United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. ZWART UNITED STATES MAGISTRATE JUDGE.
matter is before the court on Defendant Union Pacific
Railroad's Motion to Compel, (Filing No. 90).
For the reasons discussed below, the motion will be denied.
Defendant's request for further relief is denied without
prejudice to refiling.
Guillermo Herrera III filed this action alleging he was
injured from heat exposure on July 26, 2015. A representative
of Plaintiff's attorney - investigator K. Sean Dillon -
interviewed Union Pacific employees Logan Newman, Dennis
Dickison, Jeremy M. Marsing, and Branden H. Bradley. The
interviews were audio-recorded by Dillon. Dillon then
prepared a narrative summary of the respective interviews and
presented a copy of the summary to each witness for the
witness' review and signature. The employee witnesses
were allowed to make corrections to their narrative
summaries. However, Defendant alleges the Union Pacific
employee witnesses were not provided with a full transcript
of their respective statements prior to reviewing and signing
their narrative summaries.
the four Union Pacific employee witnesses were deposed. At
the depositions, Plaintiff's counsel provided each
deponent with his signed narrative statement and referred to
the deponent's statement throughout the course of the
deposition. Counsel for the defendant had not seen the
statements prior to the depositions. Defendant moved for the
production of the original audio recordings of the interviews
with each of the Union Pacific employees. Plaintiff asserts
the audio recordings are protected by the work product
doctrine and Defendant has not shown it cannot, without undue
hardship, obtain the substantial equivalent to the recordings
by other means.
Plaintiff has now revealed that the original audio recordings
no longer exist. That is, counsel states they were
inadvertently deleted off of the phone of the investigator
who completed the interviews on behalf of Plaintiff. In light
of this information, Defendant seeks an order forbidding
Plaintiff from using the statements as evidence or as a means
of refreshing the respective witness' recollection.
Defendant also seeks an order striking those deposition
portions for which the the Union Pacific employee or
Plaintiff's counsel relied upon the written statements.
the work product doctrine “[o]rdinarily, 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 representative.” Fed.R.Civ.P. 26(b)(3)(A).
“There are two kinds of work product - ordinary work
product and opinion work product.” Baker v. General
Motors Corp., 209 F.3d 1051, 1054 (8th Cir. 2000).
Ordinary work product consists of factual information.
Id. Opinion work product includes an attorney's
mental impressions and legal theories of the case.
Id. The court may order production of ordinary work
product if the party seeking the information demonstrates a
substantial need for the materials and the inability to
obtain the information without undue hardship. Id.
But opinion work product “enjoys almost absolute
immunity and can be discovered only in very rare and
extraordinary circumstances, such as when the material
demonstrates that an attorney engaged in illegal conduct or
unable to show of substantial need and undue hardship, a
party may be entitled to the opposing party's work
product if counsel has waived the protection. In Pittman
v. Frazer, the 8th Circuit explained:
If documents otherwise protected by the work-product rule
have been disclosed to others with an actual intention that
an opposing party may see the documents, the party who made
the disclosure should not subsequently be able to claim
protection for the documents as work product. But disclosure
of some documents does not destroy work product protection
for other documents of the same character.
Pittman, 129 F.3d 983, 988 (8th Cir. 1997)(quoting
Wright & Miller § 2204 at 209).
intentional disclosure of work product is made, the
protection is made as to other undisclosed communication or
information only if (1) the waiver was intentional; (2) the
disclosed and undisclosed communications or information
concern the same subject matter; and (3) they ought in
fairness to be considered together.” Fed. R. Cic. P
502(a); Schwarz v. City of Treasure Island, case no.
8:05cv1696, 2010 WL 11474978 at *1 (M.D. Fla., October
Pacific demands production of the audio recording underlying
the written summaries, explaining it has a substantial need
for the recordings and Plaintiff waived any work product
protection by providing the interview summaries to the
witnesses for reference during their depositions. Plaintiff
argues Defendant has full access to the witnesses and could
interview them at any time, particularly since they are all
Union Pacific employees. Plaintiff does not address the work
product waiver argument.
by openly using the interview summaries at the depositions,
Plaintiff voluntarily disclosed contents of his interview
with the Union Pacific employee witnesses. To the extent
those summaries are work product, Plaintiff voluntarily
waived that protection. The more difficult question is