172 F.R.D. 179 | M.D.N.C. | 1997
ORDER
The parties present the following issue: Whether secretly recorded telephonic tape recordings of parties, witnesses, potential witnesses, or others, can be withheld from discovery as work product pursuant to Fed. R.Civ.P. 26(b)(3)? Defendants Multiquip, Inc. (“Multiquip”) and Rammax Maschinenbau, GmbH (“Rammax”) request the Court to compel plaintiffs to disclose secretly recorded audio tapes.
This action was filed in February 1994. In June, plaintiffs provided defendant Parts R Parts, Inc. (“PRP”) with a privilege log which indicated that plaintiffs had multi-page memoranda concerning conversations between plaintiffs, owners and their employees, and individuals in the construction industry. Plaintiffs told PRP that they would disclose the surreptitiously tape recorded conversations. There were also three multi-page transcripts of telephone conversations surreptitiously recorded in November 1992 and May 1993 and transcribed by plaintiffs’ counsel. Plaintiffs evidently showed a dozen of the tapes to defendant PRP in June 1994 and began copying the tapes. However, on July 15, 1996, plaintiffs informed PRP that they would not be providing the tapes.
On September 10, 1996, plaintiffs clarified their position and stated that they would withhold 83 of the 85 tapes as work product.
Chris R. Smith, the principal and owner of plaintiff Sea-Roy Corporation (“Sea-Roy”), provides an affidavit setting out the basis for the tape recordings made by him or other corporate personnel. He relates that in 1991, defendant Rammax was Sea-Roy’s key supplier. When Rammax appointed defendant Multiquip as a supplier, this eliminated Sea-Roy’s exclusive distributorship which had lasted for ten years. Other companies then decreased Sea-Roy’s discount on part orders. In November 1992, Rammax terminated all dealings with Sea-Roy. In December 1992, defendant PRP refused to sell engine parts to plaintiff.
Smith claims that he decided to tape conversations because of his belief that some or all of the current defendants were taking concerted action in order to injure plaintiffs. He states the taping was the direct result of his concern over the possibility of litigation after counsel advised him to keep track of rumors that were circulating about plaintiff Sea-Roy. Counsel did not suggest taping conversations. Tapes or transcripts of the tapes of the agents of current defendants have been surrendered to counsel. Plaintiffs changed their minds about turning over tapes to defendant PRP after they learned that defendant PRP was itself claiming work product protection with respect to tapes which it had made. (PRP is not a party to the motion to compel.)
Work product protection is not a privilege within the meaning of Federal Rules of Evidence 501. Rather, it is a tool of judicial administration to safeguard the adversarial process, and does not have an intrinsic value in itself outside the litigation area. Pete Rinaldi’s Fast Foods v. Great American Ins. Companies, 123 F.R.D. 198 (M.D.N.C.1988). As a result, in reviewing claims of work product protection, the Court will give the claim the narrowest construction consistent with the purpose of work product. The party (in this case plaintiffs) requesting protection bears the burden of proving entitlement. Id. at 201.
Defendants do not dispute that tape recorded conversations may, in fact, constitute work product material. See, e.g., Ward v. Maritz, Inc., 156 F.R.D. 592, 595-597 (D.N.J. 1994) (surreptitious recording of others); Suggs v. Whitaker, 152 F.R.D. 501 (M.D.N.C. 1993) (defendant’s own insured); Mason C. Day Excavating, Inc. v. Lumbermens Mut. Cas. Co., 143 F.R.D. 601 (M.D.N.C.1992) (plaintiffs President’s self-observations and impression of events at work site). Instead, they assert that unprofessional attorney conduct can constitute grounds to vitiate the work product protection. Moody v. IRS, 654 F.2d 795, 799-801 (D.C.Cir.1981). In fact, a number of courts have followed just that proposition with respect to the secret taping of conversations. Chapman & Cole, Ltd. v. Itel Container Intern. B.V., 865 F.2d 676, 686 (5th Cir.), cert. denied sub nom, 493 U.S. 872, 110 S.Ct. 201, 107 L.Ed.2d 155 (1989); Parrott v. Wilson, 707 F.2d 1262, 1270 (11th Cir.), cert. denied, 464 U.S. 936, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983); Ward v. Maritz, Inc., 156 F.R.D. 592, 598 (D.N.J.1994) (collecting cases); Wilson v. Lamb, 125 F.R.D. 142, 143 (E.D.Ky.1989); Haigh v. Matsushita Elec. Corp. of America, 676 F.Supp. 1332, 1357 (E.D.Va.1987); see H.L. Hayden Co. of New York, Inc. v. Siemens Medical Systems, Inc., 108 F.R.D. 686, 690-691 (S.D.N.Y.1985).
In each of those cases, the courts had relied in whole or in part on the American Bar Association’s Model Rules of Professional Conduct. Its ethics opinions hold that ABA rules prohibit attorneys from clandestinely tape recording conversations. In 1974, the ABA issued ABA Formal Op. 337 which holds that except for certain law enforcement matters, no attorney should record any conversation, whether by tape or electronic de
Opinion 337 surveyed state ethical opinions and found them to support the ABA pattern with only one exception. The decision was based on the appearance of impropriety and presumed public distaste for secret recordings even though the action of recording was not illegal. A year later, the ABA refused a request to reconsider Formal Op. 337. ABA Informal Op. 1320 (1975).
Plaintiffs first argue that even if this Court were to hold that the ABA Model Rules govern the ethical standards of attorneys appearing before it, those rules do not apply to this case because the client, not the attorney, did the taping. Furthermore, the client’s affidavit indicates that the client, on his own, devised and executed the telephone recording scheme.
A more direct reason for not distinguishing between the attorney and the client may be found in the structure of Rule 26(b)(3) itself. Since the 1970 amendments, the client, as well as the attorney, come under the rule’s umbrella.
Plaintiffs next urge the Court not to rely on the above-cited cases because they were all premised on use of the ABA’s Model Code of Professional Conduct. Plaintiffs argue the Model Code has been supplanted since 1985, when North Carolina adopted the North Carolina Rules of Professional Conduct (“RPC”). This same argument was rejected in Ward v. Maritz, Inc., 156 F.R.D. 592 (D.N.J.1994) (New Jersey RPC). There, the court found that the New Jersey Rules of Professional Conduct include the same.prohibitions against dishonesty, fraud, deceit, or misrepresentation which was the basis of ABA Formal Op. 337 (1974). Id. at 597. The same is true for the North Carolina RPC which was “patterned after the American Bar Association’s Model Rules of Professional Conduct, [although] they incorporated certain unique features.” 1988 Annotated Rules of Professional Conduct, Lawyers Handbook, Forward by James Y. Preston, President.
Next, plaintiffs point to RPC 171 (1994) as evidence that in North Carolina the surreptitious recording of conversations by attorneys is not unethical. That ethics opinion states that the surreptitious recording of a conver
The Court will first address plaintiffs’ argument that this Court is bound by the North Carolina Rules of Professional Conduct because it has adopted those rules as its ethical standards in Local Rule 505(b). While the statement with respect to adoption is correct, the preclusive or encompassing effect of such adoption is not. Even though a federal district court purportedly adopts state rules of professional conduct with respect to those attorneys practicing before it, it must use federal law to interpret and apply those rules. McCallum v. CSX Transp., Inc., 149 F.R.D. 104, 108 (M.D.N.C.1993). In doing this, the Court may look to other federal cases for interpretation of federal law and widely accepted national codes of conduct, such as the ABA Model Rules. Id.
The Court declines the opportunity to resolve whether North Carolina RPC 171 opinion concerning secretly recording opposing counsel constitutes a significant departure from the standards of ethical conduct approved by the previously cited federal courts and the ABA Model Rules. In any event, the parties have failed to present the Court with sufficient national survey evidence for the Court to conduct such an inquiry.
The structure of Rule 26(b)(3) itself provides a more direct reason for declining to provide work product protection to the surreptitious recording of conversations by either attorneys or clients. The rule both encompasses electronically recorded statements and regulates them. Parties have a right to their adopted and verbatim statements and other persons may request a copy of theirs.
In the instant case, plaintiff did not inform people that their conversations were being recorded and the recordings have been identified. Therefore, the recordings have lost any work product protection. No issue of relevancy has been raised.
IT IS THEREFORE ORDERED that defendant Rammax Maschinenbau, GmbH and Multiquip, Inc.’s motion to compel (docket no. 218) is granted, and plaintiffs shall turn over the tapes and transcripts to defendants forthwith.
. Defendants point out that in some states surreptitious recordings are illegal in spite of federal law. Because of potential concerns about the constitutionality of such statutes applied to interstate transactions, the Court declines to make a decision based on that difficult submission.
. The work product protection of Fed.R.Civ.P. 26(b)(3) covers material “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R.Civ.P. 26(b)(3) (emphasis added).
. In Ward v. Maritz, Inc., 156 F.R.D. 592, 598 (D.N.J.1994), the court rejected a similar argument, this time based on a recent New York opinion which cited changing normative standards over time as a reason for now permitting surreptitious attorney recording of conversations, except with adverse parties or represented witnesses. The court expressly noted that discover-ability will not be judged on the basis of ethics alone. Rather, it decided that,
concerns of fairness and safeguarding the adversary process require the production of the tape recordings. Without such production, plaintiff unilaterally maintains the ability to use the secretly recorded statements for discovery purposes and for impeachment purposes at trial. Fundamental fairness requires that the defense be afforded the opportunity, if Maritz so desires, to use the statements to impeach the credibility of the witnesses, a capability that rests solely with plaintiff at this point.
Id. at 598.
. Rule 26(b)(3) states in relevant part:
(3) Trial Preparation: Materials
A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
Some courts have considered withholding from the opposing side, a statement by a non-party until the time of deposition or trial in order to preserve as much work product protection for as long as possible. Gotch v. Ensco Offshore Co., 168 F.R.D. 567, 571-572 (W.D.La.1996); In re Convergent Technologies Second Half 1984 Securities Litigation, 122 F.R.D. 555, 565-567 (N.D.Cal.1988).
. This construction also is in line with those courts which find that taped conversations are a low level type of work product which deserves little, if any, protection and are readily produced under the Rule 26(b)(3) exceptions for need for their value to factual accuracy, credibility, and other trial purposes. Bogan v. Northwestern Mut. Life Ins. Co., 144 F.R.D. 51, 53 (S.D.N.Y.1992); Ward v. Maritz, Inc., 156 F.R.D. at 598.
. There is a tension between Fed.R.Civ.P. 26(b)(3) and Fed.R.Evid. 613. See 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2028, at 413-415 (1970). Rule 613 of the Federal Rules of Evidence permits a witness to be impeached before a prior inconsistent statement is revealed and the statement may be admitted into evidence before the witness has an opportunity to explain or deny it. 28 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure §§ 6202 & 6203 (1993). Yet, Fed.R.Civ.P. 26(b)(3) permits persons access to their adopted or verbatim recorded statements.
The treatise writers would reconcile the tension by encouraging courts, when appropriate, to schedule non-parties access to their statements after they have been deposed or testified. 8 Wright, Miller & Marcus, supra, § 2028. The construction of Rule 26(b)(3) suggested today does not resolve that tension. It may, however, ameliorate some of the criticism leveled at Fed. R.Evid. 613. This being that it is more unfair to witnesses and time-consuming than the prior “traditional” approach, 28 Wright & Gold, supra, § 6202. By encouraging a party to inform the potential witness that the conversation will be recorded, this may reduce the "unfair” surprise when the recording is revealed for the first time at the deposition or trial as Fed.R.Evid. 613 allows. And, a party who does not disclose may jeopardize its Fed.R.Evid. 613 advantage.
. Because Rule 26(b)(3) both provides taped conversations with work product protection, yet has special disclosure provisions for adopted or verbatim statements, there exists a certain internal tension. 8 Wright, Miller & Marcus, supra, § 2028. The suggested construction will not eliminate all these problems, but the setting of some bright line interpretation markers should be helpful to the parties and the court.