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Afrikan Spir and Josephine Meckseper

Multiple Choice Question from the 2007 Civ Pro Exam

9.    P, an employee of the D Corp, is suing the D Corp in federal court concerning the damages P sustained from a large industrial accident at a D Corp plant. Many people were severely injured in the accident, which was apparently the result of the introduction of a new chemical into the fuel used by the plant’s machinery. Which of the following is least likely to be D Corp work product under Fed. R. Civ. P. 26 and/or Hickman?
    
a.    A memo drafted by the D Corp’s trial counsel for the D Corp’s in-house counsel concerning the strategy to pursue in the D Corp’s defense against P. 
b.    A tape recording of a witness’s recollections of the accident. The witness is now deceased. The tape was made by a private detective hired by the D Corp. soon after the accident.
c.    An account of the probable causes of the accident, drafted soon after the accident occurred by a D Corp engineer for the Chief Executive Officer of the D Corp.
d.    The minutes of a meeting, attended by the D Corp’s in-house counsel, during which it was decided to introduce the new chemical to the fuel. 
e.    A video of P gardening, clandestinely made by a private detective hired by trial counsel for the D Corp in the hopes of demonstrating that P’s injuries are less than P alleges in his complaint.

Answer a is not the best answer because what is described is work product. Under Rule 26(b)(3)(A) “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent)” are work product. The memo is clearly created in anticipation of litigation by and for the D Corp’s representative. In addition, it is opinion work product, that is the “mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” 26(b)(3)(B). 

Answer b is not the best answer because what is described is work product. The tape was created in anticipation of litigation by a D Corp representative. Some of you may have been inclined to choose this because there is a good argument that the work product privilege could be overcome. P may have substantial need of the tape, and since the witness is deceased, P “cannot, without undue hardship, obtain [its] substantial equivalent by other means.” See 26(b)(3)(A)(ii). But that does not mean that the material is not work product privileged, only that the privilege can be overcome. 

Answer c is not the best answer because what is described is probably work product. Since it was made right after the accident, the account is likely created in anticipation of litigation, and it was made by a representative of the D Corp. 

Answer e is not the best answer because what is described is work product. The video is surely created in anticipation of litigation by a representative of the D Corp. 

Answer d is the best answer, because what is described is clearly not work product. It could not have been created in anticipation of litigation about the accident, because when it was made the accident had not happened yet. The fact that a lawyer was present might make it subject to the attorney-client privilege, but that’s not the work-product privilege. What this looks like is a damaging document of precisely the sort that must be turned over in discovery. The point biserial was .50.

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