SFEG CORP v. Blendtec, Inc.
3:15-cv-00466
M.D. Tenn.May 13, 2016Background
- SFEG sued Blendtec for unpaid parts; Blendtec counterclaimed alleging the parts were defective.
- Brandon Rogers, a former Blendtec quality manager, was interviewed by SFEG’s counsel after the complaint was filed.
- SFEG’s counsel drafted an affidavit for Rogers, sent drafts to him, and Rogers signed and returned the affidavit weeks later.
- SFEG disclosed the existence of the signed affidavit in discovery but refused to produce it, invoking the attorney work-product doctrine.
- Blendtec moved to compel production of Rogers’s signed affidavit under Fed. R. Civ. P. 26; SFEG opposed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a nonparty witness’s affidavit drafted by counsel is protected work product | Affidavit is protected because counsel prepared it in anticipation of litigation and it reflects counsel’s mental impressions | Signed affidavit is a witness’s statement and loses work-product protection once signed | Court held affidavit is protected work product when drafted by counsel and signed later |
| Whether defendant showed substantial need and undue hardship to overcome work-product protection | SFEG argued Blendtec has not tried to obtain the witness’s testimony directly and so cannot show substantial need | Blendtec argued it needs the signed affidavit and cannot obtain equivalent information by other means | Court held Blendtec failed to show substantial need or undue hardship because Rogers is a former employee and Blendtec made no effort to depose or interview him |
Key Cases Cited
- Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 303 (E.D. Mich. 2000) (affidavit drafted by counsel can reveal counsel’s impressions and be protected)
- Murphy v. Kmart Corp., 259 F.R.D. 421 (D.S.D. 2009) (discusses view that signed affidavit becomes witness statement)
- Trustees of the Plumbers & Steam Fitters Local No. 43 Health & Welfare Fund v. Crawford, 573 F. Supp. 2d 1023 (E.D. Tenn. 2008) (addresses discoverability of affidavits prepared by counsel)
- Intel Corp. v. VIA Technologies, Inc., 2004 F.R.D. 450 (N.D. Cal. 2004) (recognizes protection where counsel’s drafting reveals mental impressions)