Commercial Litigation and Arbitration

Drafts of Affidavit Protected by Work Product Protection — Protection Not Waived by Filing Final

From Randleman v. Fidelity Nat’l Title Ins. Co., 251 F.R.D. 281 (N.D. Ohio 2008):

The Southern District of Ohio, in Tuttle v. Tyco Electronics Installation Services, 2007 U.S. Dist. LEXIS 95527, 2007 WL 4561530, at *2 (S.D. Ohio) (Frost, J.), unambiguously stated that the work product doctrine protects information about the evolution of an affidavit from disclosure:

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 Infosystems[, Inc. v. Ceridian Corp.], 197 F.R.D. [303] at 307, n.4 [(E.D. Mich. 2000)] . . . .


Although not controlling, recent cases have addressed this issue, and the trend is to consider draft affidavits and communications with counsel relating to affidavits as covered by the attorney work product doctrine. See, e.g., Tuttle, supra, 2007 U.S. Dist. LEXIS 95527, 2007 WL 4561530, at *2; Kyoei Fire & Marine Ins. Co., Ltd. v. M/V Maritime Antalya, 248 F.R.D. 126, 155 (S.D.N.Y. 2007) (creating of affidavit subject to the "attorney work product privilege"); Ideal Elec. Co. v. Flowserve Corp., 230 F.R.D. 603, 608-09 (D. Nev. 2005) (draft affidavits protected by the work product doctrine).***Plaintiffs assert defendant waived the work product privilege by filing final versions of the affidavits to the court. They rely on Infosystems for their argument. In that case, the defendant had not produced the final affidavit it obtained from a non-party witness. The Infosystems court was concerned that the plaintiff would be unable to "test the perception and credibility" of the witness at his deposition unless the final affidavit was produced. Infosystems, supra, 197 F.R.D. at 307. The court ordered the defendant to produce the final affidavit along with drafts and written communications between counsel and the witness pertaining to the evolution of the affidavit. There, the court focused on the final affidavit; it did not provide legal analysis regarding the draft affidavits or counsel communication, but simply included them in the materials to be produced.

In Infosystems the court did not hold that the filing of a final affidavit waives the work product privilege as to draft affidavits or counsel communications. Rather, it held that if the defendant ultimately chose to make evidentiary use of a final affidavit which had not been produced to the plaintiff, the defendant would waive any work product claim as to that affidavit. In this case, plaintiffs have the final affidavits signed by the third-party witnesses and their need for the preliminary versions is less apparent.

This case differs from Infosystems in a significant way; Fidelity's filing of the affidavits with the court did not waive the work product doctrine's protection of earlier material.

This opinion appears to have been republished at 2008 U.S. Dist. LEXIS 88905 (S.D. Ohio Oct. 21, 2008). On a quick read, there appears to be no material change.

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