*1 This lawsuit, very generally, involves plaintiff, a health care provider, seeking damages from defendant, a manufacturer and distributor of health care devices, for breach of warranty, revocation of acceptance, and fraud in the inducement with respect to plaintiff's purchase of a device from defendant in 2018 called SculpSure. Plaintiff alleges that the use of the device was represented to be a pain free way of reducing fat for plaintiff's patients and that the device did not perform as advertised.

Plaintiff's motion to compel identified a number of disputes that arose during the discovery phase of this case. The parties, to their credit, have reduced those disputes to four categories of written discovery.

A. INTERROGATORY No. 9

Plaintiff's Interrogatory No. 9 asked defendant to “[i]denify any statements or interviews obtained by Cynosure related to this litigation.” (ECF No. 28-4, PageID.712). Defendant's response to the interrogatory was that the identification of individuals questioned or interviewed implicated information “protected by the attorney-client privilege and attorney work product privileges.” Id.

Plaintiff's contention is that while the substance of a statement or interview might be privileged, the identity of individuals interviewed would not be. Plaintiff cites a number of cases in support of their argument including In re Harmonic, Inc. Securities Litigation, 245 F.R.D. 424, 427 (N.D. Cal. 2007) which, according to plaintiff, entitles them to the names of witnesses defendants “have deemed credible enough to rely upon.” (ECF No. 28, PageID.654-55).

Defendant argues, in response, that “the identification of who counsel chose to interview in anticipation of (or in the case here, as part of) litigation are protected by the work product privilege.” (ECF No. 33, PageID.746). Defendant cites a number of cases in support of its argument including Hammett v. Am. Queen Steamboat Operating Co. LLC, 2015 WL 12805697, *1 (W.D. Tenn. 2015) which, according to defendant, stands for the proposition that the identities of individuals interviewed “would reveal counsel's litigation strategy.” (ECF No. 33, PageID.747).

Fed.R.Civ.P. 26(b)(3) provides that “[o]rdinarily, a party 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.” Such materials may be discovered if the requesting “party shows that it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Rule (b)(3)(A)(ii). A court faced with a request for materials that meet the Rule 26(b)(3) definition “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation. Rule 26(b)(3)(B). The rationale of the work product doctrine, sometimes referred to as a privilege, is to allow an attorney to “assemble information, sift what he [or she] considers to be the relevant from the irrelevant facts, prepare his [or her] legal theories and plan his [or her] strategy without undue and needless interference ... to promote justice and to protect [his or her] clients' interests.” Hickman v. Taylor, 329 U.S. 495, 511 (1947).

*2 The Advisory Committee Notes for 1970 provide, in part, that Rule 26(b)(3) “protect[s] against disclosure [of] the mental impressions, conclusions, opinions, or legal theories concerning the litigation of an attorney [and that] ...courts have steadfastly safeguarded against disclosure of lawyer's mental impressions and legal theories.”

Work product materials are divided into two categories, fact work product and opinion work product. Upjohn Co. v. United States, 449 U.S. 383, 401 (1981). Fact work product “may be obtained upon a showing of substantial need and inability to otherwise obtain without material hardship [but] absent waiver, a party may not obtain the ‘opinion’ work product of his adversary; i.e., ‘any material reflecting the attorney's mental impressions, opinions, conclusions, judgments, or legal theories.’ ” In re Columbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d 289, 294 (6th Cir. 2002) (quoting In re Antitrust Grand Jury, 805 F.2d 155, 163-64 (6th Cir. 1986)).

The work product doctrine protects both tangible and intangible materials or information. In re Grand Jury Subpoena Dated Nov. 8, 1979, 622 F.2d 933, 935 (6th Cir. 1980). The scope of work product protection extends to information that could, by inference, disclose a legal strategy or theory. Taylor v. Temple & Cutler, 192 F.R.D. 552, 563 (E.D. Mich. 1999) (addressee name and address on letter “was developed by ... counsel, and reveals mental processes and legal theories developed in anticipation of litigation, and is therefore protected by the work product doctrine.”)

Without question there are some differences of opinion with respect to whether, through discovery, a party can learn the names of individuals interviewed by the attorney for their adversary. Plaintiff cites to several cases which arguably stand for that proposition. Among those cases cited are Norfleet v. John Hancock Financial Services, 2007 WL 433332 (D. Conn, 2007) and Oregon Health & Science v. Vertex Pharmaceuticals, 2002 WL 31968995 (D.Or. 2002). Admittedly these cases say the names of individuals interviewed by opposing counsel are not work product but neither case provides much of an analysis or authority for that ruling. Another case, Plumbers & Pipefitters v. Cisco Systems, 2005 WL 149555 (N.D. Cal. 2005) does say that the names of witnesses interviewed by opposing counsel are work product protected but, in that case, where the producing party had disclosed the names of over 1200 potential witnesses, the requesting party had established “substantial need and undue hardship” to overcome work product protection so that the requesting party would be aware of which witnesses were important and would not have to interview all 1200 witnesses. Plaintiff has not attempted to demonstrate “substantial need and undue hardship” here.

Neither party to this dispute has cited a case that represents binding precedent on this issue. However, the cases cited by defendant, that find that the names of witnesses interviewed by counsel are protected by the work product doctrine, are more persuasive and more respectful of the sanctity of opinion work product protection as explained in In re Columbia/HCA Healthcare, supra at 294 (“absent waiver, a party may not obtain ‘opinion’ work product of his adversary”) (emphasis added). Additionally, In re Columbia would seem to place opinion work product beyond the reach of the “substantial need and undue hardship” test contained in Rule 26(b)(3). This strict limitation on opinion work product has been recognized in this district. United States v. BAE Systems, 2017 WL 1457493, *7 (E.D. Mich. 2017).

*3 A factual situation similar to the present was addressed in E.E.O.C. v. Collegeville/Imagineering Ent., 2007 WL 1089712, *1 (D. Ariz. 2007). There the court stated that requests to identify the names of witnesses interviewed, rather than the names of witnesses with knowledge “seek to track the steps of opposing counsel and their witness interview choices. Such requests focus on the actions of lawyers rather than the knowledge of witnesses [and] “the work-product doctrine may be applicable.” (quoting from Massachusetts v. First Nat'l Supermarkets, Inc., 112 F.R.D. 149, 152 (D. Mass. 1986)).

Similarly, in Hammet v. American Queen Steamboat Operating Co., LLC., 2015 WL 12805697, *4 (W.D. Tenn. 2015) the court found that the interrogatories asking for the names of witnesses interviewed by counsel “effectively seek disclosure of [defendant's] counsel's work product because disclosure of the information would reveal counsel's litigation strategy.” Courts must be very careful in these circumstances and not encroach on opinion work product material in the course of making decisions on discovery disputes.

Therefore, based on the above, plaintiff's motion to compel answers to Interrogatory No. 9 is DENIED.

B. OTHER ISSUES

The parties had identified three other categories of dispute regarding discovery that remained unresolved as of the March 11, 2020, hearing date on this motion. Those included (1) Plaintiff's Request For Production No. 3, (2) Plaintiff's Requests For Production Nos. 8 and 13, and (3) Plaintiff's Requests For Production Nos. 23 and 26. The parties are attempting to resolve those remaining areas of dispute and any decision regarding those issues remains under advisement.

IT IS SO ORDERED.

I certify that on March 30, 2020, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system, which will send electronic notification to all counsel of record.

Durene Worth Case Manager

(810) 341-7881

durene_worth@mied.uscourts.gov