Some saw a trend towards intrusion into a lawyer's ability to shape critical expert testimony. The notion, for example, that drafts of expert reports on which a lawyer may have added his or her comments, insertions and proposals for modification could forcibly end up in the adversary's file seemed particularly disturbing. Our articles suggested that the potential challenges might be magnified in the larger world of electronic data and e-mails where even deleted prior drafts nevertheless are retained in the embedded data. Disclosure of Draft Versions Here we return to the subject of discoverability of drafts that may implicate attorney-client and work product information. However, the focus is not on expert reports but, rather, on disclosure of draft versions of an affidavit by a litigant's employee which was submitted during motion practice. Simply put, when an affidavit is filed, can the opponent force the disclosure of prior drafts or versions of the final document? Does the filing of the affidavit trigger a "waiver" of attorney-client privilege or work product protection for prior drafts or versions? These issues confronted Chief Judge David Alan Ezra of the U.S. District Court of Nevada in a case called Ideal Electric Co. v. Flowserve Corp.[2] The salient facts are not complicated. Flowserve was a defendant/cross-claimant/third-party plaintiff in multi-party litigation. LMC was a co-defendant cross-claiming against Flowserve for liquidated damages. Flowserve moved for partial summary judgment against LMC and then deposed LMC's employee, Mr. Jennings, whose affidavit had been filed by LMC. Mr. Jennings testified that LMC's counsel prepared an initial draft of his affidavit to which Mr. Jennings made changes. According to Flowserve, at his deposition, Mr. Jennings recanted portions of his affidavit. Flowserve inquired further about the drafts but LMC's counsel instructed Mr. Jennings not to answer specific questions regarding whether certain statements contained in the final, filed affidavit were in the drafts. Flowserve filed a motion to compel LMC to produce all of Mr. Jennings' draft affidavits and to reconvene the deposition to make him answer questions regarding the affidavit drafts. The Magistrate Judge initially granted Flowserve's motion finding that LMC did not meet its burden of demonstrating the draft affidavits were subject to privileges. Upon LMC's objection, however, the district court vacated the production order finding that an in camera review of the contested documents by the Magistrate Judge was necessary. LMC then submitted three drafts of the Jennings affidavit. Following the Magistrate Judge's in camera review, he found them not discoverable and denied Flowserve's motion to compel. Drafts Privileged Flowserve objected initiating the district judge's consideration of the issues. It claimed that the draft affidavits were not protected by the attorney-client privilege or work product protection. Further, when LMC filed the affidavit, any privileges that may have existed were waived. It did not contest that the drafts "contain communications between [Mr.] Jennings and counsel with respect to how the facts should be presented, including changes to the drafts." However, argued Flowserve, not all communications between attorney and client are protected from disclosure. Thus, it argued, "the draft affidavits at issue do not relate to a request for legal advice but to facts that [Mr.] Jennings and LMC intended to disclose to the Court."[3] The court disagreed. The attorney-client privilege also applies when lawyers act in a "counseling and planning role" as well as when they represent their clients in litigation. Mr. Jennings said at his deposition that he reviewed an initial draft of the affidavit, made comments and adjustments on it and returned it to counsel. Communications on how the facts should be presented, including changes to the drafts fall into the classification of "legal advice." An unpublished New York federal decision, Sharma v. Chemical Bank,[4] where a draft affidavit was not protected, was distinguished as irrelevant since the draft affidavit there was attached to an unprivileged document and disclosed after the end of litigation for which the affidavit had been prepared. LMC also claimed that the drafts contain confidential communications that discuss the theory of the case and represent counsel's thought process regarding which facts are or are not relevant, as well as "counsel and client's decision-making process regarding how best to present those facts." The privilege, said the court, is intended to foster openness between attorney and client to enable counsel to give the most well-informed legal advice. Flowserve's approach would frustrate the purpose of the privilege by stifling the attorney's ability to advise the client when the attorney's advice is most useful — before the client takes an action that could lead to a costly dispute in court.[5] What about the work product doctrine? Did that play a role in protecting the draft affidavits from disclosure? Chief Judge Ezra addressed this subject next. Quoting the federal rule and the "strong public policy" underlying work product protection, the court found the draft affidavits properly constituted work product. It rejected Flowserve's argument that, since the inherent purpose of the affidavit is to provide evidence from a witness, this belies any contention of work product protection of drafts. Protected Work Product Citing a 1990 New York federal decision, A.F.L. Falck SpA,[6] where a draft affidavit was held discoverable, the court observed that disclosure there was ordered only because the party seeking it proved a "substantial need" for the materials. The affiant there was a resident of a foreign nation and therefore was unavailable. Here there was no "substantial need" for the drafts. Mr. Jennings' discrepancy could be demonstrated by using his depositions to highlight absence of independent memory of changes made to the draft affidavits. Furthermore, attorneys' mental processes and opinions "require a far stronger showing of necessity and unavailability to compel disclosure." Drafts "often contain attorney's and client's mental impressions, strategies, and either solicit or provide legal advice."[7] The court found persuasive two decisions that held that draft responses to interrogatories are classic examples of opinion work product because they contain the attorney's mental impressions and legal strategies.[8] The draft answers were protected work product because they were written by attorneys for submission in adversarial proceedings. The court here viewed the draft answers in those cases to be analogous to the draft affidavits. The Magistrate Judge had found that the comments in the drafts provided the basis on which counsel developed and completed the final affidavit. Drafts often go through multiple editing processes and, so, will differ from the final product. The draft also contained handwritten comments reflecting the attorney's view of the case. Because Flowserve proved no substantial need for disclosure, such drafts were protected. The court also rejected Flowserve's argument of waiver, similarly finding the interrogatory draft answer cases "instructive." What makes the Ideal Electric decision noteworthy today — a decade or so ago we might not have reported it — is the seeming onslaught upon, and consequent erosion of, attorney-client and work product protections, especially in bitter, hard-fought, large-scale lawsuits. The attempts to get drafts of expert reports, drafts of interrogatory answers and, now, of draft affidavits in which lawyers have had input might be rationalized in terms of the needs of the particular case. However, except for crime-fraud scenarios, each court-ordered revelation of attorney thinking shrinks the intellectual and creative world in which lawyers can shape litigation approaches and enhance their service to clients. In an adversarial system institutionally viewed as an excellent means to get at the truth, an erosion of traditional protections, institutionally and proverbially speaking, is shooting oneself in the foot. Seasoned litigators and most clients well know and understand that they must sacrifice much to the great god called "Discovery." That does not mean, however, that courts should become that god's "priests" and "thought police" when attorneys happen to write down in draft form what they think. Artful Strategies Indeed, some practitioners, encouraged by occasionally acquiescent or compliant judges, seem to be specializing in what has come to be known as "discovery tort" litigation. We wrote about this phenomenon back in 1997 in our article, "The Other Kind of Discovery Abuse."[9] Zealots engaging in "discovery tort" practices passionately argue the general notion that discovery is purposely intended to be "broad." Then they pursue a strategic discovery game whose goal is to coerce a settlement or artfully poison the opposing party's standing in the mind of the judge by looking for ways to trip up their adversary in some aspect of disclosure or document production. Sometimes, such problems are caused by overbroad and vague requests or genuine misunderstanding. Nevertheless, the opportunists then pounce upon disclosure mistakes or omissions, move to compel and aggressively seek sanctions. Not infrequently, this strategy may work with some judges since there may be some judicial disinterest in getting bogged down in annoying discovery disputes and since some jurists are quite eager to police perceived discovery abuses. The situation has perhaps become even more acute with the onrush of electronic discovery. The digital age has brought with it phenomenal abilities to store, retrieve, modify, delete and destroy enormous amounts of documents at relatively high speeds. Some well-intentioned courts view the high-speed capabilities of data retrieval, literally, as an engine to speed up discovery and disclosure of voluminous dimensions, an opportunity to move cases along with dispatch while, at the same time, forcing broad discovery. Not infrequently, they thus may order vast disclosure within tight, narrow time frames. One problem, however, is that lawyers cannot and do not necessarily read and process hundreds of thousands or even millions of documents so quickly. Thus, they cannot practicably advise their clients within, say, 15 or 30 days as to the significance of perhaps critical documents to be produced or withheld. Here again, the lawyer's world of analytical and creative thought may be savagely shrunk in sacrifice to the great god of discovery. This problem applies not only to privileged matter but also other confidentiality concerns such as trade secrets, embarrassment, and data of use to competitors and a host of others. Without an opportunity for meaningful lawyer review and input, the rule permitting applications for protective orders is being trumped by the rule calling for production. Just recently, for example, the Missouri Supreme Court issued a preliminary writ of prohibition regarding a trial judge's orders addressing electronic discovery.[10] Following prior voluminous disclosure of electronically stored information, one order required a corporate litigant to produce, within 15 days, some 200,000 allegedly irrelevant e-mails which were not, and could not be, fully reviewed by the party's attorneys. A second order tried to justify the first by stating that the producing party would not waive its rights to assert the attorney-client privilege at trial because of the speedy, en masse disclosure to the adversary. The aggrieved party sought appellate relief since the Missouri Rules of Procedure, patterned after the federal rules, contemplate that a party and its attorneys will have a reasonable shot at advising the client and asserting objections to discovery demands. That means a meaningful opportunity to first review the demanded documents. This important proceeding to make the writ permanent is now in the briefing stage in the Missouri Supreme Court. Metadata Discovery And in a ruling issued Sept. 29 in Williams v. Sprint/United Mgt. Co.,[11] a United States Magistrate Judge in Kansas considered whether a discovery order to disclose electronic documents as they are maintained in the ordinary course of business, i.e., as "active file" or in "native format," required a party to produce the electronic documents with their metadata intact. The disclosing party, however, removed metadata prior to producing certain spreadsheets to its adversary. Was that conduct justified by some presumption that metadata need not be produced? Did this scrubbing of metadata violate the order? Was the conduct sanctionable? Metadata, commonly described as "data about data," is information about the history, tracking or management of an electronic document. It may describe how, when and by whom it was collected, created, accessed or modified and how it is formatted, and much more. For our purposes here, we simply note that metadata "can also identify and exploit the structural relationships that exist between and within electronic documents, such as versions and drafts." Metadata also may document other legal or security requirements imposed on records. Examples are "privacy concerns, privileged communications or work product, or proprietary interests."[12] Conclusion The Magistrate Judge held the metadata should have been produced as embraced within the order but declined to impose sanctions for the scrubbing because the issue is a "new and largely undeveloped area of the law." As for metadata the party claims protected by the attorney-client privilege or as attorney work product, the court found that the disclosing party "should have raised this issue prior to its unilateral decision to produce the spreadsheets with the metadata removed." Normally, this would be accomplished by objecting and providing a privilege log.[13] Here again, the sheer volume of materials affected in a given case may dictate how attorneys can practicably review electronic documents and render advice. Clearly, a new era is upon us presenting significant challenges. But vintage privilege and work product protections should retain their vitality and not be whittled down by new "thought police" seeking to serve a seemingly larger, refreshed god of digital discovery. Michael Hoenig is a member of Herzfeld & Rubin Endnotes:________________________________________________________________________________________________________ [1]. M. Hoenig, "Experts' Reports, Drafts and Attorney Work Product," New York Law Journal, Sept. 8, 2003, p. 3; "More on Attorney Work Product and Testifying Experts," NYLJ, Nov. 10, 2003, p. 3. [2]. 230 FRD 603 (D. Nev. 2005). [3]. Id. at 606-07. [4]. 1989 U.S. Dist. LEXIS 11643 (SDNY 1989). [5]. Ideal Electric Co., 230 FRD at 608. [6]. 131 FRD 46, 49 (SDNY 1990). [7]. Ideal Electric Co., 230 FRD at 609. [8]. Bartlett v. State Farm Mut. Auto. Ins. Co., 206 FRD 623, 630 (S.D. Ind. 2002); Niagara Mohawk Power Corp. v. Stone & Webster Engineering Corp., 125 FRD 578 (NDNY 1989). [9]. Hoenig, "The Other Kind of Discovery Abuse," NYLJ, Oct. 6, 1997, p.3. [10]. State of Missouri ex rel Amoco Oil Company, now known as BP Products North America, Inc. vs. The Honorable John J. Riley, SC 086712 (2005). [11]. 230 FRD 640 (D. Kan. 2005). [12]. Id. at 647. [13]. Id. at 653. |
||||
| ©2004 -2008 Herzfeld & Rubin, P.C. |
Print article |
| 40 Wall Street, New York, New York, 10005 · Phone: 212-471-8500 · Fax: 212-344-3333 | |