Document baBrYLQ5MYnqkk2yoQYgNGmKk

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION L. 3 THE CITY OF BLOOMINGTON, INDIANA et al., Plaintiffs v WESTINGHOUSE ELECTRIC CORPORATION and MONSANTO COMPANY, Defendants. ) ) ) ) CAUSE NO. IP 83-9-C ) (formerly IP 81-448-C) ) ) > ) ) ) MONSANTO'S BRIEF IN OPPOSITION TO CITY'S FIRST MOTION TO COMPEL (PRIVILEGED DOCUMENTS AND WORK PRODUCT) On or about. September 2, 1987, plaintiff City of Bloomington ("the City") filed a motion to compel production of documents which defendant Monsanto Company ("Monsanto") has withheld from production on claim of attorney-client privilege and work product immunity and to compel disclosure of any indexes of documents relating to PCBs. Soon after the filing of that motion, the Court stayed further proceedings. Pursuant to the briefing schedule approved by the Court, Monsanto now files this brief in opposition to the City's motion. Background and Context Prior to the filing of the City's motion to compel the City had served five requests for production of documents directed HARTOLDMON0029460 018 8 n to Monsanto. In addition, the City's counsel have made oral requests for documents during depositions. Monsanto objected to many requests on the grounds of lack of relevance, overbreadth, and undue burden, but has produced approximately 12,000 of pages of documents in response to particular requests or to the unobjectionable portions of overbroad requests. Monsanto's approach to resolving discovery disputes with the City has been colored by its experience that the City's counsel have repeatedly sought to expand disputed discovery rather than to compromise and narrow disputes and by its perception that the City's counsel has sometimes sought to impose a discovery burden for burden's sake. For example, in 1982 the City served its third document request listing 176 categories, many of which described documents already produced. The City's counsel insisted that Monsanto respond to that request even though all other proceedings were being stayed by agreement. Monsanto invested time and effort to identify and collect the documents and served its response in October 1982. The City's counsel then ignored the response and did not come to look at the documents until 1986. Similarly, the City recently repeatedly insisted upon Monsanto's production of its insurance policies for the 20 year period of sales to the Westinghouse plant even though financial capacity is not at issue and great burden was involved. When Monsanto eventually collected and offered the policies, the City's -2- HARTOLDMON0029461 0188n counsel did not want to look at them. Given its experience, Monsanto has sought to make sure that the City's counsel is truly and legitimately interested in matters of discovery before undertaking burdens to respond. , Procedural Adequacy of Assertion of Privilege Among other objections, Monsanto raised the general objection as to each request served by the City that it would not produce documents protected from discovery by the attorney-client privilege or by the work product doctrine. The City argues that Monsanto's assertion of privilege and work product protection has not been adequate to preserve the issue and that the protections have therefore been unintentionally waived. The City's position is, of course, hypocritical. The City has not produced documents containing communications between its counsel and City employees and, has edited documents before production to delete allegedly privileged or work product information, and has declined to produce its own counsel's notes, memos, and other work product. Yet the City has never served a written objection asserting privilege or work product protection in response to Monsanto's requests, much less supplied all the detail the City now says is required for preserving the issue. the City is attempting to put forth a standard of conduct for Monsanto -3HARTOLDMON0029462 Q188n which its own counsel has declined to follow in reciprocal discovery. The standard asserted by the City's counsel must therefore be considered very suspect. The City appears to argue that a party must present a full-blown detailed description of privileged documents at the time a privilege is first asserted or the privilege is forever waived. The law is not so demanding and wasteful. Common practice and the rules of this Court recognize that discovery can be and should be a supplemental process wherein information can be supplied in stages as needed to resolve disputes if and when they arise. Monsanto first asserted the attorney-client privilege and work product immunity in general terms, then has provided additional and more detailed information as requested by the City. Monsanto has described the protected documents in four categories: (1) documents containing communications between in-house counsel and corporate employees during the period of Monsanto's manufacture and sale of PCBs, (2) correspondence between Monsanto and its litigation counsel in this and other cases, (3) notes, memos, summaries, etc. prepared by litigation counsel or in-house counsel in connection with defense of litigation, and (4) Monsanto's litigation support document retrieval system. These categories of documents are routinely excepted from production in discovery by generic description, -4- HARTOLDMON0029463 0188n and in Monsanto's initial response it did not seem worthwhile to invest time in detailed description which would be, in most cases, unnecessary. When the City's counsel pursued the matter further, Monsanto provided a detailed list of withheld corporate counsel documents from the relevant time period relating to subject matters about which production was otherwise being made (category 1 above). Then Monsanto's counsel answered the City's further questions about the general subject matter of the listed documents and the corporate positions of the author and addressees of each document. Monsanto has not generated a list of post-litigation correspondence between litigation counsel and Monsanto or a list of each note, memo, summary, etc. prepared by its counsel in regard to pending litigation (categories 2 and 3 above). Although the City's counsel has refused to limit the scope of its requests, Monsanto has not interpreted the City's request to include such patently protected documents. A requirement that a listing of all lawyer-client litigation correspondence and all pages of lawyer's notes is to be generated and turned over to an opposing counsel is such an unsupportable burden, intrusion, and impediment to the conduct of litigation that no court would impose such an obligation nor could the City's counsel (who have not produced such lists) be deemed to have requested it. The only documents as to which which an issue of discoverability can be raised are documents generated in -5- HARTOLDMON0029464 OiSSn connection with advice by staff counsel outside the context of particular litigation which documents fall within the subject matters and time periods relevant to the conduct of Monsanto at issue in this case. Monsanto has listed and described the documents which would otherwise be within the scope of a document production Monsanto has agreed to make but which have been withheld from the production on claim of privilege.^ These are the only documents as to which more detailed information could be relevant to determination of discoverability. Similarly, the City's counsel was informed long before the filing of its motion that the only thing resembling an index of PCB-related documents in Monsanto's possession is a computerized litigation support system prepared, monitored, and used by Monsanto's counsel. Such a system is so obviously protected from discovery that further details were reasonably thought to be unnecessary for resolution of the dispute. The work product objection to disclosure of that system has been adequately made and preserved. lln August 1987, the City made a new request for internal Monsanto documents relating to testing of PCBs by Industrial Bio-Test Laboratories ("IBTH). Since Monsanto had not responded to the request at the time of the motion to compel, the request for internal IBT documents is not within the scope of the motion. Monsanto is compiling its response to this request and it is probable that there will be additional documents withheld on claim of privilege, which documents will be listed. -6- HARTOLDMON0029465 01.88n Before the filing of its motion to compel, therefore, the City had a list and description of non-litigation staff counsel documents withheld from previous subject matter productions and had been given a generic description of the litigation generated documents also excluded. The City had been informed of sufficient information to justify the application of the attorney-client privilege and work product protection asserted by Monsanto. There can be no basis for the City's assertion of waiver. The documents withheld are protected by the attorney-client privilege., The City's brief in support of the motion to compel is almost exclusively devoted to attempting to create a waiver of the attorney-client privilege. It devotes approximately two paragraphs and a footnote to the actual merits of application of the privilege to the documents listed by Monsanto. (Brief at 12-13.) The City cites only two cases (one of which is not even an attorney-client privilege case) in support of its assertion that the privilege is inapplicable to the listed Monsanto documents. Each of the documents which Monsanto has listed and asserted to be privileged is either a communication to a Monsanto in-house attorney by a Monsanto employee, a communication by an in-house attorney to a Monsanto employee or _7_ HARTOLDMON0029466 01.8811 employees, or a relaying of a communication received from in-house counsel by one Monsanto employee to another. The list (attached) identifies the attorney. The other names or copy addresses are all Monsanto management or corporate staff employees. Such communications fall clearly within the traditional application of the privilege. The City's attempts to limit the privilege to exclude some of the communications are not supportable. For example, it is well established that the privilege covers communications from the lawyer to the client as well as vice-versa. United States v. Amerada Hess Corn.. 619 F.2d 980, 986 (3d Cir. 1980); Green v. Internal Revenue Service, 556 F. Supp. 79, 85 (N.D. Ind. 1982) , aff1d mem., 734 F.2d 18 (7th Cir. 1984) . The corporate privilege is not limited to communications between attorneys and the highest officers of the corporation. Upjohn Co. v. United States. 449 U.S. 383, 390-97 (1981). The fact that several employees are recipients of a communication to or from corporate counsel does not waive the privilege or indicate absence of confidentiality, since the communication is not .2 being disclosed to someone outside the corporation. See 2The City apparently wants to impose upon Monsanto the burden of proving that no copy of the document was ever shown to a non-employee, even though neither the City nor Monsanto has any reason to believe that it was. Such a burden would, of course, be impossible to meet, especially when a plaintiff doesn't sue until as many as twelve years after the communications at issue. If the document discloses no intent for distribution outside Monsanto and no evidence or reason exists that such a distribution occurred, there is no basis for a finding that confidentiality has been waived or lost. -8- HARTOLDMONOQ29467 0188n James Julian, Inc, v. Raytheon Co.. 93 F.R.D. 138, 141-42 (D. Del. 1982). Finally, a memo by a corporate representative recording or summarizing a privileged communication is also privileged. Natta v. Zletz. 418 F.2d 633, 638 (7th Cir. 1969) . Each of the documents withheld by Monsanto is protected by these principles. The City* s motion to compel production of these documents should be denied. Monsanto's litigation support system is attorney work product B rp tect ed f r om.,,d i_s c,p v_e r The City requested "documents relating to any indexes maintained by Monsanto or its employees relating to any file directories or indexes relating to PCS sales, control, disposal, environmental contamination or health effects." First, it should be noted that Monsanto does not have any document which would be called an "index" or "directory" of PCB documents in the ordinary sense of those words. Monsanto has, however, responded to the apparent intent of the City* s request and has considered the request to seek what Monsanto has used in substitution for an index or directory: its computerized document retrieval and litigation support system. Monsanto's counsel informed the City's counsel prior to the motion to compel that the only "index" of documents was a computerized litigation support system created and administered -9- HARTOLDMON0029468 0188n by Monsanto's attorneys. Although that description should be satisfactory in itself to warrant protection under the work product doctrine and Fed. R. Civ. P. 26(b)(3), Monsanto attaches to this brief an affidavit of Thomas M. Bistline and a copy of the affidavits of Joseph G. Nassif, David M. Moore II, and Thomas M. Bistline filed last year in Scott v. Monsanto Co.. another PCB lawsuit, which affidavits supply details as to the creation and use of the litigation support system. (Production of the Monsanto system was not ordered in Scott.) The system was created during the pendency of the City's lawsuit in this Court, and assistance in the defense of the City's claim was one of the objects of the system. The City's claim for discovery of Monsanto's litigation support system is, again, based solely on an assertion that the work product privilege has been improperly claimed, not on the basis that the work product doctrine is inapplicable to the attorney-created system at issue. It is apparent that Monsanto's PCB litigation support system is protected from discovery. The system embodies the mental impressions, judgments, and work of Monsanto's attorneys. It falls clearly within the rationale of Hickman v. Taylor, 329 U.S. 495, 510-11 (1947): -10- HARTOLDMON0029469 0188n In performing his various duties . . . it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways -- aptly though roughly termed by the Circuit Court of Appeals in this case as the "work product of the lawyer.M Were such materials open to opposing counsel on mere demand, 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. Similarly, there can be no dispute that the system is within the scope of Rule 26(b)(3): it was "prepared in anticipation of litigation or for trial by . . . [the] other party's [Monsanto's] representative (including the other party's attorney . . .)." Under Rule 26(b)(3) and the work product doctrine, there are two tiers of protection against discovery. At the first tier, disclosure of any materials prepared for litigation may -11- HARTOLDMON0029470 0188n be ordered "only upon a showing that the party seeking discovery has a 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." The second and higher tier of protection covers materials which contain or reflect the "mental impressions, conclusions, opinions, or legal theories of an attorney." These materials, often called "opinion work product" are to be protected against discovery even when the substantial need and hardship criteria are met. Upjohn Co. v. United States. 449 U.S. 383, 401 (1981). As stated by the Fourth Circuit: [I]t is apparent that the clear command of the second sentence [of Rule 26(b)(3)] to "protect against disclosure" applies to all the materials referred to in the first sentence. In our view, no showing of relevance, substantial need or undue hardship should justify compelled disclosure of an attorney's mental impressions, conclusions, opinions or legal theories. This is made clear by the Rule's use of the term "shall" as opposed to "may." Puplan Corn, v. Moulinage et Retorderie de Chavonoz, 509 F.2d 730, 734 (4th Cir. 1974), cert, denied. 420 U.S. 997 (1975); see also In re Murphv. 560 F.2d 326, 336 (8th Cir. 1977) ; accord. Tronitech. Inc. v. NCR Corp,, 108 F.R.D. 655, 656 (S.D. Ind. 1985) (Magistrate Godich). -12- HARTOLDMON0029471 0188n The inherent nature of a litigation document control system implicates this second tier of immunity from discovery. The affidavits attached merely confirm the inevitable involvement of attorney opinions, theories, and impressions in the process of creating such a system. The selection and organization of documents has long been recognized as opinion work product. As stated in Sporck v. Pei1. 759 F.2d 312, 316 (3d Cir.), cert. denied. 474 U.S. 903 (1985): Opinion work product includes such items as an attorney's legal strategy, his intended lines of proof, his evaluation of the strengths and weaknesses of his case, and the inferences he draws from interviews of witnesses. . . . Such material is accorded an almost absolute protection from discovery because any slight factual content that such items may have is generally outweighed by the .adversary system.' s interest in maintaining the privacy of an attorney's thought processes and in ensuring that each side relies on its own wit in preparing their respective cases. . . . We believe that the selection and compilation of documents by counsel in this case in preparation for pretrial discovery falls within the highly-protected category of opinion work product. See also. In re LTV Securities Litigation, 89 F.R.D. 595, 612 (N.D. Tez. 1981) ("To the extent documents are 'assembled' by or for a party or his representative into a meaningful product, the contents of that assemblage is work-product sheltered from disclosure.") -13- HARTOLDMON0029472 0188n Other district courts which have considered discovery- requests for litigation support indexes or systems prepared by attorneys have refused to order disclosure. In In re IBM Peripheral EDP Devices Antitrust Litigation, 5 Computer L. Serv. Rep. 878 (N.D. Cal. February 10, 1975) (LEXIS copy attached), the court said: 3. The trial support system created by IBM's counsel reflects their mental impressions, theories and thought processes, and the Court is not satisfied that information contained in that system can be segregated from such lawyers' mental impressions and theories. 4. To allow plaintiffs a more detailed description of the trial support system, or to allow - plaintiffs to make use thereof, would impinge on the right of IBM's counsel to organize material in the perspective they want to put it in, and to utilize such information in their trial preparation. Plaintiffs have failed to make a sufficient showing of need or urgency to justify such a result. Similarly, in Burwell v. Ford Motor Co.. Cause No. 81-2301, slip op. at 4 (D. Kans. Nov. 29, 1983) (slip opinion attached), the court denied production, saying: After review of the affidavit provided by defendant and the oral arguments of counsel for both parties, the court finds defendant's Litigation Support System should be given work product protection. The system is a document or tangible thing prepared by a party or the party's representative in anticipation of litigation. Rule 26(b)(3), F.R.Civ.P. -14- HARTOLDMON0029473 0188n In United States v. American Telephone & Telegraph Co., 642 F.2d 1285 (D.C. Cir. 1980), the D.C. Circuit accepted a district court's application of work product protection to MCI's litigation database and held such protection was not waived by MCI's disclosure of the database to the government in a parallel case. The court said: MCI claims that the database documents at issue in this case were prepared by or for MCI's attorneys specifically in anticipation of litigation in MCI's antitrust suit against AT&T in the Northern District of Illinois. On such facts the work product privilege would attach to the documents in the Northern District case and they could not be discovered by AT&T in that case without a showing of substantial need. 642 F.2d at 1298; see also id. at 1301 n.87 (reporting district court ruling that work product doctrine applied)i The City has not made any showing of need to overcome even the first tier of work product protection, much less a showing to justify consideration of disclosure of opinion work product. The City's only justification for seeking access to Monsanto's litigation support system is its complaint that Monsanto has responded to the City's document requests narrowly and as written instead of allowing a general fishing expedition under cover of overbroad document categories. City Brief at 8. Also, "City Plaintiffs need these indices to verify that Monsanto's prior production was complete." City Brief at 5. In sum, the City's counsel merely want to have access to the -15- HARTOLDMON0029474 0188n work product of Monsanto's counsel to avoid having to formulate particular document requests as required by Rule 34 and because they refuse to trust Monsanto's counsel to perform their duties. Neither "reason" justifies the intrusion into protected work product which has been sought. "Production of [work product] documents will not be ordered merely to help counsel prepare himself to examine witnesses and to make sure he has overlooked nothing." Hauaer v. Chicago, R.I. & P. R. R., 216 F.2d 501, 505 (7th Cir. 1954). The City has been able to discover the underlying PCB documents upon proper request under Rule 34 and remains able to do so. The document retrieval system is not itself evidence and the City has no real need for it at all, much less the extraordinary need which would be required even to raise an issue under Rule 26(b)(3) and the work product rule. The City's motion to compel disclosure of Monsanto's PCB litigation support system should be denied. Michael R. Fruehwald Barnes & Thornburg 1313 Merchants Bank Building 11 South Meridian Street Indianapolis, Indiana 46204 Telephone: (317) 638-1313 Attorneys for Defendant Monsanto Company -16- HARTOLDMON0029475 OlSSn CERTIFICATE OF SERVICE The undersigned attorney hereby certifies that a copy of "Monsanto's Brief in Opposition to City's First Motion to n Compel" has been served this ____ day of March, 1988, by placing a copy of same in United States mail, first class postage prepaid, addressed to: Joseph V. Karaganis, Esquire Karaganis & White, Ltd. 414 N. Orleans, Suite 820 Chicago, Illinois 60610 Geoffrey M. Grodner, Esquire One City Centre - Suite 100 Bloomington, Indiana 47401 Joseph B. Carney, Esquire Baker & Daniels 810 Fletcher Trust Building Indianapolis, Indiana 462044 Michael R. Fruehwald -17- HARTOLDMON0029476 Documents Withheld Under Claim of Privilege 6-19-87 Portion of Minutes of Meeting of Corporate Development Committee dated November 17, 1969, in section entitled "Organic Division, Law, and Medical Departments -- Report onPolychlorniated Biphenyls" (Dep. Ex. 387 on page 300 2434). The deleted portion is entitled "Legal Aspects - D. W. Miller." Memo from Elton L. French (Attorney) dated November 20, 1969 entitled "Control Program -- PCB." Memo dated May 13, 1970 from D. A. Olson to H. S. Bergen, cc: P.G. Benignus and N.T. Johnson, subject "Aroclor Contracts -- Westinghouse" (reports Olson's discussions with Phocian Park, staff attorney) Memo dated June 17, 1970 from P. S. Park (Attorney) to D. A. Olson, subj ect: "Westinghouse Contract New Article" Memo dated December 20, 1971 from John F. Stapleton, Attorney, to W. R. Corey, cc: R. D. Chapman, H. S. Bergen, R. C. Hellwig, P. S. Park, subject: "Customer Criteria -- Hold Harmless Agreements." HARTOLDMON0029477 Memo dated January 11, 1972 from W. B. Papageorge to John Stapleton, cc: 6 Monsanto employees, subject: MPCB Dielectrics." Memo dated January 14, 1972, from John F. Stapleton, Attorney, to W. R. Corey and E. J. Putzell, cc: 6 Monsanto employees, subject: "PCB/PCT.H Memo dated January 20, 1972, from John F. Stapleton, Attorney to W. R. Corey, cc: 8 Monsanto employees, subject: "PCB/PCT." Memo dated December 8, 1975, from J. R. Savage to W. W. Withers (Attorney), cc: T. Bottini, J. Zeman, subject: "Legal Questions - PCB Emergency Plan" Memo dated December 8, 1975, described above, with handwritten notes of meeting of W. Withers (Attorney), T. Bottini, J. Zeman, and J. R. Savage. -2- HARTOLDMONOQ29478 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION THE CITY OF BLOOMINGTON, INDIANA et al. , Plaintiffs v WESTINGHOUSE ELECTRIC CORPORATION and MONSANTO COMPANY, Defendants ) ) ) ) CAUSE NO. IP 83-9-C ) (formerly IP 81-448-C) ) ) ) ) ) ) AFFIDAVIT OF THOMAS M. BISTLINE Thomas M. Bistline, being first duly sworn upon his oath, states as follows: 1. My name is Thomas M. Bistline. I am an attorney licensed to practice in the State of New York. I am currently employed by defendant Monsanto Company in its litigation department. I have responsibility, among other things, for the management and supervision of litigation matters relating to the manufacture and sale of polychlorinated biphenyls by Monsanto Company. 2. I signed an affidvit dated February 26, 1987, which described my familiarity with and use of the computerized litigation support system developed by counsel for Monsanto HARTOLDMON0029479 4714n Company for use in defense of pending and anticipated polychlorinated biphenyls litigation. That affidavit was filed in the case of Cecil Scott. et al. v.- Monsanto Co., then pending in the United States District Court for the Eastern District of Texas as Cause No. B-84-1103-CA. A true copy of my affidavit and of the affidavits of Joseph G. Nassif and David M. Moore II, also submitted in the Scott case, is attached hereto. After the submission of these affidavits, Judge Joe J. Fisher denied, without opinion, plaintiffs' motion to compel disclosure of the litigation support system. 3. The statements made in my February 26, 1987, affidavit remain true to the date of this affidavit. In particular, the computerized litigation support system and related documents have been held entirely in confidence by counsel for Monsanto and their representatives working under their control and direction. The system and related documents have never been produced or otherwise made available in any litigation or to any person other than counsel for Monsanto or their direct representatives. Sworn to and subscribed before,me, a Notary Public in and for the State of Missouri, this 7^ day of March, 1988. My commission expires: Sh} ZR LBj CT. cUc/"3 (Printed) -2- HARTOLDMON0029480 2ND CASE of Level 1 printed in FULL format. PAGE 2 In Re IBM PERIPHERAL EDP DEVICES ANTITRUST LITIGATION, ILO PERIPHERALS LEASING CORPORATION, Plaintiff, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant, MEMOREX CORPORATION, Plaintiff, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant. MDL No. 163-RM United States District Court, Northern District California Slip Opinion February 10, 1975 OPINIONBY: McNICHOLS OPINION: Order Denying Motion To Compel Further Answers to Interrogatories Concerning the Trial Support System Used by IBM's Attorneys McNICHOLS, J. On December 2, 1974, plaintiffs filed certain interrogatories inquiring, inter alia, as to whether IBM had recorded documents demanded by them in any computerized system; On December 27, 1974, IBM supplied plaintiffs with a draft of its answers to said December 2, 1974 interrogatories. These draft answers were thereafter revised, and as revised were filed on January 21, 1975. Both the draft and the answers as filed stated, inter alia, that IBM had created no computerized system of the character described in plaintiffs' December 2, 1974 interrogatories, but that IBM's counsel have developed a computerized trial support system which includes summaries and analyses of certain of the IBM documents requested by plaintiffs in these actions; Pursuant to a schedule agreed to by the parties, plaintiffs moved on January 10, 1975, for an order compelling IBM to describe its attorneys' computerized trial support system with particularity. In said motion, plaintiffs stated that their ultimate intention was to seek an order entitling them to use said computerized trial support system to identify documents pursuant to search criteria designated by plaintiffs; On January 20, 1975, IBM filed a memorandum and affidavits of Charles M. Waygood and Nicholas deB. Katzenbach in opposition to plaintiffs' motion with respect to the computerized trial support system; Plaintiffs' motion to compel further answers regularly came on for hearing on January 24, 1975, and argument was heard from both sides. Now, therefore, the Court finds as follows: 1. The computerized trial support system developed by IBM's counsel and the material contained therein was prepared solely for litigation, and it was put in the computerized form so that it could be used in connection with litigation. 2. All documents and other materials referenced by the trial support system of IBM's counsel are available through normal discovery to the plaintiffs. LEX<IS NEXUS LEXUS NEXU! HARTOLDMONOQ29481 Slip Opinion PAGE 3 The trial support system in no way hides, destroys or deprives the plaintiffs of access to any evidence whatsoever. 3. The trial support ststem created by IBM's counsel reflects their mental impressions, theories and thought processes, and the Court is not satisfied that information contained in that system can be segregated from such lawyers' mental impressions and theories. 4. To allow plaintiffs a more detailed description of the trial support system, or to allow plaintiffs to make use thereof, would impinge on the right of IBM's counsel to organiie material in the perspective they want to put it in, and to utilize such information in their trial preparation. Plaintiffs have failed to make a sufficient showing of need or urgency to justify such a result. 5. Plaintiffs have failed to show that there are no alternate means available to them to obtain the equivalent information without undue hardship. 6. The Court will not exercise its discretion to compel disclosure of information from or about the trial support system simply, because it would be somewhat more convenient for plaintiffs if the Court did so. Based on the foregoing, it is hereby ordered that: IBM will not be required to make any further answer to plaintiffs' , ;Interrogatory No. 5 of December 2 1974 and Neither-IBM nor its attorneys will be required in further discovery proceedings in this litigation to divulge trial support proceedings sought to be reached in that form. LEX/S NEXUS LEXIS NEX<I! HARTOLDMON0029482 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS FILED ^ li jV 2 & 1983,' VERNON BURWELL V. FORD MOTOR COMPANY ) Plaintiff ) ) ) ) .) Defendant ) ARTHUR G. JOHNSON, OLE 0/----------------------------- QEPiCivil Action No. 81-2301 MEMORANDUM AND ORDER Under consideration in this products liability case is a single request for production which was part of a previous Motion to Compel (doc. 107). A ruling on plaintiff's Request for Production No. 7 was deferred to allow further briefing and argument on the issue. Request No. 7 asks for: Provide a hard copy printout and a tape copy (data to be in form accessible for file reorganizatiori/prir.tout) of each complete Ford computer data base of transmission/external . controls complaints from Ford, customer or ether sources, and relating in any way to achieving or maintaining a secured or centered transmission gear condition, or unintended vehicle movement. Note - The requested data base includes but is not limited to that containing the complaints used in the preparation of the computer statistical analyses bear ing Ford document codes CE-1039, CD-1040, CD-1041, CD1042, CD-1043, CD-1044, CD-1045, CC-1565, CC-1566 and that described in the deposition of Lee Carr in Huth v. Ford, Case No. 79-28878-NP Kent City. Cir. Ct. Mich.) It is specifically understood that the subject data base now contains additional entries not present at the time of preparation of the above analyses. Specify in complete detail the coding format and the record layout used in each requested copy. If the above described computer record is contained in more than one data base, then each such data base is re quested. :,oc;-rrl :o - \t,J!/ ii / 'Zrtr RECEIVED 1,0V 3 0 1983 IN DOCKET HARTOLDMONOQ29483 A hearing was neld on October 11, 1933. Defendant submitted.a sealed affidavit for in camera inspection by the court regarding Ford* s computerized Litigation Support System. Defendant objects the request is vague, ambiguous, overbroad and asks for material which is irrelevant and will not lead to admissible evidence. Defendant also asserts that the material is protected by the work product and self-critical analysis privilege and that the request asks for confidential trade secrets. Specifically, defendant states the request would include Ford's computer-based litigation support system which was developed to assist in litigation involving Ford and its products. Defendant contends this litigation support system should be giver, the protection of the qualified work product privilege. Defendant has provided the affidavit of Gerald W. Boston, Associate Counsel in the Litigation Department of the Office of the General Counsel of Ford Motor Company. Mr. Boston relates information regarding the purpose, development, contents and measures taken to protect the confidentiality of this litigation support system. Defendant cites the case of In re IBM Peripheral EDP Devices Antitrust Litigation, 5 Computer L.Serv. Rep. 878 (N.D. Cal. 1975) (copy attached as Exhibit B to doc. 116) in support of its position that its computer support system should be protected from discovery. Plaintiff counters the computer data base is the only means to digest the tremendous number of documents in Ford's possession. It is alleged that discovery of the data base' would allow for the just, speedy and inexpensive determination of this action which is mandated by Rule 1, F.R.Civ.P. -2- HARTOLDMON0029484 ' Plaintiff also argues defendant has not made a sufficient showing to establish the work product privilege applies. Plaintiff contends defendant has not shown the extent to which Ford's attorneys partici pated in preparing the data base and whether the data base was pre pared in anticipation of litigation or in the normal course of business. It is also argued that even if the work product privilege is de termined to be applicable, plaintiff has established: uhe subs rar.cial need and undue hardship in obtaining the substantial equivalent of the material to overcome the qualified protection. At the hearing, plaintiff stated the purpose of this request is to obtain information about other complaints made to Ford dealing with "jump out of park" or inadvertent vehicle movement problems. Plain tiff believes defendant has this information on a computer data tape. With this tape in its possession, plaintiff could, with the use of its own computer, reorganize the information for its own use in this litigation. ' The existence and nature of other complaints related to the use of a product has been held to-be a proper subject for discovery. Bowen v. Whitehall Laboratories, 41 F.R.D. 359 (S.D.N.Y. 1966); Frey v. Chrysler Corporation, 41 F.R.D. 174 (W.D.Pa. 1966); Tytel v. Richardson-Merrell, Inc., 37 F.R.D. 351 (S.D.N.Y. 1966); Dollar v. Long Mfq. N.C. Inc. , 561 F.2d 613 (5th Cir. 1977); Uitts v. General Motors Corporation, 58 F.R.D. 450 (E.D.Pa. 1972). Plaintiff1s request seeks information which may be relevant and admissible or at the very least may lead to admissible evidence. The manner in which the request is framed, however, includes not only computer tapes containing solely the information on complaints received by Ford, but also tapes which contain other material beyond -3- . HARTOLDMON0029485 the requested information. Defendant!s computerized Litigation Sup port System would fall into this latter category. Defendant states the mental impressions, conlcusions, opinions, analysis and legal theories of defendant's attorneys and other representatives have been interwoven with the information contained in the system. After review of the affidavit provided by defendant and the oral arguments of counsel for both parties, the court finds defendant's Litigation Support System should be given work product protection. The system is a document or tangible thing prepared by a party or the party's representative in anticipation of litigation. Rule 26(b)(3), F.R.Civ.P. Considering the number of actions similar to the present one currently pending around the country against the defendant, it is reasonable to find the support system was developed in anticipation of litigation and not in the normal course of business. It is not neces sary to foresee the specific litigation in progress at the time the materials were prepared. In re In Grand Jury Proceedings, 73 F.R.D. 647 (M.D.Fla. 1977) ; Bird v. Penn Central Company, 61 F.R.D. 43 (E.D.Pa. 1973). ` Plaintiff has failed to show the necessary hardship in obtaining the substantial equivalent of the requested material. Defendant states it will provide access to all source documents which went into the system concerning customer complaints. Thus, plaintiff is not being denied the relevant information which is contained in the system. Defendant also stated at the hearing it would be willing to supply a computer tape described as the' Automotive Safety Office tape. Defendant states this tape contains some 9,000 complaints received by Ford and information regarding those complaints. The court finds defendant should supply a copy of this computer tape to plaintiff. -4- HARTOLDMON0029486 While the computer system known as the Litigation Support System has been given work product protection, the facts contained in the system are not protected. In Feldman v Pioneer Petroleum, Inc., 87 F.R.D. 86, 89 (1980), we find the following which was quoted from Wright & Miller: The courts have consistently held that the work product concept furnishes no shield by deposition, of the facts that the adverse party's lawyer has learned, or the persons from whom he has learned such facts, cr the existence or non existence of documents, even though the documents themselves may not be subject to discovery. Ford v. Philips Electronics Instruments Co., 82 F.R.D. 359 (E.D.Pa. 1979); Lincoln Gateway Realty Co. v. Carri-Craft, Inc., 53 F.R.D. 303 (W.D.Mo. 1971); and Wright & Miller, Federal Practice and Procedure: Civil S 2024 and cases at n. 21. Defendant will also be required to provide, if it can produce through its Litigation Support System, a printout of "jump out of park" or inadvertent vehicle movement complaints, together with any factual information contained in the Litigation Support System and provide the printout to plaintiff. The court understands the plaintiff wishes the "tape" containing both the factual information and the computer programming so that the already existing program may be used to reorganize the factual informa tion for plaintiff's use. However, the court finds plaintiff is entitled only to the factual information, not the programming, method of organization, analysis, etc., which may have been applied to the information which the "tape" would contain. Plaintiff's Motion to Compel (doc. 107) as it concerns Request for Production No. 7 is granted and denied as outlined above. De fendant will not be required to provide the computer data base tape or -5- HARTOLDMON0029487 hard copy printout of its Litigation Support System. It will be required to provide a copy of the Automotive Safety Office tape con taining complaints concerning transmissions. Defendant will also be required to provide, if it can produce through its Litigation Support System, a printout of "jump out of park" or inadvertent vehicle movement complaints, together with any factual information contained in the Litigation Support System and provide the printout to plaintiff. Defendant will have until December 15, 1983, to comply with this Order. The affidavit provided by defendant for in camera inspection will be resealed and filed with the clerk. IT IS SO ORDERED. Dated this 29th day of November, 1983. ccs John M. Duma ' Suite 412 Security Nat'1 Bank Bldg. 707 Minnesota Ave. Kansas City, KS 66101 John Kilroy P.O. Box 13007 Kansas City, MO 64199 William V. North Steven D. Ruse P.O. Box 7907 Overland Park, KS 66207 -6HARTOLDMON0029488