The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER RE ATTORNEY CLIENT PRIVILEGE & WORK PRODUCT
The Court has before it DuPont's motion to compel plaintiffs to produce improperly withheld documents. The Court has completed its in camera inspection of the documents and will deny the motion for the reasons explained below.
To establish an attorney client privilege, plaintiffs have the burden of proving each element of the following eight-element test: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived. U.S. v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009). The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney. Upjohn Co. v. United States, 449 U.S. 383, 395 (1981).
The work product doctrine, codified in Rule 26(b)(3), protects "from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation." In re Grand Jury Subpoena, 357 F.3d 900, 906 (9th Cir. 2004). To be protected under this Rule, the documents "must have two characteristics: (1) they must be prepared in anticipation of litigation or for trial, and (2) they must be prepared by or for another party or by or for that other party's representative." In re Grand Jury Subpoena, 357 F.3d 900, 907 (9th Cir.2004).
At the same time, Rule 26 requires a party to disclose in discovery information "considered by" testifying experts. See Fed.R.Civ.P. 26. The plaintiffs have retained economist Cornelius Hofman and his firm GEC to provide expert testimony on plaintiffs' damages. All parties agree that if plaintiffs' counsel shared otherwise privileged or protected documents with Hofman and his team at GEC, any protection would be waived to the extent Hofman considered the documents.*fn1 See Bro-Tech Corp. v. Thermax, Inc., 2008 WL 356928, at *2 (E.D. Pa. 2008), order modified, 2008 WL 724627 (E.D. Pa. 2008) ("[T]he disclosure requirements of Rule 26(a)(2)(B), as amended, concerning disclosure of information considered by a party's expert override all claims of attorney-client privilege.").
Finally, a "commonly-used procedural method for determining whether information should be protected or revealed to other parties" is an in camera inspection. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1136 n. 6 (9th Cir.2003) (stating that "we rely in the first instance upon the district court conducting the in camera inspection to assess critically the arguments of the party opposing disclosure"). The Court ordered an in camera inspection under this authority.
With these standards in mind, the Court turns to a review of the factual background.
The hard copies of the documents at issue stack about a foot high. The plaintiffs prepared a log briefly summarizing the documents and asserting a claim for each document based on either the attorney client privilege or the work product doctrine. The defendants responded by filing the present motion, arguing, among other things, that the log contained insufficient detail to allow them to challenge the claim of privilege and work product.
On December 16, 2010, the Court directed plaintiffs to produce the documents to the Court for an in camera inspection. Plaintiffs complied on December 21, 2010, dividing the documents into four categories. The Court has reviewed the documents in camera, and this decision is based on that review.
The first category of documents is largely a summary of health insurance payments with no relationship to this case. On their face, these documents are not relevant under Rule 26 and hence not discoverable. DuPont recognized this and withdrew their request for these documents. The fourth category contained documents that plaintiffs previously produced and hence are no longer at issue. This leaves for resolution the issue whether the documents in categories two and three are protected by the attorney client privilege or the work product doctrine.
The Court will begin its review by summarizing briefly the general subject matter of documents contained in categories two and three. Category two contains documents prepared by plaintiffs' attorneys requesting information from the plaintiffs, principally asking for a detailed damage estimate. The requests appear to be largely made in 2002, before the lawsuit was filed. Category three contains the plaintiffs' responses to the request for a damage ...