64 A.3d 1183
R.I.2013Background
- This is an appeal from a protective-order ruling in a Rhode Island lead-paint litigation, involving Sherwin-Williams and other paint companies and a state public-nuisance claim.
- Exhibit no. 16 consisted of three PowerPoint slides prepared by Sherwin-Williams’ general counsel for a 2004 board meeting to discuss potential insurance coverage and defense costs.
- The state attached exhibit no. 16 to a memorandum in costs proceedings to show Sherwin-Williams’ financial advantage in defending the litigation.
- Sherwin-Williams sought a protective order to seal the slides, arguing the material contained attorney-client communications and work-product protections.
- The trial justice found mixed aspects of privilege: the slides appeared to be factual information, and the court ordered further limited discovery to determine whether the content conveyed legal advice.
- The Supreme Court vacated the protective-order denial, ruling that the slides are protected as factual work product and remanded for a protective order consistent with that ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are exhibit no. 16 slides protected work product? | State: slides contain only numbers/facts, not legal analysis; not protected. | Sherwin-Williams: slides were created for legal purposes and contain legal conclusions or impressions. | Slides qualify as factual work product |
| Does the state’s disclosure of exhibit no. 16 waive work-product protection? | Waiver due to third-party disclosures and blog/LexisNexis dissemination. | Disclosure did not result from defendant’s voluntary actions; safeguards were maintained. | No waiver |
| Was exhibit no. 16 properly omitted from the privilege log, thus waiving protection? | Waiver for failure to log because the request targeted the content; it should have been logged. | Requests did not seek content in exhibit no. 16; logging was not required. | No waiver; not required to log |
| Should the court reach attorney-client privilege given work-product protection? | If privilege applies, it would also shield the slides under attorney-client privilege. | Work-product protection suffices; privilege analysis unnecessary if work-product applies. | Court did not reach attorney-client privilege and remanded solely on work-product rationale |
Key Cases Cited
- Henderson v. Newport County Regional YMCA, 966 A.2d 1242 (R.I. 2009) (work-product scope; de novo review for legal determinations)
- Von Bulow, 475 A.2d 995 (R.I. 1984) (work-product protection breadth; distinction of categories)
- Fireman's Fund Insurance Co. v. McAlpine, 120 R.I. 744 (R.I. 1978) (ab initio discovery standards for privilege and undue hardship)
- Hickman v. Taylor, 329 U.S. 495 (U.S. Supreme Court, 1947) (origin of work-product doctrine and protection of mental impressions)
- Construction Products Research, Inc., 73 F.3d 464 (2d Cir. 1996) (test for documents prepared in anticipation of litigation; substantial-need standard emphasis)