the additional witnesses they did not identify prior to pretrial. See Bailey v. Container Corp. of America, 660 F. Supp. 1048, 1051-52 (S.D. Ohio 1986).
C. Bottalico's Motion to Compel
have served requests for the production of documents on defendants, the defendants have filed objections, and eventually there was a motion to compel, with briefs from both sides. In their papers, plaintiffs seek all documents relating to the investigation of the June 2, 1988 incident prepared before June 22, 1988, the date plaintiff Bottalico filed charges of sex discrimination. Additionally, plaintiffs seek the documents relating to an investigation of alleged misconduct by defendant Wlodawsky conducted in March 1989, following the Bottalico investigation but before Wlodawsky's discharge. Defendants assert that these papers are protected by the attorney-client and work product privileges. The Court agrees.
The initial investigation was undertaken by Joanne Ochsman, an attorney in the Arent Fox law firm, in response to Bottalico's complaint that Wlodawsky had sexually assaulted her. Plaintiffs assert that documents prepared by Ms. Ochsman and the defendants' private investigator prior to June 22, 1988 (the date plaintiff Bottalico filed administrative charges with the EEOC) were not prepared in anticipation of litigation and are therefore not immune from discovery under Rule 26(b)(3), Fed. R. Civ. P.
It is clear, however, that the Rule extends to material prepared and collected before litigation actually commences. See In re Grand Jury Investigation, 599 F.2d 1224, 1229 (3rd Cir. 1979); United States v. Am. Tel. & Tel. Co., 86 F.R.D. 603, 627 (D.D.C. 1979); C. Wright and A. Miller, Federal Practice and Procedure § 2024 at 198 (1970). At the time of the intvestigation, the defendants were defending a sex discrimination suit by a former employee, and they recognized that the Bottalico claim exposed them to additional legal liability and litigation.
There is no question but that the investigation was conducted in anticipation of litigation.
As for the materials sought in connection with defendants' investigation of Wlodawsky, the same result follows. At the time defendants heard of reports regarding that individual's alleged affair, plaintiffs were bringing legal actions, and defendants were still involved in the Rauh sex discrimination suit. The investigation of Wlodawsky had a direct bearing on possible additional litigation, and it is therefore protected.
The privilege was not waived merely because defendants' disclosed counsel's conclusion that the investigation could not determine the truth of Bottalico's allegations. Rates Technology, Inc. v. Elcotel, 118 F.R.D. 133 (M.D. Fla. 1987); Bose Corp. v. Linear Design Labs, Inc., 186 U.S.P.Q. (BNA) 93 (S.D.N.Y. 1975); In re Dayco Corp. Derivative Securities Litigation, 99 F.R.D. 616 (S.D. Ohio 1983).
Finally, the Court rejects plaintiffs' request based on the assertion that they have a "compelling need" for the documents. Plaintiffs are free to question all the individuals who were interviewed by Ms. Ochsman.
While it might be more convenient for plaintiffs to rely on the work of defendants' counsel, that element of convenience is not sufficient to overcome either the attorney-client or the work product privilege. Upjohn v. United States, 449 U.S. 383, 398, 66 L. Ed. 2d 584, 101 S. Ct. 677 (1981). As the Supreme Court said in that case, quoting from Hickman v. Taylor, 329 U.S. 495, 516, 91 L. Ed. 451, 67 S. Ct. 385 (1947),
"discovery was hardly intended to enable a learned profession to perform its functions . . . . on wit borrowed from the adversary."