Chapter 28 Ethical Considerations In Representing Your Corporate Client's Employees In Deposition

• Jurisdiction: Maryland

CHAPTER 27 DISCOVERY OF JURY CONSULTANT AND FOCUS GROUP MATERIALS AND RELATED COMMUNICATIONS

A&F, an accounting firm, and its client, Big, Inc., are co-defendants in a securities class action involving Big, Inc.'s alleged accounting fraud. A&F and Big have cross-claimed against each other, with Big maintaining that A&F negligently performed its audit of Big, and A&F contending that Big misled A&F's auditors. A&F has hired Dr. McGee, a jury/trial consultant, to advise on trial strategy and prepare witnesses. A&F has also conducted an abbreviated mock trial before a jury of randomly selected residents in the venue where the action is pending.

At the deposition of A&F's senior auditor, Big, Inc.'s counsel asks the witness whether he ever met with Dr. McGee and if so, to describe the substance of their communications. The lawyer also asks the witness whether he testified before a mock jury or focus group, and if so, to describe the reactions of the jury.

A&F's lawyer objects and instructs the witness not to answer on the grounds of attorney-client privilege and work product doctrine. Big, Inc. subsequently files a request for documents seeking all reports or other documents generated by Dr. McGee in connection with his consultation for A&F, as well as all documents identifying the mock jurors. A&F objects and moves for a protective order.

How should the court rule?

Comment: Litigation consultant and focus group materials and communications may be protected by the work product doctrine codified at Rule 2-402(d), which applies to "documents, electronically stored information and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer, or agent) . . . ." See generally Chapter 5: Interrogatories—Sufficiency of Objections; Chapter 6: Sufficiency and Supplementation of Interrogatory Answers; Chapter 8: Document Requests—Numerosity, Propriety, Timing and Sufficiency of Objections; Chapter 10: Discovery of Witness Statements; and Chapter 11: Privilege Logs. This protection is not absolute, however; a party may obtain discovery of work product upon "a showing that the materials are discoverable under [Rule 2-402(a)] and that the party seeking discovery has substantial need for the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Rule 2-402(d). Even if that showing is made, however, the court, in ordering the disclosure, "shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." Id.

On its face, the protection of Rule 2-402(d) extends only to "documents, electronically stored information, and tangible things." However, in Hickman v. Taylor, 329 U.S. 495 (1947), superseded by FED. R. CIV. P. 26(b)(3), the U.S. Supreme Court made it clear that intangible work product is also protected:

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 belief, and countless other tangible and intangible ways . . . toughly termed the "work product of the lawyer." Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial.¹

The Maryland Court of Appeals favorably quoted Hickman in Couser v. State, 282 Md. 125, 137, 383 A.2d 389, 396 (1978), holding ". . . that criminal records of prospective jurors supplied to the prosecutor by the police would in no event qualify as protected 'work product.'" 282 Md. at 137-38, 383 A.2d at 396. See also Rickards v. Corizpn Health, Inc., No. 2:18-cv-00384, 2019 U.S. Dist. LEXIS 92357, at *2-3 (D. Me. June 1, 2019). ("The Court protected a broad swath of otherwise discoverable materials because it recognized that work product 'is reflected, of course, in interviews...