I. Introduction
Attorneys experienced in defending depositions know the importance of witness preparation. A key component of this process requires counsel to sift through large amounts of produced discovery to identify specific documents ripe for examination by opposing counsel. An interesting issue unfolds when an examining attorney asks a witness during the deposition to recount a list of the documents provided by the defending attorney for the witness’s review prior to the deposition. Specifically, does the work product doctrine protect against such a disclosure?
The argument against disclosure is rooted in the work product doctrine as interpreted by the landmark case Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985). In Sporck, the Third Circuit held that deposing counsel could not compel the disclosure of a list of documents already produced in discovery that defending counsel used to prepare a witness for his deposition. The court reasoned that an attorney’s compilation of discovery documents strategically selected for deposition preparation constitutes opinion work product as it inherently reveals the attorney’s mental impressions, opinions, and legal theories.
In the absence of United States Supreme Court guidance, several circuit courts adopted the Sporck approach.[1] The Fifth Circuit, however, has yet to take a stance. Moreover, district courts within the Fifth Circuit have faced this exact issue on several occasions and failed to reach a uniform consensus. Nonetheless, despite such seeming ambiguity, this coveted list is likely protected under the work product doctrine in the Fifth Circuit.
II. Fifth Circuit District Court Cases Where the Work Product Doctrine Applied
The Southern District of Texas, Brownsville Division was the first inner circuit district court to analyze the work product doctrine in this context. In ASARCO LLC v. Americas Mining Corporation, No. 1:07-CV-00018, 2007 WL 9736101 (S.D. Tex. Nov. 27, 2007) (unreported), the defendant’s employee testified that he reviewed documents to prepare for the deposition. After the defendant’s attorney instructed the employee not to divulge which documents he reviewed pursuant to the work product privilege, plaintiff’s counsel filed a motion to compel counsel’s disclosure. The ASARCO court, citing Sporck, ultimately applied the work product doctrine to protect the list of documents reasoning that counsel’s strategic selection and compilation of documents for a witness’s review inevitably reflects mental impressions, opinions, and legal theories. Importantly, the court noted that Federal Rule of Civil Procedure 612 – the rule requiring disclosure of a writing used to refresh a witness’s memory before testifying “if justice so requires” – could conceivably trump the work product doctrine. However, the court declined to apply this Rule 612 caveat given plaintiff counsel’s failure to lay a proper foundation establishing that (1) the witness used a document to refresh his memory and (2) justice required disclosure of the document.[2]
Similarly, in Hanover Ins. Co. v. Plaquemines Parish Government, 304 F.R.D. 494 (E.D. La. 2015), a former employee met with the defendant’s counsel to prepare for an upcoming deposition. Prior to this deposition, the defendant’s attorney selected documents produced in discovery for the former employee to review. Plaintiff’s counsel asked the former employee to identify the documents shown to him by defendant’s counsel during the deposition. Defendant’s counsel instructed the former employee not to answer the question based on the work product doctrine. Plaintiff’s counsel argued that Rule 612 mandated disclosure. In support thereof, plaintiff’s counsel reasoned that justice compelled disclosure to determine when the former employee learned of the facts to which he testified. The Eastern District of Louisiana found this argument unavailing and instead concluded that the work product doctrine protected the information. Relying on a case from the Fourth Circuit which adopted the Sporck doctrine, In re Allen, 106 F.3d 582, 608 (4th Cir. 1997), the court reasoned that when an attorney sorts through a large volume of documents produced in discovery and recognizes a select collection as important to the litigation, that compilation of documents necessarily reveals the attorney’s opinions regarding the litigation.
III. Fifth Circuit District Court Cases Where the Work Product Doctrine did not Apply
In Fisher v. Halliburton, No. CIV.A. H-05-1731, 2009 WL 483890 (S.D. Tex. Feb. 25, 2009) (unreported), defendant’s counsel prepared one of its former employees for an upcoming deposition with specific documents produced in discovery. Plaintiff’s counsel asked the witness to identify these documents during the deposition, but the defendant’s counsel objected relying on the work product doctrine. Though the facts aligned perfectly with ASARCO, the Southern District of Texas, Houston Division found, in a rather conclusory manner, that the work product doctrine did not apply. To support its holding, the court cited (1) dicta from In re Int’l Sys. & Controls Corp. Sec. Litig., 693 F.2d 1235, 1240 (5th Cir. 1982) – a factually dissimilar case where the Fifth Circuit found that an audit committee’s compilation of materials for a binder in response to an SEC request did not constitute work product – and (2) the oft-quoted rationale that “to imbue every compilation of documents reviewed by a witness before testifying at trial or at deposition with work product privilege protection would all but write Rule 612 of the Federal Rules of Evidence out of existence.”
Likewise, in In re Xarelto Prod. Liab. Litig., 314 F.R.D. 397 (E.D. La. 2016), plaintiff’s counsel requested a status conference to determine the discoverability of a list of documents that defendant’s counsel provided to a witness for his review prior to the deposition. Defendant’s counsel objected arguing the Sporck rationale. In contrast, plaintiff’s counsel relied on Rule 612 and Fisher to support its argument in favor of disclosure. The court acknowledged the integrity of the Sporck and Hanover rationales but nonetheless held that “either party should know what documents or material the witness reviewed before the deposition so that counsel can be prepared to efficiently examine the witness on these documents.” The court’s reasoning, without reliance on any inner circuit authority, rested on practicality and judicial economy. The court explained that, without this holding, deposing counsel would have to show the witness each document, one at a time, and ask “if he or she reviewed Document 1, Document 2, and so on until reaching the vicinity of Document 3,000,000,” an outcome the court categorized as “impractical” and “unworkable.”
IV. Predicted Outcome in Fifth Circuit District Courts
The foregoing cases seemingly display an even divide within the Fifth Circuit. However, there is both a strong qualitative and quantitative argument favoring protection of a list revealing defense counsel’s deposition preparation material in the Fifth Circuit. As to the former, the Fisher court, and by extension the In re Xarelto Products Liability Litigation court, relied on cases that were factually distinguishable and outside the Fifth Circuit. Both courts also failed to appreciate the legislatures’ intention that Rule 612 and the work product doctrine co-exist as evidenced by Notes of Committee on the Judiciary, House Report No. 93–650 which provides that “[t]he Committee intends that nothing in the Rule be construed as barring the assertion of a privilege with respect to writings used by a witness to refresh his memory.” As to the latter, a majority of Fifth Circuit district courts[3] and all circuit appellate courts[4] that have considered this issue approve of the Sporck rationale in this specific context. Considering both arguments, defense counsel facing this issue in the Fifth Circuit today is likely safe from an order requiring disclosure of such a list pursuant to the work product doctrine.
[1] Shelton v. Am. Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986) (adopting Sporck approach); Gould Inc. v. Mitsui Min. & Smelting Co., 825 F.2d 676, 680 (2d Cir. 1987) (same); Matter of Grand Jury Subpoenas Dated Oct. 22, 1991, & Nov. 1, 1991, 959 F.2d 1158, 1166 (2d Cir. 1992) (same); In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1018 (1st Cir. 1988) (compelling disclosure because facts did not align with those in Sprock); In re Allen, 106 F.3d 582, 608 (4th Cir. 1997) (adopting Sporck approach).
[2] ASARCO LLC v. Americas Mining Corp., No. 1:07-CV-00018, 2007 WL 9736101, at *1 (S.D. Tex. Nov. 27, 2007) (unreported) (noting that despite the work product doctrine generally protecting a list of deposition prep materials, “[u]nder Rule 612, if a party establishes that a witness used a writing before he testified to refresh his memory for the purpose of testifying, and if the court determines it to be necessary in the interest of justice, then the party is entitled to have this document produced, to inspect it, and to cross-examine the witness with it”).
[3] Janvey v. Greenberg Traurig, LLP, No. 3:12-CV-4641-N-BQ, 2019 WL 13175533, at *5 (N.D. Tex. Feb. 12, 2019) (slip copy); Benevis, LLC V. Mauze & Bagby, PLLC, No. 5:12-CV-36, 2015 WL 12763537, at *16 (S.D. Tex. Dec. 14, 2015); Klein v. Fed. Ins. Co., No. 7:03-CV-102-D, 2014 WL 3408355, at *4 (N.D. Tex. July 14, 2014) (unreported); S.E.C. v. Brady, 238 F.R.D. 429, 443 (N.D. Tex. 2006); Thomas v. Gen. Motors Corp., 174 F.R.D. 386, 388 (E.D. Tex. 1997).
[4] Shelton v. Am. Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986) (adopting Sporck approach); Gould Inc. v. Mitsui Min. & Smelting Co., 825 F.2d 676, 680 (2d Cir. 1987) (same); Matter of Grand Jury Subpoenas Dated Oct. 22, 1991, & Nov. 1, 1991, 959 F.2d 1158, 1166 (2d Cir. 1992) (same); In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1018 (1st Cir. 1988) (compelling disclosure because facts did not align with those in Sprock); In re Allen, 106 F.3d 582, 608 (4th Cir. 1997) (adopting Sporck approach).