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Martin Tankleff v. the County of Suffolk

November 22, 2011


The opinion of the court was delivered by: Seybert, District Judge:


Pending before the Court are the New York State's Office of the Attorney General's (the "OAG") Objections to Magistrate Judge William D. Wall's order compelling it to produce certain documents that it argues are protected by the attorney work product doctrine. In his March 29, 2011 decision (the "Discovery Order"), Judge Wall ruled, among other things, that the documents in question were not work product because they were not created in anticipation of litigation. For the following reasons, the OAG's Objections are sustained and the Discovery Order is vacated in part.


The Court presumes the reader's familiarity with the facts and posture of this case and only sets forth the facts necessary to give context to the discussion that follows. As is relevant here, the New York State Appellate Division vacated Martin Tankleff's ("Plaintiff") convictions for killing his parents, Seymour and Arlene Tankleff. The Suffolk County District Attorney recused himself from further involvement in the case, so then-Governor Eliot Spitzer appointed the OAG to investigate the Tankleff murders and prosecute anyone that it determined committed these crimes. Eliot Spitzer, Executive Order Dated Jan. 11, 2008, 9 N.Y.C.R.R. § 6.21. The OAG investigated the case and ultimately moved to dismiss the indictments pending against Plaintiff. It has not prosecuted anyone else for the Tankleff murders, and its investigation is apparently closed. (See Docket Entry 34-5, 1/15/10 Ltr. from the OAG to Plaintiff's counsel.)

In the course of this civil action, Plaintiff sought documents from the OAG related to its investigation. The OAG resisted producing certain documents by asserting several different privileges. In his Discovery Order, Judge Wall rejected many of the OAG's arguments and ordered it to produce all of the disputed documents except for certain materials related to the grand jury. The OAG complied with the Discovery Order except to the extent that it ordered production of documents the OAG believes are protected by the attorney work product doctrine. It withheld thirty-six documents (the "Withheld Documents") and filed these Objections.

The Court has examined the Withheld Documents in camera and agrees with the OAG that, to the extent the documents are entitled to any type of work product protection, they are properly considered "core" or "opinion," as opposed to "fact," work product. See In re Grand Jury Proceedings, 219 F.3d 175, 190 (2d Cir. 2000) (describing opinion work product as material setting forth the "mental impressions, conclusions, opinions, or legal theories of an attorney"); see also FED. R. CIV. P. 26(b)(3)(B).


The issue in this case is whether the OAG, a nonparty, may invoke the attorney work product doctrine to avoid producing the Withheld Documents. In the course of resolving this question, the Court must decide whether Judge Wall's Discovery Order, in which he concluded that the documents were not created in anticipation of litigation, was contrary to law. The Court will address that issue below, but it first turns to the threshold question of whether the OAG, as a nonparty, may assert the work product doctrine in this case.

I. The Common Law Work Product Doctrine

"The attorney work product privilege protects 'the files and the mental impressions of an attorney . . . reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways' prepared in anticipation of litigation." A. Michael's Piano, Inc. v. F.T.C., 18 F.3d 138, 146 (2d Cir. 1994) (quoting Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S. Ct. 385, 393, 91 L. Ed. 451 (1947)). The doctrine creates "a 'zone of privacy' that allows an attorney to prepare for litigation 'free from unnecessary intrusion by his adversaries.'" Gonzalez v. City of N.Y., No. 08-CV-2699, 2009 WL 2253118, at *3 (E.D.N.Y. July 28, 2009) (quoting United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998)). The doctrine is partly codified by Federal Rule of Civil Procedure 26(b)(3), but there is no dispute that the OAG, as a nonparty, may not invoke Rule 26. (Discovery Order 6.)

The OAG instead relies on the broader common law work product doctrine, which extends to nonparties to the degree necessary to achieve the three underlying purposes of the doctrine. See, e.g., Jean v. City of N.Y., No. 09-CV-0801, 2010 WL 148420, at *2 (E.D.N.Y. Jan. 12, 2010); cf. Abdell v. City of N.Y., No. 05-CV-8453, 2006 WL 2664313, at *4 (S.D.N.Y. Sept. 14, 2006). Work product protection is appropriate where disclosure would "(1) alter attorney behavior, (2) reward sloth, or (3) interfere with ongoing litigation." Haus v. City of New York, No. 03-CV-4915, 2006 WL 3375395, at *3 (S.D.N.Y. Nov. 17, 2006) (citing Abdell, 2006 WL 2664313, at *4). Additionally, at least one court in this Circuit has suggested that, given the high degree of protection afforded "opinion" work product, nonparties ought to be able to invoke the work product doctrine even where protection for "fact" work product would not otherwise be justified. See Abdell, 2006 WL 2664313, at *4-6; see also Crosby v. City of N.Y., 269 F.R.D. 267, 278 (S.D.N.Y. 2010); Jean, 2010 WL 148420, at *2. Judge Wall did not decide whether the work product doctrine extends to the OAG because he concluded that the Withheld Documents were not created in anticipation of litigation and thus not eligible for work product status in any event.

In this case, the OAG may invoke the common law work product doctrine because non-disclosure would promote the first and third objectives of the work product doctrine and because the materials to be protected are squarely "core" work product. Requiring disclosure could have a chilling effect on when and how OAG attorneys commit their thoughts to paper. (See NYAG Br. 2.) Plaintiff argues that this concern is irrelevant because disclosure in this case would not erode the "zone of privacy" that shields a lawyer's work from his adversary. (Pl. Opp. 8.) In other words, the doctrine should not apply because Plaintiff and the OAG are not adversaries in this litigation. The Court disagrees that work product protection is only available to parties with an adversarial relationship with the party seeking disclosure, a point that is implicit in several decisions in which courts have extended work product protection to nonparties. See Jean, 2010 WL 148420, at *3 (extending work product protection to district attorney's office); Abdell, 2006 WL 2664313, at *7 (permitting district attorney to redact notations reflecting assistant district attorneys' mental impressions). Extending work product protection to the OAG is also sensible in light of the doctrine's third goal. Although the OAG does not anticipate prosecuting anyone for the Tankleff murders, there exists the possibility that it may one day develop evidence to pursue a case against suspects other than the Plaintiff. Disclosure of the Withheld Documents would disrupt that eventual prosecution. Further, the Court's decision is in accord with courts that have recognized that a nonparty's "core" work product may be protected even where its "fact" work product is not. See Abdell, 2006 WL 2664313, at *7 (permitting redactions of notations that reflected lawyers' impressions despite finding that the work product doctrine did not apply to district attorney's fact work product).

II. In Anticipation of Litigation Having concluded that the work product doctrine is available to the OAG, the next issue is whether Judge Wall's decision that the withheld documents were not created in anticipation of litigation was contrary to law. Judge Wall found that because the OAG was tasked not only with prosecuting but also with investigating the Tankleff murders, and because its investigation eventually resulted in a motion to dismiss Plaintiff's indictments, the OAG's documents were not created in anticipation of litigation. (Discovery Order at 7-8.)

The Court may disturb a Magistrate Judge's ruling in a non-dispositive matter only if it finds that the ruling was "clearly erroneous or contrary to law." E.g., Aboeid v. Saudi Arabian Airlines Corp., No. 10-CV-2518, 2011 WL 5117733, at *1 (E.D.N.Y. Sept. 6, 2011). A ruling is "clearly erroneous" if the Court, after considering all of the evidence before it, "is left with the definite and firm conviction that a mistake has been committed." Mobil Shipping & Transp. Co. v. Wonsild Liquid Carriers Ltd., 190 F.3d 64, 67 (2d Cir. 1999) (quoting Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985)). Under the "contrary to law" standard, the Court can reverse the decision "only if it ...

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