ZAGKLARA v. SPRAGUE ENERGY CORP

Filing 38

ORDER ON MOTION TO COMPEL PRODUCTION - By MAGISTRATE JUDGE JOHN H. RICH III. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

EIRINI ZAGKLARA,
Plaintiff
v.
SPRAGUE ENERGY CORP.,
Defendant

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No. 2:10-cv-445-JAW

ORDER ON MOTION TO COMPEL PRODUCTION

In accordance with my Report of Hearing and Order dated June 20, 2011 (Docket No. 37,
at 3, 4, and 5), counsel for the defendant has submitted to the court for in camera review an
undated and unaddressed one-page document which he represents is the document listed as
number 9 on the defendant’s privilege log. Because I conclude that neither the attorney-client
privilege nor the work product doctrine applies, I now order that the defendant provide a copy of
the document to the plaintiff.
A copy of the defendant’s privilege log was provided to the court in connection with the
telephone discovery conference held on June 17, 2010, that is memorialized in my June 20 order.
The entry on the privilege log with respect to the document at issue provides, in its entirety: “9[.]
Undated e-mail sent to Sprague’s operations officers at [the] request of Sprague’s general
counsel days after the accident[.]” Sprague asserted both the attorney-client privilege and the
doctrine of work product protection as the bases for withholding this document. Sprague Energy
Corp.’s Objections and Responses to Plaintiffs’ Request for Production of Documents at 14

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(Request No. 21).

The author of the document at issue, Peter Frye, is identified as the

defendant’s terminal manager and is not, from all that appears, an attorney.
By the terms of the privilege log, the document was created by Frye and sent to the
defendant’s “operations officers.” While the document, an e-mail, was “sent . . . at [the] request
of Sprague’s general counsel,” it was not sent to a lawyer for the defendant. Accordingly, it does
not appear to come within the scope of protection offered by the applicable attorney-client
privilege, which provides, in relevant part:
A client has a privilege to refuse to disclose and to prevent any other
person from disclosing confidential communications made for the
purpose of facilitating the rendition of professional legal services to the
client (1) between the client or the client’s representative and the client’s
lawyer or the lawyer’s representative, or (2) between the lawyer and the
lawyer’s representative, or . . . (4) between representatives of the client
or between the client and a representative of the client[.]
Maine Rule of Evidence 502(b).
Work product protection extends “to documents and other tangible things that are
prepared in anticipation of litigation or for trial.” United States v. Textron Inc. & Subsidiaries,
577 F.3d 21, 27 (1st Cir. 2009) (citation and internal quotation marks omitted). “It is not enough
to trigger work product protection that the subject matter of a document relates to a subject that
might conceivably be litigated.” Id. at 29 (emphasis in original). “It is only work done in
anticipation of or for trial that is protected.” Id. at 30. Even if prepared by lawyers and
reflecting legal thinking, “materials assembled in the ordinary course of business, or pursuant to
public requirements unrelated to litigation, or for other nonlitigation purposes are not under the
qualified immunity provided by [work product protection].”
punctuation omitted).

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Id. (citation and internal

Here, from all that appears, the document at issue was not created in anticipation of or for
trial, but rather in the ordinary course of business, only “days after the accident.” We know only
that it was sent to some of the defendant’s employees by another employee at the request of the
defendant’s general counsel and that it is a summary of the sender’s involvement in the accident
at issue in the current litigation. There has been no showing by the defendant that the author of
the document anticipated litigation at the time that the document was created, or would not have
created the document in essentially the same way had the prospect of litigation not existed,
Weber v. Paduano, No. 02 Civ. 3392(GEL), 2003 WL 161340, at *4 (S.D.N.Y. Jan. 22, 2003),
much less a showing that such a subjective belief was objectively reasonable. In re Sealed Case,
146 F.3d 881, 884 (D.C. Cir. 1998). The court cannot assume that the circumstances described
by the defendant here necessarily establish that the e-mail itself was prepared in anticipation of
trial.
The defendant is, therefore, ORDERED to provide the plaintiff with a copy of this
document.
NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file
an objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to appeal the district court’s order.
Dated this 22nd day of June, 2011.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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