The opinion of the court was delivered by: Hurley, Senior District Judge
On Defendants' Objections to Magistrate Judge's Discovery Order (docs. ##186-188)
Defendants Medical World Communications, Inc. ("MWC" or the "Company"), Romaine Pierson, Inc., John J. Hennessy, and Robert Issler (collectively, the "Company Defendants"), joined by Defendants James King ("King") and Daniel Perkins ("Perkins"),*fn1 as well as Defendant James Granato ("Granato"), object to the September 21, 2006 Order of Chief Magistrate Judge Michael L. Orenstein in which he held that two April 2003 draft memoranda (the "April 2003 Memos") authored by Plaintiff Lara Curto ("Plaintiff") and then e-mailed as attachment from herself to herself "are protected from discovery by virtue of the work-product privilege". (Sept. 21, 2006 Tr. at 51:14-15.) For the reasons that follow, (1) the Defendants' objection as to the Magistrate Judge's determination that the April 2003 Memos are work-product is OVERRULED, but (2) the Defendants' objection is SUSTAINED as to their argument of substantial need for the April 2003 Memos. Therefore, this matter is REMANDED to the Magistrate Judge for a Rule 26(b)(3) "substantial need" determination. Upon remand, the Magistrate Judge is also to determine whether Plaintiff has waived her work-product protection of the April 2003 Memos by putting at issue her retaliation claim.
This is the second time the Defendants have appealed one of the Magistrate Judge's discovery rulings in this case. Defendants previously objected to the Magistrate Judge's January 18, 2006 Order in which he held that Plaintiff "had not waived her right to assert the attorney-client privilege and work product immunity concerning documents allegedly retrieved from MWC-owned laptop computers used by Plaintiff during her employment with MWC." Curto v. Medical World Comm'ns, Inc., No. 03-cv-6327, 2006 WL 1318387, at *1 (E.D.N.Y. May 15, 2006). In a May 15, 2006 Memorandum & Order, this Court affirmed the Magistrate Judge's Order in its entirety.*fn2 See id. Within that Memorandum & Order, the Court provided a factual background of this case, familiarity with which is assumed. See id. at *1-*2. Thus, now, the Court will provide only that background which is relevant to the current appeal.
In July 2006, while attempting to comply with Magistrate Judge Orenstein's January 18, 2006 Order directing Defendants to return all electronic copies of documents identified in Plaintiff's initial privilege log, "defendants' forensic expert uncovered two intact (i.e., non-deleted), but non-identical versions of the memo to Jack Hennessey (the April 2003 Hennessey Memos)." (Company Defs.' Obj. at 6-7 (footnote and citation omitted).) Apparently, Plaintiff had forgot about these two memos until their discovery by the Company Defendants. (She previously represented that she had deleted all her files from the company-issued laptop computers.) The Company Defendants informed the Court of this discovery via letter. (See Letter from John P. McEntee, Esq., Farrell Fritz, P.C., to Hon. Michael L. Orenstein, Chief U.S. Magistrate Judge, U.S. District Court, Eastern District of New York (July 31, 2006) (doc. #172).) Upon learning of their existence, on August 30, 2006, Plaintiff submitted a supplemental privilege log identifying the April 2003 Memos as privileged. Of note, this supplemental privilege log was submitted after the Magistrate Judge's directive of September 2005 that there would be no further modifications of the initial privilege log.
At the September 21, 2006 status hearing,*fn3 Magistrate Judge Orenstein heard arguments regarding the April 2003 Memos (which were identified on the supplemental privilege log), associated metadata, and all the documents identified on the initial privilege log. During this hearing, the Magistrate Judge came to understand that the April 2003 Memos were attachments to e-mails sent by Plaintiff to Plaintiff; the supplemental privilege log, while identifying the April 2003 Memos, did not identify the e-mails by which those memos were transmitted. The subject line of the first e-mail read "Andrew re" and the name of the attached file was "Acurto 4 22 03". Similarly, the subject line of the second e-mail read "Andrew3" and the name of the attached file was "ACurto rev2 4 22 03". Magistrate Judge Orenstein ruled that regardless of relevant metadata information by virtue of the emails, I'm more than convinced that those documents [i.e., the April 2003 Memos] are protected by work product immunity.
It points out to me -- even though it may be on a letterhead of MWC, it is documents sent by Lara Curto to Lara Curto for the purposes of Andrew; Andrew being Andrew Curto. And revision 2, revision 3 or what it is. (Sept. 21, 2006 Tr. at 48:19-25; see also id. at 51:1-4 ("[I]t is pretty clear to this Court and certainly the email that I didn't have which Plaintiff failed to send to me with the document, which would have made it clearer to me, buttresses what this Court thought to begin with [i.e., that the April 2003 Memos were entitled to work-product immunity].").)
At the hearing, the Defendants requested permission to further brief whether the newly-discovered April 2003 Memos were entitled to work-product immunity. The Magistrate Judge denied this request, instructing the parties that the time for briefing on this discovery matter had long since passed, notwithstanding that the April 2003 Memos were recently uncovered and were just being considered for the first time at the September 21, 2006 hearing. Relying on United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998), Magistrate Judge Orenstein ultimately found the April 2003 Memos were entitled to work-product immunity. (See id. at 51: 21-23.)
II. THE PARTIES'POSITIONS ON THE CURRENT OBJECTIONS
As an initial argument, the Defendants assert that the April 2003 Memos are not work-product documents; rather, they outline a list of Plaintiff's employment concerns. Since they were not prepared in anticipation of any litigation, they are not entitled to work-product protection. (See Company Defs.' Obj. at 11-14.) Alternatively, even if the April 2003 Memos were deemed work-product, Defendants are still entitled to their discovery since they have demonstrated a substantial need for them as impeachment materials. (See id. at 14-17.) Similarly, Defendants argue that Plaintiff has waived any work-product protection because [b]y asserting a retaliation claim and basing it on alleged protected activity in July 2002, [P]laintiff has squarely put at issue whether or [not] she actually engaged in the alleged protected activity.
Since the April 2003 Hennessey memos cast great doubt on that claim, applying work product protection to those documents would deny [D]efendants with vital evidence to their defense. For this reason alone, fairness requires a finding of a waiver and the production of the April 2003 Memos. (Id. at 18.) Finally, Defendants argue waiver of the work-product privilege because Plaintiff did not include the April 2003 Memos in her privilege log until after the close of discovery. (See id. at 19-20.)
Unsurprisingly, in her opposition papers, Plaintiff takes the position that the Magistrate Judge's September 21, 2006 Order was neither clearly erroneous or contrary to law because the April 2003 Memos were prepared in anticipation of litigation thereby affording them discovery immunity. (See Pl.'s Opp'n at 8-9.) Moreover, Plaintiff argues that the Defendants have not established a substantial need for the Memos and have not demonstrated undue hardship in obtaining equivalent discovery materials since she was available for deposition and will testify at trial. (See id. at 9-10.) Additionally, Plaintiff challenges the Defendants' characterization of the April 2003 Memos as contemporaneous accounts of relevant events. (See id. at 11.) Since the Memos recount past events "that occurred up to fourteen months before the documents were prepared" (id.), there is no substantial need for the April 2003 Memos "in order to gain insight into Plaintiff's past 'contemporaneous' impressions." (Id.) Finally, Plaintiff disputes Defendants' assertion that the April 2003 Memos must be disclosed in the interest of fairness as the Memos go directly to core issues. Instead, Plaintiff claims there has been no waiver of work-product immunity as the question "whether or not Plaintiff engaged in the protected activity (complaining of the harassment) is not seriously in issue . . ." (Id. at 12.)
In reply, Defendants focus on Plaintiff's deposition testimony, stating, "[P]laintiff testified plainly and without equivocation at her deposition that she did not even begin to contemplate litigation against the [D]efendants until shortly before filing her EEOC Charge in September 2003. (Anelli Decl., Ex. A [331:21-332:24]) No sworn materials to the contrary have been presented to the Court." (Defs.' Reply at 2; see id. at 5-6 (doc. #205).) Defendants strongly argue that the April 2003 Memos have "so little resemblance [to] . . . the EEOC Charge, it is difficult to see any plausible connection between them." (Id. at 4 and n.5 (stating the April 2003 Memos "are nothing more than factual recitations of workplace events and issues, make no mention of any 'protected activity' and do not attribute any of these workplace events and issue to any 'protected activity.'").) Defendants further assert that the Magistrate Judge failed to perform the required Rule 26(b)(3) "substantial need" analysis and that if he did so, Defendants would have been able to make the required showing. (See id. at 6.) According to Defendants, production of the ...