work product exception in Alabama

2013P.,] the party objecting to discovery bears the burden of establishing the elements of the work-product exception.” ’ Ex parte Cummings, 776 So.2d 771, 774 (Ala.2000) (quoting Ex parte Garrick, 642 So.2d 951, 952-53 (Ala.1994)).

2013This is so, because, he argues, the petitioners have presented no evidence indicating that the claims notes, or anything else in their files were ‘prepared in anticipation of litigation or for trial.’ We agree. “ ‘ “Under Rule 26(b)(3), the party objecting to discovery bears the burden of establishing the elements of the work-product exception.” ’ Ex parte Cummings, 776 So.2d 771, 774 (Ala.2000) (quoting Ex parte Garrick, 642 So.2d 951, 952-58 (Ala.1994)).

2013P.,] the party objecting to discovery bears the burden of establishing the elements of the work-product exception.” ’ Ex parte Cummings, 776 So.2d 771, 774 (Ala.2000) (quoting Ex parte Garrick, 642 So.2d 951, 952-53 (Ala.1994)).

2013This is so, because, he argues, the petitioners have presented no evidence indicating that the claims notes, or anything else in their files were ‘prepared in anticipation of litigation or for trial.’ We agree. “ ‘ “Under Rule 26(b)(3), the party objecting to discovery bears the burden of establishing the elements of the work-product exception.” ’ Ex parte Cummings, 776 So.2d 771, 774 (Ala.2000) (quoting Ex parte Garrick, 642 So.2d 951, 952-58 (Ala.1994)).

2013P. Ex parte Meadowbrook identifies the elements of the work-product exception to the general discovery rule as follows: ‘ “(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or representative of that party.” ’ ” Ex parte Flowers, 991 So.2d 218, 221 (Ala. 2008) (quoting Ex parte Meadowbrook, 987 So.2d at 548 , quoting in turn Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D.Kan. 2000)).

2008P. 1 Ex parte Meadowbrook identifies the elements of the work-product exception to the general discovery rule as follows: "`(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party.'" (quoting Johnson v. Gmeinder , 191 F.R.D. 638 , 643 (D.Kan. 2000)). 2 *Page 222 This Court recognized in Ex parte Norfolk Southern Railway , 897 So.2d 290 , 295 (Ala. 2004), that a "recorded statement . . . taken by the claims agent . . . can be treate

2008The protection of this exception extends in any event to ‘the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.’ Rule 26(b)(3). ‘Under Rule 26(b)(3), the party objecting to discovery bears the burden of establishing the elements of the work-product exception.’ Ex parte Garrick, 642 So.2d 951 (Ala.1994). ‘ “[T]he test should be whether in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prosp

2001"When it is asserted that an otherwise discoverable document was made `in anticipation of litigation,' the objecting party bears the burden of proving the elements of the work-product exception of Rule 26(b)(3)." Sims v. Knollwood Park Hosp ., 511 So.2d 154 , 156 (Ala. 1987) quoting Hickman v. Taylor , 329 U.S. 495 (1947) (incident report prepared by hospital personnel was not "work product" falling within the protection of the trial-preparation exception, although the hospital, against which the negligence action was brought by Sims, contended that the report had been prepared in anticipation

2013Where the record contains ‘no affidavits, memorandums, or reports to support the [objecting parties’ contentions],’ the court can only ‘speculate’ as to whether the materials ‘fall under the work-product exception.’ Ex parte Fuller, 600 So.2d 214, 216 (Ala.1992).

2013Where the record contains ‘no affidavits, memorandums, or reports to support the [objecting parties’ contentions],’ the court can only ‘speculate’ as to whether the materials ‘fall under the work-product exception.’ Ex parte Fuller, 600 So.2d 214, 216 (Ala.1992).

2008Co. v. National Presto Indus., Inc., 709 F.2d 1109 , 1119 (7th Cir.1983)). ‘The fact that a defendant anticipates the contingency of litigation resulting from an accident or event does not automatically qualify an “in house” report as work product.’ Sims, 511 So.2d at 158 (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C.1982)). ‘An evidentiary showing by the objecting party is not required until the parties are “at issue as to whether the document sought was, in fact, prepared in anticipation of litigation.” ’ Ex parte State Farm Automobile Ins.

1987Cir. 1980) held that the party seeking to assert the work product privilege has the burden of proving that 'at the very least some articulable claim, likely to lead to litigation, [has] arisen. ' " (Emphasis added.) That court concluded at 1120: "It is often difficult to determine with precision when a particular attorney's work is 'in anticipation of litigation' rather than 'an investigative report developed in the ordinary course of business.' Janicker , 94 F.R.D. at 650 .

2008P. [1] Ex parte Meadowbrook, identifies the elements of the work-product exception to the general discovery rule as follows: "`(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party.'" (quoting Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D.Kan.2000)). [2] *222 This Court recognized in Ex parte Norfolk Southern Railway, 897 So.2d 290, 295 (Ala.2004), that a "recorded statement ... taken by the claims agent ... can be treated as prote

2008P. 1 Ex parte Meadowbrook identifies the elements of the work-product exception to the general discovery rule as follows: "`(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party.'" (quoting Johnson v. Gmeinder , 191 F.R.D. 638 , 643 (D.Kan. 2000)). 2 *Page 222 This Court recognized in Ex parte Norfolk Southern Railway , 897 So.2d 290 , 295 (Ala. 2004), that a "recorded statement . . . taken by the claims agent . . . can be treate

2000"Under Rule 26(b)(3), the party objecting to discovery bears the burden of establishing the elements of the work-product exception." Ex parte Garrick, 642 So.2d 951 (Ala.1994). "`[T]he test should be whether in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'" Sims v. Knollwood Park Hosp., 511 So.2d 154, 157 (quoting Binks Mfg.Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1119 (7th Cir. 1983)).

2000"Under Rule 26(b)(3), the party objecting to discovery bears the burden of establishing the elements of the work-product exception." Ex parte Garrick , 642 So.2d 951 (Ala. 1994). "`[T]he test should be whether in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'" Sims v. Knollwood Park Hosp. , 511 So.2d 154 , 157 (quoting Binks Mfg.Co. v. National Presto Indus., Inc. , 709 F.2d 1109 , 1119 (7th Cir. 1983)).

2013Co., 761 So.2d 1000, 1002-03 (Ala.2000), quoting in turn Ex parte Garrick, 642 So.2d at 953 (emphasis added)).... “[When the determinative issue is whether the discovery to be produced was prepared in anticipation of litiga tion] ‘[a] “blanket claim” as to the applicability of the work product doctrine does not satisfy the [objecting parties’] burden of proof.’ Disidore v. Mail Contractors of America, Inc., 196 F.R.D. 410, 413 (D.Kan.2000). ‘“That burden cannot be discharged by mere conclusory or ipse dixit assertions.” ’ Id. (quoting McCoo v. Denny’s, Inc., 192 F.R.D. 675, 680 (D.Kan.2000)).

2013“In such a case, ‘[a] “blanket claim” as to the applicability of the work product doctrine does not satisfy the [objecting parties’] burden of proof.’ Disidore v. Mail Contractors of America, Inc., 196 F.R.D. 410, 413 (D.Kan.2000). “‘That burden cannot be discharged by mere conclusory or ipse dixit assertions.” ’ Id. (quoting McCoo v. Denny’s, Inc., 192 F.R.D. 675, 680 (D.Kan.2000)).

2013“In such a case, ‘[a] “blanket claim” as to the applicability of the work product doctrine does not satisfy the [objecting parties’] burden of proof.’ Disidore v. Mail Contractors of America, Inc., 196 F.R.D. 410, 413 (D.Kan.2000). “‘That burden cannot be discharged by mere conclusory or ipse dixit assertions.” ’ Id. (quoting McCoo v. Denny’s, Inc., 192 F.R.D. 675, 680 (D.Kan.2000)).

2013“In such a case, ‘[a] “blanket claim” as to the applicability of the work product doctrine does not satisfy the [objecting parties’] burden of proof.’ Disidore v. Mail Contractors of America, Inc., 196 F.R.D. 410, 413 (D.Kan.2000). “‘That burden cannot be discharged by mere conclusory or ipse dixit assertions.” ’ Id. (quoting McCoo v. Denny’s, Inc., 192 F.R.D. 675, 680 (D.Kan.2000)).

2013P. Ex parte Meadowbrook identifies the elements of the work-product exception to the general discovery rule as follows: ‘ “(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or representative of that party.” ’ ” Ex parte Flowers, 991 So.2d 218, 221 (Ala. 2008) (quoting Ex parte Meadowbrook, 987 So.2d at 548 , quoting in turn Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D.Kan. 2000)).

2008See Ex parte Meadowbrook , 987 So.2d at 548 (identifying the elements of the work-product exception to the general discovery rule as "`that (1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party.'" (quoting Johnson v. Gmeinder , 191 F.R.D. at 643 )). 3 Sanders also makes the following argument: "Under Rule 613(a)[, Ala. R.

2009Co. v. National Union Assocs., Inc., 362 So.2d 228, 231 (Ala.1978)); see, e.g., Ex parte Garrick, 642 So.2d 951, 952-53 (Ala.1994) (‘Under Rule 26(b)(3), the party objecting to discovery bears the burden of establishing the elements of the work-product exception.’).” Ex parte CIT Commc’n Fin.

2009Co. v. National Union Assocs., Inc., 362 So.2d 228, 231 (Ala.1978)); see, e.g., Ex parte Garrick, 642 So.2d 951, 952-53 (Ala.1994) (`Under Rule 26(b)(3), the party objecting to discovery bears the burden of establishing the elements of the work-product exception.')." Ex parte CIT Commc'n Fin.

2008Evid., incorporates into the Rules of Evidence the attorney-client privilege, stating, in pertinent part: "A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client, (1) between the client or a representative of the client and the client's attorney or a representative of the attorney...." This Court has stated: "`"Whether a communication is privileged is a question of fact to be determined by the trial court from the evidence presente

2008Evid., incorporates into the Rules of Evidence the attorney-client privilege, stating, in pertinent part: “A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client, (1) between the client or a representative of the client and the client’s attorney or a representative of the attorney .... ” This Court has stated: “ ‘ “Whether a communication is privileged is a question of fact to be determined by the trial court from the evidence pres

1989In Connecticut Mutual Life Insurance Co. v. Shields, 16 F.R.D. 5, 7 (S.D.N.Y. 1954), it was determined that the work-product doctrine attaches to those documents prepared "with an eye toward litigation." See Ex parte State Farm Mutual Auto.

1989In Connecticut Mutual Life Insurance Co. v. Shields, 16 F.R.D. 5, 7 (S.D.N.Y.1954), it was determined that the work-product doctrine attaches to those documents prepared “with an eye toward litigation.” See Ex parte State Farm Mutual Auto.

2014Although I did not write, I dissented for the reasons I dissented in Ex parte Mobile Gas Service Corp., 123 So.3d 499, 516 (Ala.2013), namely, because “I do not believe mandamus relief is proper in the context of discovery proceedings.” 1 “Discovery matters are within the trial court’s sound discretion, and this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion.” Ex parte Ocwen Fed.

2013See also Ownby v. United States, 293 F.Supp. 989 (W.D.Okla.1968) (emphasis [on ‘prospect’] added).

2013Co., 761 So.2d 1000, 1002-03 (Ala.2000), quoting in turn Ex parte Garrick, 642 So.2d at 953 (emphasis added)).... “[When the determinative issue is whether the discovery to be produced was prepared in anticipation of litiga tion] ‘[a] “blanket claim” as to the applicability of the work product doctrine does not satisfy the [objecting parties’] burden of proof.’ Disidore v. Mail Contractors of America, Inc., 196 F.R.D. 410, 413 (D.Kan.2000). ‘“That burden cannot be discharged by mere conclusory or ipse dixit assertions.” ’ Id. (quoting McCoo v. Denny’s, Inc., 192 F.R.D. 675, 680 (D.Kan.2000)).

2013See In re Grand Jury Subpoena (Mark Torf/Torf Environmental Management), 357 F.3d 900, 910 (9th Cir.[2004]) (holding that certain ‘dual purpose’ documents created in response to the EPA information request and consent order were protected from discovery by the work product doctrine as they were created because of potential litigation with the EPA); Atlantic Richfield Co. .... (holding that documents created by environmental consultants were protected from discovery by the work-product doctrine); Bituminous Cas.

2013P. Ex parte Meadowbrook identifies the elements of the work-product exception to the general discovery rule as follows: ‘ “(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or representative of that party.” ’ ” Ex parte Flowers, 991 So.2d 218, 221 (Ala. 2008) (quoting Ex parte Meadowbrook, 987 So.2d at 548 , quoting in turn Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D.Kan. 2000)).

2013It is undisputed that the report meets the first and third elements of the work-product doctrine: the report is a “document!] or tangible thing!]” and “[was] prepared by or for a party or a representative of that party.” Ex parte Flowers, 991 So.2d at 221 .

2013See, e.g., Kent Corporation v. National Labor Relations Board, 580 F.2d 612 , 628 (5th Cir.), cert. denied, 429 U.S. 920 , 97 S.Ct. 316 , 50 L.Ed.2d 287 (1976); In re LTV Securities Litigation, 89 F.R.D. 595, 612 (N.D.Tex.1981).

2013See, e.g., Kent Corporation v. National Labor Relations Board, 580 F.2d 612 , 628 (5th Cir.), cert. denied, 429 U.S. 920 , 97 S.Ct. 316 , 50 L.Ed.2d 287 (1976); In re LTV Securities Litigation, 89 F.R.D. 595, 612 (N.D.Tex.1981).