United States District Court, M.D. Florida, Tampa Division
ARNOLD SANSONE, UNITED STATES MAGISTRATE JUDGE
Chemicals, LLC (Third Coast) seeks an order compelling Amalie
Oil Company (Amalie) to produce one document. (Doc. 32). The
document is nine lines typed by Amalie's then Technical
Director John DiSilvestri. Mr. Silvestri is currently
Amalie's Vice President of Product Development and
Management and also one of Amalie's testifying experts in
this action. Amalie opposes the motion and argues the
document is attorney work product and contains protected
attorney-expert communications. (Doc. 35). Amalie's
Privilege Log lists the subject document as “Attorney
Work Product.” (Doc. 32, p. 20). The court conducted an
in camera inspection of the document and Mr.
Silvestri's January 2019 expert report.
Rule of Civil Procedure 26(b)(3), sets forth the work product
doctrine and states:
(A) Documents and Tangible Things. Ordinarily, 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, insurer, or agent).
But, subject to Rule 26(b)(4), those materials may be
1. They are otherwise discoverable under Rule 26(b)(1); and
2. The party shows that it has substantial need for the
materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.
Civ. P. 26(b)(3). “The work product doctrine protects
from disclosure materials prepared in anticipation of
litigation by or for a party or that party's
representative (including its attorney).” Auto
Owners Ins. Co. v. Totaltape, Inc., 135 F.R.D. 199, 201
(M.D. Fla. 1990) (citing In re Grand Jury
Proceedings, 601 F.2d 162, 171 (5th Cir. 1979);
Fed.R.Civ.P. 26(b)(3)). The work product doctrine protects
“written statements, private memoranda and personal
recollections prepared or formed by an adverse party's
counsel in the course of his legal duties.” Hickman
v. Taylor, 329 U.S. 495, 510-11 (1947).
analyzing the level of protection afforded to documents that
a party claims constitutes work product, courts distinguish
between “fact” work product and
“opinion” work product, the latter of which
enjoys a heightened level of protection. While fact work
product may be subject to discovery depending on the
discovering party's showing of substantial need and undue
burden, “work product containing an attorney's
opinions, mental impressions, conclusions, and legal theories
enjoys nearly absolute protection.” Calderon v.
Reederei Claus-Peter Offen Gmbh & Co., 2009 WL
1748089 (S.D. Fla. June 19, 2009) (citing Cox v.
Administrator U.S. Steel & Carnegie, 17 F.3d 1386,
1441-42 (11th Cir. 1994)).
adoption of the 2010 Amendments to Rule 26 reinforced these
parameters for assessing work product. Amended Rule 26(b)(4)
provides work product protection against discovery for an
expert's draft reports and for communications between
expert witnesses and counsel. See 2010 Advisory
Committee notes to Rule 26. The Committee limited disclosure
of expert material:
Rule 26(b)(4)(C) is added to provide work-product protection
for attorney-expert communications regardless of the form of
the communications, whether oral, written, electronic, or
otherwise. The addition of Rule 26(b)(4)(C) is designed to
protect counsel's work product and ensure that lawyers
may interact with retained experts without fear of exposing
those communications to searching discovery.
subject document contains Amalie's attorney's opinion
work product. Mr. DiSilvestri created the document to
memorialize his notes from a meeting with litigation counsel
and Amalie's CEO. The notes list counsel's action
item instructions for Mr. DiSilvestri about questions counsel
had in anticipation of bringing this action. Because the
document memorializes counsel's action items for Mr.
DiSilvestri in anticipation of litigation and Mr. DiSilvestri
is now Amalie's expert, the page of notes is protected by
both Rule 26(b)(3)(A) and 26(b)(4)(C). The notes do not
appear to contain any factual work product, but, even if the
document did, Third Coast has not met its burden of
demonstrating substantial need and undue hardship.
these reasons, Third Coast's Motion to Compel ...