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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
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Non-Lawyer’s Draft Report Protected as Work Product but Impressions, Opinions or Conclusions of Non-Lawyers ≠ Core Work Product

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From Nelsen v. Geren, 2010 U.S. Dist. LEXIS 89039 (D. Or. Aug. 27, 2010):

Carrubba is not an attorney. Nevertheless, Rule 26(b)(3) protects from discovery documents that are prepared in anticipation of litigation by a party or "its representative," which includes individuals other than attorneys. For example, in Fuller v. Chertoff, No. CV05-1308RSM, 2006 U.S. Dist. LEXIS 41380, 2006 WL 1727902, at *2 (W.D. Wash. June 21, 2006), the court concluded Linda Barnett, an Equal Employment Opportunity employee of the Bureau of Customs and Border Patrol (CBP), was a representative of the CBP for purposes of Rule 26(b)(3) work-product protection. The court noted Barnett

is a party representative, and her job is to provide advice to CBP management concerning EEO complaints . . . [and] when a complaint is filed with an agency EEO office, it has to follow that the work done thereafter is done in anticipation of any litigation that would follow if the claim was not administratively resolved.

***The court noted the documents sought by the plaintiff were notes regarding Barnett's conversation with the plaintiff's former supervisor and were an "analysis of [the plaintiff's] claims." *** The court concluded the documents at issue were protected by work product pursuant to Rule 26(b)(3). *** See also Hertzberg v. Veneman, 273 F. Supp. 2d 67,76 (D.D.C. 2003) ("By its own terms, then, the work product privilege [under Rule 26(b)(3)] covers materials prepared by or for any party or by or for its representative; they need not be prepared by an attorney or even for an attorney. See id. While the 'work product' may be, and often is, that of an attorney, the concept of 'work product' is not confined to information or materials gathered or assembled by a lawyer.").

Here James Herald testifies in his Declaration that he knew Plaintiff's EEO complaint "is a short series of steps away from formal court ligitation," and, therefore, he "initiated and participated in the process that resulted in Colonel Steven Miles . . . appointing Sheryl Carrubba to investigate Plaintiff's allegations of sexual harassment." *** As noted, "when a complaint is filed with an agency EEO office, it has to follow that the work done thereafter is done in anticipation of any litigation that would follow if the claim was not administratively resolved."

On this record, the Court concludes Carrubba's draft interim reports were prepared by a representative of Defendant in anticipation of litigation, and, therefore, they are work product protected generally by Rule 26(b)(3).

II. Waiver

Even though Carrubba's draft interim reports are work product generally protected under Rule 26(b)(3), Plaintiff contends Defendant waived the work-product protection for these documents by asserting a Faragher-Ellerth defense [note: where employees seek to hold employer vicariously liable for subjecting them to a hostile work environment created by other employees, employer may rebut the presumption of liability by showing "the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and that the "employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."]. Plaintiff cites a number of cases to support her contention. Those cases establish assertion of a Faragher-Ellerth defense does not waive work-product protection for "core" work product; i.e., "the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." See, e.g., Walker v. County of Contra Costa, 227 F.R.D. 529, 536 (N.D. Cal. 2005)("[I]n ordering discovery of such work product[,] the court must 'protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.'").

Here, as noted, Defendant contends portions of the Carrubba draft interim reports contain Carrubba's mental impressions, conclusions, or opinions, and they are protected as core work product because Carrubba is a "representative of a party." Defendant, however, does not cite any case in which a court has concluded the mental impressions, conclusions, or opinions of a party representative who is not an attorney are protected core work product. ***[I]n the absence of authority from the Ninth Circuit establishing the mental impressions, conclusions, or opinions of a party representative who is not an attorney may be protected as core work product, the Court concludes the portions of Carrubba's interim reports that contain her mental impressions, conclusions, or opinions are not shielded from discovery as core work product under Rule 26(b)(3).

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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