Commercial Litigation and Arbitration

Work Product Protects Consulting Expert Even If Investigation in Part for Business Reasons “Unless the Documents Would Have Been Created in Essentially Similar Form Irrespective of the Litigation” — Factors Weighing Against Discovery

Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 2012 U.S. Dist. LEXIS 165334 (N.D. Ga. Nov. 20, 2012):

B. Dual Purpose: Anticipation of Litigation vs. Ordinary Course of Business

Pike asserts that the documents at issue here, i.e. communications with and reports prepared by consulting experts, were prepared "in the ordinary course of business . . . unrelated to litigation, or for other nonlitigation purposes" and are thus not protected by the work product privilege. See Adams v. City of Montgomery, 282 F.R.D. 627, 633 (M.D. Ala. 2012); Fojtasek v. NCL (Bahamas) Ltd., 262 F.R.D. 650, 654 (S.D. Fla. 2009) (citing CSX Transp., Inc. v. Admiral Ins. Co., 1995 WL 855421, at *2 (M.D. Fla. July 20, 1995)); Advisory Committee Notes to Fed. R. Civ. P. 26(b). "It is possible for a witness to wear two hats: one as a specially employed expert in anticipation of litigation and one as an ordinary witness." Essex Builders Group, Inc. v. Amerisure Ins. Co., 235 F.R.D. 703 (M.D. Fl. 2006) (citing In re Shell Oil Refinery, 134 F.R.D. 148 (E.D. La. 1990) (expert employees could be deposed only regarding facts and opinions held prior to being specially employed on a post-accident investigation team that was formed in anticipation of litigation but not as to facts and opinions held after being employed as non-testifying consulting experts to aid in trial preparation)). Thus, "it is admittedly difficult to reduce to a neat general formulation the relationship between preparation of a document and possible litigation necessary to trigger the protection of the work product doctrine." Adams, 282 F.R.D. at 634 (quoting United States v. Davis, 636 F.2d 1028, 1040 (5th Cir. 1981)).

The Court must thus determine when the contested documents were created, and why the documents were created in assessing the applicability of the work product doctrine. Fojtasek, 262 F.R.D. at 654. Courts universally agree that a document whose purpose is to assist in preparation for litigation is within the scope of Rule 26's work product protection. However, as the Second Circuit aptly noted in U.S. v. Adlman, "the issue is less clear ... as to documents which, although prepared because of expected litigation, are intended to inform a business decision influenced by the prospects of litigation." 134 F.3d 1194, 1197-98 (2nd Cir. 1998). The Adlman Court held that, in light of the plain language of Rule 26 and the policies underlying the work product doctrine, where a document is created because of the prospect of litigation it does not lose protection merely because it was also created in order to assist with a business decision. Id. at 1199-1202. Accordingly, it is now well recognized that documents that serve a dual purpose are covered by the work product protection if they were produced with the "motivating purpose" for or "because of" anticipated litigation." Adams, 282 F.R.D. at 634 (noting that court need not decide whether "motivating purpose" or "because of" tests are consistent or overlapping because the result would be the same under either standard based on the facts before the court); Fojtasek, 262 F.R.D. at 654 (citing In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) for the proposition that "[t]he 'testing question' for the work-product privilege ... is 'whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.' "); Regions Fin. Corp. v. U.S., No. 2:06-cv-00895-RDP, 2008 WL 2139008, *3-7 (N.D. Ala. May 8, 2008) (Proctor, J.); Davis, 636 F.2d at 1040 (stating that "litigation need not necessarily be imminent . . . as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation," it receives work product protection) (citing Osterneck v. E.T. Barwick Ind., Inc., 82 F.R.D. 81 (N. D. Ga. 1979) (quoting 8 Wright, Miller, and Marcus, Federal Practice & Procedure § 2024 and holding that "the test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation."); Hermsdorder v. Am. Motors Corp., 96 F.R.D. 13, 15 (W.D. N.Y. 1982).

Footnote 3. Courts have recognized four interests weighing against allowing an opposing party to depose or call at trial a consultative, non-testifying expert witness: (1) an "important interest in allowing counsel to obtain the expert advice they need in order properly to evaluate and present their clients' position without fear that every consultation with an expert may yield grist for the adversary's mill," which the court found underlies Fed.R.Civ.P.26(b)(4)(B)'s limitation on discovery of consultative, as opposed to testifying experts; (2) unfairness of allowing an opposing party to benefit from a party's effort and expense incurred in preparing its case; (3) fear of restraint on the willingness of experts to serve as consultants if their testimony could be compelled; and (4) the substantial risk of "explosive" prejudice stemming from the fact of the prior retention of any expert by the opposing party. Pickett v. IBP, Inc., 2000 U.S. Dist. LEXIS 19500 (M.D. Ala. Oct. 16, 2000)(quoting House v. Combined Ins. Co. of America, 168 F.R.D. 236)(N.D. Iowa 1996)).

Pike has introduced argument, but no evidence to controvert the affidavits and documents provided by Spirit demonstrating that Messrs. Ramos and Hercules were retained in anticipation of litigation rather than as part of Spirit's ordinary course of business. See Roxworthy, 457 F.3d at 597-98. Spirit has submitted the Affidavits of Mr. Samuels and Mr. Hercules both attesting that the experts were retained specifically in anticipation of litigation, along with a detailed timeline surrounding the retention of these experts and the developing dispute between the parties that led to this lawsuit being filed within a few months. The Court finds that Plaintiff's counsel's anticipation that litigation would ensue when he retained Messrs. Ramos and Hercules to investigate the condition of the property was objectively reasonable. Pike had begun copying its lawyers on emails between the parties' representatives and sent the "Too Bad" email on August 19, 2011, threatening that a "federal bankruptcy judge" would sort out the parties' dispute "so told by [its] attorney." See Roxworthy, 457 F.3d at 599-600 (finding that party's anticipation of litigation was objectively reasonable where belief was supported by "concrete facts which would likely lead to litigation in mind," where the information was sought to protect "from future litigation about a particular transaction," and/or where the party "face[d] an actual or a potential claim following an actual event or series of events that reasonably could result in litigation.") Therefore, the Court concludes that the consulting experts' investigative findings and opinions provided to Spirit's counsel are protected work product pursuant to Fed. R. Civ. P. 26(b)(4)(D).

Even if Spirit retained Ramos and Hercules and their investigations were undertaken in part to assist Spirit in determining Pike's compliance [*17] with its lease obligations, the work product privilege does not vanish merely because the communications and reports were created in order to assist with a business decision unless the documents would have been created in essentially similar form irrespective of the litigation. See Roxworthy, 457 F.3d at 598; U.S. v. Adlman, 134 F.3d 1194, 1202 (2nd Cir. 1998); 8 Wright, Miller, and Marcus, Federal Practice & Procedure § 2024, at 512-14 (2012) ("[D]ual purpose documents may be protected even though a nonlitigation purpose can also be ascertained.").

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