2007 U.S. Dist. LEXIS 95527, *4 (S.D. Ohio Dec. 21, 2007); Infosystems Inc., v. Ceridian Corp., 197 F.R.D. 303, 304 (E.D. Mich. 2000)). Defendant offers no argument that the affidavits contain "mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Fed. R. Civ. P. 26(b)(3)(B). Rather, the affidavits contain uniform statements that the individual employee did not perform covered work. They do not contain attorney notes, thoughts, or legal theories.

[Footnote 3:] In contrast, draft affidavits are typically covered by the work product doctrine. Kyoei Fire & Marine Ins. Co. v. M/V Mar. Antalya, 248 F.R.D. 126, 155 (S.D.N.Y. 2007) (citing Ideal Elec. Co. v. Flowserve Corp., 230 F.R.D. 603, 608-09 (D. Nev. 2005)). Notes taken during interviews are also typically covered by the work product doctrine. Schipp v. GMC, 457 F. Supp. 2d 917, 924 (E.D. Ark. 2006).

***Because Defendant did not reveal the witnesses' identities until the end of discovery and did not reveal the affidavits until they were used in summary judgment, Plaintiffs had no opportunity to challenge or examine them. It was only due to unfortunate family circumstances involving one of Defendant's attorneys that the originally-scheduled trial date was reset, which allowed Plaintiffs an opportunity to reopen discovery and depose some of the affiants***

In addition, some attorney's fees and expenses are warranted because Defendant violated Fed. R. Civ. P. 56(g) by submitting affidavits in bad faith. Fed. R. Civ. P. 56(g) states: "If satisfied that an affidavit under this rule is submitted in bad faith or solely for delay, the court must order the submitting party to pay the other party the reasonable expenses, including attorney's fees, it incurred as a result. An offending party or attorney may also be held in contempt."

Under Rule 56(g), if a court finds that a party submitted an affidavit in bad faith, it is "obligated to impose sanctions." Scott v. Metro. Health Corp., 234 F. App'x 341, 368 (6th Cir. 2007) (emphasis in the original) (affirming sanctions where party submitted affidavits she knew were not truthful). Based on the evidence in this case and the hearing on the motion for sanctions, the Court concludes Defendant submitted the affidavits in bad faith. It is now clear the affidavits were false. Some of the workers who signed the affidavits later gave testimony contradicting the affidavits and explaining they did not understand the affidavits. Defendant, as the person submitting the affidavits, was responsible for not submitting affidavits he knew to be false. Yet the deposition testimony establishes that non-union workers regularly performed covered labor, and letters written by Defendant show he knew non-union employees performed covered labor.

For sanctions to be appropriate, the affidavits must have prejudiced the opposing party. Sutton v. United States SBA, 92 F. App'x 112, 117 (6th Cir. 2003) (affirming denial of sanctions where the district court did not rely on the affidavit in granting summary judgment). Although summary judgment is not a guaranteed right, Plaintiffs have suffered prejudice. Since the Court would have granted Plaintiffs' summary judgment motion but for the false affidavits, Plaintiffs were prejudiced by the false affidavits.

Reasonable attorneys' fees and expenses awarded.

Note: For a case taking the opposing view — that witness statements do constitute work product until used (but limiting later use to impeachment, in accordance with Rule 26(a)(1)) — see Intel Corp. v. Via Technologies, 204 F.R.D. 450 (N.D. Cal. 2001), which is discussed in the article entitled Rule Traps on the Recent Articles page (

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