Parties Can’t Pick and Choose What’s Privileged or Not

Electronically Stored Information (ESI) is far more than communications sent between parties; a party’s investigators can also create ESI. In a lawsuit brought by PETA against at a zoo for the treatment of animals under the Endangered Species Act, the Defendants sought photos and videos surreptitiously recorded, and related investigatory reports. People for the Ethical Treatment of Animals v. Tri-State Zoological Park of W. Md., 2018 U.S. Dist. LEXIS 123470, (D. Md. July 23, 2018).

The Plaintiff produced responsive discovery they planned to use at trial, however, they withheld material they did not plan to use on the claim it was produced by the work product doctrine.  The Defendants challenged the withholding of the information, claiming the discovery was not work product, and if it was, the privilege had been waived.

Work product can be two different kinds of animals: opinion or fact.

Opinion work product is the “…actual thoughts and impressions of the attorney,” is more “scrupulously protected,” and “enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.” Tri-State Zoo, at *6-7 citing Grand Jury Subpoena v. United States, 870 F.3d 312, 316 (4th Cir. 2017).

Fact work product is “transaction of the factual events involved” and “may be obtained upon a mere ‘showing of both a substantial need and an inability to secure the substantial equivalent of the materials by alternate means without undue hardship.’” Tri-State Zoo, at *6-7 citing United States v. Under Seal (In re Grand Jury Proceedings), 102 F.3d 748 (4th Cir. 1996). Opinion work product has greater protection than fact work product by Federal Courts. Id.  

To see how the case was resolved, please visit the CaseFleet Blog. 

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.