United States District Court, W.D. Washington
October 07, 2004
Adam Karp, Bellingham, WA, Katrina Eve Glogowski, Seattle, WA, for Plaintiffs.
Charles A. Valente, Praveen Kosuri, Eli M. Rollman, Krasnow Saunders Cornblath, LLP, Chicago IL, and Steven H. Winterbauer, Winterbauer & Diamond P.L.L.C., Seattle, WA, for Defendants.
ORDER GRANTING MOTION TO COMPEL PRODUCTION OF “RICHIE” DOCUMENTS
*1 This matter comes before the Court on defendants' Motion to Compel the Production of the “Richie” Documents. (Dkt.# 46). Defendants served plaintiff Susan Grill with written discovery asking about plaintiff's communications with third parties relating to this litigation. In response, plaintiff identified a series of e-mail communications between plaintiff and a person who called himself “Richie.” However, plaintiff has refused to produce those e-mails to defendants, arguing that the attorney-work product doctrine protects the e-mails because they directly relate to the litigation, and because they contain communication between plaintiff's attorney and a potential expert witness. Plaintiff further argues that there is an issue of privacy regarding “Richie,” who is a member of a confidential list-serve concerning service dogs. Defendant argues that the doctrine does not pertain to these e-mails because they were written by plaintiff and a third party.
Having reviewed defendants' motion, plaintiff's response, defendants' reply to that response, and the remainder of the record, the Court hereby ORDERS:
(1) Defendants' Motion to Compel the Production of the “Richie” Documents (Dkt.# 46) is GRANTED. The work product doctrine protects trial preparation materials that reveal an attorney's strategy, intended lines of proof, evaluation of strengths and weaknesses, and inferences draw from interviews. Fed.R.Civ.P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). It applies only to “documents and tangible things prepared in anticipation of litigation or for trial”
by or on behalf of a party. Fed.R.Civ.P. 26(b)(3) (emphasis added). Plaintiff points to only one document that appears to fall under the doctrine-an e-mail from Dr. Frederick A. Shotz to plaintiff's counsel regarding specific issues in this case. The remaining e-mails are identified as e-mails between plaintiff and a third party that purportedly relate to plaintiff's retention of Dr. Shotz as an expert. The only specific concern cited by plaintiff as to those e-mails is that “Richie” apparently believed his communication with plaintiff would not be shared with anyone else.
Because plaintiff has not shown that the “Richie” e-mails were prepared in anticipation of litigation, the Court finds that the work-product doctrine does not apply. Accordingly, an in camera
review of those e-mails is denied, and plaintiff must produce the e-mails to defendants within 7 days of this Order.
As for the e-mail between plaintiff's counsel and Dr. Shotz, the Court has conducted an in camera
review, and finds that any privilege that may have existed with respect to that e-mail has been waived. The e-mail was forwarded by Dr. Shotz to the entire service dog list-serve, thereby undermining any assertion of confidentiality by plaintiff's counsel, and exposing the communication to multiple third parties. Moreover, the e-mail does not appear to reveal any litigation strategy by plaintiff's counsel, but rather reveals Dr. Shotz's opinions on how plaintiff's litigation should have been handled previously, or should be handled in the future. Accordingly, the work product doctrine no longer exists as to this e-mail, and plaintiff must produce it to defendants within 7 days of this Order.
*2 Finally, even though the Court has determined that the documents at issue are not protected by the work product doctrine, the Court does not find that plaintiff asserted such protection in bad faith, and declines to impose sanctions as requested by defendants.
(2) The Clerk shall direct a copy of this Order to all counsel of record.
End of Document.