Info from journalists isn't work product.

Byline: Kris Olson

Memoranda prepared by investigative journalists and shared directly as part of an "informal relationship" with an attorney pursuing post-conviction relief for a man unjustly convicted of murder did not constitute "work product" that could be shielded from discovery in the man's subsequent civil lawsuit, a federal judge has decided.

Those memoranda comprised the trickiest of four categories of documents on the plaintiff's privilege log reviewed by U.S. District Court Judge Allison D. Burroughs at the behest of one of the defendants.

The plaintiff's attorneys first noted that the memoranda were held in the files of the plaintiff's post-conviction attorneys and, citing the 3rd U.S. Circuit Court of Appeals' decision in Sporck v. Peil, argued that "selection and compilation of documents" in preparation for pre-trial discovery should benefit from work product protection.

The plaintiff also cited Burroughs' own decision, In re Intuniv Antitrust Litig., for the idea that a lawyer's selection of documents can be protected by the attorney work product doctrine "where that selection is based upon a legal judgment and is not intended to be conveyed to an adverse party."

In his opposition to the defendant's motion to compel the production of the memoranda, the plaintiff also argued that the relationship between the college investigative journalism institute and the attorney "need not have been a formal attorney-employee relationship for work-product protections to attach."

It was enough that the attorney was plainly working to exonerate the plaintiff and that her communications with and acquisition of investigative information from the institute served that mission, the plaintiff claimed.

Burroughs acknowledged that documents produced by non-attorneys can fall within the protection of the work product doctrine. But here, the attorney had not asked the institute or its members to conduct any investigation. Instead, she hired her own independent private investigator. That helped make clear that the institute was not acting as the attorney's agent or representative in preparing the memos, Burroughs concluded.

Also, much of what the defendant was now seeking was factual information that, while requested by the post-conviction attorney, "does not reveal any insight into counsel's legal impressions or their views of the case," Burroughs said, citing the D.C. Circuit Court of Appeals' 2015 decision in F.T.C. v. Boehringer Ingelheim Pharm...