Institute for the Development of Earth Awareness v. People for the Ethical Treatment of Animals
272 F.R.D. 124
S.D.N.Y.2011Background
- IDEA seeks production of drafts of two affidavits and related materials exchanged between counsel and two nonparty affiants.
- PETA asserts attorney work product protection extends to all such material.
- Dispute centers on whether protection was waived by service and filing of the final executed affidavits.
- Two nonparty witnesses, Alice Walker and Laura Amazzone, were disclosed in IDEA’s Rule 26(a)(1) statement and in PETA’s statements.
- Affidavits were prepared for possible use on summary judgment and remained work product until served and filed; drafts not adopted by nonparties may retain work product protection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are drafts of affidavits protected work product if later filed as final affidavits? | IDEA argues waiver occurred upon filing the final versions. | PETA maintains drafts remain protected as work product. | Drafts remain work product; no waiver by filing final affidavits. |
| Can substantial need overcome work product protection for draft materials? | IDEA asserts substantial need justifies production of drafts. | Absence of substantial need; witnesses were available for deposition and drafts reflect abandoned strategies. | No substantial need shown; protection sustained except as to unneeded content. |
Key Cases Cited
- Hickman v. Taylor, 329 U.S. 495 (U.S. 1947) (establishes work product protection)