United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: RENEWED MOTION TO COMPEL
PRODUCTION OF DOCUMENTS (DOCKET ENTRY # 52)
Marianne B. Bowler United States Magistrate Judge
before this court is the remaining portion of a renewed
motion to compel filed by defendant Woodland Golf Club of
Auburndale (“defendant”). (Docket Entry # 52).
After production of a privilege log by plaintiff Robert Lobel
(“plaintiff”), the parties continued to dispute
production of documents by Gerald Chervinsky
(“Chervinsky”) in response to a deposition
subpoena (Docket Entry # 38-1) requesting all documents
between Chervinsky and Kenneth Fishkin, Esq.
(“Fishkin”), i.e., request number six in the
subpoena. Plaintiff objects to production on the basis of the
work product doctrine. After conducting a hearing on December
15, 2016, this court took the remaining portion of the motion
(Docket Entry # 52) under advisement.
with the facts is presumed. Jurisdiction is based on a
federal question (Docket Entry # 1, ¶ 7(a)), 28 U.S.C.
§ 1331, and federal law controls the parameters of the
work product doctrine. Le v. Diligence, Inc., 312
F.R.D. 245, 247 (D.Mass. 2015); S.D. Warren Co. v. E.
Elec. Corp., 201 F.R.D. 280, 282 (D.Me. 2001).
work product doctrine protects documents prepared by or for a
party or by his “attorney if, ‘in light of the
nature of the document and the factual situation in the
particular case, the document can be fairly said to have been
prepared or obtained because of the prospect of
litigation.'” Mississippi Public Employees'
Retirement System v. Boston Scientific Corp., 649 F.3d
5, 31 n.24 (1st Cir. 2011). As stated in
Fed.R.Civ.P. 26(b)(3), “Ordinarily, a party may not
discover documents” prepared in anticipation of
litigation “by or for another party or its
representative (including the other party's attorney,
consultant, surety, indemnitor, insurer, or agent).”
Fed.R.Civ.P. 26(b)(3). The “party asserting the . . .
work product privilege, ” plaintiff, “bears the
burden of showing that the privilege applies.”
Vicor Corp. v. Vigilant Ins. Co., 674 F.3d 1, 17
(1stCir. 2012); 58 Swansea Mall Drive, LLC v.
Gator Swansea Prop., LLC, 2016 WL 6669311, at *1
(D.Mass. Nov. 7, 2016) (party claiming attorney client and
work product privileges “bears burden of establishing
both protections”); Le v. Diligence, Inc., 312
F.R.D. at 247 (“[d]efendants, who are invoking the
privilege, bear the burden of establishing” that work
product privilege applies). A party may overcome the
privilege by showing “that it has substantial need for
the materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other
means.” Fed.R.Civ.P. 26(b)(3)(A).
language of Rule 26(b)(3) protects documents prepared
“by or for another party or its
representative.” Fed.R.Civ.P. 26(b)(3) (emphasis
added). Consequently, work product protection extends
“to documents and things prepared for litigation or
trial by or for the adverse party itself or its agent.”
8 Charles Alan Wright et al., Federal Practice and
Procedure § 2024 (3rd ed. 2016); see
Szulik v. State Street Bank and Trust Co., 2014 WL
3942934, at *3 (D.Mass. Aug. 11, 2014) (rejecting argument
that document prepared by plaintiff “cannot be work
product because it was not prepared under the direction of an
attorney, or to assist the attorney-rather, it was prepared
to assist” plaintiff, the deponent).
the doctrine is “intensely practical, grounded in the
realities of litigation in our adversary system.”
United States v. Nobles, 422 U.S. 225, 238 (1975).
“One of those realities is that attorneys often must
rely on the assistance of investigators and other agents in
the compilation of materials in preparation for trial.”
Id.; see Sprague v. Director, Office of
Workers' Compensation Programs, U.S. Department of
Labor, 688 F.2d 862, 870 (1st Cir. 1982).
Hence, “documents and reports prepared by agents of the
attorney, ” such as investigators, as well as by
“the party he represents, ” are protected.
Pacamor Bearings, Inc. v. Minebea Co., Ltd., 918
F.Supp. 491, 514 (D.N.H. 1996). Chervinsky, as a non-party,
however, cannot invoke and assert the privilege. See In
re Student Finance Corp., 2006 WL 3484387, at *9 (E.D.
Pa. Nov. 29, 2006) (“language of Rule 26(b)(3)
protecting only parties' work product precludes
non-parties from asserting the privilege”); Abdell
v. City of New York, 2006 WL 2664313, at *2 (S.D.N.Y.
Sept. 14, 2006) (“‘non-party cannot invoke the
work-product immunity of Fed. R. Civ. P 26(b)(3) to withhold
documents created for the non-party's
benefit'”); Ramsey v. NYP Holdings, Inc.,
2002 WL 1402055, at *2 (S.D.N.Y. June 27, 2002) (same).
Likewise, unless Fishkin was acting as plaintiff's
attorney or otherwise in a representative capacity for
plaintiff, the same principle applies to documents prepared
by Fishkin for Chervinsky. See Abdell v. City of New
York, 2006 WL 2664313, at *2 (“Rule 26(b)(3) does
not protect materials prepared by lawyers for
work product reflecting the mental impressions, conclusions
or legal theories of a party's attorney or representative
receives heightened protection. See Fed.R.Civ.P.
26(b)(3)(B); Walker v. N.H. Admin. Office of the
Courts, 2013 WL 672584, at *4 (D.N.H. Feb. 22, 2013)
(pursuant to Rule “26(b)(3)(B), ‘opinion'
work-product qualifies for ‘greater protection'
than so-called fact work-product”) (citing Vicor
Corp. v. Vigilant Ins. Co., 674 F.3d at 18). Typically,
the doctrine does not extend to factual information. In
re Grand Jury Subpoena, 220 F.R.D. 130, 141 (D.Mass.
2004) (work product doctrine “does not typically extend
to the underlying facts contained within those
material[s]”). “When a factual document selected
or requested by counsel exposes the attorney's thought
processes and theories, ” however, “it may be
appropriate to treat the document as opinion work product,
even though the document on its face contains only
facts.” F.T.C. v. Boehringer Ingelheim Pharm.,
Inc., 778 F.3d 142, 151 (D.C. Cir. 2015), reh'g
denied (D.C. Cir. 2015), cert. denied, 136
S.Ct. 925 (2016). It is also true, however, that “not
every item which may reveal some inkling of a lawyer's
mental impressions . . . is protected as opinion work
product.” In re San Juan Dupont Plaza Hotel Fire
Litigation, 859 F.2d 1007, 1015 (1st Cir.
1988); accord F.T.C. v. Boehringer Ingelheim Pharm.,
Inc., 778 F.3d at 152 (quoting In re San Juan,
859 F.2d at 1015). Hence, “protection is warranted only
if the selection or request reflects the attorney's focus
in a meaningful, ” nonspeculative way. F.T.C. v.
Boehringer Ingelheim Pharm., Inc., 778 F.3d at 152;
In re San Juan, 859 F.2d at 1015 (level of
protection afforded opinion work product “is not
triggered unless disclosure creates a real, nonspeculative
danger of revealing the lawyer's thoughts”).
reach of the doctrine “turns on a balancing of policy
concerns.” U.S. v. Textron Inc. and
Subsidiaries, 577 F.3d 21, 26 (1st Cir.
2009). Policy concerns include facilitating “zealous
advocacy in the context of an adversarial system of justice
by ensuring that the sweat of an attorney's brow is not
appropriated by the opposing party.” In re Grand
Jury Subpoena, 274 F.3d 563, 574 (1st Cir.
2001) (citing Hickman v. Taylor, 329 U.S. 495, 511
(1947)); accord U.S. v. Textron Inc. and
Subsidiaries, 577 F.3d at 31 (Hickman stressed
danger of “discouraging sound preparation for a law
suit”). Even if an attorney prepares a document,
however, such documents and emails are protected only if the
work was done in anticipation of litigation. See U.S. v.
Textron Inc. and Subsidiaries, 577 F.3d at 30. Emails
prepared for “nonlitigation purposes” or
“that would have been created in essentially the same
form irrespective of the litigation'” do not
warrant protection. Id. “It is not enough to
trigger work product protection that the subject
matter of a document relates to a subject that might
conceivably be litigated.” Id.; see also
Pacamor Bearings, Inc. v. Minebea Co., Ltd.,
918 F.Supp. 491, 512 (D.N.H. 1996) (protection may extend to
documents prepared before litigation's commencement but
“‘there must be more than a remote possibility of
to the foregoing law and having reviewed Fishkin's
declaration, parts of which include legal argument, and
Chervinsky's deposition as well as the other evidence in
the record, the majority of the documents are not protected.
Turning to the time period of July and August 2014, simply
because the club denied plaintiff's use of a specialized
golf cart two years earlier in 2012 (Docket Entry # 66) does
not mean the club would automatically deny such use in July
2014. The July 17, 2014 email (document 1-3), prepared by
Fishkin and made before any denial by the club of what
Chervinsky described as a “reasonable compromise”
or resolution (Docket Entry # 66, ¶¶ 2, 4) (Docket
Entry # 53, Depo. pp. 44, 46, 58), was not made in
anticipation of litigation and is therefore subject to
production. During this time period, Chervinsky was
attempting to reach a reasonable compromise with the club.
Litigation was not anticipated and the documents Chervinsky
created were not prepared in anticipation of litigation.
Thus, although Chervinsky “expected there would
ultimately be legalities involved, ” in July and August
2014 he simply “wanted [plaintiff] to be able to play
golf with [him] at Woodland” and Chervinsky engaged in
his “own effort at what [he] thought at the time”
might “be a reasonable compromise” with the club.
(Docket Entry # 53, Ex. D, Depo. pp. 21-23, 44-46).
in light of the facts and circumstances, Chervinsky was
acting on his own so that he could be able to play
golf with his friend, plaintiff. As evidenced by
Chervinsky's deposition testimony, Chervinsky, who is not
an attorney, took it upon himself in July 2014 to find a
solution for his friend, plaintiff, to play golf at the
Woodland Golf Club of Auburndale. (Docket Entry # 53, Ex. D,
Depo. pp. 21, 45, 46). The inclusion of an attorney
(Fishkin), who played golf with plaintiff and Chervinsky and
was one of Chervinsky's “closest friends”
(Docket Entry # 53, Ex. D, Depo. p. 24), does not transform
the July and August 2014 emails Chervinsky sent to Fishkin
into attorney work product. See Walker v. N.H. Admin.
Office of the Courts, 2013 WL 672584, at *7
(attorney's “involvement, per se, did not convert
the Policy-driven investigation into a trial preparation
project, and nothing in the documents themselves suggests
that the documents assumed a different form or purpose
because of the prospect of litigation”). With respect
to each of the emails Chervinsky prepared during this time
period, plaintiff fails in his burden to show that Chervinsky
was acting on behalf of plaintiff or his attorney or
representative at the time Chervinsky prepared each email. At
this juncture, Fishkin was also not acting as plaintiff's
representative and there is insufficient evidence that any
attorney representing plaintiff was instructing or directing
Chervinsky or Fishkin to prepare documents or communications
because of the prospect of litigation between the club and
plaintiff. See id. Simply stated, in July and August
2014, Chervinsky was acting on his own and Fishkin was acting
as a friend and golfing partner. (Docket Entry # 53, Ex. D,
Depo. pp. 21, 23, 24, 45, 46, 58).
light of the above, Chervinsky's unsolicited,
self-generated “legal analysis” as well as other
thoughts and communications sent to Fishkin in and around
this time period is not work product and therefore is not
protected. Chervinsky did not generate documents 5-8, 9-10,
11, 12-15, 17, 20, 21-23, 24, 25-27, 36, 38 and 58-59 in the
privilege log (Docket Entry # 63-1) for plaintiff or by or
for plaintiff's attorney because of the prospect of
litigation. The email exchange denoted document 25-27 more
than likely consists of Chervinsky's unsolicited thoughts
and analysis communicated to Fishkin which were not made by
or for another party or his representative or prepared
because of the prospect of litigation. See generally In
re Grand Jury Subpoena, 220 F.R.D. at 140 (work product
“privilege's applicability must be demonstrated by
a fair preponderance of the evidence”).
analysis of the factual information in August 2014 regarding
other golf courses' positions as to the SoloRider, i.e.,
documents 33-35 and 37, is also not protected. These
documents are subject to production. Documents 18 and 19 more
likely than not consist of purely factual information which
is not the work of an attorney prepared or obtained because
of this litigation and, notably, plaintiff fails in his
burden to show otherwise. As such, these documents are
subject to production.
41-42 from Fishkin to Chervinsky is subject to production
inasmuch as plaintiff fails to show that it was created by or
for a party or his representative as well as prepared because
of the prospect of litigation. In addition, plaintiff did not
file the complaint until more than a year
later. (Docket Entry # 1). The same ruling
applies to document 50. All factual information in document
71-72 shall be produced whereas any legal analysis, strategy
or mental impressions by Attorney ...