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Meives v. Whelan & Associates, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

September 7, 2018

BRANDI V. MEIVES, Plaintiff,
v.
WHELAN & ASSOCIATES, INC., ROSINKO EXPRESS, LLC, Defendants.

          ORDER ON DISCOVERY DISPUTE

          TIM A. BAKER, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         At 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.[1]

         The 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.[2] That time frame is significant because Whelan and Rosinko received Plaintiff Brandi Meives' settlement letter on December 22.

         II. Discussion

         Parties 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 doctrine).

         The 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. 2006).

         The 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.

         Meives 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.

         Meives 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.

         Together, 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).

         The 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 ...


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