SFEG CORP v. Blendtec, Inc.

Filing 45

MEMORANDUM OPINION OF THE COURT & ORDER: The undersigned Magistrate Judge finds that Blendtec's 20 motion to compel production of the affidavit of Brandon Rogers should be DENIED. Signed by Magistrate Judge John S. Bryant on 5/13/16. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
SFEG CORP.,
Plaintiff
v.
BLENDTEC, INC., doing
business as BLENDTEC,
Defendant

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No. 3:15-0466
Judge Trauger/Bryant
Jury Demand

MEMORANDUM AND ORDER
Defendant Blendtec, Inc. (“Blendtec”) has filed its
motion to compel production of signed affidavit pursuant to Rule 26
of the Federal Rules of Civil Procedure (Docket Entry No. 20).
Plaintiff SFEG Corp. (“SFEG”) has responded in opposition (Docket
Entry No. 22) and Blendtec has filed a reply (Docket Entry No. 25).
For the reasons stated below, the undersigned Magistrate
Judge finds that Blendtec’s motion to compel production of the
subject affidavit should be denied.
STATEMENT OF THE CASE
SFEG has filed this action seeking to recover funds
allegedly due and owing for parts manufactured by SFEG and supplied
to Blendtec pursuant to a contract between the parties (Docket
Entry No. 1-1). Blendtec has filed an answer and counterclaim in
which it asserts that the parts supplied by Plaintiff SFEG were
“defective, of inferior quality and unsuitable for their intended
purpose” (Docket Entry No. 15 at 2).

SUMMARY OF FACTS PERTINENT TO BLENDTEC’S MOTION
The following facts appear to be undisputed by the
parties. Brandon Rogers is a former quality manager at Blendtec who
has knowledge of facts relevant to the issues in this case. Rogers
no longer works for Blendtec, and his employment was ended earlier
as part of a reduction in force (Docket Entry 21 at 1).
In response to a written interrogatory and a request for
production of documents served by Blendtec, SFEG has disclosed that
on April 9, 2015, after filing the complaint in this case, counsel
for

SFEG

interviewed

Rogers.

Counsel

took

notes

during

the

interview and later prepared a memorandum to the file. On April 24,
2015, counsel for SFEG spoke with Rogers and read to him a draft
affidavit. Rogers suggested some changes in the affidavit. On April
27, 2015, counsel for SFEG emailed Rogers the revised affidavit. On
July 13,

2015, after a follow-up by counsel for SFEG, Rogers

executed and returned the affidavit. Although SFEG has disclosed
the existence of the affidavit in discovery, SFEG has objected to
its production based upon the attorney work product doctrine
(Docket Entry No. 21 at 2-3).
ANALYSIS
Rule 26(b)(1) of the Federal Rules of Civil Procedure
provides generally that parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or
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defense and proportional to the needs of the case. The attorney
work product doctrine in federal cases is expressed in Rule
26(b)(3), which states in pertinent part as follows:
(A) Documents and Tangible Things. Ordinarily, a party
may not discover documents and tangible things that are
prepared in anticipation of litigation or for trial by or
for another party or its representatives (including the
other party’s attorney, consultant, surety, indemnitor,
insurer, or agent). But, subject to Rule 26(b)(4), those
materials may be discovered if: (i) they are otherwise
discoverable under Rule 26(b)(1); and (ii) the party
shows that it has substantial need for the materials to
prepare its case and cannot, without undue hardship,
obtain their substantial equivalent by other means.
(B) Protection Against Disclosure. If the court orders
discovery of those materials, it must protect against
disclosure of the mental impressions, conclusions,
opinions, or legal theories of a party’s attorney or
other representative concerning the litigation.
In order to come within the qualified immunity from
discovery created by Rule 26(b)(3), the material must be (1)
documents and tangible things, (2) prepared in anticipation of
litigation or for trial, (3) by or for another party or by or for
that other party’s representative. Wright, Miller & Marcus, 8
Federal Practice & Procedure, § 2024 at 494 (3d ed. 2010). Here, it
appears undisputed that the affidavit of Brandon Rogers that is the
subject

of

Blendtec’s

motion

satisfies

these

three

threshold

requirements. It is clearly a document prepared in anticipation of
litigation or for trial by SFEG’s lawyer.

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In support of its motion, Blendtec makes two arguments.
First, it argues that the signed Rogers affidavit is not attorney
work product but instead is evidence containing the witness’s own
statement. The parties have cited no controlling authority in the
Sixth Circuit on the question whether an affidavit of a nonparty
witness prepared by counsel following an interview of the witness
can be attorney work product. Moreover, there appears to be a split
of authority among district courts on this issue. One line of
cases, said to be the majority and relied upon by Blendtec, holds
that a third party’s affidavit, once signed by the affiant, is no
longer attorney work product as a matter of law. See, e.g., Basaldu
v. Goodrich Corp., 2009 WL 1160915 (E.D. Tenn. Apr. 29, 2009);
Murphy v. Kmart Corp., 259 F.R.D. 421, 428-33 (D.S.D. 2009);
Trustees of the Plumbers & Steam Fitters Local No. 43 Health &
Welfare Fund v. Crawford, 573 F. Supp.2d 1023, 1028-29 (E.D. Tenn.
2008); Tuttle v. Tyco Electronics Installation Svcs., Inc., 2007 WL
4561530 (S.D. Ohio Dec. 21, 2007); Infosystems, Inc. v. Ceridian
Corp., 197 F.R.D. 303, 306-07 (E.D. Mich. 2000). These cases hold
that “once a witness signs an affidavit the affidavit becomes a
statement of facts within the personal knowledge of the witness,
and not an expression of the opinion of counsel.” Tuttle, 2007 WL
4561530 at *2 (quoting Infosystems, 197 F.R.D. at 304).

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Another line of cases take a different view. These cases
hold

that

when

a

lawyer

interviews

a

nonparty

witness

and,

following the interview, prepares an affidavit for that witness
based upon questions asked and responses given in the interview,
the contents of that affidavit almost certainly will reveal “the
mental impressions, conclusions, opinions, or legal theories” of
the lawyer, deserving of work product doctrine protection. Rule
26(b)(3)(B). See, e.g., Abell v. Babbitt, 176 F.3d 488 (10th Cir.
1999) (unpublished); D.O.H. v. Lake Central School Corp., 2015 WL
1538804 at *8-13 (N.D. Ind. Apr. 7, 2015); Enos-Martinez v. Bd. of
County Commissioners, 2012 WL 1079442 at *2-3 (D. Colo. Mar. 30,
2012); 1100 West, LLC v. Red Spot Paint & Varnish Co., 2007 WL
2904073 (S.D. Ind. May 18, 2017); Lamer v. Williams Communications,
LLC, 2007 WL 445511 (N.D. Okla. Feb. 6, 2007); Intel Corp. v. VIA
Technologies, Inc., 2004 F.R.D. 450 (N.D. Calif. 2001).
The undersigned Magistrate Judge is persuaded by the
reasoning of this latter line of cases. The affidavit sought by
Blendtec in the present motion is the end product of a process
initiated, carried forward, and completed by SFEG’s trial counsel.
Counsel conducted the interview of the witness, chose the topics
for inquiry, and thereafter prepared notes from the interview. From
these notes, counsel later drafted an affidavit for the witness.
Counsel almost certainly included in this draft affidavit those
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facts

that

counsel

deemed

significant

to

the

legal

theories

applicable to the case. Significantly, courts generally, including
those that would deny work protection to a signed affidavit, have
found that “information relevant to the evolution of an affidavit,
including

but

not

limited

to

communication

with

the

counsel

relating to the affidavit, prior drafts of the affidavit, and any
notes made by counsel while engaging in the process of drafting the
affidavit” are all protected by the work product doctrine. Tuttle,
2007 WL 4561530 at *2 (citing Infosystems, 197 F.R.D. at 307 n.4
and United States v. University Hospital, 2007 WL 1665748 (S.D.
Ohio 2007)). Therefore, if an affidavit draft is protectable as
work product because its contents disclose “the mental impressions,
conclusions, opinions, or legal theories of a party’s attorney,”
the character of such disclosure is not somehow changed at the
moment the witness signs the affidavit. For this reason, the
undersigned Magistrate Judge finds that the affidavit of Brandon
Rogers sought by Blendtec here is work product within the meaning
of Rule 26(b)(3)(a).
Blendtec’s second argument is that even if this affidavit
is attorney work product, Blendtec nevertheless is entitled to
production of the affidavit because it has made the showing
required by Rule 26(b)(3)(A)(i) and (ii). This rule provides that
the court may order the production of attorney work product if the
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party seeking production “shows that it has substantial need for
the materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.” The
undersigned finds that Blendtec has made no such showing here.
From the record it appears that Brandon Rogers is a
former employee of Blendtec. The record fails to contain any
evidence that Blendtec has attempted to interview Rogers or to
obtain his discovery deposition. There is no indication in the
record that Rogers is unavailable to Blendtec, or that he is unable
to provide to Blendtec information about what he knows about the
facts of this case. In the absence of such evidence in the record,
the undersigned finds that Blendtec has failed to make the showing
required by the rules to be entitled to the production of this
affidavit. Therefore, the undersigned Magistrate Judge concludes
that “[i]f the Defendant wants to know what a potential witness
knows, or what his or her testimony would be if deposed or called
at trial, defense counsel . . . can conduct their own interview and
obtain their own affidavit; they are not entitled to ride upon the
coattails of Plaintiff’s counsel.” D.O.H., 2015 WL 1538804 at *12
(quoting 1100 West, 2007 WL 290403 at *2).

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CONCLUSION
For the reasons stated above, the undersigned Magistrate
Judge finds that Blendtec’s motion to compel production of the
affidavit of Brandon Rogers should be DENIED.
It is so ORDERED.

/s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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