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Fed. R. Civ. P. 26(b)(3) conditions the production of documents and tangible things prepared in anticipation of litigation by or for an opposing party on the moving party's showing of substantial need and undue hardship. Even where such a showing is made, however, the trial court, in ordering the production of such materials, shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
Plaintiff-respondent Raymond K. Peil alleged 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. 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. Prior to the deposition of defendant-petitioner Sporck, 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 to the allegations in the case and the possible legal defenses. Peil filed a motion to compel identification and production of the selected documents, on the ground that all documents used in preparing a witness for a deposition were properly discoverable under Federal Rule of Evidence 612. The trial court granted Peil’s motion and ordered that defendant produce or identify all documents reviewed by Sporck in preparation for his deposition. Defendant challenged the decision.
Did the trial court err in ordering the defendant to produce or identify all documents reviewed by Sporck in preparation for his deposition?
The Court held that the trial court should not have ordered identification of documents selected by counsel. The Court held that selection and compilation of documents by counsel in the case in preparation for pretrial discovery fell within the highly-protected category of opinion work product. The Court held that Fed. R. Evid. 612 did not apply to the facts of the case, as deposing counsel failed to lay proper a foundation under Rule 612 for production of documents selected by counsel. Without first eliciting testimony, there existed no basis for asking petitioner source of testimony. The Court concluded that the trial court committed clear error of law in ordering identification of documents selected by counsel.