The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
This case was referred to me for resolution of discovery disputes. Currently pending before me for resolution are Defendants' Motion to Compel Production of Documents ("Defs. Mot. Comp.") [#110]; Plaintiffs' Motion to Compel Production of Electronic Documents ("Pls. Mot. Comp.") [#121]; Defendants' [Second] Motion to Compel Production of Documents ("Defs. Mot. Comp. #2") [#134]; and Plaintiffs' Motion Regarding Adams Deposition ("Pls. Mot. Dep.") [#145]. For the reasons stated herein, Defendants' first motion to compel and Plaintiffs' motion regarding the deposition will be denied; Plaintiffs' motion to compel and Defendants' second motion to compel will be granted.
Disabled individuals and the Equal Rights Center*fn1 (collectively "Plaintiffs") filed this lawsuit against the Washington Metropolitan Area Transit Authority ("WMATA") alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and 42 U.S.C. § 1983.*fn2 Plaintiffs claim that WMATA has failed to provide adequate paratransit services through the MetroAccess program and that the service provided is materially inferior to the Metrorail and Metrobus services available to people without disabilities. See generally Second Amended Complaint ("Compl."). Plaintiffs' prayer for relief includes a request for a permanent injunction "ordering Defendants to immediately cease its discrimination and provide individuals with disabilities full, equal and reliable access to the benefits of its facilities, programs, services, and activities" and "ordering Defendants to develop and implement a remedial plan, complying with the requirements of the ADA and Rehabilitation Act." Compl. at 43. Discovery has been heavily litigated in this case and is now scheduled to close June 15, 2007.
II. Defendants' Motion to Compel Production of Documents
In its first motion to compel, WMATA moves the Court to order Plaintiffs to produce what it claims are approximately 40,000 pages of documents and any electronic documents received pursuant to its third-party subpoena of LogistiCare. Defs. Mot. Comp. at 1.*fn3 Defendants claim they are entitled to any documents received from a third party pursuant to a subpoena duces tecum under Federal Rules of Civil Procedure 34 and 45(b)(1). Id. Plaintiffs oppose production on the grounds that the collection of documents constitutes privileged attorney work product. Plaintiffs' Memorandum of Points and Authorities in Opposition to Defendants' Motion to Compel Production of Documents ("Pls. Opp. Comp.") at 5.
The documents at issue are customer complaint files maintained by LogistiCare, the former contractor to WMATA for the provision of services to the disabled, lodged by disabled riders who complained that they failed to receive adequate paratransit service during the term of LogistiCare's contract. See Defendants' Memorandum of Points and Authorities in Support of Their Motion to Compel Production of Documents ("Defs. Mem. Comp.") at 1-2.*fn4 Defendants argue that Plaintiffs stealthily gathered these materials without providing copies to WMATA as required by the Federal Rules of Civil Procedure. Id. at 1-3. Plaintiffs claim full compliance with the Rules in providing notice of its third-party subpoena to Defendants. Pls. Opp. Comp. at 4. Moreover, Plaintiffs argue that, as the documents maintained by LogistiCare were once within Defendants' custody and control, the only reason for Defendants' current motion is their own failure to preserve the documents for themselves. Id. at 5. Defendants should not thus be rewarded with access to the work product of Plaintiffs' document search. Id.
Specifically, Defendants seek the subset of complaints selected by Plaintiffs as relevant to their case. See Pls. Opp. Comp. at 2. According to Plaintiffs, following the expiration of the contract, LogistiCare notified both parties that the complaint files would be moved at some future date from its facility in Silver Spring, Maryland, to another facility out of state. Id. Plaintiffs then undertook a tactical review of the documents for approximately two weeks, searching through over forty boxes of documents to collect the complaints consistent with Plaintiffs' counsel's theory of the case. Id. at 3.
Though it does not deny receiving notice of Plaintiffs' subpoena to LogistiCare, WMATA claims it was not given the opportunity to obtain the documents at the time of their production by LogistiCare in violation of Rule 45(b)(1). Defs. Mem. Comp. at 3. While conceding that the entire body of documents disclosed to Plaintiffs by LogistiCare should be disclosed to Defendants, Plaintiffs claim that the compilation of documents painstakingly collected by Plaintiffs' counsel from the entire body of documents is protected attorney work product, and therefore need not be disclosed to Defendants under Rule 26(b)(3) without a showing of substantial need and that Defendants cannot obtain the substantial equivalent without undue hardship. Pls. Opp. Comp. at 5-6. Disclosure of the collection of documents sought by Defendants would expose Plaintiffs' counsel's thought processes in preparing for litigation. Id. at 7. As the Defendants once had access to the same documents at issue, Plaintiffs argue Defendants cannot show a substantial need for the documents and should not benefit from Plaintiffs' efforts when WMATA failed to collect any on their own. Id. at 6.
Defendants reply that Plaintiffs did not comply with the spirit of Rule 45 in their failure to have the documents produced at a mutually agreeable time and place; instead, Plaintiffs arranged privately with LogistiCare to review the documents and copy selections where the documents were being stored. Defendants' Reply to Plaintiffs' Opposition to Defendants' Motion to Compel Production of Documents ("Defs. Rep. Comp.") at 1. Defendants argue further that Plaintiffs' selection of documents cannot possibly reveal any mental impressions of counsel when the number of documents totals over 40,000 pages. Id. at 3. Moreover, the fact that the documents were prepared by LogistiCare and remain in LogistiCare's control while LogistiCare refuses to share the documents with WMATA negates the claims of any work product privilege. Id. at 4. WMATA claims that any work product privilege has been waived because Logisticare has in its possession the compilation claimed to be work product.
B. Plaintiffs' Selection of Documents Constitutes Fact-Based Work Product
As this Court has previously held, the seminal case on the work product status of documents culled from a larger collection is the Third Circuit's opinion in Sporck v. Peil, 759 F.2d 312, 316 (3rd Cir. 1985), where the court found that an attorney's selection of a "few documents out of thousands" produced constitutes protected work product. See Miller v. Holzmann, 238 F.R.D. 30, 31 (D.D.C. 2006). Thus, in a given case, "[b]ecause identification of the documents as a group will reveal defense counsel's selection process, and thus his mental impressions, . . . the identification of the documents as a group must be prevented to protect defense counsel's work product." Id. (quoting Sporck, 759 F.2d at 315).
The holding in Sporck has been applied or refined in subsequent circuit decisions. In Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986), the court, following Sporck, found that, when a lawyer testified that she "identified, selected, and compiled documents that were significant to her client's defenses in this case," the selection process was to be protected as work product because it reflected that lawyer's legal theories and thought processes. Id. at 1328; accord In re Allen, 106 F.3d 582, 608 (4th Cir. 1997) (choice and arrangement of documents constituted opinion work product because a lawyer's "selection and compilation of these particular documents reveals her thought processes and theories regarding this litigation").
In Gould v. Mitsui Mining & Smelting Co., Ltd., 825 F.2d 676 (2d Cir. 1987), however, the court indicated that Sporck applies only when the threat that the disclosure of a selection and compilation of documents by counsel would reveal counsel's thought process was "real, rather than speculative." Id. at 679-80. It therefore remanded the case to have that lower court make that determination. Id.; cf. Simon v. G.D. Searle & Co., 816 F.2d 397, 402 (8th Cir. 1987) (protection provided by work product doctrine is "not violated by allowing discovery of documents that incorporate a lawyer's thoughts in, at best, such an indirect and diluted manner").
A significant limiting of the Sporck principle occurred in In Re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007 (1st Cir. 1988). There, the court addressed the legitimacy of a requirement imposed by a magistrate judge that the parties identify and disclose the documents they would use to interrogate a deponent five days before the deposition. Id. at 1009. The court upheld this requirement against a challenge that it invaded the mental processes of the lawyer taking the deposition. Id. at 1019. The court denied the opinion work product granted in Sporck because the lawyer who was going to use the documents during the deposition could not possibly have a reasonable expectation that the documents would remain secret. In other words, "the exhibits are integral to the taking of the deposition and will, by definition, have to be revealed during the session." Id. at 1017. The San Juan court distinguished this situation from that of Sporck and Shelton where the documents used to prepare a witness for a deposition or to assemble to defend the client "were never meant to be placed on public display." Id. at 1018. Nevertheless, the court in San Juan acknowledged that requiring disclosure of the exhibit list before the deposition "provides insight into opposing counsel's understanding of the case." Id. at 1018-19. Therefore, the court held that the process of selection yielding the lists constituted ordinary as opposed to opinion work product. Id.
The distinction is a significant one. Opinion work product, such as that would disclose the mental impressions, conclusions, opinions, or legal theories of an attorney, may be reflected in interviews, statements, memoranda, correspondence, and countless other tangible and intangible ways. See Hickman v. Taylor, 329 U.S. 495, 511 (1947); Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 619 (D.C. Cir. 1997). It therefore is entitled to special protection "and require[s] a stronger showing of necessity to justify release." Banks v. Office of the Senate Sergeant-at-Arms and Doorkeeper, 236 F.R.D. 16, 19 (D.D.C. 2006); Byers v. Burleson, 100 F.R.D. 436, 439 (D.D.C. 1983) (citing Fed. R. Civ. P. 26(b)(3) and Upjohn Co. v. United States, 449 U.S. 383, 400-01 (1981)). Ordinary or fact-based work product, on the other hand, is not subjected to the "stronger showing of necessity" required for opinion work product. Production of fact-based work product only requires "a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Fed. R. Civ. P. 26(b)(3).
In this jurisdiction, the court applied this principle in Washington Bancorporation v. Said, 145 F.R.D. 275 (D.D.C. 1992), where the court held that a document index was attorney work product as it had been prepared by an attorney in anticipation of litigation. Id. at 279. The index itself spanned four volumes and hundreds of pages in reference to thousands of documents contained in 2400 boxes. Id. at 276. In deciding if the index constituted opinion or fact-based work product, the court found that the index was actually a "hybrid" of the two; it was "factual in nature but opinionative in structure" because it organized factual information in a way that might reveal the attorney's opinions about the case. Id. Ultimately, however, the sheer volume of documents catalogued led the court to deem the index fact-based work product only because its size made it virtually impossible to glean any litigation strategy from the index. Id. at 277.
In Miller v. Holzmann, 238 F.R.D. 30 (D.D.C. 2006), I followed Washington Bancorporation and concluded that "the number of documents that were scanned, approximately 20,000, is so large that it would be difficult to conceive of [the defendant] gleaning plaintiffs' trial strategy solely by virtue of plaintiffs' disclosing the identity of the documents." Id. at 33 (citing In re Shell Oil Refinery, 125 F.R.D. 132 (E.D. La. 1989) ("[I]t is highly unlikely that Shell will be able to discern the PLC's 'theory of ...