Montgomery County v. Microvote Corporation Carson Manufacturing Company, Inc. Westchester Fire Insurance Co., Inc , 175 F.3d 296 ( 1999 )

GREENBERG, Circuit Judge,

concurring:

I concur with the majority’s disposition of this case, but reach its result on different grounds.¹ While I respect the majority’s view, I believe there are strong grounds here for the application of the work product doctrine. I conclude that the documents in issue are protected from discovery because they are work product produced by an expert consultant in anticipation of litigation. See In re Grand Jury (Impounded), 138 F.3d 978, 981 (3d Cir.1998); Conoco, Inc. v. United States Dep’t of Justice, 687 F.2d 724, 730 (3d Cir.1982).

The work product doctrine allows a party to discover material prepared in anticipation of litigation or for trial only when the requesting party has shown a substantial need for the material and cannot obtain the material or its equivalent elsewhere without incurring a substantial hardship. See Fed. R. Civ. P. 26(b)(3); Carson v. Mar-Tee Inc., 165 F.R.D. 48, 50 (E.D.Pa.1996). The rule provides that “[i]n 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.” Id. The party asserting work product protection has the burden of demonstrating that the documents were “prepared in anticipation of litigation.” Conoco, 687 F.2d at 730. The fact that the documents sought for discovery do not include legal advice is, “as a matter of law, irrelevant provided ... they were prepared in anticipation of litigation.” In re Ford Motor Co. ., 110 F.3d 954, 968 (3d Cir.1997). Thus, the February 20, 1996 letter from Shamos to Passarella and the other communications in issue can be privileged work product even if they do not meet the standard for protection under the attorney-client privilege.

Significantly, the district court in its September 24, 1998 order recognized that in this case “litigation was always a possibility.” But the court emphasized that the County hired Shamos not in anticipation of litigation, but towards avoiding litigation by “recommending other courses of action to the County regarding the voting machine difficulties.... ” (Emphasis added). I think that the distinction between “anticipate” and “avoid” is .uncertain: at what point are strategies to “avoid litigation” also tactics anticipatory of litigation? How can one avoid what one has not even anticipated? Leonen v. Johns-Manville, 135 F.R.D. 94, 96 (D.N.J.1990) (“The phrase, ‘anticipation of litigation’ is incapable of precise definition.”).

The dilemma is resolved by turning to the record. See United States v. Rockwell Int’l, 897 F.2d 1255, 1266 (3d Cir.1990) (“The question whether a document was prepared in anticipation of litigation is often a difficult factual matter.”). This court defines documents as being prepared “in anticipation of litigation” when, “in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.” In re Grand Jury Proceedings, 604 F.2d 798, 803 (3d Cir.1979). We have explained that the preparer’s anticipation of litigation must be objectively reasonable. Martin v. Bally’s Park Place Hotel & Casino, 983 F.2d 1252, 1260 (3d Cir.1993).

How remote a prospect can the litigation be for the anticipation to be “reasonable”? A party must show that there existed “an identifiable specific claim or impending litigation when the materials were prepared.” Leonen, 135 F.R.D. at 97. “[T]he mere fact that litigation did in fact occur, that a party has consulted or retained an attorney, that a party has undertaken investigation, or engaged in negotiations over the claim, is not enough to establish a reasonable anticipation of litigation under Rule 26(b)(3).” United States v. Ernstoff 183 F.R.D. 148, 155 (D.N.J.1998) (internal citations omitted). Here, although when the County hired the Webb Law Firm, and thus Shamos, the parties were primarily trying to “avoid” litigation by satisfying their agreement, “[a] party ... does not have to be threatened with litigation by a plaintiff ... before the documents it prepares could be considered prepared in anticipation of litigation.” Hydramar, Inc. v. General Dynamics Corp., 115 F.R.D. 147, 150 n. 3 (E.D.Pa.1986) (internal quotation marks omitted). Within one month of hiring Shamos, the County in a March 1,1996 letter to MicroVote, stated that it considered MicroVote to be in default. App. at 196. The parties knew that the agreement was being questioned and revised, and that the County was concerned about whether MicroVote was in breach — a concern it announced publicly on March 1, 1996. App. at 197. By that point, litigation was “anticipated” to some degree by both sides, at least in part by the very fact of Shamos’ expert consultations with both parties, as well as by the involvement of attorneys Waters and Richards.

Moreovér, it is clear that Shamos did not make the evaluation of the election system in the ordinary course of business: the County did not periodically hire an expert to see how the system was running, but sought and engaged an expert because of problems with previous elections, and its belief that MicroVote might not have performed its agreement adequately. See, e.g., Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 661 (S.D.Ind.1991) (“[A] report produced at a time when litigation was justifiably anticipated is not work product if the report was produced in the ordinary course of the party’s business.”). Although it is troubling, as the district court notes, that Shamos met with MicroVote and Carson without their being represented by their own counsel, the issue for us is whether the County viewed Shamos’ work as “primarily” aiding it in avoiding or preparing for future litigation, and it has shown that this is the case. For these reasons, I accept the County’s contention that the “primary motivating purpose behind the creation of the [Shamos Report]” was “to aid in possible future litigation.” United States v. Rockwell Int'l, 897 F.2d at 1266 (citing United States v. El Paso Co., 682 F.2d 530, 542-43 (5th Cir.1982)).

Fact-based reports like Shamos’ letter have been found to be clearly protected by the work product privilege. In re Ford Motor, for example, involved agendas prepared by a consultant to Ford for a meeting he would attend. Ford’s counsel also attended that meeting, which was called in part so that the consultant could explain technical aspects of Ford’s defense regarding product liability claims. One of the agendas contained hand-written notes by the consultant. This court found that the “agendas disclose[d] material prepared as part of Ford’s legal strategy.... The agendas outline[d] the results of studies conducted as to the safety of [Ford’s vehicle] and, in so doing, highlighted] important aspects of those studies.” In re Ford Motor, 110 F.3d at 967. Similarly, the communications at issue here, especially the February 20 letter, were sought and prepared in anticipation of litigation.

Because the County has met its burden of showing that the Shamos report was prepared in anticipation of litigation, Carson has the burden of overcoming the protection. In re Grand Jury Investigation, 599 F.2d 1224, 1230 (3d Cir.1979). Absent its showing of substantial need, we cannot compel discovery of work product protected by Rule 26(b)(3). Carson v. Mar-Tee, 165 F.R.D. at 50. Carson has not demonstrated “substantial need,” so the privilege stands.

For the above reasons, I concur with the majority’s result, but because those documents were work product prepared in anticipation of litigation, and not because they are covered by the attorney-client work privilege. Thus, I too vote to reverse.

1 . Judge Roth and Judge Rosenn also join in the concurrence because they are of the opinion that both the attorney-client and the work product privileges apply under the facts of this case.