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HENDRICK v. AVIS RENT A CAR SYS.

February 29, 1996

Matthew M. Hendrick, Plaintiff,
v.
Avis Rent A Car System, Inc; General Motors Corporation; and New United Motor Manufacturing, Inc., Defendants, Avis Rent A Car System, Inc., Defendant & Third-Party Plaintiff, v. Andrea E. MacMillan, Third-Party Defendant.



The opinion of the court was delivered by: FELDMAN

 On the afternoon of October 19, 1991 plaintiff, Matthew Hendrick was a passenger in a rented Geo Prizm automobile being driven by his mother along Route 96 in Romulus, New York. For reasons not certain, the vehicle left the road and collided with a utility pole. Matthew Hendrick, then age 21, was rendered a quadriplegic as a result of the collision. Plaintiff thereafter commenced this action against defendants alleging, inter alia, that design defects existed in the restraint system utilized by the Geo Prizm. Defendants General Motors (GM) and New United Motor Manufacturing, Inc. (NUMMI) have denied any defect existed in the Geo Prizm or its design. *fn1"

 By Order entered November 15, 1995, this matter was referred to the undersigned by the Honorable Michael A. Telesca for determination of any non-dispositive motions. Currently pending before me are (1) GM's motion to compel plaintiff to answer their interrogatory number 23 which seeks production of all statements of GM employees, officers and agents and (2) plaintiff's motion for access to any "crash or sled testing" that GM may conduct to prepare for trial.

 INTERROGATORY 23: STATEMENTS OF GM

 In interrogatory 23 defendant GM seeks the identification and production of any statement of any employee, agent or officer of General Motors or NUMMI currently in the possession or control of plaintiff or his attorneys. Plaintiff has responded to this demand by admitting that counsel for plaintiff has obtained and examined a limited number of documents and transcripts from other cases involving GM, but refusing to identify or provide the documents obtained on the basis that such documents constitute attorney work product. In reply, GM counters that statements of their agents, employees and officers are discoverable as a matter of right pursuant to Federal Rule of Civil Procedure 26(b)(3).

 In order to qualify as work product, the "material must (1) be a document or other tangible thing, (2) that was prepared in anticipation of litigation and (3) was prepared by or for another party, or by or for that party's representative." Brock, Inc. v. Frank V. Panzarino., 109 F.R.D. 157, 159 (E.D.N.Y. 1986) (quoting In re Grand Jury Subpoenas Dated December 18, 1981 and January 4, 1982, 561 F. Supp. 1247, 1257 (E.D.N.Y. 1982). Because the materials which plaintiff objects to revealing to defendants were not prepared by or on behalf of plaintiff, I find that such documents do not constitute "work product" and therefore must be produced in response to interrogatory 23.

 The sharing and exchanging of documents obtained from a party during litigation with other counsel who may have cases with the same defendants and similar issues is, of course, not uncommon. In this computer age it is relatively easy for a litigant to conduct a nationwide search to locate other cases where the issues and often many of the parties are identical to the case of the inquiring litigant. In the specialized field of products liability, resourceful counsel representing injured plaintiffs have established formal and informal information networks to advance the sharing of materials that may be of common interest, including pleadings, witness statements, interrogatory responses, trial transcripts and deposition testimony.

 The sharing of information among similarly situated plaintiffs does not, however, shield the information exchanged from disclosure pursuant to the discovery provisions of the Federal Rules of Civil Procedure. In Bohannon v. Honda Motor Company, 127 F.R.D. 536 (D. Kan. 1989), arguments similar to those plaintiff now makes were rejected by the court. The plaintiff in Bohannon was injured in an accident involving a Honda ATV vehicle and his counsel thereafter obtained documents relevant to alleged defects in the vehicle from an "ATV litigation support group". Finding that "neither plaintiff nor his attorney generated these documents", the court denied protection under the work product doctrine despite plaintiff's claims that production of the material would "disclose the mental processes of counsel". Id. at 539. Similarly, in Bartley v. Isuzu Motors, 158 F.R.D. 165 (D. Colo. 1994), plaintiff's counsel secured various documents that were generated in other cases involving the same defendants. Invoking the work product doctrine, plaintiff's counsel resisted disclosing the materials. The court in Bartley held that because the documents sought "were not prepared in anticipation of this particular litigation", they were not subject to the work product doctrine. Id. at 167. *fn2" I find the reasoning of the Bohannon and Bartley decisions to be sound and equally applicable to the facts presented here. Since plaintiff's counsel neither prepared nor created any of the documents sought and because it is undisputed that all of the documents responsive to interrogatory 23 were prepared in connection with other litigation, such documents are not subject to the protections of the work product doctrine.

 A second, equally compelling, reason for ordering disclosure of the documents is that they are discoverable "statements" as defined in the second paragraph of Federal Rule of Civil Procedure 26(b)(3). Rule 26 (b)(3) provides that "[a] party may claim without the required showing [of substantial need] a statement concerning the action or its subject matter previously made by that party. " (emphasis added). Given the broad language of the Rule, it seems logical that if plaintiff has obtained statements of or authored by GM, its agents, employees or officers concerning the subject matter of this lawsuit, such statements must be produced to defendant regardless of how plaintiff obtained them. Bohannon, supra at 540. (testimony of defendants in prior relevant cases are discoverable as "statements" within meaning of Rule 26(b)(3)).

 Plaintiff's contention that the mere identification of documents reviewed would reveal his lawyer's litigation strategy is unpersuasive. Relying primarily on Sporck v. Peil, 759 F.2d 312 (3rd Cir.), cert. denied, 474 U.S. 903, 88 L. Ed. 2d 230, 106 S. Ct. 232 (1985), plaintiff complains that to respond to the interrogatory, counsel would, in effect, be divulging his "strategy and mental thoughts and impressions". (November 9, 1995 affidavit of Thomas R. Monks, Esq. at P 34). I disagree. Plaintiff's "strategy" of identifying similar lawsuits involving GM and obtaining documents relevant to the issues raised in this action is hardly a secret. Plaintiff is not being required to reveal to GM a precise list of every document counsel examined or obtained from other lawyers who prosecuted similar claims against GM. Nor is counsel being required to disclose who obtained a particular document, how the document was obtained, why the document was obtained or when the document was obtained. Plaintiff is only being asked to identify statements made by or attributable to an adverse party. Moreover, the Second Circuit has voiced caution over extending the work product doctrine to the sifting and selection of documents scenario, admonishing counsel that this extension "depends on the existence of a real, rather than speculative concern that the thought processes of . . . counsel in relation to pending or anticipated litigation would be exposed." Gould, Inc. v. Mitsui Mining & Smelting Co., 825 F.2d 676, 680 (2d Cir. 1987). See also In Re Minebea Co., LTD, 143 F.R.D. 494, 500 (S.D.N.Y. 1992). In the absence of anything more specific than counsel's statement that his "strategy and mental thoughts" would be revealed by producing the defendant's own statements, I am not persuaded that work product doctrine provides relief from answering the disputed interrogatory.

 There remains the issue of the timing of disclosure. GM wants the documents produced immediately. Plaintiff argues that if disclosure is required, such disclosure should not occur until after depositions have been completed. This Court has the discretion, under Rule 26 (c)(2), to delay production of the prior statements of a witness until after the witness has been deposed. The justification for any delay is that pre-deposition disclosure may afford the witness an unfair opportunity to tailor deposition testimony to conform with a previous explanation or statement, thus depriving the plaintiff from obtaining an unrefreshed recollection of the subject matter of the deposition. See Torres-Paulett v. Tradition Mariner, Inc., 157 F.R.D. 487, 488-489 (D. Colo. 1994); McCoy v. General Motors Corp., 33 F.R.D. 354, 356 (W.D. Pa. 1963). Under the facts presented here, I choose to exercise my discretion and delay disclosure of the documents until after the author of the statement or document has been deposed. Accordingly, to the extent plaintiff has either noticed the deposition, or has a good faith intention of noticing the deposition of an individual whose statement would otherwise be producible in answering defendants' interrogatory 23, such statement shall be produced or identified with particularity immediately following such individual's deposition. All other statements of defendants encompassed by a complete response to interrogatory 23 shall be identified or produced by plaintiff within 30 days.

 ACCESS TO CRASH OR SLED TESTING

 In their moving papers, plaintiff seeks "access to any crash and sled testing that GM intends to perform in this case pursuant to Federal Rule of Civil Procedure 26(b)(3)". (Affidavit of Thomas R. Monks, sworn to on September 20, 1995 at P 29). In citing Rule 26(b)(3), plaintiff apparently concedes that any such testing performed by GM would constitute "trial preparation materials" within the meaning of the rule and, accordingly, would not be subject to disclosure unless plaintiff demonstrates a "substantial need of the materials in the preparation of [plaintiff's] case and that [plaintiff] is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Fed. R. Civ. P. 26(b)(3). Defendant GM has responded to plaintiff's demand by denying that any crash or sled testing has occurred or is presently scheduled, but maintaining ...


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