UNITED STATES OF AMERICA, Plaintiff, v. DICO, INC. and TITAN TIRE CORPORATION Defendants United States District Court, S.D. Iowa, Central Division 4:10-cv-00503 Filed March 27, 2017 Pratt, Robert W., United States District Judge ORDER *1 Before the Court is an emergency motion filed by Dico, Inc. (“Dico”) and Titan Tire Corporation (“Titan Tire”) (collectively “Defendants”) on March 13, 2017. Clerk's Nos. 319; 319-1. The motion seeks to compel the United States of America (“Plaintiff” or the “Government”) to produce communications between a team attorneys working for the Department of Justice (“DOJ”) and a witness or, alternatively, to prevent the Government from offering portions of the witness' deposition at trial. Clerk's No. 319 at 1. Because trial in this action is scheduled to begin on April 3, 2017, the Court entered an order accelerating the deadline for response to March 17, 2017. Clerk's No. 20. On that date, the Government resisted the motion. Clerk's Nos. 323; 323-1. Defendants replied. Clerk's Nos. 328; 329. The matter is fully submitted. I. FACTUAL AND PROCEDURAL BACKGROUND This suit concerns the sale of several buildings by Dico, through its corporate affiliate Titan Tire, to Southern Iowa Mechanical (“SIM”). United States v. Dico, Inc., 808 F.3d 342, 345 (8th Cir. 2015). The sale occurred years after the issuance of an administrative order by the EPA (“the EPA Order”) under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9601 et seq. The EPA Order imposed continuing obligations on Dico intended to prevent the further release of hazardous Polychlorinated Biphenyls (“PCBs”) into the environment from several buildings located on land Dico owned in Des Moines, Iowa (“the Dico site”). After granting summary judgment to the Government on the question of liability as to each of its claims, the Court conducted a bench trial on the question of damages in December 2013. See Clerk's No. 198 at 2; see alsoClerk's Nos. 119 at 14–40; 128 at 37, 39, 43. During the bench trial, the Court admitted the March 2012 deposition testimony of Dr. Gazi George, an environmental consultant who worked for Defendants. Clerk's No. 193; see also Clerk's No. 198 at 8–9, 17–18. The parties agree that during the deposition, the Government treated Dr. George as a hostile witness. SeeClerk's No. 317 at 60–61. Dr. George was asked whether he had knowledge of an inquiry allegedly made by Titan Tire President William Campbell to find out whether environmental restrictions on the buildings on the Dico site might prevent Dico from selling them to SIM.[1] See Clerk's No. 323-1 at 25; see also Clerk's No. 198 at 17–18 n.29. He responded, “All Bill Campbell told me was to try and say that he had conferred with Brian [Mills], through Don Brown, that he—he asked for the environmental clearance to see if there were any issues with the—with the buildings.” See Clerk's No. 323-1 at 25. *2 Following the bench trial, the Court issued an order directing the entry of judgment against Defendants jointly and severally as to each claim asserted in its complaint. Id. at 30–31. Defendants appealed. Clerk's No. 208. On December 10, 2015, the United States Court of Appeals for the Eighth Circuit reversed this Court's summary judgment rulings on the arranger liability and punitive damages claims, but affirmed its award of civil penalties to the Government. Dico, 808 F.3d at 351–55. On December 22, 2015, Dr. George sent an email to DOJ attorney Eric Albert, the lead attorney on the Trial Team prosecuting the case for the Government, with the subject line “Re: Bill Campbell DICO case.” Clerk's No. 323-2 at 2. The email stated, Please give me a call at your convenience[.] I have evidence that Bill Campbell perjured during the Court case, in his deposition and numerous other occasions including regarding the “sale” of DICO contaminated buildings. I will support my statements with documents and many witnesses that this man is a shameless liar, a thief and receive plenty of cover-up by others. The evidence may involve DOJ, IRS and SEC[.] Last time when I contacted USEPA Region 7 I had some of the evidence but even when I asked them for protection under the whistle blower act because I will be out of a job alongside my son and in contrary to the law, they called Titan/DICO attorneys and exposed the intent. I believe I can trust you (if you want the information) to give me your word in your response and I will be willing, if needed to even appear in front of a Federal Grand Jury[.] This is my non-company Email, my home number on weekends is [redacted], my mobile number is [redacted]. Id. The same day, Mr. Albert replied, I have received your email (copied below). I am working on determining whether and how we may have contact without violating any applicable rules of professional conduct. Either I or someone else from my section at DOJ will be in touch with you after the new year. In the meantime, please do NOT send me any information or documents. Thank you. Id. at 4. Dr. George sent a brief acknowledgment to Mr. Albert indicating he had received the reply. Id. at 6. The DOJ thereafter assigned a team of attorneys known as a “Filter Team” to insulate the Trial Team from contact with materials provided by Dr. George to which Defendants might have a claim of privilege or other disclosure protection. See Clerk's Nos. 319-1 at 4; 323-1 at 3; 328 at 4. The Filter Team began corresponding with Dr. George on January 15, 2016. SeeClerk's No. 323-3 at 2. However, by January 17, 2016, Dr. George had retained counsel. Id. Thereafter, the Filter Team communicated with Dr. George indirectly via email correspondence with his counsel. See id. at 2–12. According to the Government, “the Filter Team conducted interviews of Dr. George via questions posed to him through counsel and received responses, via his counsel, primarily through email exchanges.” Clerk's No. 323-1 at 3. Following an exchange of several initial emails, the Filter Team reviewed paper copies of documents identified by Dr. George, but did not take possession of those documents. Id. The Filter Team concluded one of those documents (“Document 1”) was potentially relevant, not privileged, and should have previously been located and produced by Defendants in discovery but had not even been logged. Id. Document 1 appeared to support Dr. George's testimony by suggesting Campbell had knowledge that environmental restrictions might prevent the sale of the buildings under the EPA Order to SIM. See Clerk's No. 323-4 at 4. *3 Eventually, the Filter Team discussed with Dr. George the possibility of him signing a declaration regarding Document 1. Clerk's Nos. 323-1 at 3–4; 323-3 at 7. Between July 2016 and October 2016, the Filter Team and Dr. George's counsel frequently addressed the possible declaration in their email correspondence, and the Filter Team sent several draft declarations to counsel. Clerk's No. 323-3 at 7–12. According to the Government, no final declaration was ever “completed or signed.” Clerk's No. 323-1 at 5. On December 1, 2016, Dr. George's counsel provided the Government with a copy of Document 1. Id. at 11. The Filter Team subsequently contacted defense counsel by email to inform them of its existence and to request that Defendants supplement their document production to the Trial Team to include Document 1, a copy of which was attached. Clerk's No. 323-4 at 2–4. Defense counsel responded by letter on December 12, 2016, asserting that Dr. George forged Document 1 and providing various evidence in support of that assertion including three witness affidavits. Id. at 6–13. Defense counsel further requested that the Government produce all written correspondence between the DOJ and Dr. George and all related internal correspondence between the Trial Team and the Filter Team.[2] Id. at 11. On December 16, 2016, the Filter Team produced the initial emails between Dr. George and Mr. Albert to defense counsel. Id. at 15–21. However, the Filter Team asserted the remaining correspondence defense counsel had requested was protected by work-product and/or attorney-client privilege and therefore not subject to disclosure. Id. at 15. After reviewing the evidence provided by defense counsel, the Filter Team sent defense counsel a series of discovery requests on December 30, 2016, including questions for the witnesses whose affidavits accompanied the letter asserting Dr. George forged Document 1. Id. at 23–24. Additionally, the Filter Team advised that pursuant to defense counsel's request, it was preparing a privilege log. Id. at 23. On January 6, 2017, the Filter Team provided the privilege log to defense counsel. Id. at 26–39. On January 12, 2017, defense counsel advised the Filter Team it would not comply with its requests to produce additional evidence concerning the authenticity of Document 1 and asserted the Filter Team had relied on an overbroad conception of the work-product privilege in withholding its correspondence with Dr. George. Id. at 41–42. In its response to that email on January 17, 2017, the Filter Team indicated it intended to evaluate its remaining options for obtaining additional information relevant to the authenticity of Document 1, as it believed the evidence defense counsel had produced as to the authenticity of Document 1 was inconclusive. Id. at 46. In addition to reiterating its refusal to provide defense counsel with privileged documents, the Filter Team informed defense counsel that it now intended to provide the Trial Team with Document 1. Id. In a subsequent communication with the Trial Team regarding other pretrial matters on February 22, 2017, defense counsel insisted the correspondence between the Filter Team and Dr. George was not privileged as work product and again requested that the Government produce it. Id. at 52–53. Additionally, defense counsel requested that the Government advise as soon as possible as to whether the correspondence would be produced and indicated Defendants might “take alternative steps to obtain the documents” if the Government refused. See id. at 52. On February 27, 2017, the Government once again refused to produce the correspondence. Id. at 55–56. *4 On March 17, 2017, Defendants filed the pending emergency motion, in which they ask the Court to compel the Government to produce its communications with Dr. George and award Defendants attorney fees or, in the alternative, to prevent the Government from offering the deposition testimony of Dr. George at trial. Clerk's Nos. 319 at 1; 319-1 at 1, 12. The Government resisted the motion. See generally Clerk's Nos. 323; 323-1. Defendants replied. Clerk's Nos. 328; 329. II. ANALYSIS CONCERNING THE MOTION TO COMPEL In general, unless limited by court order, the scope of discovery under the Federal Rules of Civil Procedure extends to, any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1). The parties agree that the Government must produce its communications with Dr. George or his counsel unless those communications were privileged. The parties address two forms of privilege in their submissions to the Court: the work-product privilege and attorney-client privilege. The work-product doctrine established in Hickman v. Taylor, 329 U.S. 495 (1947), now also finds expression in the Federal Rules of Civil Procedure. Simon v. G.D. Searle & Co., 816 F.2d 397, 400 (8th Cir. 1987). Rule 26(b)(3) provides that a party ordinarily may not discover “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)” absent a showing of substantial need and inability to obtain their substantial equivalent without undue hardship. Fed. R. Civ. P. 26(b)(3)(A). The question of whether a document is privileged by virtue of the work-product doctrine is governed by federal law. PepsiCo, Inc. v. Baird, Kurtz & Dobson LLP, 305 F.3d 813, 817 (8th Cir. 2002). Application of the doctrine is guided by the purposes for which it was created. See Simon, 816 F.2d at 400. As for attorney-client privilege, the Court applies federal common law to determine whether it applies because jurisdiction in this case is based on a federal question. See, e.g., In re Bieter Co., 16 F.3d 929, 935 (8th Cir. 1994). A. Privilege Based on the Common-Interest Doctrine The Court first considers the Government's argument that it shares with Dr. George a common interest sufficient to invoke the common-interest doctrine. In the Eighth Circuit, the common-interest doctrine “expands the coverage of attorney-client privilege in certain situations.” In re Grand Jury Subpoena Duces Tecum, 112 F.3d 922, 915 (8th Cir. 1997). Though the Court of Appeals has never decided whether this doctrine might also expand the scope of work-product privilege, it has clearly indicated that if the doctrine applies in this context, the common interest necessary to invoke it would be the same as that required to invoke it with respect to attorney-client privilege. Id. at 925 n.16. The common-interest doctrine applies only when “two or more clients with a common interest in a litigated or non-litigated matter are represented by separate lawyers and they agree to exchange information concerning the matter.” Id. at 922 (quoting Restatement (Third) Law Governing Lawyers § 126(1)). A common interest sufficient to invoke the doctrine may be “either legal, factual, or strategic in character.” Id. (quoting Restatement § 126(1)cmt. e). *5 The Government asserts it shares a common interest with Dr. George sufficient to satisfy this standard. Clerk's No. 323-1 at 18–19. Specifically, the Government asserts, Plaintiff and Dr. George and his attorneys had a common interest in this situation: namely the review and evaluation of Dr. George's December 2015 claims. As to Plaintiff's interest, the Filter Team's role was to perform the “privilege screen” for Plaintiff, to avoid any inappropriate disclosure of privileged material to the Trial Team, and the Trial Team's role was to undertake a further investigation into Dr. George's allegations of fraud on the Court if cleared by the Filter Team to receive any information. As to Dr. George's interest, he came forward unilaterally with a request that the United States consider his allegations of perjury. On information and belief, Dr. George and his attorneys recognize a common interest with the United States in working to uncover the truth of the matter. Dr. George and his attorneys also may have their own rights to assert protection over the correspondence in question. Id. at 19. As this recitation of objectives makes clear, the Government and Dr. George each had distinct objectives when they exchanged information relevant to this suit. In light of these distinct objectives, the Court concludes the Government and Dr. George lacked a common interest sufficient to support application of the common-interest doctrine. The mere fact that Dr. George and the Government may have shared an interest “in working to uncover the truth of the matter” does not mean that they shared a common interest sufficient to extend the bounds of attorney-client or work-product privilege. For the common-interest doctrine to apply, represented parties must share a corresponding interest, not merely the need “for a full and accurate understanding of the facts surrounding various incidents.” In re Grand Jury, 112 F.3d at 922 (rejecting the argument that parties needing the same factual information constitutes a common interest for purposes of the common-interest doctrine and concluding the White House lacked an interest corresponding to an individual's interest in “avoiding prosecution, or else minimizing the consequences” if charges against her were pursued). The Government has not asserted, nor can the Court conceive of, any interest it has that might correspond to an interest of Dr. George. Therefore, the Court rejects the Government's assertion that the communications between Dr. George and the Filter Team are privileged under the common-interest doctrine. B. Waiver of the Work-Product Privilege The Court next considers whether the Government waived any work-product privilege to which it might have been entitled, as there is no need to assess whether the communications were subject to disclosure if the Government waived its ability to shield them from discovery. Defendants assert that because the Government and Dr. George lacked a common interest in this litigation, the communications between the Filter Team and Dr. George “are therefore per se not protected by the work product doctrine, as any protection that might otherwise exist has been waived by the very fact of disclosure to Dr. George.” Clerk's Nos. 319 at 6–7; 328 at 6–7. In support of their assertion that the Government waived any privilege to which it was otherwise entitled, Defendants rely solely on three cases from the Southern District of New York. See id. (citing S.E.C. v. Gupta, 281 F.R.D. 169, 173 (S.D.N.Y. 2012); Ricoh Co. v. Aeroflex Inc., 219 F.R.D. 66, 70–71 (S.D.N.Y. 2003); Medinol, Ltd. v. Boston Scientific Corp., 214 F.R.D. 113, 115–17 (S.D.N.Y. 2002)). *6 Without a doubt, “work product privilege is not absolute and may be waived.” Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 732 (8th Cir. 2002). The Eighth Circuit Court of Appeals has repeatedly emphasized that determinations as to whether the privilege has been waived are to be made “in a commonsense manner in light of reason and experience as determined on a case-by-case basis.” Id. (quoting Pittman v. Frazer, 129 F.3d 983, 988 (8th Cir.1997)); Pittman, 129 F.3d at 988. To this end, a court applying the privilege must recognize that it was “designed to balance the needs of the adversary system to promote an attorney's preparation in representing a client against society's interest in revealing all true and material facts relevant to the resolution of a dispute.” See Pamida, 281 F.3d at 732. “When a party seeks a greater advantage from its control over work product than the law must provide to maintain a healthy adversary system, the privilege should give way.” Id. (quoting In re Sealed Case, 676 F.2d 793, 818 (D.C.Cir.1982)). The Eighth Circuit has clearly held that waiver occurs when there has been disclosure of work product to an adversary or disclosure of work product to a third party with the actual intention that it be disclosed to an opposing party.[3] Pittman, 129 F.3d at 988. But the Eighth Circuit has never held that a party waives work-product protection when it communicates with a third-party witness merely by virtue of the fact that the witness is a third party who lacks a common interest in the litigation.[4] See Clerk's Nos. 319 at 6; 328 at 6. Were a common interest necessary for the privilege to extend to communications with third parties, the Eighth Circuit would have had no occasion to recognize the possibility that a common-interest work-product doctrine extends the scope of the work-product privilege. Additionally, there is no basis upon which to assume such a requirement could only be met by an interest sufficient to invoke the common-interest doctrine applicable in the context of attorney-client privilege. Working from the assumption that some form of common interest is required, Defendants argue that Dr. George is fundamentally incapable of sharing any interest with the Government sufficient to prevent per se waiver of the work-product privilege because the Government previously regarded Dr. George as a hostile witness. However, under the facts of this case, where the deposition at which the Government treated Dr. George as a hostile witness took place more than three full years prior to him offering the Government information pertinent to the veracity of Mr. Campbell, the assumptions upon which this argument are based prove far too tenuous. Certainly, by the time Dr. George approached the Government in December 2015, the Government could reasonably conclude that Dr. George presently shares its interest in developing certain facts concerning this case and that such interest was sufficient to assure its communications with Dr. George or his counsel would not be disclosed with Defendants.[5] Most cases addressing potential waiver of the work-product privilege by virtue of disclosure to third parties recognize that such disclosure does not waive the privilege “unless it has substantially increased the opportunities for potential adversaries to obtain the information” disclosed. 21 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2024 (3d ed. Jan. 2017 update). *7 Applying its common sense to the circumstances of this case, the Court concludes the Government did not waive any work-product protection to which it was otherwise entitled by communicating with Dr. George in an effort to gather information that might help establish the untruthfulness of a key witness for the opposing party in this case. Rather, the Court concludes that to construe the work-product doctrine so narrowly as to prevent its application to every communication with a third party who lacks a legal interest in the present litigation as Defendants suggest would be to undercut both of the very interests the work-product doctrine is intended to balance. See Pamida, 281 F.3d at 732 (suggesting that application of the privilege in a “commonsense manner” recognizes that the privilege is intended “to balance the needs of the adversary system to promote an attorney's preparation in representing a client against society's interest in revealing all true and material facts relevant to the resolution of a dispute”). Society's interest in revealing true and material facts relevant to the resolution of disputes can hardly be served if attorneys cannot interview third-party witnesses unless they are willing to permit every question they ask to be subject to discovery. See Hickman, 329 U.S. at 511. Had the Government believed that such mandatory disclosure would result from its decision to interview Dr. George, perhaps the communications at issue in this case would have never taken place. For this reason, the Court concludes the Government seeks no greater advantage from the work-product privilege “than the law must provide to maintain a healthy adversary system.” Pamida, 281 F.3d at 732 (quoting Sealed Case, 676 F.2d at 818). Accordingly, the Courts concludes the Government did not waive any work-product privilege to which it might otherwise be entitled under the circumstances of this case. C. Factual Basis for Assertion of the Work-Product Privilege Having determined that the Government did not waive any work-product privilege to which it might otherwise be entitled, the Court now turns to the question of whether the Filter Team's communications with Dr. George and his counsel were privileged under the work-product doctrine. As a starting point, the Court observes that the doctrine recognizes two distinct categories of materials as work product, affording a different degree of protection to each. As explained by the Eighth Circuit, There are two kinds of work product—ordinary work product and opinion work product. Ordinary work product includes raw factual information. Opinion work product includes counsel's mental impressions, conclusions, opinions or legal theories. Ordinary work product is not discoverable unless the party seeking discovery has a substantial need for the materials and the party cannot obtain the substantial equivalent of the materials by other means. In contrast, opinion work product enjoys almost absolute immunity and can be discovered only in very rare and extraordinary circumstances .... Baker v. Gen. Motors Corp., 209 F.3d 1051, 1054 (8th Cir. 2000) (citations omitted). A party asserting the work-product privilege bears the burden of providing a factual basis for its assertion of the privilege. Rabushka ex rel. U.S. v. Crane Co., 122 F.3d 559, 565 (8th Cir. 1997). Thus, the party asserting the work-product privilege must prove a factual basis for concluding materials with respect to which it is claimed are (1) “documents and tangible things” (2) “prepared in anticipation of litigation or for trial” (3) “by or for another party or its representative (including the other party's attorney ... or agent).” See Fed. R. Civ. P. 26(b)(3)(A). The Court begins its analysis by considering whether the Government has met its burden of establishing a factual basis for its assertion that the email correspondence with Dr. George was prepared in anticipation of litigation. Relatedly, the Court considers whether members of the Filter Team acted by or for the Government as its representatives or by or for attorneys on the Trial Team acting as representatives of the Government when they communicated with Dr. George and his attorney. Defendants assert that the correspondence between the Filter Team and Dr. George or his counsel could not have been produced in anticipation of litigation because the purpose of the Filter Team was not to develop litigation or trial strategy but to ensure privileged information did not reach the Trial Team. Clerk's Nos. 319-1 at 7; 328 at 7. However, Defendants cite no authority for their assertion that application of the work-product privilege is limited to materials prepared by individuals responsible for the development of litigation or trial strategy, nor has the Court identified a single case that stands for that proposition. Similarly, the Court has been unable to find any case in which a court concluded materials were not work product because they were prepared by a filter team, privilege team, or taint team. *8 The Court concludes the factual recitations by the parties clearly indicate that, at a minimum, the Filter Team members communicated with Dr. George and his counsel as agents of Trial Team members acting as representatives of the Government.[6] The Eighth Circuit has expressly recognized that the work-product privilege extends to notes and memoranda from witness interviews prepared by “an attorney, or an attorney's agent.” Baker, 209 F.3d at 1054. Accordingly, the Court rejects the argument that the Filter Team was incapable of producing privileged work product prepared in anticipation of litigation by virtue of the fact that it was not responsible for the development of litigation or trial strategy. Rather, the Court concludes the Government has met its burden of establishing a factual basis for its assertion that the materials it claims as privileged were prepared in anticipation of litigation, as the email correspondence was clearly produced while this litigation was ongoing.[7] Additionally, the Court concludes that the Filter Team acted by or for the Government or by or for attorneys on the Trial Team acting as the Government's representatives when it communicated with Dr. George and his attorney.[8] The Court next considers whether the Government has established a factual basis for its assertion that the correspondence sent by Dr. George and his counsel constituted work product to which the work-product privilege might apply. Defendants assert statements by third-party witnesses are necessarily subject to discovery such that the Government should be compelled to produce the emails sent by Dr. George and his counsel to the Filter Team. Clerk's No. 319-1 at 8–9; 328 at 8–9. In support of this claim, Defendants rely primarily on a case in which the court concluded the work-product privilege did not protect affidavits that were obtained by an attorney during his investigation and that reflected the affiants' statements regarding facts and opinions relevant to the case. Murphy v. Kmart Corp., 259 F.R.D. 421, 424–425, 431 (D.S.D. 2009). Though the court in Murphy recognized that a witness statement to an attorney is generally not discoverable if the witness is available to the other party, the court noted that the cases were divided as to whether an affidavit constitutes attorney work product protected from disclosure “when an attorney drafts an affidavit for a witness to adopt and sign under oath following an interview.” Id. at 428. After surveying relevant caselaw, the court concluded it was “reluctant to extend the protections of the work product doctrine to third-party witness affidavits, that are, by their very nature statements of facts within the personal knowledge of the witnesses.” Id. at 431 (alterations, quotation marks, and citations omitted). The court thus concluded the affidavits were not opinion work product, reasoning that, *9 [t]he affidavits should not contain the mental impressions or legal theories of the attorney who drafted them, and the majority view [that affidavits are not entitled to protection as privileged work product] is premised on that presumption. Indeed, the very definition of an affidavit is a “written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.” Id. (quoting Black's Law Dictionary 58 (6th ed. 1990)). The court then concluded the party seeking the affidavits was entitled to discover them, reasoning that even if they constituted ordinary work product, the seeking party had made the showing required of substantial need and undue hardship to discovery them. Id. at 431–32.[9] The Court finds Murphy unpersuasive. Dr. George never signed a final declaration, therefore this is not a case in which a party has adopted a sworn affidavit prepared by an attorney as his own. Furthermore, an attorney typically secures an affidavit with a particular objective in mind. See id. at 431. Just as attorney notes reveal legal conclusions because they focus on facts deemed as legally significant, Baker, 209 F.3d at 1054, a draft affidavit is likely to focus on parts of witness statements the attorney who prepared it deems legally significant or contain statements the attorney hopes the witness will adopt because they would benefit a client, see Clemmons v. Acad. for Educ. Dev., 300 F.R.D. 6, 8 (D.D.C. 2013). The privilege log produced by the Government indicates the Filter Team provided several draft declarations to Dr. George's counsel and exchanged numerous emails concerning its contents between July 8, 2016, and October 24, 2016. Clerk's No. 323-3 at 7–11. Based on the frequency with which the draft declarations and the emails intended to refine their contents were exchanged, the Court concludes these materials reflected the mental processes of the attorneys on the Filter Team. Therefore, the Court concludes these materials also constituted work product that was, at a minimum, privileged from discovery absent a showing of substantial need and inability to obtain their substantial equivalent without undue hardship. See, e.g., Schoenmann v. Fed. Deposit Ins. Corp., 7 F. Supp. 3d 1009, 1014 (N.D. Cal. 2014); Boyer v. Gildea, 257 F.R.D. 488, 493 (N.D. Ind. 2009); Randleman v. Fid. Nat. Title Ins. Co., 251 F.R.D. 281, 285 (N.D. Ohio 2008); Tuttle v. Tyco Elecs. Installation Servs., Inc., No. 2:06-CV-581, 2007 WL 4561530, at *2 (S.D. Ohio Dec. 21, 2007); United States v. Univ. Hosp., Inc., No. 1:05-CV-445, 2007 WL 1665748, at *1 (S.D. Ohio June 6, 2007); Ideal Elec. Co. v. Flowserve Corp., 230 F.R.D. 603, 608–09 (D. Nev. 2005); see also Inst. for Dev. of Earth Awareness v. People for Ethical Treatment of Animals, 272 F.R.D. 124, 125 (S.D.N.Y. 2011). Defendants appear to read Murphy broadly to prohibit application of the work-product doctrine to verbatim statements by third-party witnesses generally, emphasizing that Murphy cited to cases in which courts held that such statements do not constitute work product. See Clerk's Nos. 319-1 at 9; 328 at 9; 329 at 6–7. However, the Court rejects Defendants' suggestion that written statements of third-party witnesses never constitute privileged work product.[10] *10 “Discovery of a witness statement to an attorney is generally not allowed if that witness is available to the other party.” Baker, 209 F.3d at 1054. The fact that a written statement was prepared by a witness therefore does not necessarily preclude it from coming within the ambit of work product. In Hickman v. Taylor, the Supreme Court held that a party is not entitled to “discovery as of right of oral and written statements of witnesses .... without any showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner's case or cause him any hardship or injustice.” 329 U.S. at 498–500, 508–12. Additionally, the Hickman Court explicitly recognized that work an attorney undertakes to “assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy .... is reflected ... in interviews, statements, [and] correspondence” such that these materials may aptly be termed “[w]ork product of the lawyer.” Id. at 511. The Court went on to note, Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten.... Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial.... And the interests of the clients and the cause of justice would be poorly served. Id. In light of the rationales for the work-product doctrine expressed in Hickman, the Court finds persuasive the chief authority relied upon by the Government to support its assertion that a factual basis for application of the privilege exists. See Gerber v. Down E. Cmty. Hosp., 266 F.R.D. 29 (D. Me. 2010). In Gerber, the court concluded that the work-product privilege extends to email correspondence between counsel and potential witnesses “created for litigation purposes.” Id. at 33. In so concluding, the court reasoned, “like a short-hand or stenographic recording of a witness statement or interview, the e-mail interview ... produced by counsel for litigation purposes and the participation by a witness in an e-mail interview is comparable to participation by a witness in a recorded oral interview or the creation of a written statement.” Id. The court further observed, As for authorship, an e-mail correspondence chain is still produced by counsel's skillful or tactical questioning despite the fact that the witness responds in writing rather than in words.... A party should not be disadvantaged with respect to trial preparation simply because counsel used a tangible medium of communication rather than an oral interview. Id. Indeed, the Court can conceive of no characteristic of email correspondence that materially distinguishes it from other written statements of witnesses with respect to application of the work-product privilege. See, e.g., Boyer, 257 F.R.D. at 493; Randleman, 251 F.R.D. at 285. The leading treatise on federal procedure endorses the view that a “sensible reading” of the Federal Rules of Civil Procedure extends protection under Rule 26(b)(3) equally to electronically stored information. Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2024 (3d ed. Jan. 2017 update). Furthermore, even assuming an email is neither a “document” nor “tangible” such that it falls within the rule itself, the residual protection of the doctrine articulated in Hickman still applies. Id. Because “application of the work product doctrine to specific documents is guided by the purposes of the doctrine set out in Hickman,” Simon, 816 F.2d at 400, the Court finds Gerber's analysis persuasive under the circumstances of this case. The privilege log the Filter Team provided to Defendants clearly reflects that the purpose of its communications with Dr. George and his counsel was investigative. Under Hickman, there can be no doubt that email correspondence may reflect work an attorney undertakes in the interests of representing a client, particularly when those emails are investigative in nature. 329 U.S. at 510–11. If such investigative correspondence were subject to discovery on demand to opposing parties without any demonstration of need, “much of what is now put down in writing would remain unwritten.” Id. at 509–11. In contrast, interpreting the scope of materials subject to potential privilege under the work-product doctrine to encompass investigative email correspondence encourages vigorous investigation and furthers “society's interest in revealing all true and material facts relevant to the resolution of a dispute.” Pamida, 281 F.3d at 732. *11 Applying its common sense to consideration of the purposes the work-product doctrine is intended to serve, the Court concludes “a naked general demand” for investigative email correspondence with a third-party witness is insufficient to compel its production “absent any purported necessity or justification.” Hickman, 329 U.S. at 510, 512. Accordingly, the Court concludes the Government has met its burden of establishing that the remaining email correspondence between the Filter Team and Dr. George or his counsel constituted at least ordinary work product to which privilege might apply. D. Substantial Need and Inability to Obtain Substantial Equivalent Having concluded that all the correspondence between the Filter Team and Dr. George or his counsel constituted at least ordinary work product, the Court next turns to the question of whether those materials are nonetheless subject to discovery by Defendants. Once the party seeking protection under the work-product doctrine has established that materials sought to be discovered constitute work product, the party seeking discovery bears the burden of establishing a substantial need for the materials and an inability to obtain their substantial equivalent without undue hardship. Fed. R. Civ. P. 26(b)(3)(A); see PepsiCo, Inc., 305 F.3d at 817. If the Court finds Defendants have made the required showing and “orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories” of the Government's attorneys and representatives. Fed. R. Civ. P. 26(b)(3)(B). In the portion of their briefs addressing their motion to compel production of the correspondence, Defendants state, The government will ... be using Dr. George as a witness for the purpose of trying to undermine Campbell's credibility on the issue of whether the environmental inquiry occurred. Defendants requested that the government produce all communications between itself and Dr. George so that Defendants can determine how many other lies he told about Campbell and how to use his fraudulent conduct at trial to protect Campbell and Defendants from George's testimony. Such evidence surely is material to whether Dr. George's testimony is accurate and reliable. Clerk's Nos. 319-1 at 5; 328 at 5. Beyond this statement, Defendants make no further representations in their briefs that clearly address their substantial need for the correspondence in the preparation of their case. Similarly, Defendants neither expressly argue that they are unable to obtain information substantially equivalent to that contained in the correspondence by means other than discovery without substantial hardship, nor recount any attempts they have made to interview Dr. George since learning that he communicated with the Filter Team. The Government contends Defendants have failed to demonstrate a substantial need for the correspondence for numerous reasons. Clerk's No. 323-1 at 21. In particular, the Government notes that neither party seeks to admit Document 1 as evidence in the upcoming trial. Id. The Government further points out that defense counsel indicated in its letter refuting the authenticity of Document 1 that Defendants had already gathered evidence discrediting its authenticity and identified witnesses to proffer that evidence at trial. Id.; see Clerk's No. 323-3 at 6–13. Finally, the Government argues that not compelling the production of the correspondence will not prejudice Defendants, as the Trial Team itself has had no access to the correspondence Defendants seek to compel. Clerk's No. 323-1 at 21. *12 By way of additional background, the Court notes the parties do not dispute whether Dr. George qualifies as an unavailable witness under Rule 32(a)(4). See Clerk's Nos. 316 at 2; 319-1 at 10; 323-1 at 21–23; 328 at 10. Thus, the March 2012 deposition testimony was admitted during the December 2013 trial. That testimony revealed Dr. George to be an environmental consultant who performed work for Titan International concerning its purchase of the Dico site in 1992 or 1993 and performed work for Dico since June 2000. Clerk's No. 198 at 9. The testimony also revealed that Dr. George did not perform consulting work from May 2005 to February 2007 because he was incarcerated for environmental crimes during that period. Id. Defendants acknowledge that Dr. George's deposition testimony was largely favorable to Defendants on many issues. Clerk's Nos. 319-1 at 3; 328 at 3. With these details in view, the Court now considers whether Defendants have shown a substantial need for the correspondence to prepare their case. Defendants acknowledge they sought to discover the correspondence because they believed it might contain evidence that could be used to impeach Dr. George's character for truthfulness. However, Defendants have no basis upon which to conclude the correspondence contains such impeachment evidence or any other evidence that might assist them in preparing for trial. To the extent that revealing Document 1 to be a forgery might be relevant to establishing Dr. George lacks credibility, Defendants already possess Document 1 and have collected evidence that they believe establishes its lack of authenticity. Defendants have no reason to believe that the correspondence whose production they seek will produce evidence that Document 1 is a forgery. Additionally, to the extent Defendants hope to discover additional evidence to support their claim that Dr. George forged Document 1, such evidence would be irrelevant (given that neither party seeks to admit Document 1) and merely corroborative (given that Defendants claim they have already accumulated such evidence). See Baker, 209 F.3d at 1054 (“A party also does not demonstrate substantial need when it merely seeks corroborative evidence.”) The Court concludes Defendants have not demonstrated that relevant and non-privileged facts remain hidden in the correspondence such that its production is essential to their preparation for the upcoming trial. See Hickman, 329 U.S. at 511. Sheer speculation is generally insufficient to justify an exception to the policy underlying the privacy of work product. See id. at 513 (concluding counsel's desire “to make sure that he has overlooked nothing ... is insufficient ... to permit him an exception to the policy underlying the privacy” of work product); see also Foster v. Clausen Miller, P.C., 23 F. App'x 606, 608 (8th Cir. 2001). As the Seventh Circuit has aptly observed, Even though that lawyer hopes or believes, based upon guess, conjecture or suspicion, that a reading of the statements would reveal a basis for impeachment, or give him other valuable information, it has never been the practice of courts generally to require the production of such statements under such circumstances.... A court is not justified in ordering a litigant to permit his adversary to inspect witness statements, which he has procured in preparing for trial, upon the adversary's mere surmise or suspicion that he might find impeaching material in the statements. In such a situation the rights of a litigant in the work-product of his lawyers and agents are not required to give way to an adversary's right of discovery. Hauger v. Chicago, R. I. & P. R. Co., 216 F.2d 501, 508 (7th Cir. 1954). In any event, the Court concludes speculation is inadequate to warrant the production of protected work product under the unique circumstances of this case. Because the Trial Team who will try the case on behalf of the Government never received access to the correspondence with respect to which production is sought, there is no potential that Defendants will be unduly prejudiced by their inability to anticipate how the correspondence may be used at trial, and no risk of unfair surprise or other injustice pertaining its contents. *13 If Defendants had demonstrated a substantial need for the requested production, further analysis would be required to determine if they had established their inability to obtain its substantial equivalent without undue prejudice given that Dr. George is unavailable within the meaning of Rule 32(a)(4). However, because Defendants have failed to demonstrate the materials sought are necessary to the preparation of their case, this Court need not consider this question. See Falkner v. Gen. Motors Corp., 200 F.R.D. 620, 625 (S.D. Iowa 2001). Defendants' motion to compel production of the communications between the Filter Team and Dr. George is denied. III. ANALYSIS CONCERNING THE MOTION TO PREVENT THE GOVERNERMENT FROM OFFERING DR. GEORGE'S DEPOSITION TESTIMONY In the alternative to its request that this Court compel production of the communications between the Filter Team and Dr. George, Defendants request that this Court prevent the Government from offering Dr. George's deposition testimony at trial. Clerk's Nos. 319 at 1; 319-1 at 1, 12. Under Rule 32(a)(1) of the Federal Rules of Civil Procedure, deposition testimony may be used against a party at trial to the extent it would be admissible under the Federal Rules of Evidence when the party was represented at the taking of the deposition and its use is otherwise allowed under Rule 32(a). The use of deposition testimony in lieu of live testimony is specifically allowed under Rule 32(a)(4) based on the unavailability of a witness under limited circumstances. As relevant here, the rule provides, A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds ... that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition .... Fed. R. Civ. P. 32(a)(4)(B). Defendants neither dispute that Dr. George qualifies as an unavailable witness under Rule 32(a)(4) nor contest that they were represented at the taking of his deposition as required by Rule 32(a)(1)(A). See Clerk's Nos. 319-1 at 10; 328 at 10; see also Clerk's No. 316 at 2. Instead, Defendants argue, “Even when the requirements of Rule 32(a) are satisfied ... a party does not have an absolute right to use a deposition at trial; rather, the trial court retains discretion to exclude it.” Clerk's Nos. 319-1 at 10; 328 at 10. The Court acknowledges it has broad discretion concerning the use of deposition testimony at trial. Lear v. Equitable Life Assur. Soc. of U.S., 798 F.2d 1128, 1135 (8th Cir. 1986). If the Court believed the Government's use of Dr. George's deposition testimony would result in fundamental unfairness to Defendants, the Court would consider exercising that discretion to exclude the testimony even though it meets the requirements set forth in Rule 32(a). See id. Under the circumstances of this case, however, the Court concludes no such unfairness will result from the Government's use of the deposition testimony in the upcoming trial. Though Defendants suggest the alleged fabrication of Document 1 indicates that Dr. George harbors animus toward Mr. Campbell, Dr. George was regarded as a defense witness when the deposition was taken and gave testimony that was favorable to Defendants. Dr. George also continued to work for Defendants for several years thereafter. In short, the submissions now before the Court suggest neither a basis upon which to conclude the deposition testimony reflects any animus that Dr. George subsequently developed for Mr. Campbell nor any basis to conclude that Dr. George harbored animus for Mr. Campbell or Defendants when the deposition was taken. *14 Defendants also had ample motivation and sufficient opportunity to challenge the unfavorable testimony. For example, during his deposition, Dr. George suggested Mr. Campbell told him “to try and say” that he had inquired into the potential existence of environmental restrictions on the buildings sold to SIM. Clerk's No. 319-1 at 3; 328 at 3. Given that the knowledge and intent of Defendants were in issue with respect to the PCBs the buildings contained, the potential that this testimony might be interpreted to reflect on the veracity of Mr. Campbell was undoubtedly obvious to counsel the very moment it was given. Defendants had ample opportunity to rehabilitate that testimony, and any other testimony they believed was unfavorable to them regarding knowledge and intent, during the deposition. Finally, Defendants suggest the deposition testimony the Government intends to offer is otherwise inadmissible under the Rules of Evidence such that it cannot be used at trial under Rule 32(a)(1)(B) because the Government treated Dr. George as a hostile witness during his deposition. Clerk's No. 329 at 8. Without addressing the thorny question of whether Defendants have waived any such objection, the Court disagrees. In short, the Court believes Dr. George's status as a hostile witness was properly determined when the deposition was taken under Federal Rule of Evidence 611(c). See United States v. Tunnell, 667 F.2d 1182, 1187–88 (5th Cir. 1982); United States v. Konrad, No. CRIMA4:95-CR-37HLM, 1996 WL 735566, at *3 (N.D. Ga. Nov. 27, 1996).[11] Alternatively, in light of the lengthy professional relationship between Dr. George and Defendants, the Court concludes that Dr. George still qualifies as a witness identified with an adverse party within the meaning of that rule. See Stewart v. Hooters of Am., Inc., No. 804CV40T17MAP, 2007 WL 3528685, at *7 (M.D. Fla. Nov. 15, 2007), aff'd, 432 F. App'x 903 (11th Cir. 2011). In addition to the foregoing, the Court notes the circumstances under which the emergency motion was made. First, as previously noted, Defendants have provided no basis upon which to conclude they have a substantial need for the work product sought in their motion to compel. Second, defense counsel did not object to the use of Dr. George's deposition testimony at trial or suggest there remained any outstanding issues with respect thereto at the final pretrial conference, see generally Clerk's No 322, which occurred several days after the Government reiterated its refusal to produce the correspondence in response to the letter in which defense counsel suggested Defendants might attempt to obtain them by engaging in “motion practice,” see Clerk's No. 323-4 at 52, 55–56. On the contrary, defense counsel affirmatively indicated that Defendants intended to rely on the deposition testimony of Dr. George at trial. See id. at 16. Third, despite the fact that Dr. George is unavailable and the Government would likely find it difficult to provide his live testimony in lieu of his deposition testimony, Defendants filed this emergency motion on March 13, 2017. Finally, as far as the Court can discern, the motion to compel relies on no information defense counsel lacked at the time of the final pretrial conference. Considering the totality of the circumstances, the Court concludes Defendants will not be unfairly prejudiced by the Government's use of Dr. George's deposition testimony at the upcoming trial. The Court therefore declines to exercise its discretion to rule that the Government may not offer the deposition testimony at trial, and the motion to prevent its introduction denied. IV. CONCLUSION For the foregoing reasons, Defendants' Defendants' Emergency Motion To Compel Production of Communications Between DOJ's Filter Team and Witness Dr. Gazi George or, In The Alternative, To Prevent The Government From Offering Deposition Designations of Dr. George at Trial (Clerk's No. 19) is DENIED. *15 IT IS SO ORDERED. Dated this 27th day of March, 2017. Footnotes [1] According to Defendants, The person primarily responsible for overseeing the sale of the buildings was former Titan Tire President Bill Campbell. At trial, Campbell will testify that he was unaware of any contamination in the buildings at the time he agreed to sell them and, in any event, that he made inquiries before the transactions to ensure there were no environmental restrictions. By contrast, the government intends to argue, among other things, that Campbell is not being truthful and no environmental inquiry occurred. Clerk's Nos. 319-1 at 3; 328 at 3. [2] Defendants no longer seek access to these internal government communications. See Clerk's Nos. 319-1 at 8; 328 at 8. [3] The requirement that a party must have “an intention that the opposing party” access the work product prevents the waiver doctrine from extending to inadvertent disclosures made by human error in the process of discovery. See Gundacker v. Unisys Corp., 151 F.3d 842, 848 & n.6 (8th Cir. 1998). [4] Arguably the cases from the Southern District of New York cited by Defendants cannot fairly be cited for precisely this proposition either. See Clerk's No. 323-1 at 16-19. [5] Notably, this shared interest in factual development, though insufficient to invoke the common-interest doctrine recognized in the Eighth Circuit, may have been sufficient to prevent waiver even under the test applied to waiver determinations in the Southern District of New York. See Gupta, 281 F.R.D. at 171(suggesting waiver is inapplicable when the disclosing party discloses work product to a third party who either shares an interest “in developing legal theories and analyzing information” or has “entered into an explicit agreement [to] maintain the confidentiality of the disclosed materials”); Ricoh, 219 F.R.D. at 79 (acknowledging that “immunity afforded by the work-product doctrine is not automatically waived by disclosure to a third-party” and that such immunity is generally “waived when protected materials are disclosed in a manner which is either inconsistent with maintaining secrecy against opponents or substantially increases the opportunity for a potential adversary to obtain the protected information” before applying that principle to conclude a party waived the privilege by disclosing work product to a third party who lacked a “common interest such that [they] could reasonably expect that information revealed [ ] would not be disclosed to their adversary”); Medinol, 214 F.R.D. at 115 (suggesting that the work-product privilege is not waived by disclosure to a third party who is “assisting the lawyer in developing a litigation objective and is thus enhancing the work product”). [6] The Court notes that the parties agree the intended purpose of filter teams is to permit attorneys who are not involved in the development of litigation or trial strategy to review potentially privileged materials. See Clerk's Nos. 319-1 at 2; 323-1 at 2–3, 12; 328 at 2. [7] Contrary to Defendants' assertions, that the Government communicated with Defendants in an effort to resolve this discovery dispute without judicial intervention in no way undermines the conclusion that the correspondence was produced in anticipation of ongoing litigation. See Clerk's No. 319-1 at 5. [8] The Court notes that Defendants have made no argument that would distinguish attorneys working on filter teams from other attorneys who might play a limited role in litigation of a particular case. Moreover, the Court notes that filter teams on occasion may plan a more active role in representing the Government before a court. See, e.g., United States v. Lonich, No. 14-CR-00139-SI-1, 2016 WL 1733633 (N.D. Cal. May 2, 2016)(considering a motion filed by a “taint team”). [9] Notably, the court rejected the assertion that any privilege to which the affidavits had been entitled had been waived by virtue of their disclosure to the affiants, noting that disclosure to third persons only waives work-product immunity when it has substantially increased the opportunity for potential adversaries to obtain the information. Murphy, 259 F.R.D. at 432 n.9. [10] In rejecting Defendants' position, the Court does not rely on the fact that many of the emails received by the Filter Team were sent by Dr. George's counsel and therefore arguably did not constitute a “verbatim statement” by a third-party witness. [11] Defendants identify no authority that can fairly be read to stand for a contrary proposition. See Clerk's No. 329 at 7–9.