United States District Court, D. New Mexico
ORDER GRANTING IN PART DEFENDANT'S SECOND MOTION
C. YARBROUGH UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Defendant's
Second Motion to Compel Plaintiff's Responses to Requests
for Production and Answers to Interrogatories, and Request
for Sanctions (Doc. 116), filed May 30, 2019. The Court held
a Discovery Hearing on July 30, 2019 and issued an order
granting in part the Motion to Compel. Doc. 136. The Court
also took one issue under advisement, which this Order now
addresses. That specific issue is whether, in connection with
Defendant's Request for Production No. 58, Plaintiff must
produce a pre-drafted letter that Plaintiff brought to one of
his doctors, Richard A. Lanzi, to have Dr. Lanzi sign.
Defendant is aware of this letter because Dr. Lanzi discussed
it in Plaintiff's medical records and noted that
Plaintiff wanted him “to attest that [Plaintiff's]
injuries are worse because his airbag did not deploy and his
seatbelt did not work to restrain him.” Doc. 116-4 at
2. Plaintiff objects to production of the letter, arguing
that the work product doctrine protects it from disclosure.
Having reviewed the letter in camera, the Court grants
Defendant's Motion to Compel on this issue and requires
Plaintiff to disclose the letter to Defendant.
intends to offer testimony at trial from Dr. Lanzi as a
treating physician. See Doc. 132 at 6. Defendant
acknowledges that Plaintiff is presenting Dr. Lanzi as a
treating physician and argued at the July 30, 2019 hearing
that Dr. Lanzi's status as a non-retained expert makes
anything Plaintiff provides him subject to disclosure. At the
hearing, the parties also made clear that they do not dispute
that Dr. Lanzi, a third-party witness, is free to disclose
the contents of the letter or the letter
itself. Thus, the narrow issue before the Court is
whether Plaintiff must disclose a letter his counsel
submitted to a treating physician when the treating physician
thereafter refused to sign the letter and summarized its
contents in medical records disclosed to Defendant.
Rule of Civil Procedure 26(b)(3)(A) protects documents and
tangible things that “are prepared in anticipation of
litigation or for trial by or for another party or its
representative, ” subject to a few exceptions.
“If the court orders discovery of those materials, it
must protect against 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)(B). This
substantially incorporates the work-product doctrine, first
recognized in Hickman v. Taylor, 329 U.S. 495
(1947), which “shelters the mental processes of the
attorney, providing a privileged area which he can analyze
and prepare his client's case.” In re Qwest
Commc'n Int'l Inc., 450 F.3d 1179, 1186 (10th
Cir. 2006) (citing United States v. Nobles, 422 U.S.
225, 238 (1975)).
short, courts have long recognized that an attorney should
not be required to provide opposing counsel his thoughts
about a case. The harm that the work product doctrine is
designed to protect against, however, will not result from
the disclosure of the letter now at issue. The letter's
contents have already been revealed to Defendant in
Plaintiff's medical records from Dr. Lanzi. Indeed,
Plaintiff's counsel represented at the discovery hearing
that the information in the letter is generally the same as
that disclosed in Dr. Lanzi's medical records. After
conducting an in camera review, the Court confirms that
Plaintiff's representation is correct.
in his recent Memorandum Opinion and Order Denying
Plaintiff's Motion to Amend Complaint and Granting in
Part and Denying in Part Defendant's Motion to Strike,
Chief Judge Johnson found that Plaintiff's expert
disclosures regarding his treating physicians, including Dr.
Lanzi, are incomplete under Federal Rule of Civil Procedure
26(a)(2)(C). Doc. 132 at 7. Chief Judge Johnson ordered
Plaintiff to supplement his disclosures to meet the
requirements of Rule 26(a)(2)(C). Doc. 132 at 7-9; see
also Fed. R. Civ. P. 26(a)(2)(C) (requiring disclosure
of witnesses not required to provide a written report to
include the subject matter on which the witness is expected
to present evidence and a summary of the facts and opinions
to which the witness is expected to testify). It is clear
after reviewing the letter that it is a summary of facts and
opinions to which Plaintiff hoped (and may still hope) Dr.
Lanzi would testify. Although Dr. Lanzi declined to sign the
letter, the Court is unaware of what expectations Plaintiff
might have regarding Dr. Lanzi's testimony at trial. If
Plaintiff expects to elicit testimony from Dr. Lanzi similar
to the information he attempted to elicit through the draft
letter, the letter contains the type of information Chief
Judge Johnson ordered Plaintiff to disclose.
Plaintiff does not intend to elicit the same information from
Dr. Lanzi contained in the draft letter, however, disclosure
of the letter does not reveal the mental processes of
Plaintiff's counsel. As noted, Dr. Lanzi has already
summarized the letter in his medical records and, if Dr.
Lanzi retained a copy of the letter, the parties agree that
Defendant can obtain a copy from Dr. Lanzi. Further, most of
the letter does not relate to the mental process of
Plaintiff's counsel, and the one sentence of the letter
that arguably does reveals nothing because it restates a
theory Plaintiff has already set forth in his complaint.
for an assumption already contained in Plaintiff's
complaint (that Plaintiff hit an elk), the first paragraph of
the letter is simply a summary of Plaintiff's injuries.
Thus, the first paragraph does not reveal Plaintiff
counsel's mental processes. Further, the injuries
Plaintiff claims he sustained in the accident are subject to
disclosure in any event and so not protected as work product.
first line of the second paragraph essentially sets forth
three assumptions: (1) the front airbag in Mr. Munoz's
vehicle did not deploy, (2) the seatbelt did not restrain
him, and (3) he hit his face, head, shoulder, and knee on the
steering wheel and dash. Plaintiff's theory that the
airbag did not deploy is something he sets forth in his
complaint. Doc. 43 at ¶ 8. Similarly, Plaintiff has
asserted in documents and open court that his seatbelt failed
to restrain him. Doc. 40 at 2; Doc. 42 at 2. And, regarding
the third assumption, the alleged causal connection between
Plaintiff's injuries and Defendant's alleged
wrongdoing is also subject to disclosure. Plaintiff's
theory that he sustained injuries through contact with the
steering wheel and dash follows from the assertion in his
complaint that he sustained injuries as a result of his
airbag not deploying. For this same reason, the penultimate
sentence of the letter also only restates what is already
known from the complaint: Plaintiff's theory that his
injuries were the result of his face and body hitting the
steering wheel and dashboard when his air bag did not deploy.
final sentence of the draft letter, Plaintiff proposes to
have Dr. Lanzi attest that his injuries would not have
happened, or would have been less severe, if his airbag or
seatbelt had operated properly. Again, this is essentially
what Plaintiff has alleged all along: the injuries for which
he seeks compensation are the result of his airbag and
seatbelt malfunctioning. Moreover, disclosure of the draft
letter reveals nothing because Dr. Lanzi has already
disclosed the last sentence of this letter in the medical
records already produced to Defendant. Doc. 116-4 at 2.
in this particular case, protecting the letter from
disclosure would not advance the policy goals that justify
existence of the work product privilege. See in re Qwest
Commc'n Int'l Inc., 450 F.3d at 1186. For these
reasons, the Court grants in part Defendant's Motion to
Compel (Doc. 116). Plaintiff shall supplement his response to
Defendant's Request for Production No. 58 to include the
letter by August 8, 2019. Because Defendant failed to engage
in direct conversation with Plaintiff in advance of filing
its motion to compel, as the Court has ordered the parties to
do, the Court declines to shift costs incurred in connection
with Defendant's motion.
 Defendant did not argue, and the
parties did not brief the issue of whether Plaintiff waived
work product protection by disclosing this letter to a third
party, and so ...