Lobel v. Woodland Golf Club of Auburndale

Filing 68

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Renewed Motion to Compel Production of Documents (Docket Entry # 52 ). The remaining portion of the renewed motion to compel (Docket Entry # 52 ) is ALLOWED in part and DENIED in part. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ROBERT LOBEL,
Plaintiff,
v.

CIVIL ACTION NO.
15-13803-FDS

WOODLAND GOLF CLUB OF AUBURNDALE,
Defendant.

MEMORANDUM AND ORDER RE:
RENEWED MOTION TO COMPEL PRODUCTION OF DOCUMENTS
(DOCKET ENTRY # 52)
December 22, 2016

BOWLER, U.S.M.J.
Pending before this court is the remaining portion of a
renewed motion to compel filed by defendant Woodland Golf Club of
Auburndale (“defendant”).

(Docket Entry # 52).

After production

of a privilege log by plaintiff Robert Lobel (“plaintiff”), the
parties continued to dispute production of documents by Gerald
Chervinsky (“Chervinsky”) in response to a deposition subpoena
(Docket Entry # 38-1) requesting all documents between Chervinsky
and Kenneth Fishkin, Esq. (“Fishkin”), i.e., request number six
in the subpoena.

Plaintiff objects to production on the basis of

the work product doctrine.

After conducting a hearing on

December 15, 2016, this court took the remaining portion of the
motion (Docket Entry # 52) under advisement.
DISCUSSION

Familiarity with the facts is presumed.

Jurisdiction is

based on a federal question (Docket Entry # 1, ¶ 7(a)), 28 U.S.C.
§ 1331, and federal law controls the parameters of the work
product doctrine.

Le v. Diligence, Inc., 312 F.R.D. 245, 247

(D.Mass. 2015); S.D. Warren Co. v. E. Elec. Corp., 201 F.R.D.
280, 282 (D.Me. 2001).
The work product doctrine protects documents prepared by or
for a party or by his “attorney if, ‘in light of the nature of
the document and the factual situation in the particular case,
the document can be fairly said to have been prepared or obtained
because of the prospect of litigation.’”

Mississippi Public

Employees’ Retirement System v. Boston Scientific Corp., 649 F.3d
5, 31 n.24 (1st Cir. 2011).

As stated in Fed.R.Civ.P. 26(b)(3),

“Ordinarily, a party may not discover documents” prepared in
anticipation of litigation “by or for another party or its
representative (including the other party’s attorney, consultant,
surety, indemnitor, insurer, or agent).”

Fed.R.Civ.P. 26(b)(3).

The “party asserting the . . . work product privilege,”
plaintiff, “bears the burden of showing that the privilege
applies.”

Vicor Corp. v. Vigilant Ins. Co., 674 F.3d 1, 17 (1st

Cir. 2012); 58 Swansea Mall Drive, LLC v. Gator Swansea Prop.,
LLC, 2016 WL 6669311, at *1 (D.Mass. Nov. 7, 2016) (party
claiming attorney client and work product privileges “bears
burden of establishing both protections”); Le v. Diligence, Inc.,
2

312 F.R.D. at 247 (“[d]efendants, who are invoking the privilege,
bear the burden of establishing” that work product privilege
applies).

A party may overcome the privilege by showing “that it

has substantial need for the materials to prepare its case and
cannot, without undue hardship, obtain their substantial
equivalent by other means.”1

Fed.R.Civ.P. 26(b)(3)(A).

The language of Rule 26(b)(3) protects documents prepared
“by or for another party or its representative.”
26(b)(3) (emphasis added).

Fed.R.Civ.P.

Consequently, work product protection

extends “to documents and things prepared for litigation or trial
by or for the adverse party itself or its agent.”

8 Charles Alan

Wright et al., Federal Practice and Procedure § 2024 (3rd ed.
2016); see Szulik v. State Street Bank and Trust Co., 2014 WL
3942934, at *3 (D.Mass. Aug. 11, 2014) (rejecting argument that
document prepared by plaintiff “cannot be work product because it
was not prepared under the direction of an attorney, or to assist
the attorney-rather, it was prepared to assist” plaintiff, the
deponent).
Overall, the doctrine is “intensely practical, grounded in
the realities of litigation in our adversary system.”
States v. Nobles, 422 U.S. 225, 238 (1975).

1

United

“One of those

Although not discussed with respect to the documents that
are not subject to production, this court has analyzed the
substantial need and undue hardship showings with respect to all
such documents.
3

realities is that attorneys often must rely on the assistance of
investigators and other agents in the compilation of materials in
preparation for trial.”

Id.; see Sprague v. Director, Office of

Workers’ Compensation Programs, U. S. Department of Labor, 688
F.2d 862, 870 (1st Cir. 1982).

Hence, “documents and reports

prepared by agents of the attorney,” such as investigators, as
well as by “the party he represents,” are protected.

Pacamor

Bearings, Inc. v. Minebea Co., Ltd., 918 F.Supp. 491, 514 (D.N.H.
1996).

Chervinsky, as a non-party, however, cannot invoke and

assert the privilege.

See In re Student Finance Corp., 2006 WL

3484387, at *9 (E.D. Pa. Nov. 29, 2006) (“language of Rule
26(b)(3) protecting only parties’ work product precludes
non-parties from asserting the privilege”); Abdell v. City of New
York, 2006 WL 2664313, at *2 (S.D.N.Y. Sept. 14, 2006)
(“‘non-party cannot invoke the work-product immunity of Fed. R.
Civ. P 26(b)(3) to withhold documents created for the non-party’s
benefit’”); Ramsey v. NYP Holdings, Inc., 2002 WL 1402055, at *2
(S.D.N.Y. June 27, 2002) (same).

Likewise, unless Fishkin was

acting as plaintiff’s attorney or otherwise in a representative
capacity for plaintiff, the same principle applies to documents
prepared by Fishkin for Chervinsky.

See Abdell v. City of New

York, 2006 WL 2664313, at *2 (“Rule 26(b)(3) does not protect
materials prepared by lawyers for non-parties”).
Opinion work product reflecting the mental impressions,
4

conclusions or legal theories of a party’s attorney or
representative receives heightened protection.

See Fed.R.Civ.P.

26(b)(3)(B); Walker v. N.H. Admin. Office of the Courts, 2013 WL
672584, at *4 (D.N.H. Feb. 22, 2013) (pursuant to Rule
“26(b)(3)(B), ‘opinion’ work-product qualifies for ‘greater
protection’ than so-called fact work-product”) (citing Vicor
Corp. v. Vigilant Ins. Co., 674 F.3d at 18).

Typically, the

doctrine does not extend to factual information.

In re Grand

Jury Subpoena, 220 F.R.D. 130, 141 (D.Mass. 2004) (work product
doctrine “does not typically extend to the underlying facts
contained within those material[s]”).

“When a factual document

selected or requested by counsel exposes the attorney’s thought
processes and theories,” however, “it may be appropriate to treat
the document as opinion work product, even though the document on
its face contains only facts.”

F.T.C. v. Boehringer Ingelheim

Pharm., Inc., 778 F.3d 142, 151 (D.C. Cir. 2015), reh’g denied
(D.C. Cir. 2015), cert. denied, 136 S.Ct. 925 (2016).

It is also

true, however, that “not every item which may reveal some inkling
of a lawyer’s mental impressions . . . is protected as opinion
work product.”

In re San Juan Dupont Plaza Hotel Fire

Litigation, 859 F.2d 1007, 1015 (1st Cir. 1988); accord F.T.C. v.
Boehringer Ingelheim Pharm., Inc., 778 F.3d at 152 (quoting In re
San Juan, 859 F.2d at 1015).

Hence, “protection is warranted

only if the selection or request reflects the attorney’s focus in
5

a meaningful,” nonspeculative way.

F.T.C. v. Boehringer

Ingelheim Pharm., Inc., 778 F.3d at 152; In re San Juan, 859 F.2d
at 1015 (level of protection afforded opinion work product “is
not triggered unless disclosure creates a real, nonspeculative
danger of revealing the lawyer’s thoughts”).
The reach of the doctrine “turns on a balancing of policy
concerns.”

U.S. v. Textron Inc. and Subsidiaries, 577 F.3d 21,

26 (1st Cir. 2009).

Policy concerns include facilitating

“zealous advocacy in the context of an adversarial system of
justice by ensuring that the sweat of an attorney’s brow is not
appropriated by the opposing party.”

In re Grand Jury Subpoena,

274 F.3d 563, 574 (1st Cir. 2001) (citing Hickman v. Taylor, 329
U.S. 495, 511 (1947)); accord U.S. v. Textron Inc. and
Subsidiaries, 577 F.3d at 31 (Hickman stressed danger of
“discouraging sound preparation for a law suit”).

Even if an

attorney prepares a document, however, such documents and emails
are protected only if the work was done in anticipation of
litigation.
at 30.

See U.S. v. Textron Inc. and Subsidiaries, 577 F.3d

Emails prepared for “nonlitigation purposes” or “that

would have been created in essentially the same form irrespective
of the litigation’” do not warrant protection.

Id.

“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.; see also Pacamor Bearings, Inc. v. Minebea Co.,
6

Ltd., 918 F.Supp. 491, 512 (D.N.H. 1996) (protection may extend
to documents prepared before litigation’s commencement but
“‘there must be more than a remote possibility of litigation’”).
Adhering to the foregoing law and having reviewed Fishkin’s
declaration, parts of which include legal argument, and
Chervinsky’s deposition as well as the other evidence in the
record, the majority of the documents are not protected.

Turning

to the time period of July and August 2014, simply because the
club denied plaintiff’s use of a specialized golf cart two years
earlier in 2012 (Docket Entry # 66) does not mean the club would
automatically deny such use in July 2014.

The July 17, 2014

email (document 1-3), prepared by Fishkin and made before any
denial by the club of what Chervinsky described as a “reasonable
compromise” or resolution (Docket Entry # 66, ¶¶ 2, 4) (Docket
Entry # 53, Depo. pp. 44, 46, 58), was not made in anticipation
of litigation and is therefore subject to production.

During

this time period, Chervinsky was attempting to reach a reasonable
compromise with the club.

Litigation was not anticipated and the

documents Chervinsky created were not prepared in anticipation of
litigation.

Thus, although Chervinsky “expected there would

ultimately be legalities involved,” in July and August 2014 he
simply “wanted [plaintiff] to be able to play golf with [him] at
Woodland” and Chervinsky engaged in his “own effort at what [he]
thought at the time” might “be a reasonable compromise” with the
7

club.

(Docket Entry # 53, Ex. D, Depo. pp. 21-23, 44-46).
Thus, in light of the facts and circumstances, Chervinsky

was acting on his own so that he could be able to play golf with
his friend, plaintiff.

As evidenced by Chervinsky’s deposition

testimony, Chervinsky, who is not an attorney, took it upon
himself in July 2014 to find a solution for his friend,
plaintiff, to play golf at the Woodland Golf Club of Auburndale.
(Docket Entry # 53, Ex. D, Depo. pp. 21, 45, 46).

The inclusion

of an attorney (Fishkin), who played golf with plaintiff and
Chervinsky and was one of Chervinsky’s “closest friends” (Docket
Entry # 53, Ex. D, Depo. p. 24), does not transform the July and
August 2014 emails Chervinsky sent to Fishkin into attorney work
product.

See Walker v. N.H. Admin. Office of the Courts, 2013 WL

672584, at *7 (attorney’s “involvement, per se, did not convert
the Policy-driven investigation into a trial preparation project,
and nothing in the documents themselves suggests that the
documents assumed a different form or purpose because of the
prospect of litigation”).

With respect to each of the emails

Chervinsky prepared during this time period, plaintiff fails in
his burden to show that Chervinsky was acting on behalf of
plaintiff or his attorney or representative at the time
Chervinsky prepared each email.

At this juncture, Fishkin was

also not acting as plaintiff’s representative and there is
insufficient evidence that any attorney representing plaintiff
8

was instructing or directing Chervinsky or Fishkin to prepare
documents or communications because of the prospect of litigation
between the club and plaintiff.

See id.

Simply stated, in July

and August 2014, Chervinsky was acting on his own and Fishkin was
acting as a friend and golfing partner.

(Docket Entry # 53, Ex.

D, Depo. pp. 21, 23, 24, 45, 46, 58).
In light of the above, Chervinsky’s unsolicited, selfgenerated “legal analysis” as well as other thoughts and
communications sent to Fishkin in and around this time period is
not work product and therefore is not protected.

Chervinsky did

not generate documents 5-8, 9-10, 11, 12-15, 17, 20, 21-23, 24,
25-27, 36, 38 and 58-59 in the privilege log (Docket Entry # 631) for plaintiff or by or for plaintiff’s attorney because of the
prospect of litigation.

The email exchange denoted document 25-

27 more than likely consists of Chervinsky’s unsolicited thoughts
and analysis communicated to Fishkin which were not made by or
for another party or his representative or prepared because of
the prospect of litigation.

See generally In re Grand Jury

Subpoena, 220 F.R.D. at 140 (work product “privilege’s
applicability must be demonstrated by a fair preponderance of the
evidence”).
An analysis of the factual information in August 2014
regarding other golf courses’ positions as to the SoloRider,
i.e., documents 33-35 and 37, is also not protected.
9

These

documents are subject to production.

Documents 18 and 19 more

likely than not consist of purely factual information which is
not the work of an attorney prepared or obtained because of this
litigation and, notably, plaintiff fails in his burden to show
otherwise.

As such, these documents are subject to production.

Document 41-42 from Fishkin to Chervinsky is subject to
production inasmuch as plaintiff fails to show that it was
created by or for a party or his representative as well as
prepared because of the prospect of litigation.

In addition,

plaintiff did not file the complaint until more than a year
later.2
50.

(Docket Entry # 1).

The same ruling applies to document

All factual information in document 71-72 shall be produced

whereas any legal analysis, strategy or mental impressions by
Attorney Denner in the October 9, 2014 document may be redacted.
Documents 73, 74, 75, 76, 89, 92 and 93-94 are protected and not
subject to production.
Plaintiff fails to establish that document 30-32, created in
2

The complaint contains Fishkin’s unadorned signature as well
as the signatures and emails of two attorneys at Jeffrey Denner
Associates, P.C. In violation of LR. 83.5.2, Fishkin did not
include any identifying information. Local Rule 83.5.2 states
that:
The filing of an appearance or any other pleading signed on
behalf of a party constitutes an entry of appearance for
that party. All pleadings shall contain the name, bar
admission number, address, telephone number, and e-mail
address of the attorney entering an appearance.
LR. 83.5.2 (emphasis added).
10

early August 2014 and depicting an analysis of conversations with
“State Disability Reps. Regarding” the club’s “position and plan
to perform test,” is protected.

Prepared more than a year before

the November 2015 filing of the complaint and at a time when the
parties were discussing the test and whether plaintiff could use
the greens with the SoloRider, plaintiff fails to show that
document 30-32 was prepared because of the prospect of litigation
as well as by or for plaintiff or his representative.

All of the

emails exchanged in document 30-32 are therefore subject to
production.
The second segment of an email chain denoted document 39-40
concerns factual information consisting of “Charles River[’s]
decision to allow SoloRider on the course.”
1).

It is subject to production.

(Docket Entry # 63-

See In re Grand Jury Subpoena,

220 F.R.D. at 141 (work product doctrine “does not typically
extend to the underlying facts contained within those
material[s]”); see also Mullins v. Department of Laboratory of
Puerto Rico, 269 F.R.D. 172, 176 (D.P.R. 2010) (moving party
“must ‘explain why the work product privilege applies to all
portions of the document’”).

The first segment was not prepared

by or for plaintiff or his representative and plaintiff fails to
show otherwise.

Document 39-40 is therefore subject to

production in its entirety.
The portion of document 46-49 concerning factual information
11

about access to the Charles River Country Club is subject to
production whereas the “conversation with Attorney Denner on how
to move forward with litigation” may be redacted as opinion work
product.

(Docket Entry # 63-1).

Likewise, the “update on

communications” in document 51-53 is subject to production
whereas the “legal strategy being developed by Attorney Denner”
may be redacted.

(Docket Entry # 63-1).

Because document 54-57

depicts Attorney Denner’s opinion work product, it is not subject
to production.
81-85.

The same ruling applies to documents 69-70 and

Attorney Denner’s “legal advice and strategy provided by

Attorney Jeff Denner” in document 64-66 may be redacted.

The

remaining portion of document 64-66 shall be produced.
Document 67 is not subject to production because, given the
factual circumstances, Chervinsky was acting on behalf of
plaintiff in communicating the latter’s position to move forward
with litigation to Fishkin.

As to document 77-78, plaintiff does

not meet his burden to show that Chervinsky, who was neither an
attorney nor plaintiff’s representative or agent, prepared the
July 20, 2015 document by or for plaintiff or his attorney or
representative.
production.

Document 77-78 is therefore subject to

Plaintiff also fails in his burden to show that

Chervinsky’s analysis of the case, a newspaper article, an email
by the club notifying members of the lawsuit and/or a proposed
status conference, was made for plaintiff or by or for
12

plaintiff’s representative, including Fishkin.

Documents 86, 87,

88 and 120 are therefore subject to production.

Similarly,

plaintiff fails to meet his burden to show that Chervinsky’s
analysis of correspondence and a status conference conducted by
this court, also emailed to Fishkin, was made by or for plaintiff
or his representative.3

Not having made a strong enough showing

to satisfy his burden, documents 123-125, 126-127 and 128-129 are
subject to production.

With respect to document 79-80, the

factual information regarding use of the SoloRider for a golf
tournament at the Weston Country Club is not protected whereas
Fishkin’s “analysis of how this could impact Woodland litigation”
is protected.
redacted form.

Document 79-80 may therefore be produced in
Documents 95-97, 98-99, 100-106, 107-109, 110-112

and 118-119 are not subject to production.

All factual

information in documents 113-117 and 130-132 shall be produced
whereas opinion work product may be redacted.

Document 121-122

depicts a “[d]iscussion and analysis [by] pf,” presumably
plaintiff, “forwarded” to Chervinsky who then transmitted it to
Fishkin.

Inasmuch as it was “made by or for another party” as

well as prepared because of the litigation, the work product

3

With respect to these and other withheld documents, this
court recognizes that the document designations may reflect more
than one email between the identified author and the identified
recipient.
13

doctrine protects the document.4
CONCLUSION
In accordance with the forgoing discussion, the remaining
portion of the renewed motion to compel (Docket Entry # 52) is
ALLOWED in part and DENIED in part.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

4

See footnote one.
14