*1 Pending before the court is the defendant Bloomberg's motion to compel plaintiff, Dan Friedman, to produce certain documents. (Dkt. #109). Plaintiff filed a brief in opposition to the motion on December 17, 2018 (Dkt. #119). For the reasons that follow, defendant's motion to compel is GRANTED IN PART, DENIED IN PART.[1]

I. Background

On May 3, 2019, the Court ordered plaintiff to produce certain documents for an in camera review. (Dkt. #137). Additionally, the plaintiff was required to produce a privilege log and indicate whether the requested deposition testimony is subject to a protective order. Plaintiff has fully complied with the order, and the Court below reveals its conclusions as to the requested materials.

II. Legal Standard

The attorney work product doctrine “provides qualified protection for materials prepared by or at the behest of counsel in anticipation of litigation or for trial.” In re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d 379, 383 (2d Cir. 2003). “Federal law governs the applicability of the work-product doctrine in all actions in federal court.” Durling v. Papa John's Int'l, Inc., No. 16-cv-3592 (CS)(JCM), 2018 U.S. Dist. LEXIS 11584, at *10 (S.D.N.Y. Jan. 24, 2018). The burden is on the defendant to prove the communications are protected by the work-product doctrine. In re Grand Jury Subpoena, 510 F.3d 180, 183 (2d Cir. 2007)(“The party invoking the privilege bears the heavy burden of establishing its applicability.”).

III. Work Product Doctrine

The plaintiff produced 146 pages of communications with journalists for an in camera review.[2] After reviewing these documents, the Court concludes that plaintiff has not met his burden of proving that the communications are shielded by the work product doctrine. The initial inquiry that must be made is whether the documents were “prepared in anticipation of litigation or for trial.” See Fed. R. Civ. Pro. 26(b)(3). “It is universally agreed that a document whose purpose is to assist in preparation for litigation is within the scope of the Rule and thus eligible to receive protection if the other conditions of protection prescribed by the Rule are met.” United States v. Adlman, 134 F.3d 1194, 1197 (2d Cir. 1998). A document has been prepared “in anticipation of litigation” if “in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” Id. at 1202 (internal quotations and citations omitted). “[A]lthough a finding under this test that a document is prepared because of the prospect of litigation warrants application of Rule 26(b)(3), this does not necessarily mean that the document will be protected against discovery. Rather, it means that a document is eligible for work-product privilege.” Id. at 1202-03 (emphasis supplied in original).

*2 The plaintiff asserts that the “purpose for contacting journalists was to confirm facts, to obtain leads to persons or organizations who could assist in confirming them, to obtain documents and to otherwise learn what he could from persons who knew about, witnessed or were looking into matters that could assist the Friedman case. It was also to find and identify witnesses and interview them.” (Dkt. #119 at 9). Having reviewed the correspondences, the Court does not find this description of the communications to be accurate. The predominant function of these communications appears to have been for plaintiff's counsel to convey information to journalists, rather than an attempt to obtain information from them. “An item is not work product simply because its author is a lawyer.” In re Penn Cent. Commercial Paper Litigation, 61 F.R.D. 453, 468 (S.D.N.Y. 1973). The plaintiff has not proven that the disputed communications were made in anticipation of litigation or “because of the prospect of litigation.” Adlman, 134 F.3d at 1202.

Plaintiff, additionally, does not cite any caselaw to suggest that these correspondences with journalists fall within the work product doctrine. The communications at issue mostly consist of plaintiff's counsel corresponding with journalists to give quotes for articles, share information regarding ongoing investigations, provide copies of publicly filed complaints, edit stories before publication, and to set up meetings to discuss the pending action or the Palladyne action further. Given the nature of these documents, the Court does not find that the plaintiff has proven that the documents can fairly be said to have been prepared or obtained because of the prospect of litigation.

The Court finds that even if the plaintiff had proven these communications were shielded as work product, they would be deemed waived. “Disclosure of work product to a third party does not waive its protection unless it substantially increases the opportunity for potential adversaries to obtain the information.” Audet v. Fraser, No. 3:16-cv-940(DFM)(MPS), 2019 U.S. Dist. LEXIS 10974, at *4-5 (D. Conn. Jan. 22, 2019) (quoting In re Grand Jury Subpoenas Dated December 18, 1981 & Jan. 4, 1982, 561 F. Supp. 1247, 1257 (E.D.N.Y. 1982)).

Here, plaintiff's counsel communicated with journalists about ongoing litigation, which was done with the risk that any of these communications or the information therein could have been published.[3] In some of the communications, plaintiff's counsel even helps journalists with their stories.[4] The Court finds that such conduct substantially increased the opportunity for potential adversaries to obtain these communications.[5] See Montesa v. Schwartz, No. 12-cv-6057 (CS)(JCM), 2016 U.S. Dist. LEXIS 80822, at *48 (S.D.N.Y. Jun. 20, 2016)(“Plaintiffs cannot argue that their adversaries in this litigation were not substantially more likely to obtain this information by virtue of its disclosure to a journalist, who very well could have published this entire e-mail exchange.”).

*3 The plaintiff argues that the defendant would not have been able to obtain the information he shared with journalists because the journalist privilege blocked the defendant from obtaining these communications directly from the journalists. (Dkt. #119 at 37). However, the fact that the defendant could not have obtained discovery directly from the journalists does not mean that the work product was not waived. The standard for finding waiver requires that the defendant be substantially more likely to obtain this information due to the disclosure. The standard does not require that the defendant be able to obtain this information through the discovery process. See In re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d at 384 (“[T]he principle underlying the work product doctrine ... is not generally promoted by shielding from discovery materials in an attorney's possession that were prepared neither by the attorney nor his agents.”). Here, the plaintiff had no control over what the journalists would do with the information or whether the journalists would share the information with third parties as an effort to get a quote or publish a story.[6] The United States Supreme Court recognized in United States v. Nobles that “attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.” 422 U.S. 225, 238-39 (1975). However, unlike private investigators or consultants, journalists act independently of the lawyer and do not serve as the lawyer's agent.

Additionally, although the plaintiff attempts to distinguish Montesa, the Court does not agree with plaintiff's argument. (Dkt. #119 at 37-38). In Montesa, the defendant sought to compel the production of an email communication between plaintiff and a reporter. 2016 U.S. Dist. LEXIS 80822, at *47-48. In his email, the plaintiff forwarded an email from his attorney to a reporter. Id. The forwarded email instructed the plaintiff to have the reporter publish an updated version of the complaint. Id. Because the entire email exchange could have been published by the reporter, the court found that the work product protection had been waived. Id.

Here, while the plaintiff himself was not involved in any of the communications with journalists, the plaintiff's counsel not only sent copies of complaints to multiple journalists, or instructed them on how to obtain these complaints, but counsel also explicitly gave journalists facts to publish. Additionally, the documents show that plaintiff's counsel reviewed stories before they were published by journalists. The Montesa Court's ruling is directly on point as the plaintiff's counsel here communicated with journalists about potential or published stories and these journalists very well could have printed or disclosed their exact communications. Accordingly, the plaintiff is directed to turn over all communications with journalists.

IV. Plaintiff's Prior Testimony

Plaintiff has additionally produced the designation status of the deposition that the defendant requested. Because the designation status is “confidential” and there is no evidence that the plaintiff here is no longer bound by that designation, the Court will not order its production in violation of that protective order.[7]

This is not a Recommended Ruling. This is a discovery ruling or order which is reviewable pursuant to the “clearly erroneous” statutory standard of review. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. R. 72.2. As such, it is an order of the Court unless reversed or modified by a district judge upon motion timely made.

SO ORDERED this 30th day of August, 2019 at Hartford, Connecticut.