The opinion of the court was delivered by: JAMES MUNLEY, District Judge
Presently before the Court for disposition is a discovery
dispute wherein Plaintiff Elaine Morrell ("Morrell") seeks to
compel production of a letter written by Attorney Sean
McDonnough, former attorney for Defendant Borough of Throop,
George Marushock, Daryl Menichetti, Cindy Blanchard, and Susan
Shortz (collectively "the defendants"). The defendants object to
the production of this letter on the grounds that it is protected
by the attorney work product doctrine. This matter has been fully
briefed and is ripe for disposition. For the following reasons we
find that the work product doctrine protects this letter from
discovery.
In the instant suit, Morrell alleges that Defendant Borough of
Throop ("Borough") terminated her employment in violation of her
First Amendment rights. The Borough employed Morell as an
administrator for twelve years. In January 2004, Defendants
George Marushock, Daryl Manichetti, Cindy Blanchard, and Susan
Shortz (" the individual defendants") took office, and comprised the majority of the Borough Council.
Thereafter, the Borough Council terminated three employees,
Stanley Gongliewski, Ronald Bukowski, and Lenore Dolan, who had
previously openly opposed the individual defendants in their bid
for election. These former employees filed suit in federal court
against the Borough and the individual defendants in Gongliewski
v. Throop, 04cv246.
In June 2004, during discovery in the Gongliewski case,
Plaintiff was compelled to submit to a deposition. Three weeks
after this deposition, Plaintiff was terminated without notice.
Plaintiff alleges that the defendants terminated her employment
because her deposition testimony was adverse to their interests
in Gongliewski.
After the depositions in Gongliewski concluded, the
defendants' attorney, Sean McDonough, sent a letter to the
defendants' insurance carrier. This letter summarized each
witness' testimony, including Morrell's. Morrell seeks to
discover the portion of this letter describing her testimony. She
notes that Louis Cimini, the borough solicitor, was copied on the
letter, and he has testified that he forwarded all correspondance
as a matter of course to the defendants. Therefore, Morrell would
argue that the defendants received the contents of the letter at
issue, and would have knowledge of the substance of her
deposition testimony. The defendants argue that the letter is
protected by the work product doctrine.
The work product doctrine is codified in Federal Rule of Civil
Procedure 26 ("Rule 26") as follows:
a party may obtain discovery of documents and
tangible things otherwise discoverable . . . and prepared in anticipation of
litigation for trial by or for another party of by or
for that other's party's representative (including
the other party's attorney, consultant, surety,
indemnitor, insurer, or agent) only upon a showing
that the party seeking discovery has substantial need
of the materials in 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. In ordering discovery of such
materials when the required showing has been made,
the court shall protect against disclosure of the
mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a
party concerning the litigation.
FED. R. CIV. P. 23(b)(3).
If materials prepared in anticipation of litigation were
discoverable,
much of what is now put down in writing would remain
unwritten. An attorney's thoughts, heretofore
inviolate, would not be his own. Inefficiency,
unfairness and sharp practices would inevitably
develop in the giving of legal advice and in the
preparation of cases for trial. The effect on the
legal profession would be demoralizing. And the
interests of the clients and the cause of justice
would be poorly served.
Hickman v. Taylor,
329 U.S. 495, 511 (1947).
Morrell argues that the letter does not include Attorney
McDonough's "mental impressions, conclusions, opinions, or legal
theories" and thus does not merit the heightened protection of
Rule 26(b)(3). Following our in camera review, we disagree. The
letter does not merely summarize Morrell's testimony, but a few
portions of the letter provide Attorney McDonough's mental
impressions of the testimony and his conclusions.
The remaining portions of the letter, however, merely provide a
summary Morrell's testimony. With regard to these portions,
Morrell argues that the work product doctrine does not apply
because, within the meaning of Rule 26(b)(3), she has a
"substantial need" for the information and "is unable without
undue hardship to obtain the substantial equivalent of the materials by other means." She argues that the letter "may help"
to demonstrate that the defendants had knowledge of the contents
of her deposition testimony and they have no other method of
obtaining this evidence. We disagree.
Based on our in camera review of the letter, Morrell cannot
show that she is unable to obtain the factual recitations of the
letter through other means without undue hardship. Indeed, the
letter merely summarizes her own testimony; facts which, by
definition, she already knows. Thus, Morrell does not argue that
she needs the facts contained in the letter. Instead, she argues
that she needs the fact that the letter existed, contained a
summary, and eventually unveiled her deposition testimony to the
defendants. She argues "the factual recitation in the McDonough
Letter may help to establish this timeline." (Pl. Br. at 4). Her
speculation that otherwise protected attorney work product "may
help" her prove her case is insufficient to establish substantial
hardship. Morrell has not demonstrated that she cannot establish
her timeline through other means, or that without the letter
itself she will be unable to demonstrate that the defendants knew
of the contents of the letter. Thus, we find Morrell has not
satisfied her burden to show that the work product doctrine does
not apply to this letter.
Finally, Plaintiff argues that we should apply a judicial
exception to the work product doctrine. They argue that courts
have made an exception for "evidence directly relevant to the
claims at issue before the Court." Rhone-Poulenc Rorer, Inc. v.
Home Indem. Co., No.CIV.A. 88-9752, 1993 WL 106429, at *15 (E.D.
Pa. Mar. 30, 1993). This exception, created by the district court
in Rhone-Poulenc, was specifically rejected by the court of
appeals in the same case. "Relevance is not the standard for
determining whether or not evidence should be protected from disclosure as privileged, and that remains the
case even if one might conclude the facts to be disclosed are
vital, highly probative, directly relevant or even go to the
heart of an issue." Rhone-Poulenc Rorer v. Home Indemnity Co.,
32 F.3d 851, 863 (3d Cir. 1994). Therefore, we find no judicial
exception to the work product rule exists for relevant or vital
evidence.
Thus, we conclude that a portion of the letter contains mental
impressions and as such is absolutely protected by the work
product doctrine. Morell has failed to make the requisite showing
of "substantial need" and "undue burden." Thus, attorney Sean
McDonough's letter is protected by the work product doctrine and
is non-discoverable. However, we caution that our ruling does not
extend to protect the fact that such a letter existed, that Sean
McDonough sent a letter containing a summary of Morrell's
deposition testimony, or that the defendants received or had
knowledge of this letter. "Rule 26(b)(3) itself provides
protection only for documents and tangible things and . . . does
not bar discovery of facts a party may have learned from
documents that are not themselves ...