The opinion of the court was delivered by: JAMES KELLY, Senior District Judge
Presently before the Court is a Motion to Compel Discovery filed by
Plaintiffs Jose Vargas ("Vargas") and Jennifer Brennan ("Brennan")
(collectively, "Plaintiffs") seeking discovery of the contents of an
investigative file created and maintained by Defendant Palm Management
Corporation d/b/a The Palm Restaurant ("Defendant") in its internal
investigation of Plaintiffs' complaints of unlawful workplace
discrimination. Defendant refuses to produce the contents of the
investigative file on the basis that its contents were prepared in
anticipation of litigation and, thus, protected from discovery by the
work-product doctrine. Plaintiffs, however, contend that they, in
accordance with Federal Rule of Civil Procedure 26(b)(3) which provides
for discovery of materials prepared in anticipation of litigation, have
made a showing of substantial need and are otherwise unable to obtain the
substantial equivalent of those materials without undue hardship. For the
following reasons, Plaintiffs' Motion to Compel is GRANTED IN
PART and DENIED IN
After having filed a charge of discrimination with the Pennsylvania
Human Relations Commission and the United States Equal Employment
Opportunity Commission, Plaintiffs initiated suit in this Court on July
22, 2003 asserting claims for hosfile work environment racial
discrimination and retaliation. Plaintiffs, both employed as servers for
Defendant's restaurant in Philadelphia, allege that they began a romantic
relationship in October 2001, and that the manager of the restaurant,
Alex Plotkin ("Plotkin") engaged in a pattern of discrimination against
them because he disapproved of their inter-racial relationship.
Approximately three months later, on or about January 4, 2002, Plotkin
both terminated Vargas from employment and suspended Brennan for a period
of two weeks. Contemporaneously with his termination, Vargas complained
to company management that his termination was the result of unlawful
discrimination by Plotkin. Brennan similarly complained to company
management about her suspension. From Defendant's responses to
Plaintiffs' discovery requests, it appears that Defendant conducted an
internal investigation, creating an investigative file, after Plaintiffs'
January 4, 2002 complaints of unlawful managerial conduct.
In the matter before this Court, Plaintiffs propounded Interrogatories
and Requests for Production of Documents seeking the contents of that
investigation's file from Defendant. Defendant refused to provide the
file's contents, responding that the materials requested were prepared in
anticipation of litigation and that Plaintiffs have failed to make the
requisite showing of substantial need as required by Rule 26(b)(3).*fn1
The work-product doctrine protects the materials prepared by an
attorney or his or her agent in anticipation of litigation or for use in
trial. See Hickman v. Taylor, 329 U.S. 495
, 510-11 (1947). Its
purpose is to encourage careful and thorough preparation for litigation
by a party's attorney. See United States v. Nobles,
422 U.S. 225
, 238 (1975). The work-product doctrine has been codified in
Federal Rule of Civil Procedure 26(b)(3), which provides in pertinent part
a party may obtain discovery of documents and
tangible things otherwise discoverable under
subdivision (b)(1) of this rule and prepared in
anticipation of litigation or for trial by or for
another party or by or for that other party's
representative . . . only upon a showing that
the party seeking discovery has substantial need
of the materials in the preparation of the party's
case and that the party is unable without undue
hardship to obtain the substantial equivalent of
the materials by other means.
Fed.R.Civ.P. 26(b)(3). Thus, the work-product privilege provides
a qualified immunity that depends on the information being sought and the
adversary's need for the information, see Hickman, 329 U.S. at
512; Nobles, 422 U.S. at 238, and which qualified immunity can
be overcome only by a showing of extraordinary circumstance. See
Sporck v. Peil, 759 F.2d 312
, 316 (3d Cir. 1985). Even if the party
seeking discovery of information otherwise protected by the work-product
doctrine has made the requisite showing of need and undue hardship,
must still protect against the disclosure of mental impressions,
conclusions, opinions, or legal theories of an attorney and his or her
agents. Fed.R.Civ.P. 26(b)(3); In re Cendant Corp. Sec.
Lit., 343 F.3d 658
, 663 (3d Cir. 2003).
The burden of establishing that the work-product doctrine applies rests
with the party asserting the objection. Stabilus v. Haynsworth,
Baldwin, Johnson & Greaves, P.A., 144 F.R.D. 258, 267-68 (E.D.
Pa. 1992). A general, unspecified objection to discovery requests on the
ground of work-product is insufficient and improper. Id. at
268. In determining whether the work-product doctrine applies, the
appropriate inquiry is "whether in light of the nature of the document
and the factual situation in the particular case, the document can fairly
be said to have been prepared or obtained because of the prospect of
litigation." Martin v. Rally's Park Place Hotel & Casino,
983 F.2d 1252, 1258 (3d Cir. 1993). It is well-settled that a
determination on whether a privilege applies is made on a case-by-case
basis and not on the basis of a blanket assertion. Stabilus,
144 F.R.D. at 268.
Here, Defendant fails to identify the specific documents, or even the
nature of the documents, alleged to be protected by the work-product
doctrine. Defendant also fails to provide any factual support for its
assertion of the privilege such that the Court is able to analyze whether
indeed the contents of the investigative file were "prepared or obtained
because of the
prospect of litigation." See id. (quoting In re
Grand Jury Proceedings (FMC Corp.), 604 F.2d 798, 803 (3d Cir.
Instead, Defendant argues that Plaintiffs have failed to make a proper
showing pursuant to Rule 26(b)(3), for example, that witnesses
knowledgeable about the internal investigation are unavailable for
interview by Plaintiffs. To attack a claim of privilege, a party must
establish a substantial need for the documents and that they will suffer
an undue hardship attempting to obtain the documents by other means. Fed.
R. Civ. P. 26(b)(3); Runyan v. Sybase, Inc., Civ. A. No.
93-0368, 1993 U.S. Dist. LEXIS 13425, at *23-24 (E.D. Pa. Sept. 16,
1993). While Plaintiffs have also not provided any factual support for
their conclusory assertion that they would be unable to secure the
information they seek without undue hardship, it is nevertheless the
party objecting to the production of documents that has the burden of
establishing the existence of the privilege in the first instance.
See Runyan, 1993 U.S. Dist. LEXIS 13425, at *24;
Stabilus, 144 F.R.D. at 267.
For these foregoing reasons, Plaintiff's Motion to Compel is
GRANTED IN PART and DENIED IN PART in that Defendant
SHALL, within ten days of the date of this Order, answer
Plaintiffs' Interrogatory No. 5 and Document Request No. 14 to the extent
that the contents of the investigative file were not prepared or
obtained because of the prospect of litigation and, if applicable, state
with specificity its reasons for asserting the work-product doctrine.
In the unlikely event that the parties are unable to agree on this
discovery matter and require additional relief from this Court,
appropriate papers consistent with this Memorandum and Order ...