May 2, 2008

A U.S. district court held that documents reviewed by witnesses in preparation for deposition are not protected by the work-product privilege.

In re Seroquel Prods. Liab. Litig., 2008 WL 215707 (M.D. Fla. Jan. 24, 2008).

The U.S. district court overseeing multidistrict litigation against the manufacturer of the atypical antipsychotic drug Seroquel held that documents reviewed by witnesses in preparation for depositions are not protected by the work-product privilege.

During depositions, defendant’s corporate representatives refused to answer questions requesting the identity of documents they reviewed in preparation for the depositions. Plaintiffs moved to compel discovery of the documents, citing as an example the deposition of a 20-year employee who testified that she had met with defense counsel and reviewed about 50 documents before the deposition. When plaintiffs’ counsel asked about the kind of documents she reviewed, defense counsel objected, invoking the attorney-client privilege. In response to plaintiffs’ motion to compel, defendant argued that the collection of documents used to prepare witnesses is protected work product under Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985). There, the Third Circuit Court of Appeals held that the selection and compilation of documents in preparation for pretrial discovery is protected opinion work product.

Granting plaintiffs’ motion, the court noted that the Eleventh Circuit has not adopted Sporck. Instead, courts have applied a balancing test on a case-by-case basis to reconcile the competing interests of the need for full disclosure and the need to protect the integrity of work product. The test considers whether (1) witness coaching has occurred, (2) the documents reviewed constitute “factual” or “opinion/core” work product, or (3) the request constitutes a fishing expedition.

The court reasoned the fact that the only documents reviewed by the employee during six days of preparation were approximately 42 documents out of more than 15,000 exclusively selected by counsel suggests the substitution of the lawyer’s judgment for the witness’s recollections. Noting that defendant has not provided the documents in camera or otherwise and does not claim that, individually, they are factual or opinion/core work product, the court concluded defendant failed to carry its burden of proving the documents are work product. 

Documents in this case are available through the Exchange, courtesy of plaintiffs' counsel.

Read the full case abstract in the May issue of the Products Liability Law Reporter. For a subscription to PLLR, subscribe online or call the Membership Department at (202) 965-3500. AAJ members who subscribe are automatically enrolled in the Products Liability Section which includes online access to current and back issues of the Products Liability Law Reporter.