Documents Plaintiff’s Counsel Found on Internet and Intends to Use in Prosecuting Class Action Against State Farm not Protected by Work Product Doctrine Indiana Federal Court Holds
Plaintiff filed a class action lawsuit against State Farm Mutual Automobile Insurance Company; prior to the filing the class action, plaintiff’s lawyer “undertook a comprehensive factual investigation relevant to the claims being asserted,” gathering “numerous documents from publicly available sources, including from Defendant State Farm’s own web sites.” Kartman v. State Farm Mut. Auto. Ins. Co., ___ F.Supp.2d ___, 2007 WL 4561607, *1 (S.D. Ind. December 21, 2007). In order to prepare its defense against the class action claims, defense attorneys requested production of all documents plaintiff obtained from “publicly available sources” prior to filing suit, id., at *3. Plaintiff’s lawyer admitted that he “plan[ned] to use these documents ‘for the purpose of cross-examining and impeaching State Farm representatives,’” but refused to produce them on the ground that the documents were protected by the work product doctrine. Id., at *1. Defense attorneys filed a motion to compel, id., and the district court granted motion.
The federal court explained that plaintiff bore the burden of proving that the documents sought were “prepared in anticipation of litigation.” Kartman, at *1. Plaintiff argued the documents “would necessarily reveal counsel’s mental impressions and litigation strategy”; defense attorneys countered that “Plaintiffs intend to withhold clearly responsive documents from State Farm based upon a temporary invocation of work product protection that Plaintiffs will waive at tactically opportune times.” Id. The district court explained that in order for the work product doctrine to apply, “the material must be documents or other tangible things, must be prepared in anticipation of litigation, and must be prepared by or for a party or his counsel.” Id., at *2. Here, however, the documents were “secured from other sources” and “were not prepared in anticipation of this particular litigation” or “by or for Plaintiff or his counsel in this litigation.” Id. In fact, the district court noted, the documents from State Farm’s web site “were prepared by State Farm with absolutely no thought whatsoever of this particular litigation.” Id., at *3. And while it is true that plaintiff’s lawyer assembled the documents from various public sources, the district court found persuasive the defense argument that “Merely gathering documents from third parties does not gloss the documents with an attorney’s mental impressions any more that simply sharing documents with an attorney stamps the documents with the imprimatur of attorney-client privilege.” Id.
The court hastened to note that this was not a situation where the documents sought represented a subset of a larger universe of documents, as in Sporck v. Peil, 759 F.2d 312, 313 (3d Cir. 1985), where defense counsel weeded through hundreds of thousands of documents and selected “a small subset of these documents…used to prepare the defendant for deposition.” Kartman, at *3. Defense attorneys refused to produce this subset of documents to plaintiff’s lawyer arguing that “identification of the documents as a group will reveal defense counsel’s selection process, and thus his mental impressions, petitioner argues that identification of the documents as a group must be prevented to protect defense counsel’s work product.” Id. (quoting Sporck, at 315). The Third Circuit agreed, holding that “the selection and compilation of documents by counsel in this case in preparation for pretrial discovery falls within the highly-protected category of opinion work product.” Id. (quoting Sporck, at 316). But State Farm sought “the entire universe of documents” obtained by plaintiff’s counsel, not merely a subset of those documents. Id. Accordingly, as plaintiff failed to meet the burden of establishing “on a document-by-document basis” that the work product doctrine applied, id., at *4, the district court granted the motion to compel, id., at *5.