UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LYDIA CLEMMONS, :

:

Plaintiff, : Civil Action No.: 10-cv-911 (RC)

:

v. : Re Document No.: 43

:

ACADEMY FOR EDUCATIONAL 

DEVELOPMENT, et al., :

:

Defendants. :

MEMORANDUM OPINION

GRANTING PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER

This action concerns Plaintiff’s claims of racial discrimination in employment. The

matter is before the court on Plaintiff’s motion for protective order. [Docket No. 43] The matter 

is briefed and ripe for resolution. For the reasons set forth below, the Plaintiff’s motion is 

granted.

1. Plaintiff produced the final, signed declarations of two third-party witnesses: Cheryl 

Mayo and Lucy Shillingi. Defendant, Academy for Educational Development (“AED”), took the 

deposition of Ms. Mayo. Ms. Shillingi is in Uganda and, apparently, unavailable for deposition.

Subsequently, defendant AED subpoenaed documents from Plaintiff’s counsel. The 

subpoena called for, inter alia, the production of: drafts of the Mayo and Shillingi declarations; 

correspondence between Plaintiff’s law firm and Mayo or Shillingi; and, the same for other 

unidentified third-party witnesses. Plaintiff objects to such production on the basis of the work 

product doctrine. Fed. R. Civ. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495 (1947). The court 

finds that such materials are protected and need not be produced. 
2

“The work-product doctrine shields materials ‘prepared in anticipation of litigation or for 

trial by or for another party or by or for that other party's representative (including the other 

party's attorney, consultant, surety, indemnitor, insurer, or agent).’” Judicial Watch, Inc. v. 

Department of Justice, 432 F.3d 366, 369 (D.C. Cir. 2005) quoting Fed. R. Civ. P. 26(b)(3). 

Although the work product doctrine covers an attorney’s mental impressions, conclusions, 

opinions, or legal theories, it also protects factual materials prepared in anticipation of litigation. 

Tax Analysts v. I.R.S., 117 F.3d 607, 620 (D.C. Cir. 1997). Defendant does not challenge that the 

materials were prepared by counsel or that they were prepared in anticipation of litigation. 

Instead, Defendant AED argues that the materials are factual, were shared with a third-party 

witness that counsel does not represent, and are, thus, simply not protected by the work product 

doctrine. But, although the case law is not unanimous that such materials are covered by the 

work product doctrine, the more persuasive line of cases find that they are. See, e.g., Randleman 

v. Fidelity Nat’l Title Ins. Co., 251 F.R.D. 281, 285 (N.D. Ohio 2008) (draft affidavits and 

communications with counsel relating to affidavits are covered by the attorney work product 

doctrine); Tuttle v. Tyco Elec. Installation Servs., 2007 WL 4561530, at *2 (S.D. Ohio) (“the 

work product doctrine does protect information relevant to the evolution of an affidavit, 

including but not limited to communications with the counsel relating to the affidavit, prior 

drafts of the affidavit, and any notes made by counsel while engaging in the process of drafting 

the affidavit.”); see also Inst. For Dev. of Earth Awareness v. PETA, 272 F.R.D. 124, 125 

(S.D.N.Y. 2011); 8 WRIGHT, MILLER, MARCUS, §2024, at 510, n. 23 (“Recent cases have 

generally held that draft affidavits, and communications with counsel relating to affidavits, are 

covered by the work-product rule.”). And this court agrees.
3

Moreover, Defendant AED cannot overcome the application of the doctrine because it 

cannot show that it has substantial need for the requested material to prepare its case and cannot, 

without undue hardship, obtain its substantial equivalent by other means. Fed. R. Civ. P. 

26(b)(3)(A)(ii). “A draft of a declaration to be executed by a party or witness denotes what a 

lawyer thinks that party or witness should say and thereby exposes that lawyer’s mental 

processes.” Judicial Watch v. Dep’t of Commerce, 201 F.R.D. 265, 269 (D.D.C. 2001). “[T]o 

the extent that work product reveals the opinions, judgments, and thought processes of counsel, it 

receives some higher level of protection, and a party seeking discovery must show extraordinary 

justification.” Id. quoting In re Sealed Case, 676 F2d 793, 809 (D.C. Cir. 1982); see also

Randleman, 251 F.R.D. at 287 (opinion work product includes an attorney’s mental impressions, 

conclusions, opinions or legal theories, receives near absolute protection, and can be discovered 

only in very rare and extraordinary circumstances). Defendant AED has not met this standard.

With respect to the materials concerning Ms. Mayo, Defendant has already taken her 

deposition. This is all to which it is entitled. Inst. For Dev. of Earth Awareness, 272 F.R.D. at 

125 (no showing of substantial need because witnesses have been available to be examined at 

deposition and no other special circumstances exist); Randleman, 251 F.R.D. at 286 (no 

substantial need or undue hardship because plaintiffs can test the credibility of affiants through 

depositions); Schipp v. General Motors Corp., 457 F.Supp.2d 917, 923-24 (E.D. Ark. 2006)

(substantial need not met when party took depositions of witnesses who provided previous 

statements, and information sought is merely corroborative).1

 

1 Based on the deposition testimony, Defendant suggests some sort of over-reaching by 

plaintiff’s counsel concerning what he had the witnesses testify to in their declarations. But the 

record on this point is too weak to pursue further.
4

The materials concerning Ms. Shillingi are a closer call because she is, apparently, 

unavailable for deposition. However, because Defendant seeks this information for purposes of 

impeachment of the allegations contained in the final version of the declaration, it has not 

demonstrated substantial need for these materials either. McPeek v. Ashcroft, 202 F.R.D. 332, 

339 (D.D.C. 2001) (“Plaintiff wants to see these documents to probe for inconsistencies in the 

witnesses’ testimony between what they said in the draft and what they said in the final version 

of their affidavits. . . . But, if the desire to impeach a witness with prior inconsistent statements 

is a sufficient showing of substantial need, the work product privilege would cease to exist; there 

is not a lawyer born who would not like to see opposing counsel’s files in order to search for 

inconsistencies in opposing witnesses’ potential testimony.”); see also 1100 West, LLC v. Red 

Spot Paint and Varnish Co., 2007 WL 2904073, at *3 (S.D. Ind.) quoting McPeek.

2

 

2. Defendant also challenges the adequacy of Plaintiff’s privilege log. Defendant’s 

chief, if not only, complaint concerns Plaintiff’s counsel’s use of alphanumeric identifiers to 

differentiate between witnesses without disclosing their identities. But, because Defendant is not 

entitled to learn the identity of which witnesses Plaintiff’s counsel thought important enough to 

interview or communicate with, this method of alphanumeric identification is appropriate. See 

Gerber v. Down East Comm. Hosp., 266 F.R.D. 29, 35-36 (D. Maine 2010) (“a party complies 

with Rule 26(b)(5)(A)(ii) if it describes ‘the nature’ of a document or communication as an 

 

2 And the draft declarations of, and communications with, any other unidentified potential 

witnesses for which a final declaration has not been produced are protected even more strongly 

by the work product doctrine because they would reveal plaintiff’s counsel’s mental impressions 

of which witnesses he considered using but decided against. See also infra at p. 4. 
5

interview with a potential witness, without specifically identifying which witness has just been 

interviewed.”); see also In re SLM Corp. Sec. Lit., 2011 WL 611854, at *1 (S.D.N.Y.).3

CONCLUSION

For the foregoing reasons, Plaintiff’s motion for a protective order is hereby GRANTED. 

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: November 13, 2013 RUDOLPH CONTRERAS

United States District Judge

 

3 Of course, to the extent that the witness has discoverable information that plaintiff may 

use to support her claims or defenses and that witness has not been previously identified in initial 

disclosures or in response to a discovery request seeking such information, plaintiff must 

supplement her discovery pursuant to Fed. R., Civ. P. 26(e). Gerber v. Down East Comm. Hosp., 

266 F.R.D. 29, 35-36 (D. Maine 2010).