United States District Court, S.D. Indiana, Indianapolis Division
BRANDI V. MEIVES, Plaintiff,
WHELAN & ASSOCIATES, INC., ROSINKO EXPRESS, LLC, Defendants.
ORDER ON DISCOVERY DISPUTE
BAKER, UNITED STATES MAGISTRATE JUDGE
issue is whether Federal Rule of Civil Procedure
26(b)(3)-i.e. the work product doctrine-protects text
messages sent between Defendants' principal agents, even
though the messages were not created by or at the direction
of Defendants' attorney. The Court held a telephonic
status conference on August 13, 2018, regarding this issue.
Following the conference, the parties submitted letter
briefs, and Defendants filed the disputed text messages under
seal for the Court to review in camera. [Filing No.
27.] In light of the parties' arguments and the
Court's review of the text messages, the Court finds the
texts are not protected by the work product doctrine and must
be produced within seven days of this order.
texts at issue are between John Whelan (president of
Defendant Whelan & Associates, Inc.) and Richard Rosinko
(principal of Defendant Rosinko Express, LLC). Whelan and
Rosinko sent the disputed texts between December 22 and 29 in
2017. That time frame is significant because
Whelan and Rosinko received Plaintiff Brandi Meives'
settlement letter on December 22.
are generally entitled to “obtain discovery regarding
any nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case .
. . .” Fed.R.Civ.P. 26(b)(1). Still, “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 (including the other party's
attorney, consultant, surety, indemnitor, or agent).”
Fed.R.Civ.P. 26(b)(3)(A) (codifying the work product
work product doctrine serves two purposes: “(1) to
protect an attorney's thought processes and mental
impressions against disclosure; and (2) to limit the
circumstances in which attorneys may piggyback on the
fact-finding investigation of their more diligent
counterparts.” Sandra T.E. v. S. Berwyn Sch. Dist.
100, 600 F.3d 612, 622 (7th Cir. 2010). And the reason
work product is protected is because “the opponent
shouldn't be allowed to take a free ride on the other
party's research, or get the inside dope on that
party's strategy, or . . . invite the jury to treat
candid internal assessments of a party's legal
vulnerability as admissions of guilt.” Mattenson v.
Baxter Healthcare Corp., 438 F.3d 763, 768 (7th Cir.
burden of establishing work product protections rests on the
asserting party. Logan v. Com. Union Ins. Co., 96
F.3d 971, 976 (7th Cir. 1996). To establish that the work
product doctrine applies, the asserting party must show
“the document is primarily concerned with legal
assistance.” Loctite Corp. v. Fel-Pro, Inc.,
667 F.2d 577, 582 (7th Cir. 1981). The document must have
been “prepared or obtained because of the
prospect of litigation.” Id. at 976-77
(emphasis in original) (quoting Binks Mfg. Co. v. Nat.
Presto Indus., Inc., 709 F.2d 1109, 1119 (7th Cir.
1983)). The primary motivating purpose for the creation of
the document must have been to aid in the expected
litigation. Binks, 709 F.2d at 1119.
argues that the texts are not protected by the work product
doctrine because they were not created at the direction of
Defendants' attorney. Meives cites Sud-Chemie Inc. v.
CSP Techs. Inc., 4:03-cv-00003-SEB-WGH (S.D.
Ind. Feb. 17, 2006), ECF No. 479, in which the Court analyzed
whether agents of a party represented by counsel can create
work product. The Court reasoned:
True preparations “in anticipation of litigation”
ordinarily commence either by the party itself or by or at
the direction of a lawyer. We do not think the Rule 26
language is properly read to extend work product immunity to
documents created by agents of a party to the litigation in
the absence of any attorney involvement. The lawyer's
judgments dictate when steps are required to be taken in
anticipation of litigation and what those steps should be.
Other agents of a party may act out of general prudence or
with watchful vigilance, but lawyers are entrusted with the
task of anticipating and responding to litigation. Thus,
lawyer's preparations for litigation are protected, as
are the preparations made by the party, the party's
agents, or the lawyer's agents at the lawyer's behest
in anticipation of litigation. The central point of the rule
recognizes that ordinarily it is the attorney who calls these
shots. Rule 26 is not designed to protect ordinary
conversations between co-workers or the recorded thoughts of
company employees outside a litigation setting. To give the
rule such a broad interpretation would lead to wide spread
abuse of work product immunity as employees seek to link
their prior communications and recorded impressions to
subsequent litigation. Such protections cast the work product
immunity net too broadly. We believe the sounder
interpretation limits work product immunity to attorneys or
to attorneys' direct agents acting in conjunction with
attorneys in anticipation of litigation.
Order at 6-7, Sud-Chemie, 4:03-cv-00003-SEB-WGH
(S.D. Ind. Feb. 17, 2006), ECF No. 479.
also points to Hamdan v. Ind. Univ. Health N., LLC,
No. 1:13-cv-00195-WTL-MJD, 2014 WL 2881551, at *5-6 (S.D.
Ind. June 24, 2014), in which the court found that emails
between the defendant's chief medical officer, chief
nursing officer, and representatives from the plaintiff's
department were not work product. The emails were not sent at
the defendant's attorney's direction, but instead
were business related, and there was “no discussion
between the attorneys and [the defendant] that would give
[the plaintiff] undue access to attorney mental impressions
or thought processes.” Id.
these cases show that when a party's agent creates the
document at issue, the purposes of granting work product
protection are unlikely to be implicated, and the potential
for abuse is high. Therefore, documents created by a
party's agent without attorney involvement ordinarily
should not be granted work product protections, especially if
they lack any risk of exposing the kind of information that
the work product doctrine is designed to protect. This is
consistent with the Seventh Circuit's holding that
“[c]ommunications from a client that neither reflect
the lawyer's thinking nor are made for the purpose of
eliciting the lawyer's professional advice or other legal
assistance are not privileged.” U.S. v.
Frederick, 182 F.3d 496, 500 (7th Cir. 1999) (analyzing
the scope of both the work product doctrine and the
attorney-client privilege); see also IBJ Whitehall Bank
& Tr. Co. v. Cory & Assocs., Inc., CIV. A. 97 C
5827, 1999 WL 617842, at *4 (N.D. Ill. Aug. 12, 1999)
(applying Frederick and finding party-created
documents were not work product).
cases Defendants cite for their argument that attorney
involvement is unnecessary are not persuasive because neither
case provides any analysis on that issue. Defendants cite
Logan v. Com. Union Ins. Co., 96 F.3d 971, 977 (7th
Cir. 1996), and Eli Lilly & Co. v. Arch Ins.
Co., 1:13-CV-01770-LJM-TAB, 2017 WL 3838689, at *3 (S.D.
Ind. Sept. 1, 2017), order clarified,
1:13-CV-01770-LJM-TAB, 2017 WL 5054738 (S.D. Ind. Sept. 18,
2017). The issue in Logan was whether the documents
were created in anticipation of litigation. Logan,
96 F.3d at 976. The Seventh Circuit did not address whether
the defendant's attorney directed the documents to be
created, let alone offer any analysis of the issue.
Id. at 975-77. In Eli Lilly, the issue was
whether the plaintiff had to produce certain documents that
were reviewed in preparation for a deposition. Eli
Lilly, 2017 WL 3838689, at *3. Analyzing whether the
documents were created at the attorney's direction is
hardly necessary: the documents at issue were notes and
summaries of notes that the plaintiff's ...