*1 Pending before the Court is Defendants Gary Rosebeck's and James Davis’ Motion to Compel Discovery and Motion for Sanctions. (Doc. 125.) Defendant Campas filed a Joinder to Rosebeck's and Davis’ motion. (Doc. 132.) Plaintiff filed a response in opposition (Doc. 128), and Defendants a reply (Doc. 131).

The Court previously granted an extension of time for discovery limited to Plaintiff's communications with witness Lourdes Arevalos. (Doc. 114.) But, the parties have reached an impasse; Plaintiff released some communications, but claims that an audio interview and written statement signed by Ms. Arevalos constitutes privileged work product. Plaintiff posits that the privilege applies because the statements were prepared by opposing counsel in anticipation of litigation. Furthermore, the communications are privileged because the organization and characterization of facts in Arevalos’ statement reveal Plaintiff's theory of the case. Regardless of privilege, Plaintiff claims that Defendants have no right to discovery of this material because they have not demonstrated that they cannot obtain the substantial equivalent without undue hardship as required by Federal Rule of Civil Procedure 26(b)(3). Plaintiff also postulates that Defendants are simply trying to commandeer the fruits of Plaintiff's labor.

From Defendants’ perspective, Arevalos’ statement was not prepared by counsel, but is the verbatim statement of Arevalos. Therefore, it cannot be Plaintiff's work product. In addition, Plaintiff's counsel waived its privilege argument because Arevalo was questioned about her communications with Plaintiff during deposition, and Plaintiff did not allege the communications were privileged at that time. Defendants ask the Court to order Plaintiff release the documents and audio recording and ask for sanctions against Plaintiff pursuant to Fed.R.Civ.P. 37(a)(5).

The Court ordered Plaintiff to provide a copy of the Arevalos communications for in camera review. (Doc. 135.) The Court has reviewed the contested material, the motion, response, and reply.

In general, items prepared in anticipation of litigation are not discoverable. Fed.R.Civ.P. 26(b)(3)(A). However, the Federal Rules of Civil Procedure carve out an exception for previous statements.

Fed.R.Civ.P. 26(b)(3)(C).

The written and signed statement of Lourdes Arevalos, dated November 17, 2017, is a previous statement subject to discovery under Fed.R.Civ.P. 26(b)(3)(C). It reiterates verbatim Arevalos’ statements and she has signed and adopted it as her own. Furthermore, the handwritten responses transcribed by Tricia Jochum and edited by Arevalos are essentially the same verbatim statements supplied by Arevalos in the signed statement, and do not reveal the nature or organization of Plaintiff's questions. Therefore, neither document constitutes work product.

*2 However, the audio recording of Plaintiff's interview of Arevalos arguably reveals Plaintiff's counsel's thoughts, organization, and focus. Furthermore, the audio does not include any statements by Arevalos that are not included in the two written statements, and so disclosing the audio recording would be cumulative.

The Court finds that awarding attorney's fees is not appropriate in this instance because Plaintiff's nondisclosure was substantially justified. See Fed.R.Civ.P. 37(a)(5)(ii).

Accordingly, IT IS ORDERED Defendants Gary Rosebeck's and James Davis’ Motion to Compel Discovery and Motion for Sanctions (Doc. 125) is GRANTED IN PART. Plaintiff shall release the type-written, signed statement of Lourdes Y. Arevalos and the hand-written draft of the statement of Lourdes Y. Arevalos to Defendants within seven days of the date of this Order.

Dated this 9th day of November, 2018.