{1} In this case, we review a discovery order requiring a nonparty to produce certain documents for in camera review. This Court granted Appellants’ application for interlocutory appeal to address questions of law regarding attorney-client privilege, the common interest doctrine, and work-produet immunity in the context of corporations’ assertion of a joint defense. We discuss attorney-client privilege and the work-product doctrine in light of existing New Mexico law. We conclude that the common interest doctrine may protect privileged documents in these circumstances and that a consultant’s mental impressions and opinions are protected as opinion work product. We further conclude that sufficient facts supported the district court’s determinations regarding the substantial need and undue hardship that are necessary for obtaining discovery of ordinary work product. Accordingly, we affirm the district court’s order to produce the documents for in camera review, and we remand for further proceedings in accordance with this opinion.
I. BACKGROUND
{2} The underlying action in this appeal began when Plaintiff Santa Fe Pacific Gold Corporation (Santa Fe Pacific) filed suit alleging breach of contract and common law tort claims against Defendant United Nuclear Corporation (UNC). UNC, seeking defense and indemnity, filed a third-party complaint against The Travelers Indemnity Company (Travelers), among other insurers. Santa Fe Pacific and UNC reached a settlement agreement in 2004; consequently, Santa Fe Pacific dismissed its action against UNC. The third-party action against Travelers is currently stayed, pending this appeal.
A. Discovery Issues
{3} In February 2005, Travelers filed a notice to take the deposition of a representative of Geolex, Inc., (Geolex), a nonparty, and issued a subpoena duces tecum requesting production of the documents in question (Geolex Materials). Geolex responded by filing a motion to quash the subpoena and to issue a protective order preventing Travelers from seeking further discovery of the Geolex Materials. Geolex asserted, among other things, that these documents “relate to G[eolex’s] confidential attorney-client communications and work product, all of which are privileged documents belonging to [Nonparty] General Electric Company” (GE), and that Geolex was contractually obliged to treat all of the Geolex Materials as privileged or work product. In the motion to quash and the brief in support of the motion, Geolex contended that all of the documents listed in the subpoena were protected by the attorney-client privilege and the work-product doctrine because all of the work performed by Geolex was “created and developed pursuant to instructions from GE’s counsel for use in rendering legal advice to GE.”
{4} Travelers filed a response to Geolex’s motion to quash, and the district court referred the motion to a special master. After an initial hearing, Travelers prepared a draft report for the special master. At that time, GE questioned whether it had received adequate notice of the initial hearing, and GE filed its own motion to quash the notice and subpoena, in conjunction with GE’s objection to Travelers’ draft report, on the ground that the testimony and information was protected by the “attorney-client privilege or the work-product doctrine.” GE argued that Geolex’s communications with GE’s in-house counsel, William V. Killoran, Jr., were protected by the attorney-client privilege because Geolex was employed to assist Killoran in the rendition of professional legal services. In addition, GE argued that the Geolex Materials had absolute immunity from discovery under the work-product doctrine. GE further argued that even if the work product were qualified, Travelers failed to and could not show a substantial need warranting disclosure in this case because Travelers failed to articulate specifically why it needed the materials and because it failed to demonstrate that the materials were not readily available by other means. Travelers filed a response to GE’s motion to quash, and the special master held a second hearing, at which GE, Geolex, and Travelers were represented.
B. The District Court’s Order
{6} In the order, the district court adopted the findings of the special master and made additional findings, which we reference as they become pertinent to our discussion below. The district court concluded that the Geolex Materials are not protected by the attorney-client privilege because GE intended to disclose the Geolex Materials to UNO, a third person for purposes of Rule 11-503 NMRA. See Rule 11-503(A)(4) (stating that “a communication is ‘confidential’ if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client”); cf. Rule 11-511 NMRA (stating that a privilege is waived if any significant part of the matter or communication is voluntarily disclosed by the holder of the privilege, unless the disclosure itself is a privileged communication). The court further concluded that the common interest doctrine did not apply because GE and UNO “were not aligned in defense against a common opponent during the Geolex investigation and acquisition of UNO” and “are still not aligned in a common defense[,] as GE is careful to explain that UNO is a separate corporate entity.” Thus, the court held that the Geolex Materials are not confidential communications as defined in Rule 11-503.
{7} The district court also ruled that the Geolex Materials qualified for work-product protection because they were prepared for GE’s attorney in anticipation of litigation involving UNC. See Rule 1-026(B)(4) NMRA. The court further determined that GE’s ordinary work product is subject to discovery because Travelers has a substantial need for the Geolex Materials and because Travelers would bear undue hardship in obtaining the equivalent information. In addition, the district court concluded that opinions rendered by the consultant are not “opinion” work product because the consultant’s opinions are not the mental impressions, conclusions, opinions, or legal theories of an attorney. The court ordered an in camera review to distinguish ordinary work product from opinion work product.
{8} Appellants filed an application for interlocutory appeal, which we granted to consider controlling questions of law that present issues of first impression in New Mexico. Appellants contend that the district court erred in its conclusions of law regarding attorney-client privilege and work product and that the court abused its discretion in making certain findings and assuming certain facts. Appellants urge the court to uphold GE’s assertions of attorney-client privilege and opinion work product for all of the Geolex Materials.
II. DISCUSSION
A. Standard of Review
{9} Generally, we review discovery orders for abuse of discretion. Estate of Romero v. City of Santa Fe,
B. Appellants’ Arguments
{10} Appellants make three arguments on appeal. First, Appellants argue that the district court erred when it ruled that the work-product doctrine did not extend to the entire work product of Geolex, who is a “representative of a party concerning the litigation.” Rule 1-026(B)(4). Second, Appellants contend that the district court erred when it determined that Travelers has a substantial need for the Geolex Materials and that Travelers is unable to obtain the substantial equivalent of the materials without undue hardship. Third, Appellants maintain that
{11} Appellants assert that the entirety of the Geolex Materials are protected by both the work-product rule and the attorney-client privilege, coterminously. Because greater protection is provided by the attorney-client privilege than by the work-product rule, we first address Appellants’ contentions regarding the attorney-client privilege. Then, we turn to the work-product rule and opinion work product. Last, we address the showings necessary for Travelers to obtain discovery of ordinary work product.
1. Attorney-Client Privilege
{12} Appellants assert that the district court erred when it concluded that attorney-client privilege did not apply. The district court based its conclusion on a determination that the Geolex Materials were not epnfidential because GE intended from the outset to disclose the Geolex Materials to UNC, which is a third person for purposes of Rule 11-503(A)(4). Appellants contend that any disclosures to UNC did not preclude extending the privilege to the Geolex Materials because the disclosures to UNC came within the parameters of the common interest doctrine. We begin our discussion with a general overview of attorney-client privilege.
{13} A client may claim attorney-client privilege to refuse to disclose confidential communications between certain persons if the communications were made for the purpose of acquiring legal advice for the client. Rule 11-503(B); see State ex rel. State Highway Comm’n v. Steinkraus,
{14} Attorney-client privilege in New Mexico is expressly provided and governed by court rule. Pub. Serv. Co. of N.M. v. Lyons (Lyons),
a. Common Interest Doctrine
{15} Rule 11-503(B)(3) recognizes that the attorney-client privilege may apply to a communication made by a client or the client’s lawyer “to a lawyer representing another in a matter of common interest.” New Mexico appellate courts have not had occasion to address the common interest doctrine. Therefore, though we are not bound by federal law and though the federal rule of privilege does not include a rule comparable to Rule 11-503, we find guidance in cases that construe the federal attorney-client privilege.
{16} Also known as the joint defense privilege, the common interest rule protects the “confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.” United States v. Schwimmer,
{17} Here, the district court concluded that “[GE] and UNC were not aligned in defense against a common opponent during the Geolex investigation and acquisition of UNC.” In light of the following, however, we believe that the district court viewed the doctrine too narrowly. We conclude that under the facts of our case, the common interest doctrine may apply to documents protected by the attorney-client privilege.
{18} The common interest rule does not require that actual litigation be in progress; rather, the rule applies whenever more than one client share a common interest about a legal matter. Schwimmer,
{19} In our case, Appellants entered into a common interest agreement for the purpose of addressing the legal considerations of the environmental conditions at the mine sites. Generally, we conclude that GE’s joining forces with UNC to address the legal ramifications of existing environmental conditions is sufficient to allow GE to invoke the common interest rule to protect privileged documents that have been disclosed to UNC. In order for the common interest rule to protect a communication, however, Appellants must establish (1) that each document contains a privileged communication and (2) that each document disclosed to UNC was designed to further the common legal interest. After review of the record, we are unable to conclude that GE has met its burden to show that privilege applies to each of the documents contained in the Geolex Materials. Cf. Hartman,
{20} First, as observed by the district court, a valid underlying privilege must exist for a document to be protected from discovery by the common interest doctrine. The document must meet each element of the attorney-client privilege. Second, to preclude discovery of disclosed documents under the common interest doctrine, the party resisting discovery must demonstrate that the documents were created during the course of a joint-defense effort and that the documents were designed in furtherance of that effort. Grand Jury Proceedings,
{21} Our review of the record does not indicate that Appellants have met their burden with respect to each document. To begin, we are unable to determine from the record whether each document consists of the most basic element of privileged material, that is, a communication for purposes of Rule 11-503. See Douglas R. Richmond, The Attorney-Client Privilege and Associated Confidentiality Concerns in the Posh-Enron Era, 110 Penn St. L.Rev. 381, 386 (2005) (“[A] court examining a party’s privilege claims must scrutinize each communication independently.”); cf. State v. Roper,
{22} In addition, a communication protected by the privilege must have been made in confidence between privileged persons. See Rule 11-503(B)(l)-(5). Compare Schwimmer,
{23} Further, Appellants must show that each communication was made to
{24} Finally, as observed in paragraph 18 of our opinion, Appellants must also show that GE and UNC had an identical legal interest in the subject matter of each privileged communication that was disclosed to UNC. “The key consideration is that the nature of the interest be identical, not similar, and be legal, not solely commercial.” Duplan,
{25} The purpose of the privilege, to encourage full and frank communication between a client and its attorney, Schwimmer,
{26} To the extent Appellants argue that in camera review is unnecessary
{27} Under the circumstances of our case, in camera review may be particularly appropriate. Application of the privilege can be difficult when the client is a corporation seeking legal advice regarding a business transaction and when the client’s attorney is in-house counsel who wears “‘two hats’” by performing a dual role of legal advisor and business advisor. See ChevronTexaco Corp.,
{28} Finally, we recognize that in camera review can be burdensome on the court; therefore, we acknowledge the district court’s discretion to request a more detailed privilege log, which addresses the concerns expressed in this opinion, to assist in the court’s evaluation of the privilege in regard to each document. See Piña,
b. Waiver
{29} Travelers argues, in the alternative, that GE waived any privilege that may have attached to the Geolex Materials when Killoran, GE’s in-house counsel, testified in his deposition as UNO’s Rule 1-030(B)(6) NMRA corporate representative. Travelers asserts that Killoran acquired knowledge about certain subjects from the Geolex Materials and that he later testified about these same subjects at his deposition. Thus, Travelers contends that Killoran must have relied on the Geolex Materials in his deposition and that the privilege is waived because the information was, at the least, partially disclosed.
{30} Preliminarily, we observe that the district court did not rule on this issue. The special master concluded, however, that GE waived any existing privilege when Killoran testified in regard to the same subjects addressed by the Geolex Materials. The special master reasoned that Killoran could not have “compartmentalized in his mind” the
{31} To support a finding of waiver, New Mexico requires an offensive or direct use of privileged materials. Lyons,
{32} To support Travelers’ assertion that Killoran waived the privilege by disclosure at the deposition, Travelers relies on Killoran’s testimony at the hearing before the special master. In this hearing, Killoran testified that he had gained knowledge of the conditions at the mine sites through his review of the Geolex Materials. Killoran said, “I wouldn’t have known anything about the sites apart from my own visual observation of four of the sites without having looked at the materials that Geolex generated or collected.” Killoran acknowledged that he was asked questions about his knowledge of the mining sites at the Rule 1-030(B)(6) deposition. However, he stated that the questions at the deposition “were asked from the standpoint of UNC, what did UNO know.” In Killoran’s deposition, he stated that the sources of his information were individuals with whom he had spoken, documents that he had read, and site visits that he had made after the mines were closed. After review of the record, we are unable to determine as a
{33} The special master found that the Geolex Materials related to the mine sites “whose cleanup and cleanup expense are the subject of at least a major part of the coverage claims” that UNC makes against Travelers. Because the Geolex Materials could have been used to assert UNO’s claim against Travelers, we remand to the district court to determine whether Killoran relied on any documents that the district court has determined are privileged in order to support the claims against Travelers. We recognize that Killoran explained that he was not relying on the Geolex Materials at his deposition; rather, he asserted that he relied on information gathered from other sources. However, reasonable people could differ on the basis of the evidence in the record; thus, the question is one of credibility and fact, which we reserve for the district court. See State v. Garcia,
{34} Finally, we recognize the difficulty inherent in determining whether the privilege was waived when a party asserts a blanket privilege over multitudes of documents. We cannot conclude that Travelers has failed to meet its burden to show waiver when the privileged documents have yet to be identified. See Poteet v. Roswell Daily Record, Inc.,
{35} GE also argues that Killoran could not have waived GE’s privilege in his deposition because he was not authorized to waive GE’s privilege. GE asserts that Killoran was neither an officer nor a director of GE and that no officer or director of GE authorized Killoran to waive its privilege. We are not persuaded.
{36} The client is the holder of the privilege. See Rule 11-503(B); In re Grand Jury Proceedings, Vargas,
2. Work-Product Doctrine
{37} Appellants raise three points with regard to work product. First, Appellants challenge the district court’s conclusion that the opinions of Geolex and its president, Alberto Gutierrez, are not opinion work product. Second, Appellants contend that the entirety of the Geolex Materials is protected as opinion work product “because it ‘reflects’ the mental impressions, conclusions, opinions and legal theories of Geolex, as well as those of ... Killoran.” Third, Appellants assert that Travelers failed to establish the substantial need and undue hardship that are necessary for obtaining discovery of ordinary work product. We review the relevant law before addressing each argument.
{38} The work-product doctrine is separate and distinct from attorney-client privilege. Richmond, supra, at 390; see also Rule 1-026(B)(4) (providing that “a party may obtain discovery of documents and tangible things otherwise discoverable ... and prepared in anticipation of litigation” only upon a showing of substantial need and inability to obtain the substantial equivalent by other means without undue hardship (emphasis added)). The work-product rule is an immunity that protects documents and tangible things prepared in anticipation of litigation by or for a party or its representative, including materials prepared by the attorney’s agents and consultants. Rule 1-026(B)(4); Richmond, supra, at 391 & n. 69 (citing In re Cendant Corp. Sec. Litig.,
{39} Ordinary work product, or “non-opinion” work product, has a qualified immunity. Id. ¶ 19. A party may obtain ordinary work product of another party “only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Rule 1-026(B)(4). After a discovering party has made the required showing and the court orders discovery, the court is charged with protecting “the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.” Id. Opinion work product has “nearly absolute immunity.” Hartman,
{40} In our case, the district court concluded that the Geolex Materials are protected by the work-product rule because they
a. Opinions of Geolex and Gutierrez
{41} Appellants argue that the mental impressions, conclusions, opinions, and legal theories of Geolex and Gutierrez are protected as work product. We agree. As noted by Appellants in their reply brief, Travelers appears to concede this issue because Travelers declined to address this argument in its answer brief. Moreover, at oral argument, Travelers agreed that it was not entitled to the mental impressions and opinions of Geolex or Gutierrez concerning the anticipated litigation. We thus address the issue briefly.
{42} The plain language of Rule 1-026(B)(4) protects “the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.” A party’s representative includes a consultant. Id. Therefore, we conclude that to the extent Geolex’s or Gutierrez’s mental impressions and opinions regarding the litigation are memorialized or reflected in the Geolex Materials, they are protected as opinion work product.
{43} Travelers does not argue that the scope of immunity provided for a consultant’s mental impressions differs from the nearly absolute immunity provided for an attorney’s mental impressions. Accordingly, we do not address the scope of the immunity provided for the mental impressions and opinions of Geolex and Gutierrez. Cf. Rule 1-026(B)(6) (stating that “[a] party may discover facts known or opinions held by an expert ... who is not expected to be called as a witness at trial, only as provided in Rule 1-035 NMRA or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means”).
b. The Geolex Materials as a Whole
{44} Appellants argue that the district court erred when it concluded that the entirety of the Geolex Materials was not protected as opinion work product. Appellants contend that the listing of the information contained in the Geolex Materials “demonstrates that it consists entirely of communications or materials reflecting the mental impressions, opinions and conclusions of G.E. attorney William Killoran as well as reports and other materials reflecting the mental impressions, opinions and conclusions of Killoran’s environmental geotechnical investigator and agent Geolex.” We are not convinced.
{45} Appellants appear to argue that the district court abused its discretion by ordering an in camera review because Gutierrez’s affidavit and the privilege log undisputedly established that all of the Geolex Materials constituted opinion work product. Our review of the affidavit and the privilege log lead us to conclude otherwise. In pertinent part, the affidavit generally describes the documents at issue, which include a contract file, a general file, a file containing the final report submitted to GE, six files that are site-specific, and a file containing historical photographs and photographs taken by Gutierrez. In addition, the affidavit describes related computer files, which contain documents received or generated by Geolex during the course of its work for GE. The affidavit does not contain specific details of each document contained in the Geolex Materials. Thus, the district court cannot rely on the affidavit to determine which documents within the Geolex Materials might be subject to discovery as ordinary work product.
{46} Our review of the privilege log also reveals deficiencies in the descriptions of documents contained in the Geolex Materials. Out of 154 documents identified from the Geolex Materials, GE asserts that each and every document is protected both as work product and by attorney-client privilege. The date, the author, and the recipient(s) of each document are identified, and the type of communication is indicated. There is no indication, however, as to the subject matter or purpose of each document. For example, the
{47} As noted by Travelers, the Geolex Materials include field inspection reports summarizing the environmental condition at each mine site. The Geolex Materials also contain plats, photographs, and costs associated with remediation. This type of factual information, if it does not reflect mental impressions or opinions, is subject to discovery once the discovering party has made the required showing of substantial need and undue hardship. We thus conclude that the district court did not abuse its discretion by ordering production of the Geolex Materials for an in camera review in order to determine which documents are opinion work product. We now address Appellants’ argument that Travelers failed to make the showing necessary for obtaining discovery of GE’s ordinary work product.
c. Substantial Need and Undue Hardship
{48} Appellants contend that Travelers failed to establish the substantial need or undue hardship necessary for obtaining discovery of the ordinary work product contained in the Geolex Materials. Appellants assert that Travelers failed to meet the “heavy burden” because it offered no evidence in support of need or hardship and because argument of counsel is not enough to meet its burden. Appellants also assert that the district court abused its discretion in finding that “ [conditions at the mines since 1997 simply cannot be ascertained in 2006 due to the passage of time,” a statement made by the district court in its conclusions of law. We are not persuaded.
{49} “Ordinary work product is discoverable when the requesting party has substantial need for the material and is unable to obtain its substantial equivalent without undue hardship.” State ex rel. Brandenburg v. Blackmer,
{50} Generally, “[t]he discovering party must specifically explain its need for the materials sought.” Richmond, supra, at 392. The degree of need and hardship that must be established “varies according to the nature of the material sought.” Epstein, supra, at 549. Often, a court’s determination regarding need and hardship is made in a conclusory fashion or by implication. Id. However, the nature of the need should be specifically articulated, and an explanation must be made as to why “alternative less intrusive means” will not result in obtaining the work-product material. Id. at 549-50. Ultimately, the district court must weigh the interests of the respective parties, including need, available alternative sources, the parties’ relative resources, and the need to protect the resisting party’s expectation of confidentiality. Id. at 567; Richmond, supra, at 392.
{51} With these guidelines in mind, we cannot conclude that the district court erred when it determined that Travelers established the requisite need and hardship to justify obtaining ordinary work product. The interests of the parties concern the underlying action against Travelers, which involves the cleanup and cleanup expense related to environmental conditions at the mine sites. The district court determined that the Geolex Materials may contain information regarding the nature and extent of the environmental conditions, as well as a valuation of the damage, existing at the mine sites in 1997. The court further determined that “it would be all but impossible” to currently ascertain the conditions as they existed at the mine sites in 1997. Appellants dispute this determination. However, evidence in the record supports the court’s ruling.
{52} In Killoran’s deposition, he discussed the types of environmental conditions at issue in the underlying action. He stated that the regulatory authorities are concerned about groundwater impacts and that in their inquiries, the authorities have referred to “piles of material left on the site,” including “noneconomic material piles.” Killoran identified the piles as “piles of topsoil, piles of overburden, [and] an ore pile.” He also stated that concerns were expressed in regard to pond areas and pads on which mining structures and operations were located. A reasonable person could infer from Killoran’s statements regarding these relevant environmental conditions, which are exposed to the weather, that the passage of more than eight years could markedly affect these conditions. Thus, we conclude that the district court did not abuse its discretion when the court determined that the passage of time created undue hardship in obtaining the substantial equivalent of the Geolex Materials.
{53} Appellants argue that Travelers can obtain the substantial equivalent without undue hardship because GE produced the documents that were provided to Geolex for the purposes of conducting its evaluation. Below, Travelers argued that obtaining the substantial equivalent is “all but impossible” because the documents produced are numerous and poorly organized and because the documents produced were stored for years in a “pole barn,” where they were exposed to hantavirus and where some documents were water-damaged beyond use. The condition of the documents as described by counsel was not materially disputed as a generally accurate depiction of the condition of the documents that had been produced. Cf. State v. Pacheco,
{54} Appellants also argue that Travelers failed to show substantial need and undue hardship because Travelers “offered no declaration or other evidence of either substantial hardship or of its inability to acquire substantially equivalent information.” Appellants rely on Barcamerica International USA Trust v. Tyfield Importers, Inc.,
{55} Finally, in arguing that Travelers has failed to sufficiently establish need and hardship, Appellants rely on Pinal Creek Group v. Newmont Mining Corp., No. CV-91-1764PHX-DAE-(LOA),
III. CONCLUSION
{56} We affirm the district court’s order instructing Appellants to produce the documents for in camera review. We remand for further proceedings in light of this opinion.
{57} IT IS SO ORDERED.