Northern Natural Gas Co. v. Approximately 9117.53 Acres, 2013 U.S. Dist. LEXIS 34958 (D. Kan. Mar. 5, 2013) (magistrate judge’s decision):

The parties and the court have gathered numerous federal court cases from this district on the issue of whether an attorney's selection of documents shown to a witnesses to prepare that witness for deposition or trial testimony are protected work product of an attorney, and whether those documents must be identified or produced during the testimony of the witness. The cases, in chronological order are: Aguinaga v. John Morrell & Company, 112 F.R.D. 671 (D. Kan. 1986) (Theis, J.); Bohannon v. Honda Motor Company Limited, 127 F.R.D. 536 (D. Kan. 1989) (Rushfelt, M.J.); Audiotext Communications Network, Inc. v. U.S. Telecom, Inc., 164 F.R.D. 250 (D. Kan. 1996) (Rushfelt, M.J.); Beach v. City of Olathe, No. 99-2210-GTV, 2000 U.S. Dist. LEXIS 11759, 2000 WL 960808 (D. Kan., Aug. 6, 2000) (Waxse, M.J.); Am. Cas. Co. of Reading, PA v. Healthcare Indem., Inc., No. 00-2301-DJW, 2001 WL 1718275 (D. Kan., May 21, 2001) (Waxse, M.J.); Raytheon Aircraft Company v. United States Army Corps of Engineers, 183 F.Supp. 2d 1280 (D. Kan. 2001) (Belot, J.); Pepsi-Cola Bottling Company of Pittsburg, Inc. v. Pepsico, Inc., No. 01-2009-KHV, 2001 U.S. Dist. LEXIS 19935, 2001 WL 1478659 (D. Kan., Nov. 8, 2001) (Waxse, M.J.); Pepsi-Cola Bottling Company of Pittsburg, Inc. v. Pepsico, Inc., No. 01-2009-KHV, 2002 U.S. Dist. LEXIS 1451, 2002 WL 113879 (D. Kan., Jan. 22, 2002) (Vratil, J.); Williams v. Sprint/United Management Company, No. 03-2200-JWL, 2007 U.S. Dist. LEXIS 14470, 2007 WL 634873 (D. Kan., Feb. 27, 2007) (Waxse, M.J.); U.S. Fire Ins. Co v. Bunge N. Am., Inc., No. 05-2192-JWL, 2008 U.S. Dist. LEXIS 49024, 2008 WL 2548129 (D. Kan. Jun. 23, 2008) (Waxse, M.J.); and State of New Jersey v. Sprint Corporation, 258 F.R.D. 421 (D. Kan. 2009) (O'Hara, M.J.).

Of the above cases, only Judge Theis' opinion in Aguinaga finds that an attorney's selection of documents shown to a witness constitute attorney work product that should be protected from disclosure. The other cases have chosen not to follow Aguinaga and conclude that, in facts similar to those presented in this case, an attorney's selection of documents shown to a witness in preparation for deposition testimony does not constitute work product where those documents have already been produced during discovery. While Northern argues that some of these cases, such as Audiotext, are factually distinguishable from the present case, the court does not find that any of the factual differences affect the efficacy of the underlying legal rulings. This court agrees with the two district judges and three magistrate judges from this district who have analyzed this issue and determined that the attorney's selection process does not result in material protected by the work product doctrine, and adopts the arguments and analysis of those cases.

C. Consideration of Cases from Other Jurisdictions.

In reaching its conclusion about the work product claim raised by Northern, the court is very aware of the existence of authority from other courts, including courts of appeal in other circuits, which would conclude that the attorney's selection of documents to show a witness in preparation for a deposition are protected opinion work product. The genesis of this approach to work product claims is based in large part on two court of appeals opinions in 1985 and 1986: Sporck v. Pehl, 759 F.2d 312 (3rd Cir. 1985); and Shelton v. American Motors Corporation, 805 F.2d 1323 (8th Cir. 1986). Sporck was a divided opinion with a strong dissenting opinion by Judge Seitz. Judge Theis cited Sporck in Aguinaga which was also decided in 1986.

Much has changed in the landscape of federal pretrial discovery and case management since 1986. Some of those changes now require counsel to provide early specific information about their case that was not previously required. Recent amendments to the Federal Rules and similar case management orders now require information from counsel about the nature and preparation of their case which some courts in 1985 and 1986 might have considered to be attorney work product. For example, Fed. R. Civ. P. 26 was amended in 1993 to require early disclosure of information concerning persons who are likely to have discoverable information relevant to the factual disputes between the parties and to describe the nature and location of potentially relevant documents and records.

Footnote 2. While this disclosure obligation was narrowed somewhat in the 2000 amendments to Rule 26, early disclosure is still required.

The 1993 amendments also required the parties to obtain a detailed and complete written report from any persons who were retained or specially employed to provide expert testimony. The reasoning behind such changes in the rules was to accelerate the exchange of information about the case.

Footnote 3. Rule 26(a)(2)(B) and 26(b)(4)(C) were amended in 2010 concerning discovery related to experts. However, the rule still requires a disclosure of all facts or data considered by the witness in forming the opinions to be offered, and allows discovery of the identity of all facts and data which the party's attorney provided to the expert and which the expert "considered" in forming the opinion, whether or not the expert relied upon such facts. See 2010 Advisory Committee Notes to Rule 26.

Courts have also entered special discovery or case management orders requiring early disclosures, the identification of exhibits to be used in deposing a witness prior to the date of the deposition, etc., and have upheld such orders in the face of objections that they impinge on an attorney's opinion work product. See e.g., In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007 (1st Cir. 1988) ("not every item which may reveal some inkling of a lawyer's mental impressions, conclusions, opinions, or legal theories is protected as opinion work product. Were the doctrine to sweep so massively, the exception would hungrily swallow up the rule."); Resolution Trust Corporation v. Heiserman, 151 F.R.D. 367 (D. Colo. 1993).

One early court of appeals decision by the Second Circuit indicated that while the rule formulated in Sporck and Shelton may be applicable so as to conclude that the selection and compilation of documents by counsel can be protected opinion work product, "its application depends upon the existence of a real, rather than speculative, concern that the thought processes of WMW counsel in relation to pending or anticipated litigation would be exposed." Gould Incorporated v. Mitsui Mining & Smelting Co., Ltd., 825 F.2d 676, 680 (2nd Cir. 1987). In a more recent case, the Second Circuit rejected a work product claim in the context of a grand jury subpoena where the claim was unsupported by any in camera identification or submission of the documents, and "is simply too conclusory to meet their burden to show a 'real rather than speculative, concern' that the ordered production will reveal counsel's thought processes and strategies." In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379, 381 (2nd Cir. 2003).

Another later decision from the Fourth Circuit cited Sporck and Shelton in concluding that an attorney's selection and arrangement of documents is protected as opinion work product. In re Allen v. McGraw, 106 F.3d 582, 608 (4th Cir. 1997). That case, however, involved the deposition of the attorney who had conducted the investigation and who had assembled and selected the records as part of her investigation. Even with the decision in Allen, however, lower courts in the Fourth Circuit subsequently noted that Allen did not hold that the protection afforded to opinion work product was absolute, and concluded that:

If otherwise discoverable documents, which do not contain pure expressions of legal theories, mental impressions, conclusions or opinions of counsel, are assembled by counsel, and are put to a testimonial use in the litigation, then an implied waiver of the work product doctrine takes place, and the documents themselves, not their broad subject matter, are discoverable.

Nutramax Laboratories, Inc. v. Twin Laboratories, Inc., 183 F.R.D. 458, 467 (D. Md. 1998). In reaching this conclusion, the court noted that "the mere selection of otherwise discoverable documents by counsel falls closer to fact work product on the continuum than it does to core opinion work product." Id. at 466.

A review of the above decisions from other jurisdictions leads the court to believe that the hard and fast rule announced in Sporck and Shelton is not as solid today as it might appear. Courts in numerous situations have limited or qualified the ruling in those cases based upon the facts and circumstances presented.

Northern's counsel argued at the January 30 status conference that allowing defendants to see which documents Northern's counsel had selected and shown to witnesses during their preparation for depositions would disclose Northern's counsel's trial strategies "from A to Z." This argument, however, is wholly speculative and would not be sufficient to meet Northern's burden to clearly establish work product protection even if the court followed Sporck. See e.g., Gould Incorporated v. Mitsui Mining & Smelting Co., Ltd., 825 F.2d at 680. Furthermore, this argument has been rejected by cases from this district which have reviewed the rational used by the courts in Sporck and Shelton, but have chosen to instead follow the reasoning set out by the dissent in Sporck:

The problem with the petitioner's theory is that it assumes that one can extrapolate backwards from the results of a selection process to determine the reason a document was selected for review by the deponent. There are many reasons for showing a document or selected portions of a document to a witness. The most that can be said from the fact that the witness looked at a document is that someone thought that the document, or some portion of the document, might be useful for the preparation of the witness for his deposition. This is a far cry from the disclosure of the lawyer's opinion work product. Even assuming that the documents were selected by the petitioner's attorney, the subject matter is so undifferentiated that its potential for invasion of work product is minuscule at best.

Sporck, 759 F.2d at 319 (dissenting opinion). See e.g., Pepsi-Cola Bottling Company of Pittsburg, Inc. v. Pepsico, Inc., 2001 U.S. Dist. LEXIS 19935, 2001 WL 1478659 at * 2 (quoting the dissent from Sporck); Raytheon Aircraft Company v. United States Army Corps of Engineers, 183 F.Supp. 2d at 1291(stating that a chief reason for rejecting the argument that disclosure of documents selected by an attorney constitutes work product "is that often times the revelation of the underlying documents provides nothing insofar as the mental processes of the attorney is concerned" and therefore disclosing the list of documents consulted "does not permit an unfair 'peek' into the Corps' legal mind"); and State of New Jersey v. Sprint Corporation, 258 F.R.D. at 436 ("Having prepared literally hundreds of witnesses for deposition and trial while in private practice, the undersigned simply believes it is too big a leap to suggest that the mere identification of documents a witness reviews at the direction of counsel improperly provides a roadmap of the attorney's strategies and opinions.").

Finally, the court does not agree with suggestions that if an attorney's selection of documents are not protected by the work product doctrine, attorneys will choose not to prepare their witnesses as thoroughly, thus disrupting the efficient operation of the court system.