McClurg et al v. MI Holdings, Inc. et al
MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Plaintiffs request for production of documents that Defendants attorneys collected from the State Historical Society of Missouri (Historical Society) and those obtained from defense counsels Freedom of Information Act (FOIA) requests is DENIED. Signed by District Judge Audrey G. Fleissig on 3/8/16. (KCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SCOTT D. MCCLURG, et al.,
MALLINCKRODT, INC., et al.,
MEMORANDUM AND ORDER
This matter is before the Court following a status conference held with the parties
on February 26, 2016, at which time the Court reserved ruling on a dispute regarding the
discoverability of documents that Defendants’ attorneys collected during this litigation
from the State Historical Society of Missouri (“Historical Society”) and from defense
counsel’s Freedom of Information Act (“FOIA”) requests. Plaintiffs requested that
Defendants produce these collected documents, and Defendants objected, claiming
protection under the work product doctrine.
At the time of the status conference, the parties had not briefed this issue with
supporting legal authority. Nor had the parties provided the Court with the language of
the disputed discovery requests, including, for example, whether the requests simply
asked for production of all documents collected from the Historical Society and/or from
FOIA requests, or whether, instead, the requests were topic-specific requests to which the
disputed third-party documents may be responsive as part of a larger document
production. The Court nevertheless noted that its initial impression was that publicly
available documents prepared by third parties in the ordinary course of business, rather
than in anticipation of litigation, are not protected by the work product doctrine and do
not gain protection merely by coming into the hands of a party’s attorney. However, the
Court noted that if production of the documents would reveal the attorneys’ legal theories
and thought processes in selecting the documents, the work product doctrine may apply.
The Court suggested that such legal theories and thought processes may be revealed, for
instance, if Plaintiffs’ requests for production asked for all documents obtained from a
particular source, because the wholesale production of the documents selected and
compiled by attorneys may reveal the attorneys’ mental impressions and strategies used
in the collection process. The Court permitted the parties to submit simultaneous briefs
on this issue, which they have now done.
The work product doctrine protects from discovery materials “prepared in
anticipation of litigation or for trial by or for another party or its representative.” Fed. R.
Civ. P. 26(b)(3). There are two types of protected work product. Non-opinion work
product “includes raw factual information” and “is not discoverable unless the party
seeking discovery has a substantial need for the materials and the party cannot obtain the
substantial equivalent of the materials by other means.” Baker v. Gen. Motors Corp., 209
F.3d 1051, 1054 (8th Cir. 2000). Opinion work product, which includes “counsel’s
mental impressions, conclusions, opinions or legal theories” is afforded “almost absolute
As an initial matter, there appears to be no dispute that the underlying third-party
documents in this case were not prepared in anticipation of litigation by another party or
its representative. As such, the documents themselves are not protected by the work
product doctrine. Fed. R. Civ. P. 26(b)(3); see also Wright & Miller, 8 Fed. Prac. &
Proc. Civ. § 2024.
But opposing counsel’s “process of selecting and compiling documents in
preparation for litigation” may be protected by the work product doctrine. Shelton v. Am.
Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986). In Shelton and another case relied
upon by Defendants, Sporck v. Peil, 759 F.2d 312, 315 (3d Cir. 1985), “the issue was not
so much whether the work product doctrine shielded counsel from producing certain
documents . . . ; rather, the issue was whether counsel was obliged to identify from
voluminous discovery materials those discrete documents that the attorney had selected
for review with his client in advance of deposition . . . . or that an attorney specifically
recalled as existing in her client’s files.” In re Grand Jury Subpoenas Dated Mar. 19,
2002 & Aug. 2, 2002, 318 F.3d 379, 385 (2d Cir. 2003) (citing Sporck, 759 F.2d at 313;
Shelton, 805 F.2d at 1326). Indeed, in Shelton, the third-party documents themselves had
already been produced in the ordinary course of discovery. See Shelton, 805 F.2d at 1327
(noting that defense counsel “indicated more than once that the [third-party] documents
about which [the plaintiff’s] counsel was inquiring had been previously produced”). The
case “[did] not involve [defense counsel’s] refusal to produce the documents inquired
about by plaintiffs’ counsel. And [the defendant did] not contend that the documents
themselves . . . [were] protected as work product simply because those documents [ended
up] in the possession of [defendant’s] Litigation Department.” Id. at 1328. Instead,
defense counsel objected to deposition questions directed to an attorney’s recollection of
those documents because that recollection would “be limited to those documents . . .
selected as significant and important with respect to [the attorney’s] legal theories.” Id.
The Eighth Circuit found that protection under the work product doctrine was necessary
in this regard, to avoid exposure of the attorney’s mental impressions. Id. at 1329. In
other words, protection was necessary in light of the legitimate “concern that counsel’s
thought processes in relation to pending or anticipated litigation [would] be exposed
through disclosure of the compiled documents.” In re Grand Jury Subpoenas Dated
Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d at 386.
Upon review of the parties’ briefs and the record in this case, the Court believes
that here, too, the discovery at issue is protected by the work product doctrine because
there is a legitimate concern that counsel’s thought processes would be revealed through
disclosure. Defendant Cotter Corporation quotes Plaintiffs’ requests for production as
requesting, for example, “all documents received by You or Your counsel pursuant to a
Freedom of Information Act (FOIA) request regarding any Radioactive Material and/or
its effect on the human population.” (Doc. No. 341 at 1.) This is exactly the kind of
request for wholesale production that the Court previously suggested would
impermissibly intrude into opposing counsel’s thought processes relating to this
litigation. As such, the Court believes that the request asks for protected work product,
and the Court will not compel production.
As to the Historical Society documents, it appears that these documents were not
the subject of any written request for production, but that Plaintiffs inquired whether such
documents were collected by Defendants and if so, whether Defendants intended to
produce those documents. As discussed above, the Court believes that such a request for
wholesale production of the strategically collected Historical Society documents would
impermissibly intrude into defense counsel’s thought processes.
Additionally, even if the third-party documents are responsive to previously
served discovery requests, the Court believes that there is a legitimate concern that
disclosure at this stage would impermissibly intrude into opposing counsel’s thought
processes. At the status conference, Defendants stated that their document productions in
response to Plaintiffs’ previously served discovery requests were substantially complete.
If the third-party documents are responsive to those previously served requests, and
Defendants were compelled to produce them now as a supplemental production, it may
be the functional equivalent of a wholesale production, which again would reveal their
opinion work product. Moreover, the Court questions Plaintiffs’ motives in seeking the
documents at this stage. “[W]here a request is made for documents already in the
possession of the requesting party, with the precise goal of learning what the opposing
attorney’s thinking or strategy may be, even third-party documents may be protected.” In
re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d at 385.
Plaintiffs admittedly have equal access to the publicly available1 third-party documents
The public availability of the documents also makes their discoverability under
Rule 26(b)(1) questionable. See Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of the issues at stake in
the action, the amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery outweighs its likely benefit.”)
and have undertaken their own efforts to collect such public records. As such, there is
little need to obtain the documents from Defendants, except to learn their strategic
Of course, Defendants must timely supplement their Rule 26(a) disclosures to the
extent any documents not previously disclosed fall within the scope of Fed. R. Civ. P.
IT IS HEREBY ORDERED that Plaintiffs’ request for production of documents
that Defendants’ attorneys collected from the State Historical Society of Missouri
(“Historical Society”) and those obtained from defense counsel’s Freedom of Information
Act (“FOIA”) requests is DENIED.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 8th day of March, 2016
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