Ryskamp v. Looney et al

Filing 146

ORDER granting 110 Plaintiffs Motion to Compel, with regard to the Interview Memoranda by Judge William J. Martinez on 9/16/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 10-cv-00842-WJM-KLM
DENIS RYSKAMP, Derivatively on Behalf of BOULDER GROWTH & INCOME FUND,
Plaintiff,
v.
JOEL W. LOONEY,
DEAN L. JACOBSON,
RICHARD I. BARR,
SUSAN L. COCIORA, and
JOHN S. HOREJSI,
Defendants,
and
BOULDER GROWTH & INCOME FUND, INC.,
Nominal Defendant.

ORDER COMPELLING PRODUCTION OF INTERVIEW MEMORANDA

THIS MATTER is before the Court on Plaintiff’s Motion to Compel Production of
Court-Ordered Documents under Fed. R. Civ. P. 37(a) (“Motion to Compel”), ECF No.
110, and the Court’s September 1, 2011 Order on Motion to Compel (“Sept. 1 Order”),
ECF No. 145, which granted in part and denied in part the Motion to Compel. The Court
withheld ruling on the Motion to Compel with regard to the Interview Memoranda
described and defined in the Sept.1. Order. For the following reasons, the Court
GRANTS the Motion to Compel with regard to the Interview Memoranda.

BACKGROUND
The Court herein incorporates the facts and background as set forth in the Sept.
1 Order, ECF No. 145 at 1-5. In the Sept. 1 Order, the Court ordered Defendants to
produce for in camera review the Interview Memoranda drafted by Paul, Hastings,
Janofsky & Walker LLP (“Paul Hastings”) following interviews of Joel Looney, Richard
Barr, Dean Jacobson, Susan Ciciora, John Horejsi, Stephen Miller, Carl Johns, and
Stewart Horejsi regarding the Boulder Growth & Income Fund, Inc.’s (“Boulder”) 2008
rights offering. (ECF No. 145 at 26-27.) The Court has reviewed, in camera, the
Interview Memoranda.
DISCUSSION
Plaintiff asserts that the Interview Memoranda drafted by Paul Hastings following
interviews of members of the Board, officers of the Fund, and senior employees/officers
of the Fund and its Advisers regarding the 2008 rights offering should be produced.
(ECF No. 107 at 7.) Defendants argue the Interview Memoranda are counsel’s working
papers containing summaries of counsel’s mental impressions of the interviews and
should be privileged under the work product doctrine. (ECF No. 127 at 7-9.)
The work product doctrine protects “documents and tangible things that are
prepared in anticipation of litigation or for trial . . . [unless] they are otherwise
discoverable under Rule 26(b)(1); and 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.” Fed. R. Civ. P. 26(b)(3)(A). “At its core, the
work product doctrine shelters the mental processes of the attorney, providing a
privileged area within which he can analyze and prepare his client's case.” United
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States v. Nobles, 422 U.S. 225, 238 (1975).
A party may discover documents that contain fact work product by satisfying the
substantial need or undue burden test. Fed. R. Civ. P. 26(b)(3)(A)(ii); Frontier Refining
Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 704 n.12 (10th Cir. 1998). However,
opinion work product, such as an attorney's mental impressions, conclusions, opinions,
or legal theories, receives special protection against disclosure. Fed. R. Civ. P.
26(b)(3)(B) (“If the court orders discovery of these materials, it must protect against
disclosure of the mental impressions, conclusions, opinions, or legal theories of a
party’s attorney or other representative concerning the litigation.”).
In the Sept. 1 Order, the Court found that there is a substantial need for Plaintiff
to have access to the Interview Memoranda in order to determine the scope and
breadth of the Review Committee’s investigation. (ECF No. 145 at 25-26.) Upon in
camera review, the Court finds that the subject Interview Memoranda do not contain any
mental impressions, conclusions, opinions, or legal theories of any attorney from the
Paul Hastings law firm which, at one point or another, has been counsel in the course of
this dispute to the Review Committee, the Fund and the Independent Directors. (ECF
No. 127 at 5). As a consequence, the Court further finds that none of the contents of
the Interview Memoranda are protected by the attorney work product doctrine.
Accordingly, Defendants shall produce complete and unredacted copies of all of the
Interview Memoranda referenced in the Sept. 1 Order to Plaintiff.
The Court notes that the Parties have entered into Stipulated Protective Orders,
ECF Nos. 89, 99, 132, protecting documents voluntarily produced in discovery or
ordered by the Court to be produced in its Order on Plaintiff’s Motion to Compel. Given
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the confidential, if not privileged, nature of the Interview Memoranda, they shall be
produced subject to these previously-entered Stipulated Protective Orders.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Plaintiff’s Motion to
Compel, ECF No. 107, with regard to the Interview Memoranda is GRANTED.
1)

Defendants shall produce to Plaintiff, on or before September 20, 2011,
complete and unredacted copies of all of the Interview Memoranda
referenced in the Sept. 1 Order;

2)

The Interview Memoranda shall be produced subject to the Stipulated
Protective Orders, ECF Nos. 89, 99, 132, previously entered in this action;
and

3)

All parties shall be responsible for their own attorney’s fees and costs
incurred as a result of the filing of the Motion to Compel or responding
thereto.

Dated this 16th day of September, 2011.
BY THE COURT:

William J. Martínez
United States District Judge

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