Summary
In United States v. University Hospital, Inc., 2007 WL 1665748 (S.D. Ohio June 6, 2007)(Black, M.J.), the Court considered whether the plaintiff should be permitted to ask a witness about "the evolution of his affidavit," which included "specific questioning as to: who prepared the affidavit, what the proposed changes were, any communications between [the witness] and whomever helped prepare the affidavit, and the contents of all drafts of the affidavit."
Summary of this case from Guyton v. Exact Software N. Am.Opinion
Case No. 1:05-cv-445.
June 6, 2007
ORDER
The parties having presented a discovery dispute to the undersigned on an emergency basis on May 8, 2007, and thereafter having briefed the issues (see docs. 69 and 72), the undersigned now concludes as follows.
Plaintiff seeks to inquire of Dr. Andrew Filak as to the evolution of his affidavit, including specific questioning as to: who prepared the affidavit, who suggested changes to the affidavit, what the proposed changes were, any communications between Dr. Filak and whomever helped prepare the affidavit, and the contents of all drafts of the affidavit.
Defendant maintains that such inquiry is barred by the attorney-client privilege and the work product doctrine.
Upon review, the undersigned finds that Defendant's position is well-taken, and, accordingly, that the proposed line of inquiry by Plaintiff should be prohibited.
The undersigned is not aware of any case in which a court has permitted opposing counsel to question a witness about any role that counsel may have had in the evolution of an affidavit, about any communications with counsel relating to an affidavit, or about prior undisclosed drafts of an affidavit. Instead, courts have routinely rejected such inquiries as violative of the attorney client privilege. See, e.g., Ideal Electric Company v. Flowerserve Corp., 230 F.R.D. 603 (D.Nev. 2005), Renner v. Chase Manhattan Bank, 2001 U.S.Dist. Lexis 17920 (S.D.N.Y. 2001) (unreported); EEOC v. Johsnon Higgins, Inc., 78 Fair Empl. Prac. Cas. (BNA) 1127 (S.D.N.Y. 1998); Folger v. Adam Co. v. PMI Industries, 1989 U.S.Dist. Lexis 13906 (S.D.N.Y. 1989); Hudson v. General Dynamics Corp., 186 F.R.D. 271, 276 (D. Conn. 1999); Hewes v. Langston, 848 So.2d 800 (S.Ct. Mass). The courts prohibit such discovery in order to protect from disclosure counsel's thought processes about which facts are or are not relevant, as well as counsel's and the client's decision-making process regarding how best to present those facts. Id.
The work product doctrine also makes such information immune from discovery. Hickman v. Taylor, 329 U.S. 495, 510-11 (1947); In re Powerhouse Licensing, LLC, 441 F.3d 467, 474 (6th Cir. 2006).
Indeed, in stark contrast to the position it now takes in this case, the Department of Justice in other cases has successfully argued that such information, including drafts of later-filed affidavits, is actually protected by both the attorney-client privilege and the work product doctrine. See McPeek v. Ashcroft, 202 F.R.D. 332, 338-339 (D.D.C. 2001).
Furthermore, the filing of the final version of the affidavit does not constitute a waiver of the privilege. In re Kidder Peabody Securities Litig., 168 F.R.D. 459 (S.D.N.Y. 1996); see also Hudson, 186 F.R.D. at 273; Niagara Mohawk Power Corp., 125 F.R.D. 578, 591 (N.D.N.Y. 1989); Clevenger v. Dillards's Dep't Stores, Inc., 2007 U.S. Dist. Lexis 2184 (S.D. Ohio 2007); In re Pepco, 1992 WL 310781 (D.D.C. Oct. 2, 1992).
Thus, the several courts that have specifically addressed the identical issues raised here by the Plaintiff hold uniformly and unequivocally that the attorney client privilege and the work product doctrine bar the discovery sought by Plaintiff and that University Hospital has not waived these privileges.
For these reasons, the undersigned orders that this line of inquiry shall not be permitted when the deposition of Dr. Filak is resumed.
IT IS SO ORDERED.