The opinion of the court was delivered by: Magistrate Judge Carlson
This matter comes before the Court on a dispute over Plaintiffs' request that Defendants produce advance copies of any non-bates numbered documents that Defendants intend to use as exhibits during the depositions of Opt-In Deponents.*fn1
Defendants declined Plaintiffs' request, asserting that the documents that they selected and identified for possible use as exhibits during depositions constituted protected attorney work product that did not need to be revealed prior to the introduction of the exhibit at the deposition. Unable to reach an agreement on this issue, the parties submitted letter briefs to the Court outlining their respective positions. (Docs. 398, 399.)
II. SUMMARY OF THE PARTIES' POSITIONS
In support of their request, Plaintiffs observe that Defendants had made available in warehouses throughout the United States millions of pages of documents that may pertain to each Opt-In Deponent's employment, and Plaintiffs contend that the documents were kept -- and produced -- in utter disarray. (Doc. 375.) Plaintiffs also note that Defendants had represented that they were producing the documents in this fashion because they did not want to undertake the time and expense required to cull through the warehoused documents and produce a smaller quantity of documents in a more customary manner. Although Plaintiffs considered complaining to the Court about the form of production, they agreed instead to commence review in the interest of avoiding delays in the discovery process. Nevertheless, Plaintiffs claim that they later learned Defendants' counsel had copied a total of more than 953,000 documents from the initial production, out of which documents were to be selected for the depositions of Opt-Ins. None of these documents have been bates numbered. Plaintiffs now contend that they "have no idea whether the non-bates-numbered documents being used at deposition were made available at the warehouse." (Doc. 398, at 2.)
Plaintiffs concede that the identity of documents selected by lawyers for use at depositions are generally protected as attorney work product. (Id.) (citing Sporckv. Peil, 759 F.3d 312 (3d Cir. 1985)). However, Plaintiffs argue that given the circumstances of the document production in this case, they should be provided advance copies of the potential deposition exhibits because they have "a substantial need for the materials to prepare [their] case and cannot, without undue hardship, obtain their substantial equivalent by other means." (Id., at 3) (quoting Fed. R. Civ.P. 26(b)(3)(A)(ii)).
In response, Defendants assert that Plaintiffs' request is disingenuous and should be denied. Defendants complain that Plaintiffs insist on their request for advance copies of potential deposition exhibits, despite the fact that: Plaintiffs have given no specific reason to believe that non-bates labeled documents were not part of the store document production that Plaintiffs reviewed; Plaintiffs could have imaged and bates labeled all of the documents Defendants produced, but chose not to do so; Plaintiffs rejected Defendants offer to provide them with the barcode number of the box in which any non-bates labeled document was located, which Plaintiffs could then cross-check against their own index of the barcoded boxes that Plaintiffs reviewed; and Plaintiffs rejected Defendants effort to allow Plaintiffs to obtain bates-labeled copies of the more than 953,000 pages that Defendants selected from the store documents production.
More fundamentally, Defendants contend that they should not be compelled to produce documents that Defendants' counsel have selected from the more than 953,000 pages that might be used as exhibits at depositions because these materials classify opinion work product of counsel -- material that is afforded "an almost absolute protection from discovery." (Doc. 399, at 5) (quoting Sporck, 759 F.2d at 316.) Alternatively, Defendants argue that even if the documents identified as possible deposition exhibits are classified only as fact-based, rather than opinion work product, they should still be protected from advance disclosure because Plaintiffs cannot demonstrate substantial hardship and lack of ability to obtain the documents by other means. In this regard, Defendants note that Plaintiffs have had complete access to the very same documents from which Defendants' selections were made, and Plaintiffs made their own discovery selections from among these documents, which were thereafter imaged, bates labeled, and provided to them on disc.
Thus, Defendants maintain that Plaintiffs are seeking to invade the mental processes and strategy of Defendants' counsel by obtaining advance copies of documents that Defendants' counsel may use at depositions. Defendants argue that being required to provide copies of the requested documents 72 hours prior to a deposition would further risk allowing Plaintiffs' counsel to confer with an Opt-In deponent about questions that might be asked, and thereby undermine the integrity of the deposition process.
We have carefully considered the parties' respective letter briefs, and we have further discussed this issue with counsel during two phone conferences on July 1, 2011, and July 22, 2011. As we informed the parties during the latest phone conference, the Court sees the current dispute somewhat differently than do the parties, and will enter an order that provides for a middle ground between their respective positions.
As a threshold matter, although the Court recognizes that Sporck is binding precedent within the Third Circuit, and that the case stands for the proposition that a lawyer's compilation of non-protected documents during the course of discovery, solely for use in preparing that lawyer's witnesses for deposition, constitutes opinion work product that is afforded "almost absolute protection from discovery." Sporck, 759 F.2d at 316; see also Rhone-Poulenc Rorer, Inc. v. Home Indemnity Co., 32 F.3d 851, 866 (3d Cir. 1994) ("[E]fforts to obtain disclosure of opinion work product should be evaluated with particular care.").*fn2 Defendants contend that the very same rule should apply in the instant action, even though the discovery at issue is not intended to remain private, but will manifestly be produced to Opt-In Deponents and Plaintiffs' counsel during the course of depositions. Thus, unlike in Sporck, where the documents that counsel had identified and used to prepare witnesses were never to be revealed to opposing counsel, Defendants do not dispute that they will be producing the documents to counsel and the witnesses during the ...