So litigious, always suing somebody over something.
And poor innocent XYZ.
Always the victim of some overzealous ambulance-chasing lawyer, whispering sweet dollar signs into the ears of ABC.
But finally Magistrate Judge Goodman has issued a lengthy ruling disposing of the parties' claims in this long-simmering alphabetical dispute:
For example, assume that ABC Inc.’s attorney prepares a 10‐page opinion letter, containing counsel’s opinion on the viability and wisdom of bringing a lawsuit against XYZ Corp. As one would expect, assume further that the attorney’s opinion letter contains a fact‐based analysis on a witness‐by witness basis of the potential claims that could be raised in the proposed lawsuit and also evaluates the facts that counsel considers to be problematic or grounds for a possible defense.I told you it was lengthy!
If ABC, based on counsel’s 10‐page opinion letter, files a lawsuit against XYZ, asserting claims for fraud, conspiracy to commit fraud, and common law unfair competition, then ABC would not ordinarily be required to produce counsel’s opinion letter in the normal course of discovery. However, ABC would need, upon receipt of a proper discovery request from XYZ, to produce designees to appear at a Rule 30(b)(6) deposition and, if the issue was listed on the 30(b)(6) notice, arrange for the designee (or designees) to testify about the facts which support the claims asserted in the lawsuit. Thus, ABC could not immunize from discovery the facts upon which it bases its lawsuit – but the obligation to provide facts in discovery does not mean that documents protected under the attorney‐client privilege and attorney work product doctrine (discussing and analyzing the facts) must necessarily also be produced merely because the protected documents happen to discuss facts.
Evaluated from the other side of the litigation coin, the mere fact that ABC properly held back an attorney‐prepared privileged document, which assesses the facts as they relate to potential litigation on a witness‐oriented perspective, does not mean that ABC is justified in keeping secret those facts if it receives otherwise proper discovery requests. Consequently, XYZ could propound the following interrogatories to ABC, and ABC would be required to provide answers: (1) what facts demonstrate that XYZ’s representations to ABC were false, (2) what facts establish that XYZ knew the factual representations were false when made, (3) what facts show that XYZ agreed with others to make materially false representations to ABC, and (4) who else agreed with XYZ to participate in the alleged conspiracy and what facts establish the knowing involvement of the other co‐conspirators?
ABC could not properly refuse to provide answers to these interrogatories, targeting the factual core of the lawsuit, by asserting that the facts are somehow privileged because its lawyer happened to evaluate those same facts (and perhaps others) in an opinion letter protected by both the attorney‐client privilege and work product doctrine. But XYZ’s ability to obtain interrogatory answers or 30(b)(6) deposition testimony about these fundamental facts would not provide ammunition for an argument that the very attorney opinion letter which prompted the lawsuit must be produced because ABC cannot protect “the facts.” Bush Dev. Corp. v. Harbour Place Assocs., 632 F. Supp. 1359, 1363 (E.D. Va. 1986) (“Counselʹs statements concerning the claimʹs likely success, even when transcribed by the client, are prime examples of the types of materials entitled to near absolute protection under Rule 26(b)(3).”); see also generally EDNA S. EPSTEIN, THE ATTORNEY‐CLIENT PRIVILEGE AND THE WORK‐PRODUCT DOCTRINE 570 (4th ed. 2001) (“documents that detail an attorney’s impressions of the strengths and weaknesses of a case are nearly, without exception, protected under the [work] product doctrine.”).
Oh yeah -- happy 4th of July everyone!