Rogers v. Span Systems, Inc.
Magistrate Judge Judith G. Dein: ORDER entered granting 21 Defendant's Motion to Compel Third-Party Witness Statements. (Dambrosio, Jolyne)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
EDWARD J. ROGERS,
COLUMBUS MCKINNON CORPORATION
and HANES SUPPLY, INC.,
ORDER ON SPAN SYSTEMS’ MOTION TO
COMPEL THIRD-PARTY WITNESS STATEMENTS
This matter is before the court on “Defendant Span Systems, Inc.’s Motion to Compel
Plaintiff to Produce Third-Party Witness Statements” (Docket No. 21), by which the defendant,
Span Systems, Inc., is seeking an order compelling the plaintiff to produce the third-party
witness statements of his co-workers, Frank E. Puopolo and Eduardo M. DaSilva. The plaintiff
argues that the statements are protected from discovery pursuant to the work product
doctrine. After consideration of the parties’ written submissions and their oral arguments, the
motion to compel is hereby ALLOWED.
“The work product doctrine, which was first articulated by the Supreme Court in
Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947), and has been codified in
Fed. R. Civ. P. 23(b)(3), ‘protects against disclosure of materials that a party, [his] attorney, or
[his] representative prepares in anticipation of litigation[.]’” Bryan Corp. v. ChemWerth, Inc.,
296 F.R.D. 31, 37 (D. Mass. 2013) (quoting In re Grand Jury Subpoena, 220 F.R.D. 130, 141 (D.
Mass. 2004)). Accordingly, “the work product doctrine precludes discovery of work that ‘is
reflected . . . in interviews, statements, memoranda, correspondence, briefs, mental
impressions, personal beliefs, and countless other tangible and intangible ways’ as long as it
was prepared in anticipation of litigation.” Id. (quoting Hickman, 329 U.S. at 511, 67 S. Ct. at
393)). “Unlike the attorney-client privilege, however, which is usually absolute if not waived,
the work-product doctrine . . . has its limits.” City of Springfield v. Rexnord Corp., 196 F.R.D. 7,
10 (D. Mass. 2000). Pursuant to Rule 26(b)(3), a party may obtain “discovery of ordinary [or
fact] work product upon a showing that the party seeking discovery has substantial need of the
materials in the preparation of the party’s case and that the party is unable without undue
hardship to obtain the substantial equivalent of the materials by other means.” Bryan, 296
F.R.D. at 42 (quoting In re Grand Jury Subpoena, 220 F.R.D. at 144).
Assuming, without deciding, that the witness statements at issue here fall within the
scope of the work product doctrine, this court finds that the defendant has established both a
substantial need for statements at issue, and that it would not be possible to obtain their
substantial equivalent without undue hardship. The statements were taken from witnesses
near the time of the incident in question. “Such statements are unique in that they provide a
contemporaneous impression of the facts.” City of Springfield, 196 F.R.D. at 10. Furthermore,
the defendant has made an effort to speak with the witnesses independently, and has shown
that the passage of time has made it “practically impossible” to obtain the substantial
equivalent of the statements at this point in the litigation. See id. Therefore, its motion to
compel the production of the third-party witness statements of Messrs. Puopolo and DaSilva is
However, given the legitimate position taken by the plaintiff, the defendant’s request
for sanctions is denied.
/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge
DATED: May 5, 2017
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