• September 2, 2016


What is discoverable and relevant in U.S. civil litigation surprises many people who do not have experience in U.S. civil litigation. Most Americans do not appreciate how deeply our law allows adversaries to dig into the other side’s papers, emails, text messages, diaries, journals, post-it notes, doodle sketchbooks and hard drives. Foreigners are often even more shocked, if not incredulous.

At the same time that our system allows deep dives into lives of litigants, our law carves out nearly sacred protection for the civil litigator’s playbook. We get broad access into underlying evidence in a lawsuit, but not the lawyer layer. Evidence generated in the litigation itself — the thoughts and strategies of the lawyers, their communications with their clients — is extremely protected from discovery in our state and federal legal systems.

Questioning whether this extraordinary protection is fair or whether it makes sense would represent a full frontal attack on the U.S. adversarial justice system itself. I am way too stupid? smart? cowardly? busy? pragmatic to wage that battle. But even accepting this high-level of protection from civil discovery as a given, there are still  difficult questions that lawyers and courts need to answer. What, exactly, is “attorney work product”?

A recent decision of U.S. District Court Judge Susan R. Nelson (D. Minn.) sheds some light.

Plaintiff Jakob Rumble (“Rumble”) is a transgender man who sought healthcare treatment from Fairview and Emergency Physicians, P.A. He subsequently brought a lawsuit, alleging that the caregivers gave him poor care and subjected him to unnecessary trauma based on his gender identity.

Rumble filed a complaint with the U.S. Department of Health and Human Services’ Office for Civil Rights (“OCR”). OCR conducted interviews. An in-house Fairview lawyer instructed Fairview’s Director of Clinical Quality (“DCQ”) to attend the interviews. DCQ took notes of the interviews.

The Court had to decide whether these DCQ notes were “attorney work product” immune from discovery and, if so, whether they were “ordinary work product,” entitled to a lower level of protection, or “opinion work product,” entitled to “almost absolute immunity.”

Ordinary work product includes raw factual information. Opinion work product includes counsel’s mental impressions, conclusions, opinions or legal theories. Ordinary  work product is not discoverable unless the party seeking discovery has a substantial need for the materials and the party cannot obtain the substantial equivalent of the materials by other means. In contrast, opinion work product enjoys almost absolute immunity and can be discovered only in very rare and extraordinary circumstances, such as when the material demonstrates that an attorney engaged in illegal conduct or fraud.

To articulate the distinction is to answer the question about the DCQ notes for the most part, is it not? DCQ was not a lawyer and, presumably, DCQ could not transcribe or write down “counsel’s mental impressions, conclusions, opinions or legal theories.” Nevertheless, according to Judge Nelson’s decision, under established law,

Notes taken by an attorney, or an attorney’s agent, during a witness interview often qualify as opinion work product because ‘[a]ttorney notes reveal an attorney’s legal conclusions because, when taking notes, an attorney often focuses on those facts that she deems legally significant. In this way, attorney notes are akin to an attorney’s determination as to which documents are important to a case…’

(Emphasis added.)

I can imagine that would be the case if the non-attorney was given instruction for the note-taking by the lawyer so that the notes, in effect, are answers to specific questions posed by the lawyer to the note-taker (i.e., “We’re trying to establish that interviewee’s actions were outside the scope of her employment so note every statement that supports that strategy or casts doubt on it…”). But absent some direction along these lines, contemporaneous notes of a non-lawyer would seem to fall clearly on the side of “ordinary work product” rather than “opinion work product.”

And so held Judge Nelson.

trench_72dpiFinally, a post-script from my own experiences in the trenches of civil discovery, I can attest to the fact that sometimes a party, like Fairview in this case, resists discovery, causes the other side to think that the concealed information must be valuable and revealing (“wishful thinking” might play a role). But when the smoke clears, the battle’s won, and the documents are finally surrendered, as the party seeking the discovery, I have often been bitterly disappointed.

Counsel for Mr. Rumble will finally obtain DCQ’s notes because of Judge Nelson’s ruling but the spoils of the battle may be a let-down. We may never know but stay tuned…

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