Chase v. Nova Southeastern University, Inc.
Filing
40
ORDER granting 30 Defendant Nova Southeastern University's Motion to Compel Responses to Defendant's Request for Production Number 3. On or before February 3, 2012, Plaintiff shall produce to Defendant all documents responsive to Request for Production Number 3. Signed by Magistrate Judge Barry S. Seltzer on 1/24/2012. (kas)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-61290-CIV-COHN/SELTZER
ANTHONY CHASE,
Plaintiff,
vs.
NOVA SOUTHEASTERN UNIVERSITY, INC.,
Defendant.
______________________________________/
ORDER ON DEFENDANT’S MOTION TO COMPEL RESPONSES
TO REQUEST FOR PRODUCTION NUMBER 3
THIS CAUSE is before the Court on Defendant Nova Southeastern University’s
Motion to Compel Plaintiff to Provide Responses to Defendant’s Request for Production
Number 3 (DE 30) and the Court being sufficiently advised, it is hereby ORDERED that the
Motion is GRANTED for the reasons set forth below.
Defendant moves the Court to compel Plaintiff to produce documents in response
to its Request to Produce Number 3, which seeks “[c]opies of any and all documents
consulted, referred to, or used in connection with the answers to Defendant’s First Set of
Interrogatories.” Plaintiff objects to this Request on the ground that the production of these
documents would violate the attorney work product doctrine because such production
would reveal his counsel’s thought processes.
In support of his position, Plaintiff relies on Sporck v. Peil, 759 F.2d 312 (3rd Cir.
1985). In Sporck, a securities fraud class action, the defendants had produced to the
plaintiff “hundred of thousands” of documents. Prior to one defendant’s deposition, his
counsel selected and compiled numerous documents from those already produced for the
sole purpose of preparing his client for the deposition. At the deposition and later through
a request for production, the plaintiff sought all documents the defendant had reviewed in
preparing for his deposition; the defendant refused to produce those documents. In
response to a motion to compel, the defendant acknowledged that none of the documents
contained the work product of his counsel.
The defendant, however, argued that
counsel’s selection and grouping of the documents itself would reveal counsel’s mental
impressions and legal opinions. Over the defendant’s objection, the trial court ordered the
defendant to identify or produce the documents requested. On a writ of mandamus, a
divided panel of the Third Circuit held that counsel’s selection and compilation of
documents fell “within the highly protected category of opinion work product” and, thus, the
documents need not be produced. Id. at 316.
One court in this district has considered whether documents reviewed by one of the
defendant’s employees in preparing for her deposition should be produced over the
defendant’s “selection-based opinion work product” objection. See In re Trasylol Products
Liab. Litig., No. 08-MD-1928, 2009 WL 936597, at *3-4 (S.D. Fla. Apr. 7, 2009)
(Middlebrooks, J.). In ruling that the defendant was required to produce the documents,
the Trasylol Court observed:
Cases that have considered issues similar to those presented
in Sporck . . . and the case herein, have demonstrated a good
deal of disagreement as to the application of such a “selectionbased opinion work-product” privilege, and the result has been
the production of a multitude of distinguishing principles. The
foremost and most consistent of such principles is that “the
mere selection and grouping of information by counsel for a
deponent to review does not automatically transform otherwise
discoverable documents into work product.” See, e.g., In re
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San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007,
1018 (1st Cir. 1988). The Court in the San Juan case criticized
the Sporck decision as flawed because it assumed that the
revelatory nature of the sought-after information was, in and of
itself, sufficient to impart the information with the cloak of
heightened protection of opinion work product.
The Eleventh Circuit has not had opportunity as yet to consider
the applicability of the Sporck doctrine. The cases within this
Circuit that have had such opportunity, however, have
recognized the far-reaching effects of the decision, and have
crafted a narrower application of the doctrine. See, e.g.,
Hunter’s Ridge Golf, Co., Inc. v. Georgia Pacific Corp., 233
F.R.D. 678, 681 (M.D. Fla. 2006); Jackson v. Geometrica, Inc.,
2006 WL 510059 (M.D. Fla. Mar. 2, 2006); In re Seroquel
Products Liability Lit., 2008 WL 21507 (M.D. Fla. 2008). Much
of this narrower application derives from the Sporck dissent
and the San Juan fire case wherein the First Circuit recognized
that “not every item which may reveal some inkling of a
lawyer’s mental impressions, conclusions, opinions, or legal
theories is protected as opinion work product . . . . Were the
doctrine to sweep so massively, the exception would hungrily
swallow up the rule.” 859 F.2d at 1015.
Id. The court acknowledged that it “is conceivable that some circumstances may warrant
application of the Sporck principle,” but such “a broad general privilege basically would
extend the work-product privilege into the norm, rather than the exception.” Id. And the
court noted that “[c]onstruing too broadly, the work product privilege can interfere with the
essential function of the discovery process of narrowing the issues for trial’” Id. at *4
(quoting In re Seroquel, 2008 WL 215707, at *5).
This Court agrees with the Trasylol Court and the other courts that require the party
raising a “selection based opinion work product” objection to “come forward with some
evidence that disclosure of the requested documents creates a real, non-speculative
danger of revealing counsel’s thoughts.” In re Trasylol, 2009 WL 936597, at *4; see also
In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379,
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386 (2d Cir. 2002); In re Seroquel Prods. Liab. Litig., No 6:06-md-1769-Orl-22DAB, 2008
WL 215707, at *5 (M.D. Fla. Jan. 24, 2008); Hunter’s Ridge Golf, Co., Inc. v. Georgia
Pacific Corp., 233 F.R.D. 678, 681 (M.D. Fla. 2006). Here, Plaintiff’s mere assertion that
the production of the documents sought would reveal counsel’s thought processes does
not come close to meeting that burden. Accordingly, on or before February 3, 2012,
Plaintiff shall produce to Defendant all documents responsive to Request for Production
Number 3.
DONE AND ORDERED in Fort Lauderdale, Florida, this 24th day of January 2012.
Copies to:
All counsel of record
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