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Archive for February 2nd, 2009

Case Blurb: Collins & Aikman Corp.; Attorney Work Product Protection Applied to Selection and Compilation-2d Circuit

Posted by rjbiii on February 2, 2009

The Second Circuit has recognized that the selection and compilation of documents may fall within the protection accorded to attorney work product, despite the general availability of documents from both parties and non-parties during discovery. 18 However, it has labeled this protection a “narrow exception” aimed at preventing requests with “the precise goal of learning what the opposing attorney’s thinking or strategy may be.” Moreover, equity favors rejection of work product protection to a compilation of documents that are otherwise unavailable or “beyond reasonable access.” The Circuit has suggested that a court may permit ex parte communication of the strategy the withholding party wishes to conceal and in camera review of documents, so that the court may make an educated assessment whether production of the compilation will reveal a party’s litigation strategy.

If a court does find that work product protection applies to a document compilation, the requesting party must show “substantial need” for the materials and inability to obtain the substantial equivalent by other means without “undue hardship.” The showing of need must be “‘highly persuasive'” when discovery of “core work product is sought.” “Core work product” is defined as an attorney’s “mental impressions, conclusions, opinions, or legal theories” and is contrasted with “ordinary fact work product.”

It is first necessary to determine the level of protection afforded to the selection of documents by an attorney to support factual allegations in a complaint. Such documents are not “core” work product. Core work product constitutes legal documents drafted by an attorney — her mental impressions, conclusions, opinions, and legal theories. This highest level of protection applies to a compilation only if it is organized by legal theory or strategy. The [Producing Party’s] theory — that every document or word reviewed by an attorney is “core” attorney work product — leaves nothing to surround the core. The first step in responding to any document request is an attorney’s assessment of relevance with regard to potentially responsive documents. It would make no sense to then claim that an attorney’s determination of relevance shields the selection of omnibus production similar to the one in this case.

SEC v. Collins & Aikman Corp., 2009 U.S. Dist. LEXIS 3367 (S.D.N.Y. Jan. 13, 2009) (internal citations removed)(emphasis in original).

Posted in 2nd Circuit, Attorney Work Product, Case Blurbs, Judge Shira A. Scheindlin, Privilege, S.D.N.Y | Leave a Comment »