REGGIE B. WALTON, District Judge.
William R. Clemens, the defendant in this criminal case, has been indicted on various criminal charges related to testimony that he provided to the House Committee on Oversight and Government Reform in February of 2008. See Indictment ("Indict.") at 12-19.
The defendant is a former Major League Baseball ("MLB") player who played for four different teams over a span of twenty-four years. See Indict, at 2. "In or about March 2005," the United States House of Representatives—specifically, the House Committee on Oversight and Government Reform (the "Committee")— conducted an investigation into "the use of [performance-enhancing drugs] in professional baseball." Id. at 7. "[T]he Commissioner of MLB, partially in response to concerns raised by the Committee during its 2005 [investigation], engaged former... United States Senator ... George J. Mitchell ... to conduct a comprehensive investigation of [performance-enhancing drug] use in MLB. Id. at 8. Senator Mitchell, who at the time of the engagement was a partner at DLA Piper, retained his law firm to represent him during the investigation. See June 8, 2011 Hearing Transcript ("6/8/11 Hr'g Tr.") at 5:20-21 ("Senator Mitchell ... retained [DLA Piper] to represent him.");
As noted above, the defendant served DLA Piper with a subpoena duces tecum, in which it demanded production of, inter alia, various interview notes and memoranda pertaining to Jose Canseco, Kirk Radomski, and Brian McNamee. See DLA Piper's Mem., Ex. 3 (Subpoena Duces Tecum to DLA Piper U.S. LLP) at 3. DLA Piper moved to quash the subpoena on March 18, 2011. See DLA Piper's Mem. at 1. On April 21, 2011, the Court conducted a hearing on the merits of DLA Piper's motion to quash the subpoena, and after considering the arguments raised by the parties at the hearing and in their written submissions, the Court concluded that the notes and memoranda at issue were prepared in anticipation of litigation, and thus they were entitled to protection as attorney work product. April 21, 2011 Hearing Transcript ("4/21/11 Hr'g Tr.") at 83:8-11. Furthermore, the Court concluded that due to the government's involvement with the interviews of Mr. Radomski and Mr. McNamee (but not Mr. Canseco),
Id. at 2 n. 2 (footnote added). In accordance with the Court's Order, DLA Piper then provided the Court with nine interview memoranda—five pertaining to Mr. Radomski, and the other four regarding Mr. McNamee. Where they existed, any notes related to the aforementioned interview memoranda were also provided to the Court by DLA Piper.
After conducting an in camera review of DLA Piper's work product, "the Court conclud[ed] that there [was] insufficient information in the record that [would] enable the Court to reach an informed decision as to whether these materials," or portions thereof, constitute "fact" or "opinion" work product. May 16, 2011 Order at 2-3, United States v. Clemens, Criminal Action No. 10-223(RBW) (D.D.C.). And, because the Court could not determine the level of protection to which DLA Piper's work product was entitled, the Court found that it needed to "conduct a hearing to resolve the matter." Id. at 3 (quoting Saunders v. United States, 316 F.2d 346, 350 (D.C.Cir.1963)). Consequently, the Court ordered "all current DLA Piper attorneys that were present during these interviews and who played some role in creating the documents at issue" to appear for an ex parte hearing on June 8, 2011, for the purpose of allowing the Court to make the necessary inquiries to resolve DLA Piper's motion to quash the subpoena. Id. at 2-3.
The Court held the hearing as scheduled, during which DLA Piper attorneys David Clarke, Charles Scheeler, John Clarke, and Ellen Ginsberg were present.
Mr. Scheeler then explained to the Court the interview protocols employed by DLA Piper with respect to Kirk Radomski and Brian McNamee. He advised the Court that in the spring of 2006, DLA Piper was contacted by Matt Parella, an Assistant United States Attorney in the Northern District of California, regarding an unidentified individual (who later turned out to be Mr. Radomski) who he wanted to make available to DLA Piper for its investigation. Id. at 11:10-13. Mr. Parella represented to DLA Piper that the unidentified individual was obligated to talk with the law firm under the terms of a cooperation agreement. Id. at 11:11-13. DLA Piper represented to the Court that it had no knowledge of Mr. Radomski's identity until April 27, 2007, when a press release announced that Mr. Radomski had reached a plea agreement with the United States Attorney's Office for the Northern District of California in his criminal case. See id. at 26:24-27:6 (statement by Mr. Scheeler that a press release regarding Mr. Radomski was issued on April 27, 2007, and it was "[a]t that point [that he] knew who it was"); Criminal Pretrial Minutes at 1, United States v. Radomski, Criminal Action No. 07-222(SI) (N.D.Cal.), ECF No. 12 (reflecting April 27, 2007, as the date the written plea agreement in Mr. Radomski's case was filed in open court). Similarly, the prosecutor arranged to have Mr. McNamee interviewed by DLA Piper without disclosing his identity, and DLA Piper only learned of Mr. McNamee's identity less than 24 hours prior to their first scheduled interview on July 13, 2007. See 6/8/11 Hr'g Tr. at 9:15-16 (statement by David Clarke that the interview with Mr. McNamee was "arranged before [he] was identified"); id. at 12:16-17 (statement by Mr. Scheeler that DLA Piper learned of Mr. McNamee's identity "less than 24 hours" prior to their first interview).
Due to the lack of notice provided to DLA Piper, the law firm conducted its initial interviews of Mr. Radomski and Mr. McNamee "with somewhat less preparation than there might have been if [it] had known who the witnesses were."
After the completion of each interview, a DLA Piper attorney would be designated to create the first draft of an interview memorandum. Id. at 22:13-15. After the attorney completed the first draft of the memorandum, the draft was then "circulated to other persons who participated in the interviews," with the exception of Senator Mitchell. Id. at 22:18-19. Those attorneys would review the memoranda, "refer to their notes, [and] sometimes would . . . take a look at. . . what else was going on in the investigation .... to make sure [the memorandum] was accurate." Id. at 22:22-23:2. The attorneys also wanted to ensure that only those matters that they "deemed to be material" were reflected in the memorandum. Id. at 23:3-4. After all of the attorneys reviewed the memorandum, they would then identify and address any "issues or . . . concerns" regarding the memorandum. Id. at 23:6-7. DLA Piper explained, for instance, that if one attorney heard the witness say one thing, but another attorney heard it differently, then the attorneys would participate in a telephone conference to discuss the matter. Id. at 23:6-9. Once the attorneys reached a consensus, they would then memorialize their agreement about the witness's statement in the final draft of the memorandum. Id. at 23:9-11. After the memorandum was completed, one of the attorneys would enter the memorandum into a database so that the other attorneys on the team could learn about an interview and assess whether what was obtained from that interview "ha[d] an impact on what [those attorneys] were asking other witnesses." Id. at 23:15-17.
In light of DLA Piper's protocols, the law firm now contends that its notes and memoranda constitute "opinion" work product. As support for this position, DLA Piper argues that the interviews "were very much directed by DLA Piper and what DLA Piper thought was important,"
DLA Piper also argues that its efforts to ensure the accuracy of its memoranda have no impact on the work-product analysis. It asserts that in no instance was an interview memorandum given to the witnesses for their review, nor did any of the attorneys ever read portions of the memorandum to them. See id. at 31:18-20 (statement by David Clarke that the witnesses "never saw" the memoranda, and that the memoranda were "[n]ever . . . read to them"). At most, according to DLA Piper, the attorneys would go "through the memorandum summar[iz]ing the points and restating the facts as they understood them," and the witnesses either confirmed or corrected what was related to them. Id. at 31:15-18. Because DLA Piper never read its memoranda to any of the witnesses, it contends that these documents do not amount to "statement[s] adopted by the witness[es]." Id. at 30:24. In sum, DLA Piper argues that all of its notes and memoranda are entitled to "opinion" work-product protection. See id. at 29:22-24 (statement by David Clarke that "all" of the materials at issue "should be protected," although admitting that there are "some very specific snippets that. . . one might be able to conclude ... are in any way factual").
II. Legal Standard
"The work[-]product doctrine reflects the strong public policy against invading the privacy of an attorney's course of preparation." In re Sealed Case, 856 F.2d 268, 273 (D.C.Cir.1988) ("Sealed Case I"). As the Supreme Court explained in the seminal case on the attorney work-product doctrine, Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947):
Id. at 511, 67 S.Ct. 385. The work-product doctrine, therefore, serves to protect "written materials that lawyers prepare in anticipation of litigation." United States v. Thompson, 562 F.3d 387, 393 (D.C.Cir. 2009) (internal quotation marks omitted).
While "the work-product doctrine most frequently is asserted as a bar to discovery in civil litigation," the attorney work-product doctrine's applicability is not limited to the civil context. United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). Indeed, the doctrine's "role in assuring the proper functioning of the criminal justice system is even more vital" because "[t]he interests of
The attorney work-product doctrine also can bar a party from obtaining protected materials from a third party. For instance, in United States v. Paxson, the defendant appealed his conviction on the grounds that, inter alia, the district court erroneously quashed a subpoena issued under Federal Rule of Criminal Procedure 17(c) and denied the defendant access to notes of an interview of a third-party that were drafted by that third-party's attorney. 861 F.2d 730, 735 (D.C.Cir.1988). The District of Columbia Circuit acknowledged that "[n]either party . . . cited any case applying the work-product privilege to facts paralleling those" before the Court in Paxson. Id. Nonetheless, the Circuit concluded "that the principles laid down in [Hickman] are perfectly applicable" to a situation where a defendant seeks attorney work-product from a third-party. Id. It is of no moment, therefore, that the individual or entity seeking cover under the attorney work-product doctrine is not a party to the underlying litigation.
Although the attorney work-product doctrine can protect an attorney's materials in a number of different circumstances, not "all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases." Hickman, 329 U.S. at 511, 67 S.Ct. 385. Rather, attorney work-product is discoverable "if the party seeking discovery can make a sufficient showing of necessity." 8 Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 2025 (3d ed. 1998). However, the showing of need required to discover another party's work product depends on whether the materials at issue constitute "fact" work product or "opinion" work product. See In re Sealed Case, 676 F.2d 793, 811 (D.C.Cir.1982) (noting that there is "qualified protection for `fact' work product and more absolute protection for `opinion' work product"). A party seeking discovery of "fact" work product—e.g., "[w]here relevant and non-privileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case," Hickman, 329 U.S. at 511, 67 S.Ct. 385—must demonstrate "a substantial need for the materials and an undue hardship in acquiring the information any other way," Dir., Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307 (D.C.Cir.1997). On the other hand, with regard to "opinion" work product—e.g., written materials prepared by counsel that reflect the attorney's "`mental impressions, conclusions, opinions, or legal theories,'" United States v. Deloitte LLP, 610 F.3d 129, 135 (D.C.Cir.2010) (quoting Dir., Office of Thrift Supervision, 124 F.3d at 1307)—such materials are "virtually undiscoverable," Dir., Office of Thrift Supervision, 124 F.3d at 1307. Discovery of "opinion" work product is therefore permissible only where a party has made "a far stronger showing of necessity and unavailability by other means" than would otherwise be sufficient for discovery of "fact" work product. Upjohn Co. v. United States, 449 U.S. 383, 402, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).
The Court is not without guidance on this issue, however. The natural starting point for determining the contours of "fact" and "opinion" work product is the Supreme Court's Hickman decision. Hickman involved the sinking of a tugboat that left five of nine crew members dead. Hickman, 329 U.S. at 498, 67 S.Ct. 385. The attorney for the tugboat company "privately interviewed the [four] survivors and took statements from them," which they "signed." Id. The attorney "also interviewed other persons believed to have some information relating to the accident[,] and in some cases he made memoranda of what they told him." Id. A representative for the decedents then sought production of the signed statements and interview memoranda. Id. at 499, 67 S.Ct. 385.
With regard to the signed witness statements, the Supreme Court concluded that such material "might, under certain circumstances, be admissible in evidence[,] give clues as to the existence or location of relevant facts[, o]r they might be useful for purposes of impeachment or corroboration." Id. at 511, 67 S.Ct. 385. For these signed statements, the Court concluded that "production might be justified where the witnesses are no longer available or can be reached only with difficulty." Id. However, "as to [the] oral statements made by [the] witnesses to [the attorney], whether presently in the form of his mental impressions or memoranda," the Court did "not believe that any showing of necessity [could] be made under the circumstances of [that] case to justify production." Id. at 512, 67 S.Ct. 385. The Court reached this conclusion because
Hickman, 329 U.S. at 512-13, 67 S.Ct. 385. Justice Jackson, in concurring with the majority, elaborated on this point:
Id. at 516-17, 67 S.Ct. 385 (Jackson, J., concurring); see also Upjohn, 449 U.S. at 399, 101 S.Ct. 677 ("Forcing an attorney to disclose notes and memoranda of witnesses' oral statements is particularly disfavored because it tends to reveal the attorney's mental processes."); Notes of Advisory Committee on 1970 Amendment to Rules, 28 U.S.C.A. § 442, quoted in Upjohn, 449 U.S. at 400, 101 S.Ct. 677 (noting that Federal Rule of Civil Procedure 26(b)(3) "protects] against disclosure [of] the mental impressions, conclusions, opinions, or legal theories ... of an attorney or other representative of a party. The Hickman opinion drew special attention to the need for protecting an attorney against discovery of memoranda prepared from recollection of oral interviews." (emphasis added)). The Hickman Court then concluded that "[i]f there should be a rare situation justifying production of these matters, [the] petitioner's case is not of that type." 329 U.S. at 513, 67 S.Ct. 385.
The Supreme Court further discussed the protection afforded to witness interview memoranda in Upjohn. That case involved an internal investigation conducted by corporate counsel into "`questionable payments'" by the corporation's subsidiary "to or for the benefit of foreign government officials in order to secure government business." 449 U.S. at 386, 101 S.Ct. 677. As part of its investigation, counsel dispatched a questionnaire to the corporation's employees, and he, along with outside counsel, also "interviewed the recipients of the questionnaire and some 33 other Upjohn officers or employees as part of the investigation." Id. at 387, 101 S.Ct. 677. Among the individuals interviewed were seven former employees of the company. See id. at 394 n. 3, 101 S.Ct. 677 ("Seven of the . . . employees interviewed by counsel had terminated their employment with Upjohn at the time of the interview."). The corporation then notified both the Securities and Exchange Commission and the Internal Revenue Service ("IRS") about the questionable payments. Id. at 387, 101 S.Ct. 677.
The IRS "immediately began an investigation to determine the tax consequences of the payments," seeking both the "written questionnaires," along with "memorandums or notes of the interviews conducted in the United States and abroad with officers and employees of the" corporation. Id. at 387-88, 101 S.Ct. 677. "The company declined to produce the documents ... on the grounds that they were protected from disclosure by the attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation." Id. at 388, 101 S.Ct. 677.
At least that was the District of Columbia Circuit's reading of Upjohn as explained in Sealed Case II. There, the Office of Independent Counsel sought production of "notes [from] a conversation between a now-deceased White House official and his private attorney." Sealed Case II, 124 F.3d at 231. The notes were drafted during a "preliminary" interview that was "initiated by the client." Id. at 236. The interview lasted two hours, and the attorney produced three pages of notes in which "he underlined certain words, placing both checkmarks and question marks next to certain sections." In re Sealed Case, 129 F.3d 637, 638 (D.C.Cir.1997) ("Sealed Case III") (Tatel, J., dissenting from denial of en banc hearing). The district court found "that the notes were protected by the work-product privilege because they reflected] the mental impressions of the attorney." Sealed Case II, 124 F.3d at 236 (internal quotation marks omitted).
The Circuit in Sealed Case II did acknowledge its previous decision in Sealed Case I, in which it held that where "the work product sought ... is based on oral statements from witnesses, a far stronger showing is required than the `substantial need' and `without undue hardship' standard applicable to discovery of [`fact'] work product." Sealed Case II, 124 F.3d at 236 (emphasis added). But the Circuit found Sealed Case I (along with two other cases, Better Government Bureau, Inc. and Cox v. Administrator, U.S. Steel, 17 F.3d 1386 (11th Cir.1994)) distinguishable because those cases involved interviews that were conducted as "part of a litigation-related investigation," and that under those circumstances, "the facts elicited necessarily reflected a focus chosen by the lawyer." Sealed Case II, 124 F.3d at 236 (emphasis added). In Sealed Case II, however, the attorney notes at issue were produced in connection with a "preliminary" interview that "was . . . initiated by the client." Id. The Circuit suggested that in these circumstances, while the attorney "was surely no mere potted palm, one would expect him to have tried to encourage a fairly wide-ranging discourse from [his] client, so as to be sure that any nascent focus on the lawyer's part did not inhibit the client's disclosures." Id. The Circuit ultimately declined to rule on whether the notes constituted "fact" work product, see id. at 236-37 (noting that while the notes "contain[ed] factual material that could be classified as opinion only on a virtually omnivorous view of the term," remand to the district court was proper for "reexamin[ation] in light of [the Circuit's] opinion"), but it did hold that "[w]here the context suggests that the lawyer has not sharply focused or weeded the materials, the ordinary Rule 26(b)(3) standard (i.e., the "fact" work product standard) should apply." Id. Thus, Sealed Case II forecloses the proposition that all matters contained in attorney notes and memoranda are absolutely entitled to heightened protection as "opinion" work product. See Dir., Office of Thrift Supervision, 124 F.3d at 1308 ("We recently observed that under certain circumstances purely factual material embedded in attorney notes may not deserve the super-protection afforded to a lawyer's mental impressions." (citing Sealed Case II, 124 F.3d at 236-37)).
The Court also finds guidance on the "fact" versus "opinion" work product distinction in cases construing 18 U.S.C. § 3500,
The Supreme Court's decision in Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959), provides a useful introduction to the Jencks Act. Although the work-product doctrine was not at issue in Palermo, the Supreme Court did address the issue of whether memoranda memorializing a witness interview conducted by an Internal Revenue Service agent constituted a "statement" or "substantially verbatim" statement under the Jencks Act. The Supreme Court analyzed the Jencks Act and concluded that the Act "encompass[es] more than mere automatic reproductions of oral statements." Id. at 352, 79 S.Ct. 1217. At the same time, the Court concluded from the legislative history of the Jencks Act that
Id. (emphasis added). For these reasons, the Supreme Court held that "summaries of an oral statement which evidence substantial selection of material, or which were prepared after the interview without the aid of complete notes, and hence rest on the memory of the agent," fall outside the umbrella of "statements" or "substantially verbatim" statements that are required to be produced by the government under the Jencks Act. Id. at 352-53, 79 S.Ct. 1217. But where the witness's recorded remarks fall within the several definitions of what is considered a "statement" under the Jencks Act, then the remarks can be fairly attributed to the witness and are, therefore, discoverable under the Jencks Act. Id. at 352, 79 S.Ct. 1217.
The Supreme Court then issued its decision in Goldberg v. United States, 425 U.S. 94, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976), which addressed the issue of whether a "statement. . . adopted or approved by" a witness under Section 3500(e)(1) could constitute "opinion" work product and, therefore, be exempt from discovery under the Jencks Act. In that case, a criminal defendant attempted to obtain from the government handwritten notes pertaining to a key government witness. Id. at 101, 96 S.Ct. 1338. At trial, the witness was asked whether the government lawyers "sometimes questioned [him] about what [he] had just said to make sure that they got it down correctly," to which the witness responded that "[t]hey may have," although he was unsure whether such questions were "part of [a] pattern." Id. at 100, 96 S.Ct. 1338; see also id. at 100-01, 96 S.Ct. 1338 (citing trial transcript where witness was asked whether the attorneys' notes "[w]ere . . . read back to [him] to see whether or not they correctly understood what [he was] saying," to which the witness responded "[p]robably from time to time"); id. at 101, 96 S.Ct. 1338 (citing
The Supreme Court concluded that the trial court's rulings were erroneous, id. at 108, 96 S.Ct. 1338, and the matter was remanded to the trial court for further proceedings, id. at 112, 96 S.Ct. 1338. The Supreme Court concluded that there is "nothing in the Jencks Act or its legislative history that excepts from production otherwise producible statements on the ground that they constitute `work product' of [government lawyers." Id. at 101-02, 96 S.Ct. 1338. In any event, the Supreme Court did not view the disclosure of statements under the Jencks Act as "undermin[ing] the policies that gave rise to the work-product doctrine," id. at 105, 96 S.Ct. 1338, because "[p]roper application of the Act will not compel disclosure of a Government lawyer's recordation of mental impressions, personal beliefs, trial strategy, legal conclusions, or anything else that could not fairly be said to be the witnesses] own statement," id. at 106, 96 S.Ct. 1338 (internal quotation marks omitted); see also id. at 107, 96 S.Ct. 1338 (observing that the production of statements under the Jencks Act does not require the lawyer to be "called upon to be a witness, since statements are produced only where they can fairly be said to be the witnesses] own" statements (internal quotation marks omitted)). Although the Supreme Court acknowledged that "there is some risk that a witnesses] words will be distorted in notes taken by a Government lawyer," it noted that "there is no such danger where a witness has adopted or approved the lawyer's notes." Id. at 107, 96 S.Ct. 1338 (internal citation omitted). The Supreme Court then concluded that further proceedings by the trial court were "necessary to determine whether the prosecutors' notes were actually read back to [the witness] and whether he adopted or approved them,"
Although Goldberg addressed only those "statements" that were either "adopted or approved by the witness," the District of Columbia Circuit reached a similar decision in a case involving whether "substantially verbatim" notes drafted by a government attorney during a pretrial witness interview were exempt from production under the Jencks Act as "opinion" work product. In Saunders,
To summarize the case law discussed above, Goldberg and Saunders stand for the proposition that any attorney work-product materials containing either a "statement. . . approved or adopted by" the witness or a "substantially verbatim recital of an oral statement made by [the] witness and recorded contemporaneously with the making of such oral statement" do not constitute "opinion" work product. This is because "statements" under the Jencks Act do not "include . . . protected material flowing from the attorney's mental processes." Saunders, 316 F.2d at 350. At best, these statements would be analogous to the signed witness statements in Hickman and thus only entitled to protection as "fact" work product.
But the universe of "fact" work product is not limited to signed witness statements and "statements" under the Jencks Act. For instance, the District of Columbia Circuit insinuated that the attorney notes at issue in Sealed Case II, or at least portions thereof, constituted "fact" work product, even though there was no indication that the notes contained any "statement. . . adopted or approved by" the witness, 18 U.S.C. § 3500(e)(1), or a "substantially verbatim recital of an oral statement by [the] witness,"
To be clear, however, simply because the record reflects a collection of facts that "necessarily reflect a focus chosen by the lawyer," id., does not mean that those facts are forever entitled to protection as "opinion" work product. As the cases above demonstrate, an attorney can take certain actions that will, in essence, transform "opinion" work product into "fact" work product. For instance, if an attorney authors a memorandum that includes a completely paraphrased account of a witness's interview, then the memorandum is entitled to protection as "opinion" work product. But if the attorney provides the memorandum to the witness, who then reviews the memorandum and signs it to indicate that he is adopting the statements contained therein, then the attorney has now transformed that memorandum into a signed witness statement, which is only entitled to protection as "fact" work product. That much is clear; of course, as the Court discusses below, this is not such a clear-cut case.
The upshot of the Court's discussion up to this point is that the analysis of whether an attorney's work product constitutes "fact" or "opinion" work product is inherently and necessarily fact-specific. In other words, the Court must look at every facet of DLA Piper',s investigation to determine whether the law firm's work product is entitled to the heightened protection accorded to "opinion" work product. And, the ultimate objective for the Court is to determine whether the work product at issue here contains either (1) "relevant and non-privileged facts" that are "essential to the preparation of one's case," Hickman, 329 U.S. at 511, 67 S.Ct. 385, which would include "statements [that] could properly be called the witnesses] own words," Palermo, 360 U.S. at 352, 79 S.Ct. 1217, or (2) the attorney's "`mental impressions, conclusions, opinions, or legal theories,'" Deloitte, 610 F.3d at 135 (quoting Fed. R.Civ.P. 26(b)(3)(B)), i.e., statements that are attributable to the attorney, rather than the witnesses, see Goldberg, 425 U.S. at 107, 96 S.Ct. 1338 (noting that one of the policies behind protection of attorney work product is to prevent the "use of the attorney's words for impeachment," thereby making "the attorney a witness rather than an officer of the court"). With the aforementioned principles serving as the Court's touchstone, the Court turns to the factual aspects of DLA Piper's investigation that the Court believes are relevant to its analysis.
III. Legal Analysis
Applying the principles stated above to the facts of this case, the Court concludes that, for the most part,
First, the Court finds that the notes from the initial interviews of Mr. Radomski and Mr. McNamee fall squarely within the province of Sealed Case II. As noted above, DLA Piper acknowledged to the Court that it was inhibited in preparing for the initial interviews of Mr. Radomski and Mr. McNamee because the law firm had not been made aware of the identity of the witnesses until shortly before they were conducted. Given this limitation, the Court cannot envision how DLA Piper could have developed a focused line of inquiry for either of these two witnesses. Rather, the Court finds that DLA Piper's objectives in these initial interviews of Mr. Radomski and Mr. McNamee necessarily would have been to gather as much information as possible concerning what they knew about the use of performance-enhancing drugs in Major League Baseball. And to accomplish that objective, it seems only logical that DLA Piper would have wanted to "encourage a fairly wide-ranging discourse from" these witnesses. Sealed Case II, 124 F.3d at 236. Thus, the initial interviews of these witnesses are analogous to the "preliminary" interview discussed in Sealed Case II. Moreover, even assuming that the Court agreed with DLA Piper that these notes were very "summary" in nature and did not constitute a verbatim transcript of the hearing, 6/8/11 Hr'g Tr. at 28:11-14, that factor alone is not sufficient to undermine the "fact" work-product nature of this document, see Sealed Case II, 124 F.3d at 236-37 (observing that at least portions of the notes "contain[ed] factual material that could be classified as opinion only on a virtually omnivorous view of the term"); Sealed Case III, 129 F.3d at 638 (Tatel, J., dissenting from denial of en banc hearing) (explaining that the attorney only produced three pages of notes from a two-hour interview, suggesting that the attorney "obviously wrote down what he thought was significant, omitting everything else"). For the same reasons discussed in Sealed Case II, the notes taken during the initial interviews of Mr. Radomski's and Mr. McNamee's initial interviews do not contain matters that were "sharply focused or weeded" by DLA Piper.
Second, with regard to the initial interview notes and all of the memoranda, the Court finds that DLA Piper failed to demonstrate to the Court that the government's
Furthermore, as to all of the interviews, DLA Piper acknowledges that the government officials who were present during these interviews would, at times, "ask some questions .... to try to help ... the witness refresh their recollection if they had said something differently before or said they did[not] remember now [what] they [had] said . . . earlier." Id. at 18:23-19:4. How much of an impact the government's participation in these interviews had on DLA Piper's ability to direct the interviews cannot be determined with any quantum of certainty, however, because the law firm was unable to say for certain which portions of the interview memoranda reflected statements by the witnesses made in response to questions asked by the government officials. See id. at 32:17-19 (statement by David Clarke that one could not "conclude from silence in the memoranda] that there were not other instances [of government involvement] because the memoranda] are nowhere close to a verbatim [transcript]"). DLA Piper could only surmise that the law firm's attorneys asked about "90 percent of the questions" in these interviews, but it was clear from the law firm's representation to the Court that the estimate was a rough one at best. See id. at 19:9-12 (statement by Mr. Scheeler that he can "only" provide "an estimate[,] but if [he] had to say what was the portion of the questions asked by DLA Piper versus anyone in the government[, it] would be . . . DLA Piper asking over 90 percent of the questions"). Moreover, even assuming that DLA Piper asked the overwhelming majority of the questions during the interviews, it is not clear that "90 percent" of the responses recorded in the notes and memoranda resulted from questions asked solely by DLA Piper. As DLA Piper represented to the Court, the notes do not reflect a verbatim transcript from the interviews, id. at 28:10-15, and the memoranda were further culled from the notes, id. at 28:17-22. Thus, in filtering the information, it may have been the case that much, if not all, of the information omitted from the law firm's work product were responses to DLA Piper's questions, thereby resulting in a higher percentage of the government's efforts being recorded in the work product. And, because DLA Piper admits that "silence" in the notes and memoranda does not reflect whether the information resulted from the government's, rather than DLA Piper's, questioning, id. at 32:17-20, the Court cannot determine how much of the work product stems from DLA Piper's focus and direction. It is DLA Piper's burden to demonstrate that its work product is entitled to heightened protection, see In re PEPCO Emp't Lit., Civil Action No. 86-0603(RCL),
Third, and most importantly, the Court finds that the statements contained in the interview memoranda can be fairly attributed to the witnesses because of DLA Piper's efforts to ensure the accuracy of its memoranda. DLA Piper represented to the Court that one of the main objectives for the follow-up interviews was to clarify and confirm the information gathered in its previous interviews. See 6/8/11 Hr'g Tr. at 15:21-16:4 ("[W]e were trying to . . . make sure that every single sentence in [the Mitchell Report] were accurately and fairly written to the best of our ability. So those latter interviews were largely an exercise of DLA Piper .... confirming information, [and] getting clarifications of information where we weren't certain of exactly what we had gotten ... in the earlier interviews."); id. at 24:3-8 (statement by Mr. Scheeler that DLA Piper conducted "follow[-]up interviews ... to make sure the information we had was accurate ...."). These efforts resulted in at least one instance where DLA Piper revised an interview memorandum after reviewing the substance of the document with Mr. Radomski and discovering several erroneous statements.
To be sure, the Court's conclusion is not affected by the fact that DLA Piper never reviewed its interview memoranda with Mr. Radomski and Mr. McNamee, or that it never read any specific portions of the memoranda to the witnesses to confirm their accuracy. 6/8/11 Hr'g Tr. at 31:18-20. While this factor would carry more weight in the context of the Jencks Act, see Goldberg, 425 U.S. at 110 n. 19, 96 S.Ct. 1338 (noting that a witness has not "adopted or approved" a lawyer's writings if "the lawyer does not read back, or the witness does not read, what the lawyer has written"), here the Court need not find that the memoranda contains "statements" as defined by the Jencks Act in order to conclude that the memoranda constitutes "fact" work product. The Court need only be satisfied that the remarks recorded in the interview memoranda can be fairly attributed to the witnesses. Cf. Palermo, 360 U.S. at 352, 79 S.Ct. 1217 (noting that Congress was concerned that production under the Jencks Act be limited to "only those statements which could properly be called the witness'[s] own words," and "that the statement could fairly be deemed to reflect fully and without distortion what had been said to the government agent"). And for the reasons discussed above, the Court is indeed satisfied that the memoranda accurately reflect the witnesses' statements to DLA Piper.
DLA Piper must therefore produce portions of the interview memoranda and the initial interview notes to the defendant, provided that he has demonstrated a substantial need for the materials, and that it would be an undue burden to require that he attempt to obtain the materials from another source. And, based on defense counsel's representations, the Court concluded at the April 21, 2011 hearing and in its April 27, 2011 Order that the defendant established a substantial need for "(1) . . . statements [that] are inconsistent with the
To determine which statements should be made available to the defendant, the Court intended as part of its in camera review to excise for production the discoverable statements from DLA Piper's work product. As the Court soon discovered in reviewing these materials, the problem with this approach is that the Court lacks sufficient knowledge about the defendant's theory of the case to determine whether the statements contained in these materials are either inconsistent with other statements in the record, or an embellishment of other statements. Without this knowledge, the Court might inadvertently allow statements that would be beneficial to the defendant to remain undisclosed, thereby prejudicing his ability to put forth his best possible defense at trial. Furthermore, if the Court were to only provide the defendant with specific instances of what seem to be inconsistent or embellished statements, without providing other potentially germane portions of the initial interview notes and interview memoranda that could possibly give context to those statements, the Court risks prejudicing the government because it would not have the opportunity to review those contextual statements in order to adequately rebut the purported inconsistency.
At the same time, the Court is hesitant to give the defendant the entirety of DLA Piper's "fact" work product because much of the interview memoranda
To further ensure that DLA Piper's work product is provided the protection it deserves under the circumstances, the Court will issue a protective order limiting the defendant's use of these materials. Specifically, the Court will limit the defendant's use to only those circumstances that are necessary to present his defense at trial. Any use of these materials in any unrelated litigation or in any other manner is strictly prohibited. The government, if it has been provided with any of the work product, will be subject to the same restrictions. Moreover, both parties will be required to immediately return to the Court at the conclusion of the trial any notes and memoranda they have received during the course of this litigation.
With the exception of one set of notes, see supra p. 254 n. 19, as well as those portions of DLA Piper's interview memoranda that are explicitly labeled as the assessments of the attorneys, see supra p. 253 n. 18, the Court concludes that the remainder of DLA Piper's notes and memoranda constitute "fact" work product. As to the interview notes created during the initial interviews of Mr. Radomski and Mr. McNamee, those materials were created in an almost identical context to those created in Sealed Case II, which the District of Columbia Circuit strongly suggested constituted "fact" work product. With regard to the initial interview notes and all of the interview memoranda, these documents are not entitled to protection as "opinion" work product because DLA Piper has failed to meet its burden of demonstrating
As noted above, DLA Piper is required to produce to the defendant those portions of its interview memoranda and initial interview notes that contain statements pertaining to the defendant and that were made by Mr. Radomski or Mr. McNamee. The remainder of the work product will be redacted, as the defendant has not established, at least at this point, a substantial need for this information. In the event that these other portions of DLA Piper's work product become relevant at trial, then the Court will determine at that time whether further production is necessary. In addition, the Court will issue a protective order to ensure that DLA Piper's work product remains protected to the fullest extent possible. Finally, prior to requiring production of these materials to the defendant, the Court will advise DLA Piper of what information it will need to produce to the defendant, so as to afford it the opportunity to appeal the Court's decision to the District of Columbia Circuit.
SO ORDERED this 21st day of June, 2011.