The opinion of the court was delivered by: Andrea M. Simonton United States Magistrate Judge
ORDER DENYING DEFENDANTS' MOTION CHALLENGING WORK PRODUCT DESIGNATION
Presently pending before the Court is Defendants' Motion Challenging "Work Product" Designation by Live Nation (DE # 68). Plaintiff has filed a Memorandum of Law in Opposition (DE # 76), and Defendants have filed a Reply (DE # 79). The Honorable Cecilia M. Altonaga has referred this case to the undersigned Magistrate Judge with respect to all discovery motions (DE ## 16, 39). For the reasons stated below, Defendants' Motion is denied.
On August 11, 2011, Plaintiff produced documents to Defendants by computer disc, in response to Defendants' First Request for Production of Documents (DE # 68 at 2). The disc contained several documents, including emails and documents exchanged between Michael Rowles, Executive Vice President and General Counsel of Plaintiff Live Nation Worldwide, Inc. ("Live Nation"), and Joyce Smyth, who is the personal representative of Mick Jagger, the lead singer of the music band The Rolling Stones (DE # 68 at 2). According to the emails exchanged, Michael Rowles sent as an email attachment to Joyce Smyth a draft declaration for her to review and sign, in connection with the litigation of this case, if she was "comfortable with it" (DE ## 68 at 2; 76 at 1-2).
A copy of the email correspondence between Rowles and Smyth, along with the draft affidavit (filed under seal), have been considered by the Court (DE ## 68-1; 68-2).
Upon review of the computer disc, defense counsel did not initially find the attached draft declaration referred to in the email exchange. Defense counsel, therefore, contacted Plaintiff's counsel and requested a copy of the email and draft declaration (DE # 68 at 2). Plaintiff's counsel immediately asserted the attorney work product privilege as a basis for not providing the requested items. Shortly thereafter, defense counsel determined that the items had, in fact, been produced on the computer disc, and immediately notified Plaintiff's counsel who, once again, asserted the work product privilege, stating that the draft declaration had been inadvertently produced, and demanded that the item be disregarded, and that all copies be immediately destroyed. Defendants, instead, brought this Motion (DE ## 68 at 3; 76 at 2).
As Plaintiff aptly notes, Defendants do not challenge whether the draft declaration is work product, but whether work product protection was somehow negated or otherwise waived by disclosure of the draft declaration to Ms. Smyth (DE ## 68 at 4; 79 at 2). Accordingly, the issue before the Court is whether Mr. Rowles's sharing of the draft declaration with Ms. Smyth precludes a finding that the draft declaration is protected by the work product doctrine.
II. Legal Standard and Analysis
Federal law governs application of the work product doctrine, even in diversity cases in federal court. Coregis Ins. Co. v. Law Offices of Carole F. Kafrissen, P.C., 57 Fed. Appx. 58, 60 (3d Cir. 2003); In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir. 2006); Frontier Refining Inc. v. Gorman-Rupp Co., 136 F.3d 695, 702 n.10 (10th Cir. 1998). Unfortunately, as noted by Chick-fil-A v. ExxonMobil Corp., "There is very little primary authority from the Eleventh Circuit Court of Appeals on what constitutes waiver of the work product privilege." 2009 WL 3763032, No. 08-61422-CIV, at *3 (S.D. Fla. Nov. 10, 2009) (citing Wood v. Archbold Med. Ctr., Inc., 2009 WL 3063392, No. 7:07-CV-109, at *2 (S.D. Ga. Sept. 17, 2009)). Courts have found, however, that "[w]ork-product protection is waived when protected materials are disclosed in a way that 'substantially increases the opportunity for potential adversaries to obtain the information.'" Stern v. O'Quinn, 253 F.R.D. 663, 681 (S.D. Fla. 2008) (quoting Niagara Mohawk Power Corp. v. Stone & Webster Eng'g Corp., 125 F.R.D. 578, 587 (N.D.N.Y. 1989)). Courts focus on disclosure to opposing parties, not necessarily other persons. As Chick-fil-A observed, "[T]he overwhelming majority of persuasive authority from other circuits holds that voluntary disclosure of work product information to an adversary waives work product protection as to that information." Chick-fil-A, 2009 WL 3763032, at *3 (emphasis added) (citing Wood, 2009 WL 3063392, at *2 (citing circuit cases from the First, Third, Eighth, and D.C. Circuit Courts of Appeals)). Accordingly, "not every situation in which work-product materials are disclosed warrants a finding of waiver. Rather, the circumstances surrounding the disclosure are key to determining whether an actual waiver of the work-product protection has occurred." Stern, 253 F.R.D. at 681. In this regard, "work-product protection is waived when protected materials are 'disclosed in a manner [that] is either inconsistent with maintaining secrecy against opponents or substantially increases the opportunity for a potential adversary to obtain the protected information.'" Id. (quoting Niagara, 125 F.R.D. at 590; and citing, inter alia, Kallas v. Carnival Corp., 2008 WL 2222152, No. 06-20115-CIV, at *4 (S.D. Fla. May 27, 2008).*fn1
Along with limited precedent in this jurisdiction as to waiver, there is also limited precedent as to which party has the burden to demonstrate waiver. The Fifth Circuit has found that the burden rests on the party asserting that a waiver has occurred, as opposed to the party protected by the work product doctrine to prove non-waiver.
Ecuadorian Plaintiffs v. Chevron Corp., 619 F.3d 373, 379 (5th Cir. 2010) (also noting, at 379 n.10, that, while the First Circuit Court of Appeals has found to the contrary, its holding was based on an earlier case concerning attorney-client privilege, not the work product doctrine). In the case at bar, however, the result would be the same regardless of which party has the burden of proof regarding waiver.
Similarly, there is little precedent concerning the facts before the Court. Several courts from other jurisdictions, however, have considered the effect on work product status of disclosing to a non-party a proposed draft of the non-party's affidavit. While some courts analyze disclosure in terms of whether it constitutes waiver of work product protection, others appear to analyze disclosure as an element of the work product doctrine, itself. Regardless of the analytical framework used, as stated below, the undersigned finds more persuasive the reasoning behind those cases that have found that disclosure to a non-party of his or her draft affidavit does not, itself, negate work product protection.
For example, in Inst. for the Dev. of Earth Awareness v. People for the Ethical Treatment of Animals ("PETA"), the court considered whether draft affidavits, exchanged between counsel and non-party affiants, were protected by the work product doctrine. 272 F.R.D. 124, 125 (S.D.N.Y. 2011). The court held that executed affidavits (thus, obviously shared with the non-party) that have not been served or filed were protected by the work product doctrine. Id. Furthermore, even when an executed affidavit has been affirmatively used in the litigation, and earlier drafts of the affidavit may contain facts not available in the final version, the unexecuted drafts do not lose their work product distinction. Id. The court reasoned that counsel should be able to remain in control of how it chooses to litigate its case. Suggesting that this holding follows a developing trend, the court cites Wright & Miller, which notes, "Recent cases have generally held that draft affidavits, and communications with counsel relating to affidavits, are covered by the work-product rule." Id. (citing 8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2024 (3d ed. 2008) (citing Randleman v. Fidelity Nat'l Title Ins. Co., 251 F.R.D. 281 (N.D. Ohio 2008) (noting same trend in granting work product protection to draft affidavits exchanged between counsel and non-party affiants, citing cases from the Southern District of New York and District of Nevada))). Randleman notes factual distinctions among cases on this issue that can lead to different analyses, specifically with regard to whether a party relies upon an affidavit, and whether a final version is filed. The court points out that a different result may arise when a party relies upon an executed affidavit that it does not produce to the opposing party. These distinctions, however, do not implicate the case at bar. Instead, as Defendants do not argue that Plaintiff relies on Ms. Smyth's affidavit, there is no basis under PETA to waive protection.
In another example, the court in Gerber v. Down East Cmty. Hosp., 266 F.R.D. 29, 37 (D. Me. 2010), considered communications between plaintiffs and a potential non-party witness that contained a draft affidavit. The court declared that draft affidavits are subject to the same rules as witness statements "even if they are executed by a non-party." Id. citing Stokes v. City of New York, 2006 WL 2064976, No. CV 2005-0007(JFB)(MDG), at * 2 (E.D.N.Y. July 24, 2006) (holding that non-party affidavit was protected by work product even though her counsel participated in drafting it). In regard to witness statements, the court, after likening a witness statement to the email responses a witness provides to counsel in an email interview, states, "The fact that the witness authors a portion of the email correspondence chain and likely retains a copy of the correspondence does not undermine the [work product] privilege." Gerber, 266 F.R.D. at 33. The court raised (but did not fully explore) the potential argument that counsel runs the risk that the witness might share her statement with an opposing party. Nonetheless, in the absence of a showing of undue hardship, where the parties presumably enjoy equal access ...