Cohen v. Gulfstream Training Academy, Inc.
Cohen v. Gulfstream Training Academy, Inc.
Opinion of the Court
ORDER
THIS CAUSE is before the Court on Defendant Gulfstream Training Academy’s (“GTA”) Motion to Compel Responses to its Third Request for Production of Documents Nos. 4 and 8 and Notes from Non-Party Witness (DE 77) and was referred to the undersigned pursuant to 28 U.S.C. § 636 (DE 30).
On January 21, 2008, Plaintiffs counsel deposed GTA’s corporate representative, Thomas Cooper. While attending Mr. Cooper’s deposition, non-party witness Mark Ottosen
1. To the extent that GTA’s Motion seeks to compel non-party witness notes, it is DENIED. Although the parties do not dispute that the requested discovery — Mr. Ottosen’s deposition notes to Plaintiffs counsel (prepared at counsel’s direction) — is indeed fact work product, GTA has fallen short of demonstrating the requisite “substantial need” to compel their production. See GTA’s Reply at 3 (DE 90) (acknowledging that the “the notes prepared by non-party witness Ottosen are ‘fact work product’ ”).
2. To the extent that GTA’s Motion seeks to compel responses to its Third Request for Production, it is DENIED as MOOT. See GTA’s Reply at 1 (DE 90) (“GTA withdraws the portion of its Motion to Compel that relates to Plaintiffs responses to its Third Request for Production Nos. 4 and 8____”).
DONE AND ORDERED.
. Discovery closed in this matter on January 25, 2008 (fact discovery) and on February 8, 2008 (expert discovery). See Order (DE 43). On January 15, 2008, the District Court granted the parties leave to conduct (only) Plaintiff’s continued deposition outside the discovery period. See Order (DE 73).
. According to the parties, Mark Ottosen is GTA’s former President. See GTA’s Reply at 4 (DE 90); see also Plaintiff's Response at 2 (DE 86).
. GTA has previously (without court intervention) requested Plaintiff to produce Mr. Ottosen’s notes, stating they are responsive to GTA’s First Request for Production seeking all "statements (sworn or unsworn), affidavits, or declarations made by any witness to the events alleged or claims asserted by [Plaintiff] in this action.” Motion at 4 (DE 77). The Court assumes that the notes Mr. Ottosen made during the deposition and provided to Plaintiff’s counsel fall within the scope of this request.
. The work product doctrine, first articulated in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), has been codified in Federal Rule of Civil Procedure 26(b)(3). The Rule recognizes two types of work product — fact work product, which protects information gathered in anticipation of litigation, and opinion work product, which consists of an attorney's mental impressions, opinions, or legal theories. See Fed.R.Civ.P. 26(b)(3). Fact work product is subject to discovery "only upon a showing that the party seeking discovery has substantial need of the materials in preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Fed.R.Civ.P. 26(b)(3). By contrast, work product containing an attorney’s opinions, mental impressions, conclusions, and legal theories enjoys nearly absolute protection. Cox v. Admin’r United States Steel & Carnegie, 17 F.3d 1386, 1421-22 (11th Cir.), modified on other grounds, 30 F.3d 1347 (11th Cir. 1994).
. Significantly, Plaintiff has stipulated that he will not use Mr. Ottosen’s notes at trial. See Surreply at 4 (DE 94); see also Bradley v. Wal-Mart, 196 F.R.D. 557, 558 (E.D.Mo. 2000) (whether work product material will be used a trial is a " 'significant factor’ in determining ‘substantial need’ for the material").
Reference
- Full Case Name
- Heath COHEN v. GULFSTREAM TRAINING ACADEMY, INC., a Florida corporation, and Gulfstream International Airlines, a Florida corporation
- Cited By
- 1 case
- Status
- Published