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Sporck v. Peil

United States Court of Appeals for the Third Circuit

February 20, 1985, Argued ; April 18, 1985, Filed

No. 85-3023

Opinion

 [*313]  OPINION OF THE COURT 

 HUNTER, III, Circuit Judge

 1. This case arises on a Petition for Writ of Mandamus involving a discovery dispute between the parties to a securities fraud class action suit. The underlying action involves an allegation by plaintiff-respondent Raymond K. Peil that defendant National Semiconductor Corporation ("NSC"), defendant-petitioner Charles F. Sporck, NSC's president, and defendant Peter J. Sprague, NSC's chairman, conspired to inflate artificially the value of NSC stock, in order to enable Sporck and Sprague to sell their own shares at the inflated level. The wrongful conduct alleged includes various misrepresentations and nondisclosures of material [**2]  facts during an eight-month period continuing from July 1, 1976, until March 1, 1977. Jurisdiction in this court is based on the All Writs Act, 28 U.S.C. § 1651(a) (1982).

 2. During pretrial discovery, attorneys for Peil served numerous sets of combined interrogatory and document requests on defendants. In response, defendants produced hundreds of thousands of documents, from which Peil's attorneys selected more than 100,000 for copying. There is no allegation in this case that defendants have improperly concealed or refused to produce requested documents.

 3. The issue presently before this court arose on May 16, 1983, at the deposition of defendant-petitioner Sporck. Prior to the deposition, counsel for defendants had prepared Sporck for his expected week-long deposition by showing him an unknown quantity of the numerous documents produced by defendants in response to plaintiff's discovery requests. Defense counsel selected and compiled these documents in a folder in Philadelphia, and transported them to California solely for the deposition. According to defense counsel, the selected documents represented, as a group, counsel's legal opinion as to the evidence relevant both [**3]  to the allegations in the case and the possible legal defenses. It is conceded that none of the individual documents, in their redacted form, contained work product of defense counsel.

 4. At the inception of the Sporck deposition, Peil's attorney asked: "Mr. Sporck, in preparation  [*314]  for this deposition, did you have occasion to examine any documents?" (Petition, Exhibit A at 9). Sporck answered affirmatively, and Peil's attorney first orally, and then by written motion pursuant to Federal Rule of Civil Procedure 34, requested identification and production of "all documents examined, reviewed or referred to by Charles E. Sporck in preparation for the session of his deposition commencing May 16, 1983." (Petition, Exhibit B). Defense counsel refused to identify the documents, arguing first that all the documents had previously been produced, and second, that the select grouping of the documents was attorney work product protected from discovery by Federal Rule of Civil Procedure 26(b)(3). Defense counsel agreed, however, to allow Peil's counsel to ask Sporck about his reliance on individual documents in the context of specific factual questions, and Sporck's deposition continued [**4]  on this basis.

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759 F.2d 312 *; 1985 U.S. App. LEXIS 30462 **; 17 Fed. R. Evid. Serv. (Callaghan) 1232; 84 A.L.R. Fed. 763; 1 Fed. R. Serv. 3d (Callaghan) 1431

CHARLES E. SPORCK, Petitioner v. RAYMOND K. PEIL, on behalf of himself and all others similarly situated Respondents and HONORABLE JOHN B. HANNUM and HONORABLE ANTHONY J. SCIRICA, JUDGES, UNITED STATES DISTRICT COURT, Nominal Respondents

Prior History:  [**1]   Petition for Writ of Mandamus.

CORE TERMS

documents, work product, deposition, preparation, identification, discovery, trial court, work product doctrine, defense counsel, testifying, selection process, questions, mandamus, ordering, memory, attorney's work product, writ of mandamus, district court, processes, argues

Civil Procedure, Appeals, Standards of Review, Clearly Erroneous Review, Remedies, Writs, General Overview, Common Law Writs, Mandamus, Attorneys, Privileged Communications, Work Product Doctrine, Discovery & Disclosure, Discovery, Protective Orders, Opinion Work Product, Evidence, Testimony, Refreshing Recollection, Refreshing Before Testimony, Memory Aids, Writings, Methods of Discovery, Depositions, Oral Depositions, Rule Application & Interpretation, Types of Evidence