United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE.
matter has been referred to the undersigned for the
management of discovery. On July 28, 2017, Plaintiff filed a
letter brief seeking to compel Claimant Pavel Lazarenko
(“Claimant”) to provide a supplementary response
to one of Plaintiff's interrogatories. See Dkt.
987-1. Claimant filed a responsive letter brief on August 2,
2017, see Dkt. 991-1, and the undersigned heard
arguments from both parties on August 29, 2017. At the
conclusion of that hearing, the undersigned determined that
Plaintiff's letter brief was without merit and rejected
Plaintiff's request. The following written decision
memorializes that ruling.
instant dispute revolves around two interrogatories,
Interrogatories 9 and 10, both served by Plaintiff. In
Interrogatory 9, Plaintiff asked Claimant to identify, among
other things, all persons with knowledge of the facts set
forth in Claimant's responses to Plaintiff's previous
interrogatories and the basis for their knowledge. Plaintiff
does not object to Claimant's response to this
interrogatory, but claims that it “directly or
indirectly referred to hundreds of individuals[.]” Dkt.
987-1 at 1.
to assist the government in focusing its efforts with respect
to the witnesses, Plaintiff asked Claimant another
interrogatory-Interrogatory 10-which is the subject of the
present dispute between the parties. In that interrogatory,
Plaintiff asked Claimant to
[i]dentify all natural or legal persons who have been
interviewed by [Claimant], or from whom statements or
documents have been obtained by [Claimant], in relation to
the facts and allegations of the Amended Complaint, standing
of any party or claimant, or defenses to forfeiture
[Claimant] or any party has raised. For each such person,
provide the time, date, and location of any interview(s) or
statement(s), the contact information for any such person and
any legal representative of such person, state all facts
provided by each such person, and identify all statements or
documents obtained by [Claimant].
Id. In response to this interrogatory, according to
Plaintiff, Claimant initially identified four witness
statements that he obtained in a related matter and stated
that he interviewed no witnesses in this matter. Id.
Plaintiff contends that while discussing modifications to the
Protective Order after the close of fact discovery, however,
Claimant admitted that he interviewed multiple individuals in
connection to this case. Id. After Plaintiff
requested that he update his response to Interrogatory 10,
Claimant submitted a supplemental response that identified
one witness statement he obtained in connection to this case,
and indicated that his counsel spoke to “certain
persons” identified in his response to Interrogatory 9.
Id. According to Plaintiff, Claimant did not
identify who these persons were or provide any additional
“details regarding his communications with individuals
knowledgeable about this matter or the facts obtained from
such interviews.” Id.
now contends that Claimant must submit another supplemental
answer that “completely” responds to
Interrogatory 10 by identifying specific “individuals
interviewed by [Claimant], the details surrounding when the
interview took place and who was involved, and any relevant
facts disclosed by the witness.” Id. at 1-2.
Claimant has refused to do so, arguing that requiring him to
identify the witnesses his counsel has interviewed
“infringes on [his] counsel's work-product
privilege” because it would reveal his counsel's
legal theories and strategies. [Dkt. 991-1] at 1-2. To
assuage Plaintiff's concerns that Claimant might be
withholding factual information known to witnesses, however,
Claimant's counsel represented to the Court at the
hearing on this matter that Claimant will disclose any
witness statements to Plaintiff that he receives and would
further update his responses to Plaintiff's other
interrogatories, including Interrogatory 9, as required by
the Federal Rules of Civil Procedure.
response, Plaintiff acknowledges that some information
related to witness interviews- the questions asked during the
interview, for example-“potentially could be protected
[from discovery] by the work-product doctrine, ” but
maintains that Claimant has failed to satisfy his burden of
demonstrating that the work-product doctrine applies to the
information requested in Interrogatory 10. Dkt. 987-1 at 1.
Additionally, Plaintiff asserts that Claimant's position
is unfair particularly because Plaintiff has answered a
similar interrogatory propounded by Claimant. Id.
work-product doctrine shields materials ‘prepared in
anticipation of litigation or for trial or for another party
or by or for that other party's representative,
'” including that party's attorney.
Judicial Watch, Inc. v. U.S. Dep't of Justice,
432 F.3d 366, 369 (D.C. Cir. 2005) (quoting Fed.R.Civ.P.
26(b)(3)). It is codified in Rule 26(b)(3) of the Federal
Rules of Civil Procedure, which provides that,
“[o]rdinarily, a party may not discover documents and
tangible things that are prepared in anticipation of
litigation” by opposing counsel. The Rule further
provides, however, that a party may discover such information
if “the party shows that it has substantial need for
the materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means,
” so long as the court protects against the
“disclosure of the mental impressions, conclusions,
opinions, or legal theories of a party's attorney or
other representative concerning the litigation.” Fed
.R. Civ. P. 26(b)(3)(A)-(B). This caveat in the Rule
represents the distinction between fact work product and
opinion work product. Opinion work product, which reveals the
mental impressions, opinions, and legal theories of opposing
counsel, is “virtually undiscoverable” absent
some extraordinary showing of necessity, Dir., Office of
Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d
1304, 1307 (D.C. Cir. 1997), while fact work product can be
obtained by showing “‘adequate
reasons'” for disclosure, Boehringer, 778
F.3d at 153 (quoting In re Sealed Case, 676 F.3d
793, 809 (D.C. Cir. 1982)). Setting aside this distinction,
the work-product doctrine “should be interpreted
broadly and held largely inviolate, ” Judicial
Watch, Inc. v. U.S. Dep't of Justice, 432 F.3d at
369, which “is consistent with the policy underpinnings
articulated by the Supreme Court that ‘it is essential
that a lawyer work with a certain degree of privacy, free
from unnecessary intrusion by opposing parties and their
counsel.'” Shapiro v. U.S. Dep't of
Justice, 969 F.Supp.2d 18, 28 (D.D.C. 2013) (quoting
Hickman v. Taylor, 329 U.S. 495 (1947)).
the wide latitude given to courts in interpreting and
applying the work-product doctrine, the question of whether
it “protects the identities of those persons
interviewed by an attorney or his agent in anticipation of
litigation” remains unsettled. US Bank Nat'l
Ass'n v. PHL Variable Ins. Co., Nos. 12 Civ. 9811,
13 Civ. 1580, 2013 WL 5495542, at *9 (S.D.N.Y. Oct. 3, 2013).
Indeed, in this Court alone, there is a partial split among
its members over whether the names of individuals that a
party has interviewed in preparation for litigation is
protected under work-product privilege. Compare Alexander
v. FBI, 192 F.R.D. 12 (D.D.C. 2000) with Chiperas v.
Rubin, Civ. No. 96-130 (TPJ/JMF), 1998 WL 531845 (D.D.C.
Aug. 24, 1998). In Alexander, 192 F.R.D. at 17, the
plaintiffs moved to compel a party to confirm whether the
party's investigator had spoken with certain individuals
as part of his investigation on behalf of the party. After
noting that an attorney's investigator should be afforded
the same protection as the attorney for whom they work, the
Court concluded that “certain information, such as
whether investigators have talked to certain individuals in
the course of their investigations, is not protected by the
attorney work-product doctrine.” Id. at 18-19.
Instead, the Court opined, a “list of interviewees is
just that, a list.” Id. at 19 (citing
United States v. Amerada Hess Corp., 619 F.2d 980
987-88 (3d Cir. 1980) and In re Matter of Grand
Jury, 633 F.2d 282, 289 (3d Cir. 1980)). That said, the
Court in Alexander, cautioned that
“information beyond the names of interviewees may be
protected by the attorney work-product privilege” if it
would “reveal the thoughts, opinions, and
strategies” of the party's attorneys and, by
extension, their investigators. Id. Likewise, the
Court found that the plaintiffs' question regarding
whether an investigator was specifically investigating
someone was “considerably” different than asking
whether the investigator had contacted that same person, and
determined that such a question “would certainly tend
to reveal the strategy of [a party's] attorneys.”
in Chiperas, 1998 WL 531845, at *1, another member
of this Court determined that a defendant's request for
the plaintiff to identify the witnesses he had interviewed
and to turn over his witness statements or the names of the
affiants who gave statements was impermissible. Specifically,
the Court explained that a party is permitted to ask-and,
indeed, a responding party is required to disclose-the names
of individuals with discoverable information, like Plaintiff
did in Interrogatory 9. Id. at *1. But, the Court
continued, “‘to go beyond that-to tell plaintiffs
whom defendants have interviewed, where and when such
interviews took place and whether or not a record was
made” would afford the plaintiffs “the potential
for significant insights into the defense lawyers'
preparation of their case (and thus mental
processes).'” Id. (quoting Bd. of
Educ. of Evanston Twp. v. Admiral Heating and Ventilating,
Inc., 104 F.R.D. 23, 32 (N.D. Ill. 1984)). Accordingly,
the Court held that a plaintiff “is not required to do
all the investigatory work for [the] defendant by turning
over their [witness] statements” taken from individuals
with discoverable information whom counsel has interviewed.
Id. In other words, according to the Court,
“[t]he disclosure [the] defendant requests of the names
of the witnesses who provided statements to plaintiff's
counsel, ” as opposed to simply the names of
individuals likely to have discoverable information,
“crosses the boundary into work product because the
names requested are interwoven with the preparation of [the]
plaintiff's case.” Id.
split in reasoning is not endemic to this Court. Like in
Alexander, a number of courts have reasoned that the
names of individuals that a party has interviewed are subject
to discovery, see Castle v. Sangamo Weston, Inc.,
744 F.2d 1464, 1467 (11th Cir. 1984); Packard v.
Darveau, No. 4:11-CV-3199, 2012 WL 4443505, at *3-4 (D.
Neb. Sept. 25, 2012); Myers v. Goldco, Inc., No.
4:08-cv-8, 2008 WL 1995131, at *1 (N.D. Fla. May 6, 2008);
Sanchez v. Matta, 229 F.R.D. 649, 659 (D.N.M. 2004);
Oregon Health & Sci. Univ. v. Vertex Pharm.,
Inc., No. Civ. 01-1272, 2002 WL 31968995, at *2 (D. Or.
Oct. 24, 2002); United States v. Pepper's Steel &
Alloys, Inc., 132 F.R.D. 695, 697 (S.D. Fla. 1990),
while many others, like in Chiperas, have reached
the opposite conclusion, see U.S. Bank Nat'l
Ass'n, 2013 WL 5495542, at *10 (S.D.N.Y. Oct. 3,
2013); DiDonna v. Village Farms IGA, LLC, No. CV
12-1487, 2012 WL 3879149, at *1 (E.D.N.Y. Sept. 6, 2012);
Tracy v. NVR, Inc., 250 F.R.D. 130, 132-33 (W.D.N.Y.
2008); Seven Hanover Assoc., LLC v. Jones Lang LaSalle
Americas, Inc., No. 04 Civ. 4143, 2005 WL 3358597, at *1