Protecting Litigation Support Materials From Discovery

The increasingly complex task of representing the victims or manufacturers of mass produced products has caused lawyers representing plaintiffs and defendants to form various organizations, whose task is to coordinate the joint efforts of counsel in fairly representing their respective clients. These organizations -- such as the Defense Research Institute, the American Trial Lawyers Association, and the Products Liability Advisory often require member counsel to sign joint prosecution/confidentiality agreements, which forbid the dissemination of materials prepared, organized or generated by these litigation support groups to anyone outside the membership--except in the case of the use of the data in a specific case.

Over the past several years, a few Courts have addressed the legal issues which arise when a litigant seeks to discover what information a member attorney -- who is representing a party in litigation -- has obtained from these litigation support groups.  The legal issue addressed in these cases has been whether the product of these attorney organizations is discoverable once it is turned over to the litigating attorney, or whether it constitutes "work product." The judicial analysis of this question has not been consistent. In fact, the courts appear split on this issue. A recent article authored by a defense attorney has concluded that the "reasoned" view should be that data obtained in litigation, but generated by support groups in anticipation of litigation, is not work product and is discoverable. The present analysis takes a further look at this question and demonstrates the very dangerous precedent that may be set if courts conclude that this sort of information is discoverable.

To begin, we need to define the scope of information that may fit under the umbrella of data that a plaintiff or defense attorney may seek in discovery from his or her opponent and which originated with a litigation support group.

In this day and age of civil litigation, many claims filed in different parts of this country include the same basic issues. Good examples of the similarity of lawsuits can be found in the products liability field. Many different types of motor vehicle crash worthiness claims and motor vehicle handling claims have very similar bases and often involve the use of certain specific documents generated either by manufacturers or found in the scientific literature. Likewise, in this type of litigation, often defendants and plaintiffs use the same experts time and again. And, very often the legal issues raised in each case are virtually the same. These similarities have prompted litigation support organizations to create libraries of information and data bases that have common usage in similar cases. A few examples will suffice. Attorneys representing a car company, like General Motors, have access to a computerized data bank of depositions, a computerized data base of the company's meeting minutes -- organized by topic, author, date, recipient, etc. – and biographical information about plaintiffs' experts which, among other things, cross-references the expert's testimony in many different cases on specific topics. Likewise, these defense lawyers have access to a vast array of published data pertinent to the defense issues raised in particular types of cases. And, finally, defense firms share briefs, motions, and court orders on legal/evidentiary issues which arise repeatedly. Similarly, there are a handful of litigation support groups founded by plaintiffs' attorneys which have attempted collaborative efforts. These organizations sometimes use computer databases to coordinate their efforts to gather information pertinent to topics which often become litigation issues. They may also employ attorneys and staff to sort through thousands of pages of materials produced in discovery to find documents important to litigation issues. Often, these organizations allow the attorney member to sort through the database and select materials of interest to him or her in their particular case.

Currently, defense attorneys appear to have decided to make a concerted nationwide effort to raise the issue of the discoverability of a manufacturer's documents which were selected and acquired by plaintiff's counsel from litigation support groups. The chilling effect of allowing discovery of these data must be appreciated, and the very logical bases for refusing this discovery needs to be spelled out.

The non-discoverability of materials (even those generated by the party defendant) a litigant selects or acquires from a litigation support group is based upon the conclusions that the data is beyond the proper scope of discovery, and its in violation of attorney work product/ joint prosecution agreements.

Discovery of Information

Most often, what is sought by a party defendant is the identity of all documents authored by the defendant and which plaintiff's counsel has acquired from a litigation support group. Counsel's knowledge of the existence of these documents is markedly non-discoverable because it will not lead to the acquisition of admissible evidence in support of the defendant's case.

It is typically unlawful to learn through discovery what an attorney has learned about a case. What possible relevancy -- leading to the admissibility of evidence -- can a defendant make from the disclosure of its internal documents in the possession of the attorney member of a litigation support group? There is none. The truth is that a defendant seeks this discovery so that it can limit the production of its own materials to the items already in plaintiff's possession. This discovery inquiry is done to, essentially, restrict defendant's production of materials to those already in the public domain. This discovery is intended to establish how much the opposing attorney actually knows about this litigation process. It is, however, obvious that allowing discovery of what an attorney has learned about a product to prepare his or her case is outside the realm of discovery.

Preserving the privacy of preparation that is essential to the attorney's adversary role is necessary because without that protection counsel may be forced to forego the analytical work that led to the selection of documents. The chilling effect of allowing such discovery would reverberate through our system of justice. It would cause attorneys to forego the organizational tasks essential to handle complex litigation.

Pre-trial discovery is intended to allow for disclosure which leads to a just and cost- effective resolution. A defendant's request for information acquired in anticipation of litigation from a support group is intended to have the exact opposite result. If the plaintiff's attorney is compelled to produce a listing or the documents obtained through his or her selection process, the defendant will then limit its production to the items already in counsel's possession. This means to artificially limit discovery cannot possibly aid in the just resolution of litigation.

Information Developed or Selected From a Litigation Support Group Constitutes Attorney Work Product

Attorneys often acquire documents either authored by the defendant's employees or by others published in the public domain through their own initiative or through the collaborative efforts of litigation support groups. For years, courts have recognized the value of such collaborative efforts. These attorney groups have various organizational methods. For instance, ATLA is open to any attorney, regardless whether he or she represents plaintiffs or defendants. Further, the ATLA Exchange is a litigation support repository that is available to any member. On the other hand, other support groups exist and membership is subject to dismissal at the will of the group based upon a very strict set of regulations. These regulations require a full accounting that the member is not counsel to any defendant manufacturer, that the member agrees to a Joint Prosecution and Confidentiality Agreement, and that if a request is made of a member for data obtained from the support group, the members first obligation is to notify the group of the request and then to strenuously object to the discovery of this work product data. It is also important to appreciate that many support groups merely serve as a repository of documents lent to the group by the originating attorney, who owns these data. Thus, the data remains the work product of the originating attorney. It is also significant to appreciate that every member agrees to assist in the facilitation of the means used to organize and synthesize the critical documents held by the group. That is, counsel are employed to spend their time going through the data held by the group, prioritizing the importance of the information and determining the "cross-over" value of these data in other litigation in which its membership has an interest.

The development of document repositories, the methods used to prioritize the importance of documents within the repositories, the evaluation of individual documents, and the indexing of these data are clearly work product. Materials prepared in anticipation of litigation or in connection with the development of trial strategies are entitled to protection from discovery.

The seminal case defining work product was Hickman v. Taylor. In that case the U.S. Supreme Court acknowledged that there is a privilege against discovery of attorney work product. The Court generally defined work product as:

"Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepared his legal theories and plan his strategy without undue and needless interference. . . . This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways."

In a discovery dispute involving the revelation of data obtained from support groups, the court must acknowledge the agency relationship between some of these groups and the member attorneys. Many courts have found that collaborative efforts of attorneys in sorting and selecting key documents is entitled to work product. In essence, this activity is at the heart of a "joint prosecution agreement." Attorneys are certainly free to retain members of the support group to select the critical documents without jeopardizing the discoverability of these materials.

When the discovery of documents selected by counsel as a group will reveal counsel's selection process (or that of his agents), it will by its very nature, disclose counsel's mental impressions.

It has been generally stated that attorney-client privilege extends to counsel's work product. Work product is an immunity which protects the attorney from having to disclose the product of her or his labor to opposing counsel. Work product immunity safeguards the attorney's trial preparation. Work product immunity protects documents and other tangible items which are prepared in anticipation of litigation. There is ordinary work product and opinion work product. Typically, opinion work product includes counsel's selective process of compiling documents from among voluminous files in preparation of litigation or trial, including the mere acknowledgment that the documents exist. Likewise, the work product of someone working for an attorney is protected by work product privilege. Since attorneys must rely on others in the compilation of materials for the preparation for trial, it is essential that the protective cloak cover these agents as well as the attorney himself.

In Sporck, the United States Third Circuit Court of Appeals found that counsel's selection of documents from a larger group of materials, which he then used to prepare a witness for deposition, constituted opinion work product. In reaching this conclusion, the Court relied upon the very sound analysis provided by another court:

"In selecting and ordering a few documents out of thousands counsel could not help but reveal important aspects of his understanding of the case. Indeed, in a case such as this, involving extensive document discovery, the process of selection and distillation is often more critical than pure legal research."

The defendants argument that this is hardly a breach of the work product doctrine because it only involves identification of documents is equally meritless. The work product doctrine applies to the identification of documents that reveal counsel's mental impressions and trial strategy.

". . . [W]ithout the protection that the work product doctrine accords his preparation, defense counsel may have foregone a sifting of the documents, or at the very least chosen not to show the documents to petitioner. As a result, petitioner may not have been as well-prepared for his deposition, and neither plaintiff nor defendant would have realized the full benefit of a well-prepared deponent's testimony. For these reasons, Rule 26(b)(3) placed an obligation on the trial court to protect against unjustified disclosure of defense counsel's selection process."

It is also untenable to argue that work product is not applicable because the documents were organized and prioritized by the support group or other counsel during the development of the support groups repository -- which either prioritized the documents or systematized the documents so that member counsel can select the documents relevant to his or her case.

". . . [D]isclosure of work product to friendly litigants in related cases or to others with friendly interests is not beyond the scope of such privilege and will not constitute a waiver of the same... This limitation is necessary to assure joint defense efforts are not inhibited or even precluded by the fear that a party to joint defense communications may subsequently unilaterally waive the privileges of all participants, either purposefully in an effort to exonerate himself, or inadvertently."

Existing Case Law Reflects Conflicting Rationale Regarding Discovery

While there are a large number of cases confirming the confidentiality of counsel's selection of documents from a large repository of materials, there is a conflict over the issue whether counsel must divulge documents originating with the defendant and which have been acquired by a member attorney from a litigation support group. There is also a conflict over when, if at all , disclosure of this information is warranted. Before discussing these cases, we need to reflect upon the scope of this issue. In every products liability motor vehicle case, the defendant's counsel has collaborated with other counsel in his office and in the network of attorneys handling similar cases to acquire documents, depositions and trial transcripts relevant to the cross-examination of plaintiff's experts. Likewise, defense counsel have the benefit of searching all of the manufacturer's documents for the materials they find are relevant to defend the product. Under circumstances where discovery of attorney work product is not honored, the defense counsel should be prepared to disclose the data made available to he or she in the preparation of the defense of this case. Such discovery is clearly analogous to what the defendants now seek from plaintiff's counsel. This point is made so that everyone associated with this dispute can appreciate the course of this trip. Nevertheless, we suggest that the right course is to steer away from this discovery, despite cases ruling to the contrary.

There are four cases that the defendants typically cite in support of their efforts to pierce the work product privilege.

Bohannon v. Honda Motor Company Ltd.

In this ATV lawsuit, the defendant requested copies of documents plaintiff's attorney obtained through an ATV litigation group. The plaintiff's attorney did not argue that he had prepared or had these documents prepared for his use. In fact, the opinion notes that the plaintiff did not provide any supporting affidavits or specific explanation why the materials were grouped or synthesized in anticipation of litigation. Under these circumstances, the Court found that disclosure here would not disclose attorney work product. After acknowledging a split of authority, the Court found disclosure was warranted because any other alternative would allow a party to cloak any document under the work product umbrella.

The flawed reasoning of this Court is that work product is not a "fanciful" convenience for protecting documents obtained through counsel's work process. While it was simple to reach the conclusion it did in this case, this rationale would not be applicable if the plaintiff had satisfied the evidentiary issues raised by the Court.

Miller v. Ford Motor Company

The defendant sought documents the plaintiff's attorney acquired from ATLA concerning Ford manufactured vehicles and transmission problems related to illusory Park. The Plaintiff responded by stating that the information counsel had obtained originated with ATLA and it was work product. The court looked at the bare pleading response of the plaintiff and concluded that the documents were not prepared by counsel or her representative. On that basis alone, the court found the documents were not confidential.

Here, the court ignored the right of counsel to rely upon others to assist in the selection of documents that counsel may use in a lawsuit. The court was apparently unimpressed that plaintiff's counsel wanted to treat as confidential court pleadings and depositions, as well as "discovery in other cases". The lesson here is to only claim work product on materials that really are, and to do the work in gathering and selecting the critical documents -- make it counsel's work product.

Bartley v. Isuzu

Defendants requested production of documents and depositions obtained by plaintiff's counsel from various sources including ATLA. In resisting this motion, the plaintiff did not provide a privilege log or other list that would even indicate what documents are in its possession and supposedly protected from disclosure. The Court also observed that the documents at issue were not prepared for or at the request of plaintiff's counsel. Despite ruling that there was no work product involved here - without referencing any case law -- the Court decided that since the materials in plaintiff's possession were already in defendant's possession (depositions and internal Isuzu documents from other cases), plaintiff was only required to furnish a list of the responsive materials.

Hendrick v. Avis Rent A Car System, Inc.

Defendant GM asked for all statements in plaintiff's possession that were made by GM employees. In ruling that this information was discoverable, the Court noted that plaintiff was not being required to reveal to GM a precise list of every document counsel examined or obtained from other lawyers who have had similar cases. Plaintiff is only being ordered to identify statements made or attributable to an adverse party. Even after making this ruling, the Court agreed that the disclosure of these statements should be delayed until after the author of the statement or document has been deposed. The Court candidly stated that this delay in disclosure is intended to make it difficult for a witness to tailor his or her testimony to conform to the prior statement.

The following cases have analyzed the issue of Work Product and affirmed that that principle is alive and well.

Chastain v. General Motors

GM asked plaintiff to produce all documents in counsel's possession that they believe are relevant to the claims filed, including but not limited to documents obtained from ATLA, NHTSA, etc. GM cited the Court to Bohannon and others for the proposition that documents not generated by a party's attorney or representative are not protected by work product. The Court disagreed with GM's argument, and concluded that: "by their very wording, GMC's Requests . . . seek only those documents in plaintiff's possession . . . which, in Counsel's judgment, are relevant to the issues material to this lawsuit. [This inquiry asks] Counsel to 'group or synthesize' GMC's own documents as well as those of others into that group which opposing counsel finds relevant." Such an inquiry is improper because it seeks opposing counsel's opinion. The Court also found that its conclusion was not altered by the fact that some of the requested documents came from ATLA or other third parties. The Court found that work product does not vanish simply because third parties assisted in gathering the data.

Somerville v. General Motors

GM sought copies of its own documents that plaintiff's counsel acquired from other persons or entities. Specifically, the Court noted that the materials at issue were obtained from the Attorneys Information Exchange Group (AIEG), an organization of plaintiffs' attorneys which assist members in the preparation and trial of products liability cases. The Court reviewed the affidavit of the chief legal officer of AIEG, which detailed the organization of AIEG and how documents are stored for protection and disseminated to members on an as needed basis for a specific case. The Court also observed that it was undisputed that GM has copies of all the documents it now seeks.

The Court found that a compilation of documents sent to an attorney by others who prepared or prioritized these materials for counsel is entitled to work product protection. The Court here distinguished this case from Hendrick because this case involved the compilation of documents, while the materials at issue in that case were statements made by GM employees. Further, the Court stated:

"The Court cannot ignore the agency relationship between plaintiff's counsel and the litigation support group which provided the documents to counsel. The fact that the documents here were not prepared by counsel to the requested party is not an impediment to invocation of the work product privilege, as GM claims. The documents that are the subject of this motion to compel are a selective compilation of GM documents produced by GM in other roll-over cases litigated throughout the country. . . . "

"Moreover, the work product doctrine applies to the identification of documents that reveal counsel's mental impression and trial strategy."

Basey v. General Motors

In this defective seat belt case, GM wanted plaintiff to disclose GM documents that plaintiff's counsel has obtained from independent sources. The Federal District Court denied this request, and in doing so it observed that counsel's selection and compilation of documents is part of the mental process protected from discovery by the work product principle. Under circumstances where counsel acquires documents for potential use against a defendant, those documents are not discoverable because that would constitute an unwarranted inquiry into the files and mental impression of the attorney.

Young v. J.I. Case, Co.

In this machine case, the defendant sought to discover all documents plaintiff's counsel had obtained from ATLA regarding the defects at issue. The Federal District Court noted (and cited to a number of cases directly on point) that the ". . . exchange of information between attorneys for parties sharing in a common interest does fall under the work product privilege." Thus, the Court denied the defendant's motion to compel.

Conclusion

Almost all of the cases discussed above establish that when an attorney personally selects materials from a larger group of data for possible use in litigation, then the selection and the documents chosen are confidential. It is also apparent that a distinction can be drawn between support groups like ATLA, DRI and AIEG.  ATLA is open to any attorney. Attorneys representing defendants have access to much of these data. On the other hand DRI and AIEG, and some other well known defense groups, are open to members who represent plaintiffs only or defendants only. This restriction alone confirms the seriousness of the segregation process, and the groups intent on maintaining confidentiality.

It is essential that a defense to such a sweeping discovery request must be made on all fronts. Of utmost importance is to establish how the responding attorney obtained the requested data, showing that the selection process was wholly that of counsel or made by persons serving as counsel's agent, and documenting the countervailing reasons for not permitting early disclosure.

The better reasoned decisions establish that the "work product" doctrine is implicated and applicable whenever a party acquires documents from a litigation support group in the prosecution or defense of a case. The selection and subsequent grouping of documents certainly manifests the mental process and impressions of counsel.28 The attorneys' strategy in gathering or selecting precise documents from a much larger repository of data would be apparent if opposing counsel were allowed to obtain this discovery. In other words, the documents will highlight and expose the attorneys' protected thought process.

It is also significant to note that there will never be any compelling reason for the defendant to penetrate the shield of work product because the defendant is certainly in possession of its own documents.

"[W]here a request is made for documents already in possession of the requesting party, with the precise goal of learning what the opposing attorney's thinking or strategy may be, even third-party documents may be protected."30

The legal predicate for protecting counsel's selection of documents from a support group is quite clear. However, there is also a very strong policy reason for protecting these data from discovery. In this day and age of high powered litigation, the acquisition of full discovery is a complex and difficult task. Corporations resist what they perceive as "over-reaching" discovery, and then they usually comply with discovery by producing a warehouse of typically useless data. Confronted with that "one-two punch", plaintiffs counsel must invariably rely on networking with other attorneys and litigation support groups to find the golden nuggets left in the pile of document dung that corporations produce. There is no better way to acquire these few nuggets of relevant data than by joining and participating in litigation support groups. In this participatory process, counsel acquires very meaningful documents which are typically not produced in the ordinary discovery process. Likewise, the defendant's natural tendency to withhold data is often effected by its perception that its "hide and seek" approach to discovery will be uncovered. Inevitably, the question must be asked: why does the defendant want to know which of the defendant's documents plaintiff has obtained from third party sources? Putting aside that this inquiry does not fall within the realm of appropriate discovery, the only goal here is to allow the defendant to then tailor its production to the materials it knows the plaintiff has acquired. That rationale for this inquiry is contrary to the goals of discovery.

When one considers that attorneys for product manufacturers have the opportunity to network with all counsel representing this party throughout the United States, thereby giving them access to all of the documents used in other cases, it seems inappropriate for these same attorneys to seek to destroy plaintiff's counsels opportunity to make use of the very advantage defendants have obtained for themselves. The joint prosecution or joint defense approach is vital to the acquisition and ultimate presentation of all relevant facts to a jury.

Ruling in favor of a product manufacturer could have a very chilling effect on collaborative efforts of plaintiffs' attorneys (and ultimately defense attorneys). Work product and document selection to focus on the very relevant data needed to present a fair accounting of ones claim to the jury will be significantly weakened if courts ignore these relevancy and work product issues.