SHERWOOD v. BAYER HEALTHCARE PHARMACEUTICALS INC et al
Filing
93
MEMORANDUM DECISION ON MOTION TO COMPEL DISCOVERY By MAGISTRATE JUDGE JOHN H. RICH III. (lrc)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
EMILY SHERWOOD,
Plaintiff
v.
BAYER HEALTHCARE
PHARMACEUTICALS, INC., et al.,
Defendants
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No. 2:10-cv-200-GZS
MEMORANDUM DECISION ON MOTION TO COMPEL DISCOVERY
In accordance with my order following a telephonic discovery conference held on May
20, 2011 (Docket No. 79), counsel for the plaintiff has submitted for my in camera inspection
the plaintiff’s request or requests under the Freedom of Information Act (FOIA), 5 U.S.C. § 552,
to the Food and Drug Administration (FDA). The defendants seek production of the responsive
documents received by the plaintiff, but not the request or requests. The plaintiff objects on the
ground, inter alia, that production of the documents would reveal the thoughts and/or strategy of
the plaintiff’s attorneys, in violation of the work product doctrine, by making obvious the
specific request or requests that were made.
Treating the defendants’ position as a motion to compel production of these documents,
and with the benefit of my in camera review, I deny the motion.
The nature of the request or requests and the relatively small number of documents
produced by the FDA in response both lead me to agree with the plaintiff’s position. Because
the plaintiff’s FOIA request(s) was refined and a modest number of documents produced in
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response, in my view, the production of those documents would reveal the nature of the
plaintiff’s specific request(s) and, thus, her counsel’s case strategy.
While this is not the typical situation in which the doctrine is invoked, the work product
doctrine provides “special protection” for an attorney’s mental impressions, Colonial Gas Co. v.
Aetna Cas. & Surety Co., 139 F.R.D. 269, 274 (D. Mass. 1991), and that is what is truly at issue
here.1 The doctrine “is not designed to protect a confidential relationship, but rather to promote
the adversary system by protecting the product of an attorney’s work.” Id. at 274-75.
It is true, as the defendants assert, that any documents produced by the FDA pursuant to a
FOIA request must necessarily be public information, but, in this context, that only means that
the defendants may obtain them as well, through their own FOIA request. Indeed, I assume that
many of the documents held by the FDA that could be relevant to this case would have been
generated by the defendants in the first place.
The defendants further contend that they have a substantial need for the documents to
prepare their case and cannot obtain their substantial equivalent by other means, using the
language of Fed. R. Civ. P. 26(b)(3)(A), but of course they can obtain these documents
themselves. What they cannot obtain is the knowledge concerning which of the documents,
available from the FDA and potentially relevant to this case, the plaintiff now has in her
possession. In short, they cannot obtain knowledge about which documents were sought by the
plaintiff’s attorneys. Doing so would necessarily reveal the mental impressions and strategy of
the plaintiff’s attorneys. In re San Juan Dupont, 859 F.2d at 1015 (“Whatever heightened
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See In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1014 (1st Cir. 1988) (“It is, therefore, not
surprising that the work product doctrine has found application beyond the prototypical civil discovery realm. . . .
Our adversarial system of justice cannot function properly unless an attorney is given a zone of privacy within
which to prepare the client’s case and plan strategy, without undue interference.”)
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protection may be conferred upon opinion work product, that level of protection is not triggered
unless disclosure creates a real, nonspeculative danger of revealing the lawyer’s thoughts.”).
Because, under the circumstances of this case, the defendants’ request for production
cannot reasonably be construed to serve any purpose other than revealing the thoughts of the
plaintiff’s attorneys, and because, in my view, producing the result of the narrowly-tailored
FOIA request(s) would reveal that thought process, I deny the defendants’ motion to compel the
production of the documents in dispute.
Dated this 25th day of May, 2011.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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