Sporck v. Peil
759 F. 2d 312, 84 A.L.R. Fed. 763 (1985)
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Rule of Law:
The selection and compilation of otherwise discoverable documents by counsel for the purpose of preparing a witness for a deposition is protected 'opinion work product' under Federal Rule of Civil Procedure 26(b)(3). An opposing party may not discover the identity of the compiled documents through a general request, but must instead lay a specific foundation under Federal Rule of Evidence 612 by first eliciting testimony and then asking whether the witness relied on any specific documents for that testimony.
Facts:
- Raymond K. Peil alleged that National Semiconductor Corporation (NSC) and its executives, including president Charles F. Sporck, conspired to artificially inflate the value of NSC stock.
- Peil alleged this allowed Sporck and NSC's chairman to sell their personal shares at inflated prices.
- The alleged misconduct, including misrepresentations and nondisclosures, occurred over an eight-month period from July 1976 to March 1977.
- During discovery, NSC produced hundreds of thousands of documents to Peil's attorneys.
- In preparation for Sporck's deposition, defense counsel selected an unknown number of these documents and compiled them in a folder.
- Defense counsel showed this selected group of documents to Sporck to prepare him for his deposition testimony.
- At the start of the deposition, Sporck testified that he had examined documents in preparation for his testimony.
Procedural Posture:
- Raymond K. Peil filed a securities fraud class action suit against National Semiconductor Corporation and Charles F. Sporck in the U.S. District Court.
- During the deposition of defendant Sporck, plaintiff's counsel orally requested identification of all documents Sporck had reviewed in preparation.
- Defense counsel refused to identify the group of documents, asserting the selection was protected attorney work product.
- Plaintiff Peil filed a motion in the trial court to compel production and identification of the documents.
- The U.S. District Court judge granted plaintiff's motion to compel.
- Upon defendant's motion for reconsideration, the district court judge reaffirmed the order compelling production.
- Defendant Sporck (petitioner) sought a writ of mandamus from the U.S. Court of Appeals for the Third Circuit to compel the trial court to vacate its discovery orders.
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Issue:
Does a trial court commit a clear error of law by ordering the identification of a group of documents selected by counsel from a larger pool of discovery to prepare a witness for a deposition, where the selection process itself is claimed to be protected opinion work product?
Opinions:
Majority - James Hunter, III
Yes, the trial court committed a clear error of law. The selection and compilation of documents by counsel in preparation for a deposition constitutes highly-protected opinion work product. The court reasoned that the selection process itself reveals counsel’s mental impressions, legal opinions, and strategy regarding the litigation, which is the core of what the work product doctrine, established in Hickman v. Taylor and codified in Fed. R. Civ. P. 26(b)(3), is designed to protect. The court held that Fed. R. Evid. 612, which allows for the production of documents used to refresh a witness's memory, does not override this protection without a proper foundation. To lay a proper foundation, the deposing attorney must first elicit specific testimony from the witness and only then inquire as to which documents, if any, informed that particular testimony. A broad, initial request for all documents reviewed in preparation is improper because it fails to establish that the witness actually used any document to refresh memory for the purpose of testifying on a specific point.
Dissenting - Seitz
No, the ruling constitutes an impermissible expansion of the work product doctrine at the expense of legitimate discovery. The dissent argued that the request sought only the objective fact of which documents were reviewed, not the attorney's thought processes. It is a significant leap to assume that one could reverse-engineer an attorney's complex legal strategy merely by knowing which documents a witness reviewed. The dissent contended that the potential for revealing true opinion work product was 'miniscule' and that a party cannot cloak discoverable facts in work product protection simply by volunteering that an attorney was the one who selected the documents. Furthermore, the dissent believed that a discovery dispute of this nature, which involves the trial court's discretion, is not appropriate for the extraordinary remedy of a writ of mandamus.
Analysis:
This case significantly strengthens the protection afforded to opinion work product by extending it to an attorney's process of selecting and compiling evidence. It establishes that the strategic choice of what to emphasize from a large volume of materials is itself a mental impression deserving of near-absolute protection. The decision prevents litigants from gaining a shortcut into their opponent's strategy by simply asking for their deposition preparation materials. For future cases, it mandates a more disciplined and focused approach to depositions, requiring attorneys to use their own skill to connect specific testimony to specific documents, rather than making broad, categorical demands for curated materials.
