Court Denies Plaintiff’s Motion to Compel After Finding Defendant’s Video Recording of Witness was Attorney Work Product

4 Mar 2023

In CHANEY v. KEEGO HARBOR POLICE DEPT., Case No. 21-11662 (Jan. 5, 2023, Mich.), before the court was Plaintiff’s motion to compel.

Plaintiff filed this civil rights matter on July 16, 2021. Plaintiff alleged violations of the Fourth and Fourteenth amendments to the United States Constitution and tort claims under Michigan law pursuant to a July 14, 2021, interaction between Defendant and Plaintiff.

Counsel for defendant interviewed Ms. Kelly Turner on Aug. 11, 2021, because she allegedly witnessed the events at issue in this suit. Plaintiff asserted that T. Joseph Seward, counsel for Defendant, recorded this interview and made notes contemporaneously as Turner gave her statement.

Plaintiff asserted he requested production of Mr. Seward’s recording “on multiple occasions” and Defense counsel has “refused and objected, and claim[ed] that that the statement and notes are attorney work product.”

Plaintiff argued that the recorded statement and notes are not attorney work product and are, therefore, discoverable. Plaintiff suggested defendant may argue that the same information could be obtained by other means, but this was mitigated because “Plaintiff ha[d] very good reason to believe that there is content within Turner’s statements that further support Plaintiff’s claims that Plaintiff would not know of without a copy of the witnesses’ audio recorded statement and the notes thereof.”

In response, Defendant argued Plaintiff’s motion should be denied because Plaintiff did not comply with local rules related to discovery since Plaintiff did not make a proper discovery request required by local rule 37.2. Local Rule 37.2 requires a party to submit a verbatim recitation or copy of the discovery request at issue, but according to Defendant, Plaintiff did not serve a request for the recording.

Similarly, Defendant contended that Plaintiff’s motion was improper under the Federal Rules of Civil Procedure because motions to compel are authorized where a deponent fails to respond under Rule 31 or 31, a corporation fails to make a designation under Rule 30, a party fails to answer an interrogatory under Rule 33, or a party fails to produce documents under Rule 34, none of which occurred here.

Defendant argued that there was no basis for the motion to compel as Plaintiff did not submit interrogatories to Defendant and Plaintiff’s only set of Requests to Produce did not mention Ms. Turner. Defendant asserted KHPD provided Ms. Turner’s contact information and Plaintiff may conduct their own discovery of Ms. Turner. Finally, Defendant contended Plaintiff did not demonstrate under the relevant framework that he was entitled to Defendant’s work product prepared in anticipation of litigation.

Plaintiff filed a reply brief on this issue on Aug. 18, 2022, and raised the same arguments as in his motion to compel and argued that Defendants were under an affirmative duty to provide the recording without a discovery request under Fed. R. Civ. P. 26(a)(1)(A)(ii).

Per Federal Rule of Civil Procedure Rule 26(a)(1)(A)(ii), “a party must, without awaiting a discovery request, provide to the other parties. . . a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.”

To cure any failure to comply with local rule 37.2, Plaintiff provided the language used in Plaintiff’s First Request for the production of documents: “Please provide a copy of any and all dispatch tapes/recordings, body cam footage, and or records pertaining to the stop, question and/or detention of Brian Chaney on or around July 14, 2021.”

Federal Rule of Civil Procedure 26(b) controls the scope of discovery and it provides that for good cause shown parties may discover any subject matter, not privileged, that is relevant to a claim or a defense in the action. Fed. R. Civ. P. 26(b).

To determine whether a document was prepared “in anticipation of litigation” and constitutes protected work product, the Sixth Circuit explained that the court should begin with a two-part analysis into “(1) whether that document was prepared `because of” a party’s subjective anticipation of litigation, as contrasted with ordinary business purpose; and (2) whether that subjective anticipation was objectively reasonable.” In re Pros. Direct Ins. Co., 578 F.3d 432, 439 (6th Cir. 2009).

Materials protected by the work-product doctrine may still be ordered disclosed where the requesting party establishes it has a substantial need for the materials and cannot obtain equivalent information through other means without undue hardship.

Plaintiff, however, argued the Court should consider that:

documents and recordings which do not represent an attorney’s judgments and theories are not protected by the work-product doctrine. A recording of a witness’s statement does not constitute work product because verbatim recordings do not contain the types of ‘mental impressions, conclusions and opinions’ typically protected by the work product doctrine.

Zimmerman v. Wells Fargo Advisors, LLC, No. 15-CV-14311, 2016 WL 11601249, at *3 (E.D. Mich. Feb. 8, 2016).

The Court noted that other courts have failed to engage in analysis of whether these witness interview constituted trial preparation materials – a failure which “seems to be a departure from the express procedure set forth in Fed. R. Civ. P. 26(b)(3)[.]”. The Court noted the result was a much-muddled field of law related to what is considered trial preparation materials, what was considered work product, what was fact work product, and what was opinion work product. 

The initial discoverability of trial preparation materials “[did] not turn upon the degree to which those materials reflect mental impressions, conclusions, or legal theories of a party’s attorneys or other representative concerning the litigation. Id. All trial preparation materials prepared in anticipation of litigation are governed by Rule 26(b)(3)(A) and are “generally not discoverable. And, that is true whether the recordings contain attorney mental impressions or whether they do not.” Id.

Only after materials are classified as trial preparation materials should the court turn to whether an exception applies because the statements are relevant and the defendants have “substantial need for the materials to prepare [their] case and cannot, without undue hardship, obtain their substantial equivalent by other means.” (Fed. R. Civ. P. 26(b)(3)(A)(ii)); Mitchell, 329 F.R.D. at 181.

Here the interview of Ms. Turner occurred after the suit had been filed. Defendants submitted an affidavit that the purpose of the interview with Ms. Turner “was to seek information, in preparation for trial,” which demonstrated their subjective anticipation of litigation.

Because this suit was already pending when the interview occurred, the Court determined the party’s subjective anticipation was objectively reasonable. The recording was thus a material prepared in anticipation of trial and was work product. Because the recording did not contain mental impressions or trial strategy characteristic of opinion work product, the recording was fact work product.

Fact work product is subject to qualified privilege that may nevertheless be ordered disclosed where the requesting party establishes it has a substantial need for the materials and cannot obtain equivalent information through other means without undue hardship. Fed. R. Civ. P. 26(b)(3)(A).

Here, there was no showing of undue hardship because Plaintiff had Ms. Turner’s contact information and may obtain the same information through other means. Plaintiff did not advance any argument on why they face undue hardship.