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Are the Underlying Facts Contained in Recorded Statements or Reports Prepared in Anticipation of Litigation Protected by Work Product Privilege?

It is black letter law that recorded statements or reports prepared in anticipation of litigation are, themselves, protected from disclosure by the work product privilege. But what about the underlying facts contained in the work product materials, such as facts learned from employees or agents?

This issue was recently addressed by the Fifth District Court of Appeal in the case of Walt Disney Parks and Resorts U.S., Inc. v. Alesi. In this case, Walt Disney sought certiorari review of a trial court order compelling it to better respond to an interrogatory propounded by the plaintiff in a personal injury case. In connection with the lawsuit, the plaintiff propounded an interrogatory that asked Disney to describe how the incident happened, including all actions taken by its employees and agents to prevent it. Disney provided a response and produced a privilege log that contained a report authored by Christina Headley, the nurse who treated the plaintiff after the accident, and a recorded statement by Kyle Morello. The plaintiff moved to compel a better response and the trial court specifically ordered Disney to provide a verified answer “based on its knowledge of the incident, including, but not limited to, facts learned from its employees and/or agents (whether former or current), Kyle Morello and Christina Headley.”

Disney argued that the work product doctrine protects every piece of information contained in the reports and recorded statements. The plaintiff responded that she was not seeking production of the actual documents Disney prepared; she just wanted to know the factual details of how the incident happened. The Fifth District explained that the work product doctrine protects the disclosure of “documents and tangible things” that a party prepares in anticipation of litigation or trial. The Fifth District agreed with the plaintiff that she is entitled to seek otherwise-discoverable factual information contained in the work product materials.

The Fifth District made clear that the work product doctrine does not safeguard the discovery of underlying facts gathered in work product materials and held that the plaintiff can discover the underlying material, nonprivileged factual information contained in the reports and recorded statement via interrogatory. In its ruling, the Fifth District did clarify that if the reports or recorded statements contained any of Disney’s opinions regarding the incident, such as why the accident occurred or who was responsible for the accident, these opinions would remain protected by work product privilege.

Whether and to what extent work product privileged documents contain mental impressions, conclusions, opinions, or legal theories, which are not discoverable, versus underlying facts, which may be discoverable, is a very important distinction that counsel must analyze when responding to discovery and asserting the work product privilege.

Rosenthal Law Group has successfully litigated petitions for certiorari review concerning privilege issues with discovery. Rosenthal Law Group can assist you with all your litigation needs.