The opinion of the court was delivered by: Conner, Senior D.J.
Plaintiffs, Candida Costabile as guardian ad litem for Anthony Costabile and Anthony Costabile, individually, ("plaintiff") bring this action against defendants, County of Westchester ("the County"), Frank Bonfonte ("Bonfonte"), Roy Shapiro ("Shapiro") and Roberto Alancarta ("Alancarta") alleging that defendants, plaintiff's former employers, harassed and terminated him because of his disability in violation of the First and Fourteenth Amendments to the United States Constitution, New York Human Rights Law, N.Y. EXEC. LAW. ART. 15 ("NYHRL") and the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 1211, et seq. (the "ADA"). Defendants move to compel production of a private investigator's report pursuant to FED. R. CIV. P. 37(a). For the following reasons, the motion is denied.
Plaintiff was diagnosed with Attention Deficit Hyperactivity Disorder and Nonverbal Learning Disorder as a young child. (2d Am. Complt. ¶ 12.) Starting in June 2002, plaintiff obtained seasonal employment with the County, Department of Parks and Recreation at Glen Island Park, in New Rochelle, New York. (Id. ¶ 15.) Plaintiff alleges that, commencing in the summer of 2003 and continuing in the summer of 2004, Alancarta, plaintiff's direct supervisor, subjected plaintiff to numerous acts of discriminatory treatment due to his condition. (Id. ¶ 17.) These include: tying plaintiff to a tree with shrink wrap, tying plaintiff to a chair with shrink wrap, tying plaintiff to a rolling chair with shrink wrap and hosing him down with excessive force, tying plaintiff to a steel beam, locking plaintiff in a bathroom, referring to plaintiff as a "retard" and "idiot," lighting the shrink wrap on fire when plaintiff could not free himself, suggesting plaintiff "jump off a bridge" and other cruel and malicious acts to harm plaintiff and take advantage of his disability. (Id.) Plaintiff alleges that on July 7, 2004, defendants fired him ostensibly for leaving work fifteen minutes early, even though he had been give permission to do so by the supervisor at the time. (Id. ¶ 20.) Plaintiffs commenced this action on May 1, 2006.
Defendants learned in early 2008 of the existence of a private investigator's report prepared shortly after the alleged events and requested a copy from plaintiffs' counsel. (Defs. Mem. Supp. Mot. Compel at 5.) Defendants believe the report contains information relevant to the defense and was voluntarily disclosed by plaintiffs to the United States Equal Employment Opportunity Commission (the "EEOC") and, upon information and belief, to the United States Department of Justice (the "DOJ"). (Id.) Plaintiffs state that the report was prepared on behalf of plaintiffs' former counsel in anticipation of this litigation. (Letter Brief from Gerald Jay Resnick, Resnick, Nirenberg & Cash, P.C., Attorney for Plaintiffs, to Hon. William C. Conner, U.S.D.C., dated June 6, 2008, ("Resnick Ltr.") at 4.) Plaintiffs also state that a copy of the report was supplied to the EEOC in support of the charge of discrimination filed with that office, and that the report was not published to any other party. (Id.)
Motions to compel are "entrusted to the sound discretion of the district court" in keeping with the traditional rule that "[a] trial court enjoys wide discretion in its handling of pre-trial discovery." In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003) (internal quotation marks and citation omitted).
Under the Federal Rules of Civil Procedure, the scope of discovery extends to "any non-privileged matter that is relevant to any party's claim or defense." FED. R. CIV. P. 26(b)(1).
The relevancy requirement "has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).
II. Work Product Privilege
A. Qualification as Work Product
The Supreme Court, in Hickman v. Taylor, held that notes taken by the defendant's attorney during interviews with witnesses to the event that eventually gave rise to the lawsuit were not discoverable by the plaintiff because it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways-aptly . . . termed . . . the "Work product of the lawyer." 329 U.S. 495, 510-11 (1947) (internal citation omitted). Federal Rule of Civil Procedure 26(b)(3) codifies the principles articulated in Hickman. See United States v. Adlman, 134 F.3d 1194, 1197 (2d Cir. 1998). The Rule states that documents "prepared in anticipation of litigation or for trial" are discoverable only if "the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means." FED. R. CIV. P. 26(b)(3)(A)(ii). Even where this showing has been made, however, the Rule provides that the court "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Id. at 26(b)(3)(B).
The party asserting work product protection bears the burden of demonstrating that the doctrine applies and that it has not been waived. See In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007); Allied Irish Banks, p.l.c. v. Bank of Am., N.A., 2008 U.S. Dist. LEXIS 23605, at *29 (S.D.N.Y. Mar. 26, 2008). The burden is a "heavy one," and three conditions must be met to earn work product protection. Allied Irish Banks, p.l.c., 2008 U.S. Dist. LEXIS 23605, at *29. "The material must (1) be a document or a tangible thing, (2) that was prepared in anticipation of litigation, and (3) was prepared by or for a party, or by his representative." Id. The work product doctrine protects not only materials which are prepared by attorneys themselves, but also by their agents. See Spanierman Gallery v. Merritt, 2003 U.S. Dist. LEXIS 22141, at *6 (S.D.N.Y. Dec. 9, 2003) (citing United States v. Nobles, 422 U.S. 225, 238-39 (1975)). Agents include those who are enlisted by legal counsel to perform investigative or analytical tasks to aid counsel in preparing for litigation. Kayata v. Foote, Cone & Belding Worldwide, L.L.C., 2000 WL 502859, at *2 (S.D.N.Y. Apr. 26, 2000). A document is eligible for work product privilege if it was ...