Facts
- Gharmaine Stewart, an employee of Falley’s, Inc., reported alleged sexual harassment using Falley’s internal phone tip line.
- Beverly Broxterman, Falley’s human-resources director, contacted Stewart to discuss the complaint.
- Stewart told Broxterman to communicate through Stewart’s attorney rather than directly with Stewart.
- That same day, Stewart’s attorney sent Broxterman a letter stating that Stewart had filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC).
- After receiving the attorney’s letter, Broxterman conducted an internal investigation, including interviews of several witnesses.
- Broxterman prepared an internal memorandum summarizing the investigation, including her findings and evaluative opinions (the “Broxterman memo”).
- In discovery in Stewart’s employment-discrimination lawsuit, Falley’s produced handwritten witness statements gathered during the investigation.
- Falley’s withheld the Broxterman memo, asserting protection under the work-product doctrine in Federal Rule of Civil Procedure 26(b)(3).
- Stewart moved to compel production, arguing the memo was not protected because it was not prepared at an attorney’s direction.
Issues
- Whether the Broxterman memo, prepared by the employer’s HR director after notice of an EEOC charge and counsel involvement, was prepared “in anticipation of litigation” and therefore protected work product under Fed. R. Civ. P. 26(b)(3).
- Whether work-product protection can apply to a document created by a non-lawyer corporate representative when there is no showing it was drafted at counsel’s direction.
- Whether Stewart showed substantial need and undue hardship sufficient to obtain the memo, including any evaluative material it contained.
Decision
- The court denied Stewart’s motion to compel.
- The court held the Broxterman memo was protected under Rule 26(b)(3) because it was created after Stewart’s EEOC charge and attorney involvement, when litigation could reasonably be expected.
- The court rejected the argument that attorney direction is required for work-product protection, concluding that Rule 26(b)(3) covers materials prepared by a party’s representative, including non-lawyers.
- The court treated the memo as at least partly evaluative in nature and therefore entitled to strong protection to the extent it reflected the investigator’s mental impressions and conclusions.
- The court found Stewart had access to the underlying factual material through the produced witness statements and other discovery tools and did not make the showing required to compel production of the memo.
Legal Principles
- Rule 26(b)(3) protects documents and tangible things prepared in anticipation of litigation or for trial by or for a party or its representative, including agents and employees.
- A document may qualify as work product even if prepared by a non-lawyer; attorney authorship or express attorney instruction is not a prerequisite.
- The key question is whether the document was prepared because litigation was reasonably expected, not merely as a routine business record.
- Materials reflecting an investigator’s mental impressions, evaluations, or conclusions receive heightened protection as opinion work product.
- Work product may be discovered only upon a showing of substantial need and inability to obtain the substantial equivalent without undue hardship; access to underlying witness statements and the ability to depose witnesses generally weakens such a claim.
Conclusion
In Stewart’s employment-discrimination action, the court treated Falley’s HR director’s post-charge investigative memo as work product because it was created after notice of an EEOC charge and attorney involvement, and Rule 26(b)(3) extends to materials prepared by a party’s non-lawyer representatives. Because Falley’s had already produced the underlying witness statements and Stewart could pursue the facts through other discovery, Stewart did not show the level of need required to compel production of the memo, particularly where it contained evaluative content.