145 F.R.D. 640 | S.D.N.Y. | 1992
MEMORANDUM ORDER
The defendant Northwestern Mutual Life Insurance Company appeals from a ruling of United States Magistrate Judge Mark D. Fox holding discoverable a memorandum written by Wilson Perry, a Northwestern Mutual attorney dated August 31, 1989 (the “Perry Memorandum”), and a summary of a meeting of the Special Agents, Inc. of the Northwestern Mutual Life (“SAI minutes”). Northwestern claims work product protection for both documents, the first on the ground that it was written by an attorney after threats of litigation involving the participants in the meeting described in it, and the second because obtained as part of preparation for another pending action.
I affirm the Magistrate Judge’s rulings with respect to both documents, and outline additional precautions which the Magistrate Judge may want to consider before discovery is implemented. These precautions pertain to the possible need to protect the persons involved under Fed. R.Civ.P. 26(c). Obviously, any inappropriate disclosure to third persons could have side consequences and repercussions potentially injurious to some or all of the parties to the pending litigation as well and thus merit the Magistrate Judge’s attention now that I have upheld his ruling that work product privilege poses no absolute barrier to discovery of the items involved.
No questions put by Northwestern counsel seeking information appear to have been involved. The memorandum identifies those present, and then sets forth the purpose “to find a way to put all of [the disputed matters between the various persons involved] in the past and reach a high point for development of relationships ... to get on with the business of selling insurance and developing stronger agencies.” The disputes described in the Perry memorandum were .not between Northwestern and the participants, but between the participants and others. No one involved was a client of Perry. The meeting was not devoted to factfinding by Northwestern counsel, nor does it reflect any negotiation between Mr. Perry’s client (Northwestern) and any other person to avoid litigation between them. The function performed by counsel at the meeting described in the Perry memorandum—attempting to eliminate conflict among agents selling insurance for Northwestern—was one which could equally appropriately have been performed by nonlegal personnel such as sales executives.
The work product doctrine does not shield ordinary business documents from discovery. None of the cases referred to by Northwestern in its memorandum of law are even cited for the proposition that notes of an attorney for A at a meeting devoted to determination of future relationships between party B and C, who is not present, can be deemed to be protected work product.
These observations apply to an equal degree to the SAI minutes.
Northwestern argues that discovery of documents pertaining to or collected for purposes of litigation may reveal counsel’s strategy in contravention of the purposes of work product protection. That concern does not apply here. The SAI minutes were requested because of their content. Such isolated documents will scarcely reveal litigation strategy.
A similar principle applies where documents are presented before a Grand Jury: if sought for their own sake and not with the primary purpose or effect of disclosing the nature of the Grand Jury’s investigation, such material may be discoverable. See DiLeo v. Commissioner, 959 F.2d 16 (2d Cir.1992).
In upholding the decision of Magistrate Judge Fox that the Perry memorandum and SAI minutes are discoverable, I do not rule out steps which the Magistrate Judge might consider, at the request of either party or on his own initiative, to protect third persons mentioned in these documents. In camera examination of the documents may indicate that is appropriate.
Such protection of third persons mentioned in the documents might take the form of:
(a) restricting access to the Perry memorandum and SAI minutes to counsel for plaintiffs, and not to plaintiffs, for the purpose of enabling counsel to make a showing as to their usefulness, if any, in the present case, prior to copying or disclosure to others, and/or
(b) requiring notification to third persons named in such documents, at the expense of the party seeking disclosure, that disclosure is contemplated, thus permitting such persons, prior to further disclosure, to make known any objections to release of portions referring to them, prior to further disclosure. This would be in keeping with the protection of organizational minutes from disclosure absent need, held appropriate in Dole v. Service Employees Union, 950 F.2d 1456 (9th Cir.1991). The SAI minutes appear to fall squarely within Dole,
SO ORDERED.
