Declaration Filed on Summary Judgment Is Work Product until Filed & Not a Discoverable “Document” But Contents Must Have Been Disclosed in Discovery

Chelan Cnty., Wash. v. Bank of Am., 2015 U.S. Dist. LEXIS 89414 (E.D. Wash. July 9, 2015):

II. Evidentiary Issues

A. Motion to Strike Declaration

Plaintiff moves to strike the declaration of Lisa Stensgaard as a sanction for Defendant's alleged violation of discovery obligations. ECF No. 47 at 3. Specifically, Plaintiff contends that the declaration was responsive to Plaintiff's document request and Defendant had a continuing "obligation to produce it when it was created."  [*14] Id. Defendant contends that there was no obligation to provide the declaration to Plaintiff because (1) it falls under the work product exception to discovery, (2) Plaintiff was aware that Stensgaard possessed discoverable information, and (3) the declaration is not a "document" under the purview of Federal Rule of Civil Procedure 26. ECF No. 55.

Rule 26(b) allows parties to obtain discovery "regarding any nonprivileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter." Fed. R. Civ. P. 26(b)(1). Parties have a continuing obligation to provide requested discovery materials. Fed. R. Civ. P. 26(e). However, the rule excludes from the discovery obligations "documents and tangible things that are prepared in anticipation of litigation or for trial" unless "they are otherwise discoverable" and the requesting party shows a "substantial need for the materials." Fed. R. Civ. P. 26(b)(3)(A). A document is prepared "in anticipation of litigation" if "in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because [*15]  of the prospect of litigation." In re Grand Jury Subpoena (Torf), 357 F.3d 900, 907 (9th Cir. 2004) (quoting 8 Charles Alan Wright, Arthur R.Miller & Richard L.Marcus, Federal Practice and Procedure § 2024 (2d ed. 1994)).

The declaration of a witness prepared in anticipation of filing a motion for summary judgment is a document "prepared in anticipation of litigation." Such declarations "assemble information, sift . . . relevant [facts] from the irrelevant facts," and can relay legal theory and strategy to those reading it, and, as such, are not discoverable under Rule 26. See Hickman v. Taylor, 329 U.S. 495, 511 (1947). Moreover, although reduced to written form, the declaration is not a "document" as understood in Rule 26. Rather, the declaration is in essence proffered testimony, the substance of which is discoverable through interrogatories or the deposition of a witness, not through document requests. See Intel Corp. v. VIA Technologies, Inc., 204 F.R.D. 450, 451-52 (N.D. Cal. 2001). Plaintiff's motion is denied to the extent the failure to produce the declaration itself is a violation of Defendant's discovery obligations.

That said, Defendant did have an obligation to disclose the substance of Stensgaard's declaration as it related to discoverable information Plaintiff requested by interrogatory. See Fed. R. Civ. P. 33. This obligation was a continuing one and required Defendant to supplement any interrogatories [*16]  in a timely manner upon discovery of new information relating to the interrogatory. Fed. R. Civ. P. 26(e)(1).

Interrogatory No. 20 in Plaintiff's Second Interrogatories requested of Defendant: "If you contend that Bank of America offered and Chelan County refused a commercially reasonable security procedure between October 25, 2010[,] and April 18, 2013, state the dates and substance of each offer and refusal." ECF No. 77 at 35.

After noting objections to the breadth and vagueness of the interrogatory, Defendant replied substantively:

   . . . BANA refers to and hereby incorporates Savit Pirl's testimony as 30(b)(6) witness related to this topic and BANA's responses to Plaintiff's First Interrogatories.

Without limiting that testimony or BANA's previous answers, BANA specifically states that the security procedures made available to Chelan County through CPO were commercially reasonable at all times during the timeframe identified above, and that Chelan County had the option of selecting--and ability to self-select--the security procedure(s) and combination(s) thereof appropriate to its level of use and risk. Chelan County was educated on those options and informed of their utility through the methods identified in [*17]  BANA's response to Interrogatory No. 15.9 Chelan County's failure to utilize the additional security features offered in CPO and explained to Chelan County through various methods set forth above constituted a "refusal" of these processes.

More specifically, Chelan County's discussions with BANA personnel regarding security procedures offered by BANA and available to Chelan County include but are not limited to discussions regarding (1) the use of dual account administration; (2) implementation of user entitlements, such as imposing limitations on the authority of one user to both initiate and approve ACH transactions; (3) the use of tokens when opening the Cashpro software; (4) the delegation of ACH processing to subagencies, such as the Hospital, rather than consolidating ACH payment processing in a single county CashPro ID for all agencies; (5) the implementation of monetary limits (transactional or daily) on the ACH account; and (6) the implantation of limitations on the identity of individuals and accounts entitled to receive ACH transfers from Chelan County's ACH account without additional administrative approval or oversight.

ECF No. 56-1 at 18-19.

9   Interrogatory 15 related solely [*18]  to training opportunities Defendant offered; it did not relate to the communications articulated in Stensgaard's declaration. See ECF No. 56-1 at 14-15.

Defendant did not disclose in this response significant facts later reported in the Stensgaard declaration. These facts include that Stensgaard "had several conversations with the County's representative, Theresa Pinneo, about the County's [security decisions], and [Stensgaard] warned her that the changes to the account structure posed a security risk" as well as that Stensgaard "advised the County repeatedly" to adopt more secure procedures. ECF No. 42 at 6. The Court finds that Defendant failed to fully comply with its obligation to provide a complete response to Plaintiff's interrogatory because the response does not identify Stensgaard or indicate that she participated in multiple communications relevant to the interrogatory.

However, the Court concludes that exclusion of Stensgaard's declaration or testimony is not a proper remedy. Because the Court denies Defendant's motion for summary judgment, any prejudice to Plaintiff resulting from the belated disclosure of the substance of Stensgaard's testimony is minimal. Plaintiff has [*19]  ample opportunity to prepare for and counter the testimony offered by Stensgaard at trial. Further, the Court will consider a request that Stensgaard submit to a deposition, provided the parties cannot reach an agreement on the matter themselves in light of the late disclosure of the substance of her testimony. Because Plaintiff is not prejudiced by the belated disclose, the Court denies the motion to strike the declaration.

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