ORDERED: WH-TV’s Motion to Compel Production Against Motorola and General
Instrument [525-1] is granted in part and denied in part.

The motion is granted as to the following documents: Group 5, Entry 5; Group 7, Entry 2
{notes only); Group 8; Group 9, Entries 1-2; first through third e-mails in Group 9, Entry 3 (two
6/29/00 e-mails from Hagensick to Slate, 11/10/00 e-mail from Hagensick to Luehrs); Group 11;
Group 21, Entries 1-4; Group 24, Entries 1-3; fifth e-mail in Group 28, Entry 8 (7/2/02 e-mail
from Gettinger to Landise); fifth and sixth e-mails in Group 28, Entry 9 (7/2/01 e-mails from
Gettinger to Landise, and Landise to Gettinger); fifth through seventh e-mails in Group 28, Entry
10 (7/2/01 e-mails from Gettinger to Landise, and Landise to Gettinger); Group 35; Group 48;
Group 50; Group 52; Group 56, Entries 1-2, 4, Groups 72-73; portion of Group 75 that does not
specifically reference conference with Zimmerman and Smith; Group 78, Group 81; Group 92;
and Group 95.

The motion is denied as to the following documents: Group 1, Entries 1-4; Groups 2-3;
Group 7, Entry 1; Group 7, Entry 2 (12/15/00 e-mail only); fourth e-mail in Group 9, Entry 3
(11/10/00 e-mail from Luehrs to Vitkus); Group 12; Group 18, Entry 3; Group 28, Entries 1-3;
first four e-mails in Group 28, Entry 8 (6/28/01 e-mail from Landise to Gettinger; 6/27/01 e-
mails from Gettinger to Landise, Landise to Luehrs, and Luehrs to Wyckoff); first four e-mails in
Group 28, Entry 9 (6/28/01 e-mail from Landise to Gettinger; 6/27/01 e-mails from Gettinger to
Landise, Landise to Luehrs, and Luehrs to Wyckoff); first four e-mails in Group 28, Entry 10
(6/28/01 e-mail from Landise to Gettinger; 6/27/01 e-mails from Gettinger to Landise, Landise to
Luehrs, and Luehrs to Wyckoff), Group 28, Entries 11-12; Group 39; Group 41; Group 53,

Entries 1, 3-5; Group 54, Entries 2-5; Group 57, Entries 1-2; Group 65, Entries 1-2; Group 74;

13


Entry 3 (two 6/29/00 e-mails from Hagensick to Slate); Group 35 (2/23/99 draft contract with
notes); and Group 72 (6/14/00 e-mail from Hagensick to Slate).
B. Communications Not Directed to an Individual

WH-TV also contests GI’s and Motorola’s claim that certain communications from
attorneys to their files are protected by the attorney-client privilege, even though the
communications were not directed to an individual. A memorandum prepared as a record of a
communication between an attorney and a client, where the communication was for the purpose
of rendering legal advice, is protected by the attorney-client privilege, just as is the underlying

communication. See Heidelberg Harris, Inc. v. Mitsubishi Heavy Indus., Ltd., No. 95 C 673,

1996 WL 732522, at *5 (N.D. Il. 1996). However, an attorney’s memorandum to file that does
not record such an attorney-client communication is not protected by the attorney-client
privilege.” Id.

The court finds that the following attorney communications to file are protected by the
attorney-client privilege, as they record confidential conversations between attorney and client:
Group 74 (5/9/00 notes of Paul Fleck regarding discussion with Dick Smith), and Group 76
(Fleck’s notes regarding discussion with Smith). The court finds that, in the notes contained in
Group 75, only the line referencing a conference with Lee Zimmerman and Smith is protected by
the attorney-client privilege; the court directs GI and Motorola to produce the remainder of the
notes, in redacted form.

GI and Motorola claim that certain draft agreements containing handwritten notes are

2 Such communications could be protected by the work product doctrine. However, GI
and Motorola do not claim that the work product privilege applies to these documents, and
accordingly that privilege is waived.


Means to Hagensick); Group 11, Entry 7 (6/25/01 e-mail from Hagensick to Means); Group 11,
Entry 8 (6/25/01 e-mails from Means to Hagensick, and from Hagensick to Means; 6/22/01 e-
mails from Hagensick to Means, and from Means to Hagensick); Group 12, Entry 3 (11/28/01 e-
mail from Landise to John Ryan); Group 21, Entries 1-4 (8/7/01 e-mails from Wyckoff to
Gettinger, from Gettinger to Landise, from Landise to Gettinger, and from Gettinger to
Wyckoff); fifth e-mail in Group 28, Entry 8 (7/2/01 e-mail from Gettinger to Landise); fifth and
sixth e-mails in Group 28, Entry 9 (7/2/01 e-mails from Gettinger to Landise, and Landise to
Gettinger); fifth through seventh e-mails in Group 28, Entry 9 (7/2/01 e-mails from Gettinger to
Landise, and Landise to Gettinger); Group 48 (1/19/01 e-mail from Ron Van Kovering to Fish);
Group 50 (12/12/01 e-mail from Landise to Gettinger); final e-mail in Group 56, Entry 2
(10/1/02 e-mail from John Hewitt to Sullivan); second e-mail in Group 56, Entry 4 (9/30/02 e-
mail from Landise to Ronald Stelzner); and Group 73 (11/10/00 e-mail from Hagensick to
Gettinger).

Il, Work Product Doctrine

The work product doctrine, codified in Federal Rule of Civil Procedure 26(b)(3), protects
from disclosure documents and tangible things prepared in anticipation of litigation or for trial,
by or for a party, or by or for a party’s attorney. Fed. R. Civ. P. 26(b)(3). Generally, because
“Tp)rudent parties anticipate litigation, and begin preparation prior to the time suit is formally
commenced{,] ... the 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.” Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d

1109, 1118-19 (7" Cir. 1983) (citation omitted). “The mere fact that litigation does eventually


following documents, because they were directed to or shown to individuals whom Motorola and
General Instrument have failed to establish are a member of a control group: Group 24, Entries 1-
3 (e-mail chain beginning with 3/14/01 e-mail and attached draft letter from Matthew Gettinger
to Luehrs)’; Group 52, Entry 1 (1/02/01 e-mail from Brian Zore to Charles Fish)*; Group 52,
Entry 2 (1/10/01 e-mail chain)’; Group $2, Entry 3 (1/02/01 e-mail from Zore to Gettinger)*;
Group 56, Entry 1 (9/27/02 e-mails from Joe Sullivan to Gettinger, and Gettinger to Sullivan)’,
Group 56, Entry 2 (9/27/02 e-mails from Sullivan to Gettinger, and Gettinger to Sullivan,

10/1/01 e-mails from Sullivan to Gettinger)*; Group 56, Entry 4 (9/27/02 e-mail from Sullivan to
Gettinger)’; Group 78 (5/9/00 memorandum from Sue J. Hodges to “GI Motorola”); Group 81

(5/23/00 draft agreement from Winston & Strawn to “GI Motorola”).

* These e-mails were copied to an individual with the title “Motorola Manager
Technology/Engineering Project.” Motorola and GI do not identify the role this employee
played.

* The e-mail was copied to individuals with the titles “Motorola Manager
Technology/Engineering Project” and “Motorola Manager, Engineering.” Motorola and GI do
not identify the roles these employees played.

* The e-mail was copied to individuals with the titles “Motorola Manager
Technology/Engineering” and “Motorola Manager, Engineering.” Motorola and GI do not
identify the roles these employees played.

* The e-mail was copied to an individual with the title “Motorola Manager, Engineering.”
Motorola and GI do not identify the role this employee played.

7 These e-mails were copied to an individual with the title “Manager, Finance.”
Motorola and GI do not identify the role this employee played.

* These e-mails were copied to an individual with the title “Manager, Finance.”
Motorola and GI do not identify the role this employee played.

° This e-mail was copied to an individual with the title “Manager, Finance.” Motorola
and GI do not identify the role this employee played.

6


protected by the attorney-client privilege. “[D]rafts [of agreements] prepared by or commented
upon by an attorney necessarily contain legal advice from the attorney as to the wording of the

contracts for the benefit of the client, and thus are privileged.” McCook Metals L.L.C. v. Alcoa

Inc., 192 F.R.D. 242, 255 (N.D. Il. 2000), The court finds that Groups 96-98, 100-01, 106, and
114 (draft agreements with notes) are protected by the attorney-client privilege, since they are
drafts of agreements prepared by, or commented upon by an attorney.
C. Documents Distributed Outside Control Group
WH-TV next contends that GI and Motorola waived the attorney-client privilege as to
certain documents by circulating them too widely. When a corporate document is shown to
employees outside the company’s “control group,” the attorney-client privilege is either

inapplicable or is waived. See Trustmark Ins. Co. v. General & Cologne Life Re of Am., No. 00

C 1926, 2000 WL 1898518, at *4 (N.D. IIl. Dec. 20, 2000). An employee is a member of the
control group if the employee “‘is in a position to control or even to take a substantial part in a
decision about any action which the corporation may take upon the advice of the attorney, or if he
is an authorized member of a body or group which has that authority...” Consolidation Coal Co.
y. Bucyrus-Erie Co., 432 N.E.2d 250, 255 (Ill. 1982). Thus, “an employee whose advisory role
to top management in a particular area is such that a decision would not normally be made
without his advice or opinion ... is properly within the control group.” Id. at 258. WH-TV
concedes that the following individuals were members of the Motorola/GI control group:
William Luehrs, Tom Hagensick, Don Landise, Don Alexander, Chuck Sindelar, Tom Lynch,
and Doug Means.

The court finds that the attorney-client privilege is inapplicable or waived as to the


3 (11/10/00 e-mail from Luehrs to Richard Vitkus); Group 12 (6/29/01 e-mail from Luehrs to
Gettinger), Group 18, Entry 3 (1 1/28/01 e-mail chain); Group 28, Entries 1-3 (6/27/01 e-mail
chain; 6/28/01 e-mail chain; 6/28/01 draft letter); first four e-mails in Group 28, Entry 8 (6/28/01
e-mail from Don Landise to Gettinger; 6/27/01 e-mails from Gettinger to Landise, Landise to
Luehrs, and Luchrs to Wyckoff); first four e-mails in Group 28, Entry 9 (6/28/01 e-mail from
Landise to Gettinger; 6/27/01 e-mails from Gettinger to Landise, Landise to Luehrs, and Luehrs
to Wyckoff); first four e-mails in Group 28, Entry 10 (6/28/01 e-mail from Landise to Gettinger;
6/27/01 e-mails from Gettinger to Landisc, Landise to Luehrs, and Luehrs to Wyckoff); Group 39
(6/13/01 memorandum from Luehrs to Lawrence Benjamin); Group 41 (6/7/01 memorandum
from Luehrs to Benjamin), Group 57, Entries 1 and 2 (5/17/01 and 10/24/02 e-mail chains);
Group 104 (5/25/00 e-mail from Mare Tayer to Zimmerman); Group 105 (5/30/00 e-mail from
Tayer to Zimmerman); Group 112 (3/9/00 c-mail from Christine Foh to Don McLellan).

The court finds that the following documents do not contain communications related to
seeking legal advice, and therefore are not protected by the attorney-client privilege: second
document in Group 7, Entry 2 (Hagensick notes); third e-mail in Group 9, Entry 2 (11/10/00 e-
mail from Hagensick to Luehrs); third e-mail in Group 9, Entry 3 (11/10/00 e-mail from
Hagensick to Luehrs);, Group 11, Entry 1 (6/22/01 e-mail from Hagensick to Douglas Means);
Group 11, Entry 2 (6/01 e-mail from Luchrs to Means); Group 11, Entry 3 (6/22/01 e-mails from
Means to Hagensick, and from Hagensick to Means); Group 11, Entry 4 (6/22/01 e-mails from
Ly Tran to Means, from Means to Hagensick, and from Hagensick to Means); Group 11, Entry 5
(6/22/01 e-mails from Hagensick to Mcans, and from Means to Hagensick); Group 11, Entry 6

(6/25/01 c-mail from Hagensick to Means; 6/22/01 e-mails from Hagensick to Means, and from


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Naue of Assigned Judge
or Magistrate Judge

George W. Lindberg

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 01 C 4366 DATE 8/6/2003
CASE Zenith Electronics Corporation vs. WH-TV Broadcasting Corporation
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented. ]

qi)

(525) is granted in part and denied in part. Enter memorandum opinion and order.

a [For further detail see order attached to the original minute order.]

MOTION:

DOCKET ENTRY:

qd) a Filed motion of { use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) Qo Answer brief to motion due___. Reply to answer briefdue__

(4) Oo Ruling/Hearing on setfor at

6) O Status hearing[held/continued to} [set for/re-set for] on setfor_ at

(6) oOo Pretrial conference[held/continued to] [set for/re-set for]on set for at_

(7) o Trial{set for/re-set for]on at.

“) O (Bench/Jury trial] [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
DCOFRCP4(m) OLocal Rule 41.1 COFRCP41(a)(1) OO FRCP41(a)(2).

ce | [Other docket entry] WH-TV’s motion to compel production against Motorola General Instrument

v

No notices required, advised in open coun.

No notices required, iver of
number of notices

Document
Number

Notices mailed by judge's stalf.

AYG,0 7 2003

Notified counset by telephone. date dockexed

Docketing to mail notices

Mail AQ 450 form.

\ Qa Ss sockering dfputy
Copy to judge/magistrate judge y4nod an
courtroom a0 date mailed notice
SLB depuy's ahsh Wd 9-4

id
testi WO
canval SUES Sieg =

ailing depaty initials

(50



the voluminous summary judgment record. This is insufficient to meet Motorola’s and GI’s
burden of establishing when they began to anticipate litigation; it is not the role of the court to
sift through the record to make that determination, Accordingly, the court will use the date this
suit was filed — June 11, 2001 — as the date by which Motorola and GI must have begun to
anticipate litigation.

The court finds that Motorola and GI have failed to establish that the following
documents were prepared in anticipation of litigation, and that they therefore deserve protection
under the work product doctrine: Group 5, Entry 5 (draft letter dated “after 3/8/01"); second
document in Group 7, Entry 2 (Hagensick notes) Group 8, Entries 1-3 (10/31/00 e-mail from
Hagensick to Luehrs), Group 9, Entries 1-3 (6/29/00 e-mail chain; 11/10/00 e-mail chains);
Group 21, Entries 1-4 (8/7/01 e-mails from Wyckoff to Gettinger, from Gettinger to Landise,
from Landise to Gettinger, and from Gettinger to Wyckoff); Group 56, Entries 1, 2, and 4
(9/27/02, 10/1/02, and 9/30/02 e-mail chains); and Group 73 (11/10/00 e-mail from Hagensick to
Gettinger).

The court finds that the following documents are protected under the work product
doctrine: Group 1, Entries 1-4 (6/11/01 e-mail and attached annotations document from Landise
to Gettinger); Group 28, Entries 11-12 (6/20/01 draft letters); Group 53, Entries 1, 3-5 (9/23/02
e-mail chains); Group 54, Entries 2-5 (10/24/02 and 10/25/02 e-mail chains); and Group 65,
Entries 1 and 2 (8/26/02 e-mails from Ryan to “SBNS East Eng Staff” and from Tom Pennacchia
to Ryan).

Finally, WH-TV argues that documents protected by the work product doctrine may

nevertheless be discoverable “if they contain admissions by hostile, testifying witnesses that may

li


ensue does not, by itself, cloak materials prepared by an attorney with the protection of the work
product privilege... ‘[T]he work product rule does not come into play merely because there is a

remote prospect of future litigation.” Id. at 1118 (quoting Diversified Indus.. Inc. v. Meredith

572 F.2d 596, 604 (8 Cir. 1977)). Because litigation may be anticipated when almost any
incident occurs, “a substantial and significant threat of litigation is required before a discovery
opponent’s anticipation will be considered a reasonable and justifiable motivation for production

of a document.” Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 145 F.R.D. 84, 87 (N.D. Ill.

1992).

Motorola and GI state that they anticipated litigation on September 12, 2000, when they
received an e-mail from WH-TV. The e-mail stated that WH-TV was seeking cash, set-top
boxes, and solutions to all outstanding problems by December 1, 2000. The e-mail further
stated:

We would rather solve matters this way, quickly, and get on with development

plans. We also believe that this is far better for you than what the board was

recommended to do by the outside experts.
Motorola and GI contend that this e-mail conveyed a substantial and significant threat of
litigation. The court disagrees. The e-mail does not indicate what the alternative
recommendation was, and litigation is not the only inference one can draw.

Motorola and GI next state, in conclusory fashion, that “WHTV continued its demands
and threats of litigation (as discussed in great detail in the pending summary judgment motions)
at the November 6, 2000 Philadelphia meeting with Zenith and Motorola, and in other

correspondence in 2000 and the first several months of 2001.” Motorola and GI do not cite to

any correspondence or other evidence in support of this conclusion, or to any specific portion of

10


Nor are the documents in Group 92 protected by the attorney-client privilege. GI’s and
Motorola’s privilege log inaccurately describes these documents as a June 21, 2000
communication from attorney Lee Zimmerman to file, containing draft contract schedule, with
notes. In fact, Group 92 contains a June 21, 2000 memorandum from Zenith attorney Peter Slate
to Zimmerman and attorney K. Michael Garrett, attaching revised disclosure schedules. The
memorandum is copied to three individuals who are not identified in the privilege log. The
copied individuals include Jackie Petrovic, who is not listed in GI’s and Motorola’s schedule that
identifies the title and position of individuals in the privilege log. Gl and Motorola are ordered to
produce the documents in Group 92.

The privilege log also describes the documents in Group 95 inaccurately. The log
similarly states that these documents are a June 8, 2000 communication from Zimmerman to file,
containing draft contract schedules, with notes. In reality, Group 95 contains a June 8, 2000
memorandum from Slate to Zimmerman and Garrett, attaching revised disclosure schedules. As
with Group 92, the memorandum is copied to Petrovic, who is not identified in the privilege log
or schedule. GI and Motorola are ordered to produce the documents in Group 95.

D. Other Claims of Attorney-Client Privilege

The court finds that the following constitute attorney-client privileged communications:
Group 2 (5/25/01 e-mail from Luehrs to Beverly Wyckoff)'°; Group 3 (4/9/01 e-mail from Luehrs
to Gettinger); Group 7, Entry 1 (12/15/00 e-mail from Hagensick to Luehrs); the first document

in Group 7, Entry 2 (12/15/00 e-mail from Hagensick to Luehrs); fourth e-mail in Group 9, Entry

'© WH-TV has withdrawn its motion as to the attached non-privileged e-mails in Group



662, 664; Sobol v. E.P. Dutton, Inc., 112 F.R.D. 99, 103 (S.D.N.Y. 1986).

Gl and Motorola contend that In re In-Store Advertising Secs. Litig. is distinguishable

because in that case, unlike here, there was no indication that the parties contractually agreed to
transfer the attorney-client privilege. The court finds this distinction unconvincing. GI’s and
Motorola’s position would allow anyone to evade waiver of the privilege, despite the transfer of
privileged documents to a third party, merely by agreeing to transfer the privilege and accepting
consideration for it.

Nor is the court persuaded by GI's and Motorola’s reliance on Rhode Island Depositors

Econ, Prot. Corp. v. Mapleroot Dev Corp., 710 A.2d 167 (R.1. £998). In that case, the Rhode

Island Supreme Court considered the right of the Rhode Island Depositors Economic Protection
Corporation (DEPCO) to invoke the attorney-client privilege of a credit union, whose assets
DEPCO had purchased under an agreement that transferred the credit union’s privileges to
DEPCO. Id. at 168-69. The court held that DEPCO had acquired the credit union’s attorney-
client privilege in the transaction. Id. at 171. However, unlike in this case, DEPCO was
established by state legislation, and the court construed DEPCO’s enabling legislation to allow
DEPCO to acquire failed lenders’ attorney-client privileges in order to accomplish its statutory

mission of aiding failed institutions in making prompt payments to depositors. See id. at 170-71.

The court concludes that Zenith’s attorney-client privilege simply was not a property right
that could be sold. Accordingly, the court finds that GI and Motorola cannot invoke the attorney-
client privilege for the following Zenith documents that were transferred to GI and Motorola:
Group 9, Entry | (6/29/00 e-mails from Tom Hagensick to Peter Slate); the first two e-mails in

Group 9, Entry 2 (two 6/29/00 e-mails from Hagensick to Slate); the first two e-mails in Group 9,


the portion of Group 75 that specifically references conference with Zimmerman and Smith;
Group 76; Groups 96-98; Groups 100-01; Groups 104-06; Group 112; and Group 114.

ENTER:

George wlLindberg UY
Senior U.S. District Judge

AUG 06 2003
DATED:

14



United States, 524 U.S. 399, 403 (1998) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389
(1981)). “[BJecause the privilege is in derogation of the search for the truth, it is construed
narrowly.” United States v. Evans, 113 F.3d 1457, 1461 (7" Cir. 1997). The party claiming the

privilege bears the burden of proving its essential elements. Vardon Golf Co. v. Karsten Mfg.

Corp., 213 F.R.D. 528, 531 (N.D. Ill. 2003)
A. Zenith Documents Predating Common Interest

Zenith sold certain assets of its Network Systems Division to Gl in August 2000, and
transferred its documents relating to that division to GI and Motorola at that time. GI and
Motorola claim the attorney-client privilege as to privileged Zenith documents that it received in
the asset purchase. WH-T'V argues that GI and Motorola cannot claim the attorney-client
privilege as to privileged Zenith documents that predate any common interest between Zenith
and GI and Motorola. Motorola and GI respond that the Asset Purchase Agreement that
governed the asset purchase provided that GJ purchased from Zenith “[a]]l intangible personal
property to the extent used or held for use in the conduct of the Business (including, without
limitation, ... all rights, privileges, claims, causes of action and options relating to or pertaining to
the Business or the Assets)...” (emphasis added).

The court disagrees that the attorney-client privilege is a corporate asset that can be sold.
“[W]hen control of a corporation passes to new management, the authority to assert and waive

the corporation’s attorney-client privilege passes as well.” Commodity Futures Trading Comm’n

vy. Weintraub, 471 U.S. 343, 349 (1985). However, the mere transfer of some assets from one
corporation to another — as was done in this case — does not transfer the attorney-client privilege.

Sce, ¢.g., In re In-Store Adver. Secs. Litig., 163 F.R.D. 452, 458 (S.D.N.Y. 1995); 124 F.R.D.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ZENITH ELECTRONICS CORPORATION,

DOCKETED

Plaintiff/Counter-Defendant,
01 C 4366 AUG 0 7 2003

Judge George W. Lindberg
WH-TV BROADCASTING CORPORATION,

)
)
)
)
v. )
)
)
)
Defendant/Counter-Plaintiff. )
MEMORANDUM OPINION AND ORDER

WH-TV Broadcasting Corporation (“WH-TV”) moves to compel the production of
documents identified by Motorola, Inc. (“Motorola”) and General Instrument (““GT’) as protected
by the attorney-client privilege or work product doctrine. The court has reviewed Motorola’s and
Gl’s privilege log and, where necessary, has conducted an in camera review of documents
referenced in the log.' For the following reasons, WH-TV’s motion is granted in part and denied
in part.

L Attorney-Client Privilege

Where legal advice of any kind is sought from a professional legal adviser in his or her
capacity as such, communications relating to that purpose, made in confidence by the client, are
protected by the attorney-client privilege, unless the privilege is waived. United States v. White,
950 F.2d 426, 430 (7" Cir. 1991). The purpose of the attorney-client privilege is “to encourage
‘full and frank communication between attorneys and their clients and thereby promote broader

public interests in the observance of law and the administration of justice.’” Swidler & Berlin v.

' WH-TV has withdrawn its motion as to Group 2 (attached non-privileged e-mails);
Group 6, Entry 9 (attached non-privileged e-mails); and Groups 23, 49, and 61.

(,20



be used for impeachment purposes.” Federal Rule of Civil Procedure 26(b)(3) provides that
materials protected under the work product doctrine, other than an attorney’s mental processes,
may nevertheless be subject to disclosure if the party seeking discovery shows a substantial need
for the materials, and an inability to obtain the substantial equivalent of the information by other
means. To obtain the benefit of this exception to the work product doctrine, however,

a party must present more than speculative or conclusory statements that the

{material] will contain invaluable impeachment material. And, the impeachment

value must be substantial because every prior statement has some impeachment

value and otherwise the exception would swallow the rule.

Duck v. Warren, 160 F.R.D. 80, 83 (E.D. Va. 1995); see also 8 Charles A. Wright, Arthur R.

Miller & Richard L. Marcus, Federal Practice & Procedure 2d § 2025 (2d ed. 1994) (quoting

Hauger v. Chicago R.L & P.R. Co., 216 F.2d 501, 508 (7" Cir. 1954)) (“A court is not justified in

ordering a litigant to permit his adversary to inspect witness statements, which he has procured in
preparing for trial, upon the adversary’s mere surmise or suspicion that he might find impeaching
material in the statements.”).

While the burden of making this showing may be a relatively light one, given that WH-
TV can only speculate as to the contents of the documents at issue, WH-TV has offered nothing
to show a substantial need. Accordingly, the court denies WH-TV’s request that the court review
documents protected by the work product doctrine to determine whether they nevertheless should

be produced.

12