UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Air Line Pilots Association,

International

v. Civil No. 04-cv-331-JD

Guilford Transportation

Industries, Inc., et al.

O R D E R

 Defendants move to compel seven unredacted emails withheld

from production by plaintiff. Plaintiff asserts work product

protection as to the seven emails. 

Background

Five of the seven emails are between plaintiff’s counsel and

Robert Barnes, a former management employee of defendant Pan

American Airways Corporation. The other two emails are from

legal counsel for the plaintiff to FAA employees. Plaintiff

asserts work product protection for the documents. Defendant

asserts that any such protection has been waived by counsel’s

delivery of the documents to the FAA or Mr. Barnes. 

Discussion

Fed. R. Civ. P. 26(b)(3) provides work product protection

from discovery of documents which are otherwise discoverable but

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which were “prepared in anticipation of litigation or for trial

by or for another party or by or for that other party’s

representative . . .” “The party seeking work product protection

has the burden of establishing its applicability.” In re Grand

Jury Subpoena, 220 F.R.D. 130, 140 (D.Mass. 2004) (citations

omitted). Where, as here, an “opponent alleges a specific

disclosure, the burden of proof is upon the claimant to show

nondisclosure wherever that is material to the disposition of the

claim.” United States v. Massachusetts Institute of Technology,

129 F.3d 681, 686 (1st Cir. 1997). 

1. FAA COMMUNICATIONS

Exhibits 5 and 13 are emails to FAA employees. The redacted

paragraphs relate to requests for information, the substance of

which relate to the matters raised in this case. They appear to

be part of counsel’s factual investigation on issues in this

case. However, since the communications are clearly subject to

disclosure upon a FOIA request, plaintiff had no reasonable basis

to believe they would be kept confidential. Thus, plaintiff

fails to sustain his non-waiver burden on the second prong of the

waiver inquiry. See Ken’s Foods, Inc. v. Ken’s Steak House, 213

F.R.D. 89, 96 (D.Mass. 2002). Exhibits 5 and 13 are ordered

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produced in unredacted form. 

2. BARNES COMMUNICATIONS

Exhibits 6, 9, 10, 11 and 12 are emails to or from Robert

Barnes and plaintiff’s attorneys. They deal with investigation

of facts to develop plaintiff’s theories on this case. It is

clear that Barnes and ALPA were not adverse parties nor are they

likely to become adverse parties. The questions to and responses

from Barnes are the type of documents protected by the work

product rule. See Hickman v. Taylor, 329 U.S. 495, 511-12

(1947); In re Grand Jury Subpoena, 599 F.2d 504, 511-12 (2d Cir.

1979). The motion is denied as to Exhibits 6, 9, 10, 11, and 12. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 10, 2006

cc: R. Matthew Cairns, Esq.

 Julie P. Glass, Esq.

 Eric L. Hirschhorn, Esq.

 Marie M. McPartlin, Esq.

 Marcus C. Migliore, Esq.

 William G. Miossi, Esq.

 Gina M. Petro, Esq.

 Andrew W. Serell, Esq.

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