### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE November 9, 2000 Session DUDLEY G. BOYD, ET AL 

### . v. COMDATA NETWORK, INC., ET AL 

### .

Appeal from the Chancery Court for Williamson County

No. 26397 Russ Heldman, Judge

No. M2000-00949-COA-R9-CV - Filed April 30, 2002

This appeal invo lve s a discovery dispute implicating the common interest privilege and the work product doctrine. After filing suit in the Chancery Court for Williamson County to rescind their guar anties, the individual guarantors of a corporate debt served interrogatories and requests for production of

documents on the creditor seeking copies of all written communications between the creditor and the corporation from which the creditor had purchased the corporate debt. The creditor objectedto the production of documents

involving its negotiation of a joint defense a

greement with the original creditor

and the drafts of

an agreement to

repurchase the corporate debt. The trial court directed the creditor to produce both categories of documents but permitted the creditor to pursue
an interlocutory appeal. We g ranted the interlocutory appeal to address the application of the
common interest privilege and the work product doctrine. We have determined that the commo n interest privilege shields the documents relating to the joint defense agreement from discovery and that the work product doctrine likewise protects the draf ts of the repurchase ag reement. Accordingly, we

reverse the tria

l court’s order c

ompelling the produ

ction of these doc

uments. Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Chancery Court Reversed

W ILLIAM C. K OCH , J R ., J., deli vered the opinion of the court, in which WILLIAM B. C AIN and P ATRICIA J. C OTTRELL , JJ., joined.

WilliamR. O’Bryan, Jr., Kenneth M.Bryant, and E. Todd Presnell, Nashville, Tennessee, for the appellant, Comdata Network, Inc. Scott Justin Crosby and Susan M. Clark, Memphis, Tennessee, and George H. Nolan and Julie C. Murphy, Nashville, Tennessee, for the appellees, Dudley G. Boyd and Jan E Boyd.
OPINION

I.

The Fidelity Group, Inc. (“Fidelity Group”) is a Tennessee corpora tion e ngaged in the businessof receivable financing for sma ll transportation c

ompanies. Its pre

sident and majority stockholder

is Dudley G. Boyd who lives in Memphis, Tennes see. In connect ion with its business,1 Sovryn, Inc. is a Tennessee cor

poration enga

ged in the r

eceivable

financing bus

iness. Mr. Boy d is it s president and sole stockholder.

2 The Boyd Revocable Int er-Vivos Trus

t is a Cal ifornia Trust created by Mr. Boyd and Jan E. Boyd, his wife.
-2- Fidelity Group obtained an unsecured line of credit from NTS, Inc. (“NTS”), a Delaware corporation locatedin Fort Worth, Texas. NTS provides finan cial and relate

d services to

trucking companie

s, truck stops, and other members of the transportation industry. By September 1997, Fidelity Group had drawn down $834,750.66 on its NTS line of credit andwas unable

to repay it. Mr. Boyd, Fidelity Group, and another Tennessee corporation Mr. Boyd contro lled ent ered into three a greements with NT

S on January 15, 199 8, to restructure Fidelity Group’s debt. First, NTS and Sovryn, Inc. (“Sovryn”) 1 entered into a Marketing S ervices Agreement,

ant icipating that Sovryn’s commissions would be used to pay down Fidelity Group’s debt to NTS. Second, both Fidelity Group and Sovryn execut ed a Promissory Note and Debt Reduction Agreement in which they agreed to be jointly and sev erally l iable for Fidelity Group’s debt and to repay the d

ebt in scheduled insta

llments by 2001. Third, Mr. Boyd and the Boyd Revocable

Inter-Vivos Tru st (“ Boyd Trust”) 2 executed a Guaranty Agreement guarantying the payment of the Promissory Note a nd Debt Reduction Agreement executed by Fidelity Group and Sovryn. During the negoti ati ons over the restructuring of Fidelity Group’s debt, NTS disclosed to Mr. Boyd th at it was negotiating the sale of substantially all of its assets to Comdata Network, Inc. (“Comdata”) , includ ing the Marketing Services Agreement, the Promissory Note and Debt Reduction Agreement, and the Guaranty Agreement. Following consultations with Comdata, Mr. Boyd, on behalf of himself and his corporations, assented to this transaction. On January 17, 1998, NTS entered into an Exchange Agreement with

Comdata conveying to Comdata all its right, title, andinterest in the Ma

rke ting Services Agreement, the Promissory Note and Debt Reduction Agreement,

and the Guaranty

Agreement. The E

xchange Agree

ment contained a r

epurchase provision enabling Comdata to requireNTS to repurchas e any of the asse

ts covered by the Exchange Agreement. Thereafter, NTS changed its name to IPS Card Solutions, Inc. (“IPS”).

Timepassed without much progress in reducing the $834,750.66 debt. In the summ er of 1998, Comdata declare

d the Promissory Note

and Debt Re

duction Ag reement in default and terminatedthe Marketing Services Agreement. In February 1999, facing the prospect that Comdata would call upon him and the Boyd Trust to honor their Guaranty Agreement, Mr. Boyd and the Boyd Trust (“the Boydparties”) filed suit in Memphis seeking rescission of their guaranties and damages for Comdata’s alleged breach of the Marketing Ser

vices Agreemen

t. On July

30, 1999, after th

eir Memphis suit was dismissed for improper venue, the Boyd parties filed the same complaint in the Chancery Court for Williamson County.

The Boyd parties’ suit p

rompted Comdata to i

nvoke its rig

hts under the Ex change Agreement to require IPS, as NTS’s successor, to repurchase the NTS as sets. During the discussions that followed, Comdata and IPS negotiated not only the terms of a Purchase Agreement for the note but3 The lawyers re presenti ng Comdata and IPS discussed the terms of t

he proposed Joi

nt Defense Agreement

and exchan ged dra fts of the agr eemen t, but Com data and IPS nev er entered into a joint d efense ag reemen t.

4 Sp ecific ally, the request for product ion of documents sought “[a]l l corres pondenc e, memoranda, notes or othe r docum ents reflecti

ng, concerning or evidencing any communications between. . . [ Comdata] and NTS concerning the Plaintiffs, Fidelity and/or Sovryn” and “[a]ll corres pondence, memoranda , notes or other documents

reflect ing, concerningor evidencing any communication between . . . [ Comdata] and NTS regarding the negotiation, per formance, nonperformance, breach and/or any aspect of t he Agreements.”

5 In the mea ntime, the Boyd p arties had re quested the United States District C ourt to ab stain in defe rence to this proceeding or, in the alterna tive, to dism iss IPS’s com plaint beca use the fo rum w as not con venient. On May 12, 2000, the United States District Court filed an opinion and order granting t

he motion to abs

tain base d on the reas oning of Colorado River Water Conservation Dist . v. United Stat

es , 424 U.S. 800 , 817, 96 S. Ct. 123 6, 1246 (1976)

. IPS Card Solutions, Inc. v. Boyd , No. 00 CIV.07 76 (M BM), 2 000 W L 620 213, at *4 (S.D.N.Y . May 1 2,2000 ).
-3- also the terms of a Joint

Defense Agree

ment with regard t

o the litigation pendi

ng in the trial cour

t. 3 On August 17, 1999, whi

le the negotiations between Comdata and IPS were taking place, the Boyd parties filed interrogatories and requests for production of doc

uments seeking documents and other communications between Comdata and NTS regarding the Boyd parties, Fidelity Group, or Sovryn. 4

Two significant develop me nts occurred on N ovember 15, 1999.

First, Comdata and I

PS executed a Purchase Agreement in which Comdata assigned the promissory note and debt reduction agreement

to IPS. Second, Comda ta filed itsresponse to the Boyd parties’ interrogatories and request for production of

documents. Citin g the attorney-client privilege and the work product doctrine, Comdata objected to producing (1) the drafts of the Purchase Agreement covering the note, (2) the correspondence between Comdata’s and IPS’s lawyers regarding the Pur

chase Agreeme

nt, (3 ) th e proposed Joint Defense Agreement, and (4) the correspondence between the lawyers for Comdata and IPS regarding the proposed Joint Defense Agreement.

On February 3, 2000, IPS launched what it intended to be a preemptive strike by filing suit in the United States District Court for the Southern District of New York to enforc e the Boy d parties’ guaranties. The

Boyd parties resp

onded on Februar

y 14, 2000, by movin

g to amend their complaint in this proceeding to add IP S a s a defendant. Three days later, they moved to compel Comdata to respond to their

interrogatories and request for production of documents. On February 29, 2000, the trial cou

rt filed an order

permitting the Boyd p

arties to amend their compl

aint toadd IPS as a defendant. The amended complaint was filed on March 3, 2000. On April 17, 2000, the trial court granted the motion to compel but also authorized Comdata to purs ue an interl ocutory appeal to this court. Ten days later, Comdata applied to this court for an interlocutory appeal. We granted Comdata’s application on May 11, 2000. 5

II. T HE S TANDARD OF R EVIEW
We tu rn first to the standard of review. Comdata’s appeal challenges the trial court’s decisions regarding the scope of pre-trial discovery and its invocation of theattorney-client privilege and the work product doctrine. Decisions regarding discovery issues address themselves to a trial-4-

court’s discretion, Benton v. Snyder , 825 S.W.2d 409, 416 (Tenn. 1992); Payne v. Ramsey , 591 S.W.2d 434, 436 (Tenn. 197 9); Harrison v. Greeneville Ready-Mix, Inc. , 220 Te nn. 293, 3 02-03, 417 S.W.2d 48, 52 (1967), as do decisions regarding the application of the attorney-client privilege andthe work product doctrine. In re Grand Jury Proceedings , 219 F.3d 175, 182 (2d Cir. 2000); Frontier Ref. Corp. v. Gorman-Rupp Co. , 136 F.3d 695, 699 (10th Cir. 1998). Accordingly, the appellate courts must review these decisions using the “abuse of discretion” standard of review.

While the “abuse of disc

retion” standar

d limits the scope of

our revie

w of d iscretionary decisions, it does not immunize these decisions completely from appellate review. Duncan v. Duncan , 789 S.W.2d 557, 561 (Tenn. Ct. App. 1990). Even thoug h it prevent s us from secondguessing the trial court, White v. Van d erbilt Univ. , 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999), or from substituting our discretion for the trial court’s discretion, Myint v. Allstate Ins. Co. , 970 S.W.2d 920, 927 (Tenn. 1998); State ex rel. Vaughn v. Kaatrude , 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000), it does not prevent us from examining the trial court’s decision to determine whether it has taken the applicable

law and the rele

vant facts into

account. Ballard v. Herzke , 924 S.W.2d 652, 661 (Tenn. 1996). We will not hesitate to conclude that a trial court “abused its discretion” when the court has appliedan incorrect le

gal standard, ha

s reached a dec

ision that is

illogical, has bas

ed its decision on
a clearly erroneous assessment of the evidence, or has employed reasoning that causes an injustice to the complai ning party. Clinard v. Blackwood , 46 S.W.3d 177, 182 ( Tenn. 2001); Buckner v. Hasse ll , 44 S. W.3d 78, 83 (Tenn. Ct. App. 2000); In re Paul’s Bonding Co. , 62 S.W.3d 187, 194 (Tenn. Crim. App. 2

001); Overstreet v. Shoney's, Inc. , 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999).

Whencalled upon to rev iew a discretiona

ry decision, we w

ill review t he trial court’s underlying factual findings using the preponderance of the evidence standard in Tenn. R. A pp. P. 13(d ). Howev er we will review the trial court’s

purely legal dete

rminations de novo w

ithout a presumption of

correctness. Brown v. Birman Managed Care, Inc. , 42 S.W.3d 62, 66 (Tenn. 2001); Burlew v . Bu rlew , 40 S.W.3d 465, 470 ( Tenn. 2001); see also In re Grand Jury Proceeding , 156 F.3d 1038, 1042 n.1 (10th Cir. 1998). By defin

iti on, a trial cou rt “abuses its disc retion” when it makes an error of law. Koon v. United States , 518 U.S. 81, 100, 116 S. Ct. 2035, 2047 (1996).

III. T HE D RAFTS OF THE J OINT D EFENSE A GREEMENT
The trial court determined that Comdata could not invoke the

common interest pr

ivilege to challenge several of the Boyd parties’ interrogatories and requests for production of documents. On this a ppeal, Comdata asserts that the trial court erred by determining that it could not use th e common interest privileg e to avoid produci

ng copies of corr

espondence and

other documents relating to its negotiations with IPS regarding a proposed Joint Defense Agreement. We hav e determinedthat Tennessee r ecognizes the c

ommon interest

privilege as an extension of the attorneyclient privilege and that Comdata has demonstrated, by a preponderance of the evidence, that it

is entitled to invoke this privilege to prevent the discovery of the documents involving the proposed Joint Defense Agr

eement.6 Courts and text wri ters have character

ized the a

ttorney- client

privil ege as the

oldest pr

ivilege for confidential communicationknow n to the co mmo n law. Upjohn Co. v. United States , 449 U .S. 383, 3 89, 101 S. Ct. 677, 682 (1981); Fede ral Ins. Co. v . Arthur Ander son & Co. , 816 S.W .2d 328 , 330 (T enn. 19 91); Ed ward J. Im winkelr ied, The New Wigmore: Evidentiary Privilege s § 6.2.4, at 471 (20 02); Ed na S. Ep stein, The Attorney-ClientPrivilege and the WorkProduct Doctri

ne 2 (4th ed. 2001) (“Epstein”).

7 Johnson v. Patte rson , 81 Tenn. 626, 649 (1884) (holding t

hat the codi

ficati on of the at

torney-cl

ient pri vilege embo dies the co mmo n-law ru le); McM annus v . State , 39 Ten n. (2 Hea d) 213, 2 15-16 (1858)

.

8 Tenn. Code An n. § 23-3-105 (1994 ).

9 Jackson v. State , 155 Tenn. 371, 376, 293 S.W. 539, 540 ( 1927) ; John son v. Patt erson , 81 Tenn. at

649 (holdingthat “there ar

e many transactions between att orney and client

, that ha ve no element of

confidence i

n them, of which . . . [th e attorney ] is comp etent to testify” ).

10 Hazlett v. Bryant

, 192 Te nn. 251 , 258, 24 1 S.W.2 d 121, 1 24 (195 1).

11 Smith County Educ. Ass’n v. Ander son , 676 S.W .2d at 333 ; see also Tenn. S. Ct. R. 8, DR 4-101(B)(1).
-5- A.

The law favors making all relevant evid ence available

to the trier of fa

ct. Neil P. Cohen, et al., Tennessee Law of Evidence § 5.01[2] (4th ed. 2000). Accor

dingly, Tenn. R.Evid. 501 limits the ability of parties and wit

nesses to refuse

to disclose informa

tion or docum ents to the “privile ges” providedby the constitution, statutes, common law, and rules pro mulgated by the Tennessee Supreme Court. One of the pri vileges, in fact the oldest privilege, 6 recognized in Te nnessee both at common law 7 and by statute 8 is the attorney-client privilege. This privilege serves the administration of justice by encoura gi ng full and frank c ommunication betwe

en clients and the

ir attorneys by sheltering these communications from compulsory disclosure. Upjohn Co. v. United States , 449 U.S. at 389, 101 S. Ct. at 682; Bryan v. State , 848 S.W.2d 72, 79 (Tenn. C rim. App. 1992).

The attorney-client privilegeis not absolute, nor does it cover all communications between
a clie nt and his or her attorney. The communications must involve the subject matter of th e representation 9 and m ust be made wi th the intention that they will be kept co

nfidential. 10 The privilege applies not only to the client’s communications but also to the attorney’s communications to his or her c lient when the attorney’s communications are specifically based on the client’s confidential communications or when disclosing the attorney’s communications would, directly or indirectly, reveal the substance of the client’s confidential communications. Burke v. Tennessee Walking Horse Bre

eders’ & Exhibitors’ Ass’n , No. 01A01-9611-CH-00511, 1997 WL 277999, at *11 (Tenn. Ct. App. May 28, 1997) (No Tenn. R. App. P. 11 application filed); Bryan v. State , 848 S.W.2d at 80.

The attorney-clien

t privilege “belo

ngs” to the client . Smith

County Educ. Ass’n v. Anderson , 676 S.W.2d 328, 333 (Tenn. 1984); State v. Parker , 932 S.W.2d 945, 955 (Tenn. Crim. App. 1996). Accordingly, a client

may waive 11 the privilege either by communicating in the presence of others who are not bound by the privilege, Hazlett v. Bryant , 192 Tenn. at 257, 241 S.W.2d at 123, or by12 The Code of Profess ional Respons

ibili ty specif icall y pe rmits att orneys to re veal cli ent confide

nces and secret s when the information is necessary to prevent a client from com mitting a crime, to collect a fee, or t o defen d against an a

ccu sat ion of wr ongf ul c onduct.

It al so p ermi

ts att orneys to reveal cl ient confidences and sec rets when permitted under th e disciplinar y rules or re quired b y law or a court ord er.

13 The com mon interest privilege has fr equently been referred t o as the “joint defense privilege” because the privil ege was origina

lly and i s now most commonly invoked in t he context of

a joint defense.

The more accurate term is “comm on interest” privilege. In re Grand Jury Subpoenas 89-3 & 89-4, John Doe 89-129 , 902 F.2 d at 249 ; United States v. Schwimmer , 892 F.2 d 237, 2 43 (2d C ir. 1989); Hicks v. C omm onwea lth , 439 S.E.2d 414, 41 6 (Va. C t. App. 1994); Restate

ment (Third) of

the Law Governing Lawyers § 76 cmt. b (2000).

Accor d ingly, we wil l refer to the privilege as t

he “common interest privilege. ”

14 United States v

. Evans , 113 F.3 d 1457 , 1467 (7 th Cir. 199 7); United Statesv. Schwimmer , 892 F.2d at 243- 44; Volpe v. Conroy, Simber g & Ganon, P.

A. , 720 So . 2d 537 , 539 (Fla . Dist. Ct. Ap p. 1998 ); Aetna C as. & Sur. Co. v. Certai n Underwriter

s at Lloyd’

s of London , 676 N .Y.S.2d 727, 73 2 (N.Y . 1998).

15 The common interest privil ege does not

provide an independent basis for refusing t

o reveal i

nformation or produce documents that would not other

wise be protected by the atto rney-clien t privilege. United S tates v. Agn ello , 135 F. Supp. 2d 380, 382 (E .D.N.Y. 2001); Securities I nvestor Protecti

on Corp. v. Stratt

on Oakmont, Inc. , 213 B.R. 433, 435 (Bankr. S. D.N.Y. 1997); Res tatement (

Third) of t

he Law Governing Lawyers § 76 cmt. d.
-6- voluntarily

divulging the commu nication to third parties. Taylor v. State , 814 S.W.2d 374, 377 (Tenn. Crim. App. 1991). It is also s ubject to exce ptions grounded in public policy that do not depend on a client’s waiver of the privilege. Tenn. S. Ct. R. 8, DR 4-101(C)(2), (4). 12

B.

The common interest privilege 13 recogn izes t he advantages of, and even necessity for, an exchange or pooling of

information among attorneys representing parties sharing a common legal interest in litigation. Transmirra Prods. Corp. v. Mons anto Ch em. Co. , 26 F.R.D. 572, 579 (S.D.N.Y. 1960). It extends the scope of the attorney-client privilege 14 by providing an exception to the general rule

that communications made in the presence of or shared with third parties are not protected by the attorney-client privilege. 15 While the comm on i nterest privilege

was originally appliedin criminal cases, Chahoon v. Commonwe alth , 62 Va. (21 Gratt

.) 822 (1871), it has long since been extended to

civil proceedings. In re Grand Jury Subpoenas, 89-3 & 89-4, John Doe 89- 129 , 902 F.2d 244, 249 (4th Cir. 19 90); Aiken v. Texas Farm Bureau Mut. Ins. Co. , 151 F.R.D. 621, 623 (E.D. Tex. 1993) ; Visual Scene, Inc . v. Pilkington Bros

. , 508 So. 2d 437, 439 n.2 (Fla. Dist. Ct. App. 1987); Aetna Cas. & Sur. Co. v. Certain Underwriters at Lloyd’s of London , 676 N.Y.S.2d at 732. The common interest privilege has been specifica lly recognized by the Tennessee Sup

reme Court. Vance v. State , 190 Tenn. 521, 529-30, 230 S.W.2d 987, 990-91 (1950).

The common interest privilege widens the circle of persons to whom clients may disclos e privilegedcommunications. It permits the participants in a joint defense t o communica te among themselves and with their att orneys on matters of common legal interest for the purpose of coordinating their joint legal strategy. United States v. Henke , 222 F.3d 633, 637 (9th Cir. 2000); 1 Paul R. Rice, Attorney-Client Privilege in the Un ited States § 4:35, at 192 (2d ed. 1999) (“ Attorney-Client

Privilege in the United States ”). In the circumstances where the common intere

st16 The cooper ation requ ired to invo ke the co mmo n interest priv ilege mu st be mo re th an cooperati on for business purposes or

to address

a common problem. The cooperat ion must bein the fur

therance of

a joint strat egy for actual or anticipa ted litigation. United Stat es v. Weis

sman , 195 F.3 d at 100 ; Walsh v. Nort hrup Grumman Corp. , 165 F.R. D. 16, 1 9 (E. D.N.Y. 1996); Medcom Holding Co. v. Baxt er Travenol

Lab. , 689 F. Supp. 841, 845 (N.D . Ill. 1988).
-7- privilege applies, it

protects not

only the communications between any of the clients and attorneys regardless of whethe r the communicating client’s own attorney is present but also the communications betweenany of the clients’ respective attorneys. United States v. Schwimmer , 892 F.2d at 244; Bank of Brussels Lambert v. Credit Lyonnais Swisse, S.A. , 160 F.R.D. 437, 44 6 (S.D.N.Y. 1995); In re Monsanto Co. , 998 S.W.2d 917, 922 (Tex. App. 1999). Although originally limite d to cases i nvolving actual co -defendants, the

courts now routine

ly applythe common intere

st privilege to potential co-defendants, In re Grand Jury Subpoenas, 89-3 & 89-4, Jo hn Doe 89 -129 , 902 F.2d at 249; Schachar v. American Acad. of Ophthalmology, Inc. , 106 F.R.D. 187, 191 (N.D. Ill. 1985), and ot hers who have a community of interest in the subject matter of the communications. Attorney-C lient Pri vilege in the Unite d States § 4:35, at 201. However, the privilege app lie s only to c ommunications given in confidence, United States v. Weissman , 195 F.3d 96, 99 (2d Cir. 1999), and intended and reasonably believed to bepart of an ongoing and joint effort to set up a commonlegal strategy. United States v. Schwimmer , 892 F.2d at 243; In re Bevill, Bresler & Schulman Asset Mgt. Corp. , 805 F.2d 120, 126 (3 d Cir. 1986); Griffith
v. Davis , 161 F.R.D. 687, 692 n.6 (C.D. Cal. 1995); Bass Pub., Ltd. v. Promus Companies, Inc. , 868 F. Supp. 615, 621 (S.D.N.Y. 1994).

The proponent of the common interest privilege has the burden of establishing the necessary elementsof the privilege. In re Grand Jury Proceedings , 156 F.3d 1038, 1042-43 (10th Cir. 1998); United States v. Evans , 113 F.3d at 1467; United States v. Mo ss , 9 F.3d 54 3, 550 ( 6th Cir. 1993). To carry its burden, the proponent must demonstrate: (1) that the otherwise privileged information
was disclosed due to actual or anticipated litigation, (2) that the disclosure was made for the purpose of furthering a common interest in the actual or anticipated litigation, 16 (3) that the disclosure was made in a manner

not inconsistent with maintaining its confidentiality against adverse parties, and (4) that the person disclosing the information has not otherwise waived its attorney-client privilege for the disclosed information. In re Sealed Case , 29 F.3d 715 , 71 9 n.5 (D.C. Cir. 1994 ); United States v. Bay State Ambulance & Hosp. Ren tal Servs., Inc. , 874 F.2d 20, 28 (1st Ci r. 1989); In re Bevill, Bresler & Schulman Asset Mgt. Corp. , 805 F.2d at 126; Travelers Cas. & Sur. Co. v. Excess Ins. Co. , 197 F.R.D. 601, 606 (S.D. Ohio 2000); Restatement (Third) of the Law Governing Lawyers § 76(1).

The common interest privilege is not limited to communications and documents generated during the period of time when persons are cooperating on a common defense. It also includes preexisting confidential communications and documents that are shared during the common enterprise. In re Grand Jury Subpoenas 89-3 & 89-4, JohnDoe 89-129 , 902 F.2d at 249-50. Accordingly, when
a party invokes the common int erest privilege, the court must focus on the circumstances surrounding the d isclosu re of the communications or documents rather than on when communications or documents were generated. Attorney -Client P rivilege in the United States § 4:38, at 238.17 The trial court made no findi ngs of fact or conclusi

ons of law regarding this issue.

18 An affidavit of a

n attorney is an appropri ate way to provide t

he e vidence needed t

o support a common interest privilege c laim. Law yers, as offic ers of the co urt, are held to the utm ost good faith in the d is c harge o f their duties. White v. McBride , 937 S.W.2d 796, 802 ( Tenn. 1996). Accor

dingly, the courts accept affidavits from lawyers
as sufficient to in voke atto rney-clien t privilege an d the wo rk prod uct d octrine

. State v. Bobo , 724 S.W.2d 760, 765 (Tenn. Crim. App. 1981) (attorney-client privilege); Arnold v. City of Chattanooga , 19 S.W.3d 779, 784 ( Tenn. Ct. App. 1999) (work product doct rine). Extending the

applicat ion of this evi dentiary de

vice to t he common interest

privil ege is logical

since t he com mon in terest privil ege is not

hing more than an ext

ension of t

he scope of t

he attorne

y-client privilege. Other co urts have likewise ap proved the use of a ffidavits. See, e.g., Royal Surplus Li

nes Ins. Co v. Sofamor Danek Group, Inc. , 190 F.R .D. 463 , 473 (W .D. Ten n. 1998 ); Chan v. City of Chicago , 162 F.R. D. 344 , 345 -46 (

N.D. Ill. 1995); Visual Scene , Inc. v. Pilkingt

on Bros, PLC , 508 So.2d at 441.
-8- C.

The April 17, 2000 orde

r offers little

insight into the trial cour t’s reasons for r

efusing to permi tComdata to invoke the common interest privilege. 17 There are, however, o nly tw o possibilities. First, t

he trial court co

uldhave concluded t

hat Comdata

failed to carry its burden of proof regarding the elements of the privilege. Second, it could have concluded that Comdata was notentitled to invoke the common interest privilege because Comdata and IPS never actually signed the proposed Joint Defense Agreement their lawyers had been negotiating.

The trial court’s decision, to the extent it rests on theconclusion that Comd ata did not carry its burden of proof,

is based on a clear

ly erroneous assessment of the evidence. The only evidence regarding the circumstances surrounding Comdata’s and IPS’s negotiations over the Joint Defense Agreement

was provided by one of

the lawyers actu

ally representin

g Comdata in

this litigation. In an affidavit18 dated March 10, 2000, the lawyer explained:

5. In the beginni ng of t he drafting process, it was contemplatedthat there would be two (2) separate agre ements: 1) an agreement

for theretransfer of

the note from Comdata to IPS and 2)
a defense agree

ment whereby IPS w

ould provide a def

ense to Comdata in the pending action. For most of the negotiations, the two (2) agreements wer

e jointly discussed

and it was assumed

that t hey woul d be ex ecuted contemporaneously with one another. For the most part, the Joint Defense Agreement wasproposed and discussed betweenmyself, as attorne y for Comdata, and

the attorney for

IPS. Occasionally, general coun sel for Comdata and/or my partner, Kenneth M. Bryant, partici

pated in the discus sions. In general term s, these drafts set forth h

ow the defense

of the plaintiffs’ lawsuit was going to be handled, inclu ding areas of de

fense strategy w

herein C omdata and IPS shared common interests and goals. These draf t s a lso relay communications from Comdata and contain my ha nd

written notes. The text of these drafts and my notes together reflect my legal theories of the defen se, opin ions about the case, and other-9- thoughtprocesses and me

ntal impressions . My thoughts and opinions
o n behal f of Comdata were shared with only a

ttorneys for IPS wit

h the intent they remain confidential, and with the understandinga nd presumption that C omd ata and IPS would be cooperating full

y in defend ing p laintiffs’ claims that were common t

o both companies. At all times material

hereto, it was re

cognized that I

PS, as well as Comdata, might be a party litigant. It was also recog ni zed that Comdata and IPS would have commoninterests against the plaintiffs, as adversary parties in litigation.

6. Comdata

and IPS could

not reach finalagreement on the defense agreement, but on or about November

15, 1999, they did agreeon the Note Purchase Agreement. As attorney for Comdata, I represented

Com data in these negotiations and prepared and edited the drafts of the Note

Purchase Agree

ment and defense

agreement. These drafts we re prepared with this particular lawsuit in mind and withthe understanding that IPS could become a

party litigant in this action.

This excerpt supplies all the ingredients needed to invoke the c ommon int erest privilege. Whenthe lawyer filed his affidavit, IPS was not yet a party to the lawsuit, but both Comdata and IPS contemplated tha t IPS would become a party if it acquired the promissory note and associated Guaranty Agreements from Comdata. By the time of the hearing on the motion to compel,

the trial court had permitted Mr. Boyd and the Boyd Trust to amend their complaint to add IPS as a

party defendan t. Thus, by April 2000, both Comdata and IPS were actual defendants and were faci n g common legal claims seeking the rescission of the Guaranty Agreements, restitution of $50,000, and other unspecified damageclaims. The circumstances surrounding the discussions of the proposed JointDefense Agree

ment make it equall

y clear th at the lawyers re presenting Comdata

and IPS intendedandreasonably belie ved that their

communications regarding the Joint Defense Agreement would be kept in confidence and that they made their di

sclosures in a wa

y reasonably ca

lculated to maintain confidentiality against adverse third parties. Finally, the rec ord contains no evidence of
co nduct by either Comdata or its lawyers indicating that Comdata had waived its privilege wi t h regard to the com

munications relat

ing to the Joint Defe

nse Agreement.

The trial court likewise ma y have applied an

incorrect lega

l standard if

its decision to grant the motion to compel hinged on the fact that Comdata and IPS ultimately did not sign the proposed JointDefense Agreement. The trial court overlooked that parties may assert thecommon interest privilege even if they have not executed some sort of formal agreement . Katz v. AT& T Corp. , 191 F.R.D. 433, 437 (E.D. Penn. 2000); Restatement (Third) of the Law Governing Lawyers § 76 cmt. c; Attorney-Client Privilege in the United States § 4:35, at 195. While a we ll-drafted joint d

efense agreement

makes it simple for the courts to determinewhether the parties intended to partic ipate in
a joint defense, an

executed agre

ement is not a nece

ssary ingredient

to a common interest privilege claim. Power Mosfet Techs. v. Siemens A.G. , No. 2:99CV168, 2000 U.S. Dist. LEXIS 19898, at *10 (E.D. Tex. Oct. 31, 2000).19 Benefici al Franchise Co. v. Bank One, N.A. , 205 F.R.D. 212, 220 (N.D . Ill. 2001); McNally Tunneli ng Corp. v. City of Evanston , No. 00C6979, 200 1 U.S. Dist. LEXIS 1709 0, at *14 (N.D. Ill. Oct. 18, 2001).
-10- The trial court also o verlooked that the compelled disclosure of the existence of a joint defense agreement is an improper intrusion into the preparation of a litigant’s case, United States v. BicoastalCorp. , No. 92-CR-261, 199 2 U.S. Dist. LEXIS 21445, at *18 (N.D.N.Y. Sept. 28, 1992), andthe joint defense agreements are themselves privileged. Waller v. Financial Corp. of Am. , 828 F.2d 579, 584 (9th Cir. 1987) (warning against the disclosure of a joint defense agreement);A .I

. Credit Corp. v. Providence Washington Ins. Co. , No. 96 Civ. 7955 (AGS) (AJP), 1997 U.S. Dis

t. LEXIS 6223, at *12 (S.D.N.Y. May 7, 1997). T hus, while the cour

ts may revi ew joint defense agreements in ch

ambers, 19 the agreements a re not discovera

ble by other parti

es.
If a joint defense a

greement itself i

s privileged, it wou

ldbe anomalous to conclude that dr afts of a joint defense agreement are discoverable. Obviously, a joint defense a greement must be preceded by negotiations rega

rding the terms of the agreement. Holding that communications involving a proposed

joint defense agr

eement are not pr

ivileged unless the

parties actually

enter into
a joint defense agreement will place the parties in a “Catch-22” situation and will seriously i

mpair effortsto negotiate

a jointdefense agreement. Accordingly, communications occurring during the negotiation of a proposed joint d efense agreement are privileged, even if the parties have not, or ultimately

do not, unite in a common enterprise or execute a

formal agreement. Eisenberg v. Gagnon , 766 F.2d 770, 787-88 (3dCir. 1985) (finding that communication

s in an effort to esta

blish
a joint defense ar

e privileged); Power Mosfet Techs. v. Siemens A.G. , 2000 U.S. Dist. LEXIS 19898, at *11; Katz v. AT&T Corp. , 191 F.R.D. at 437; Sig Swiss Indus. Co. v. Fres-Co Sys., USA, Inc. , No. 91-0699, 1993 U.S. Dist. LEXIS 3576, at *7 (E.D. Penn. Mar. 17, 1993); Aetna Cas. & Sur. Co. v. Certain Underwriters at Lloyd’s of London , 676 N.Y.S.2d at 733.

We have conclude d that t he undisputed evidence shows that the lawyers for Comdata and IPS were negotiating theproposed joint defense agreement at a time when Comdata and IPS were either actual or anticipated d efendants in the lawsuit filed by the Boyd parties . Their communications inv

olved their

common interest in and joint defense against claims made against themboth and occurred in circumstances reasonably anticipated to keep these communications privileged. Even though Comdata and IPS ultimately did not sign the formal jo int defense agreement,

Comdata was entitle

d to ass ert th e common interest privilege with regard to the draft agreement

itse lf and th e communications relating to this draft. Accordingly, the trial court erred when it granted th

e motion to compel the

production of thes

e communications a

nd documents.

IV. T HE P URCHASE A GREEMENT FOR P ROMISSORY N OTE AND D EBT R EDUCTION A GREEMENT
Comdata also takes issue with the trial court’s ord er compelling it to

provide the Boyd parties withall preliminary drafts of the agreement

between Comdata and IPS to repurchase the Promissory Noteand Debt Reduction Agreement and the Guaranty Agree ment as well as all correspondence relating to the repurchas e agreement. It

asserts t hat the su

bstance of these documents and the handwritten notes and annotations on these documents are the work product of

its attorney and that20 Hickman v. Taylor , 329 U .S. at 512, 6 7 S. Ct. at 39 4; see also M emph is Publ’g Co. v. City of Memp his , 871 S.W.2d 681, 689 (Tenn. 1994) (recognizi

ng an “attor

ney’s right

to conduc t the cl ient’s case with a

certai n degree of privacy ”).

21 Hickman v. Taylor

, 329 U.S. at

510, 67 S. Ct.

at 393.

22 As originally adopted in 1937 , Fed. R. C iv. P. 26 go verned only the ta king of p retrial depo sitions and their use at trial.
-11- the documents should no

t be disclosed bec

ause they contain its

attorney’s mental impressions and opinions as well as legal theories aboutthe case. In light of the fact that Comdata has already produced the final version of the November 15, 1999 Purchase

Agreement,

we have determined that the preliminary drafts of the agreement and the correspondence relating to these drafts are not on

ly work product but are also irrelevant to the subject matter involved in the pending action.
A.

The concept that an a

ttorney’s “work

product” could

be shielded from pretrial discovery has its roots in Hickman v. Taylor , 329 U.S. 495, 67 S.Ct. 385 (1947). There, the plaintiff’s attorney, withoutany show ing of ne cessity or justification, served an interrogatory on opposing counsel
re q uesting the written statements, private memoranda, and personal recollections of any oral statements

prepared or obtained by the lawyer in preparation for a wrongful death trial. The trial court determined that the material sou ght was not protected by the attorney-client privilege and ordered the defense atto

rney tocomply with the interrogatory. When the attorney refused, the court held him in contempt. The

United States Supre

me Court unanimously

agreed that the d

efense attorney should not have been convicted of contempt. Noting the “general policy against invading the privacy of an att

orney’s course

of preparation [for trial],” 20 the Court held that material such as that requested by the plaintiff’s at torney neednot be disclosed without some showing that the materials sought were essential to thepreparation of the requesting party’s case. Hickman v. Taylor , 329 U.S. at 511, 67 S. Ct. at 394.

The requirement in Hickman v. Taylor of a showing of “necessity or justification” 21 proved difficult to apply. The courts interpreted it as a “good cause” requirement, but there was substantial
con fusion and disagreemen t over whether th

e requirement c

ould be satisfied b

y a showing o f relevance and lack of privilege or

whether it required an ad

ditional showing of n

ecessity. The co

urts generally r equired more than a showing of relevance and lack of privilege. Fed. R. Civ. P. 26, committee note of 1970, reprinted in , 6 James W. Moor e et al., Moore’s Federal Practice § 26App.05[2] (Matthew Bender Authority

Federal PracticeCD-ROM, rel. 26, Dec. 2001) (“ Moore’s Federal Practice ”); Federal Practice and Procedure § 2023, at 327.

In 1970, twenty-three years after Hickman v. T aylo r , Fed. R. Civ. P. 26 was b roadened to
cover all pretrial discovery. 22 One of the 1970 ame ndments, Fed. R. Civ. P. 26(b)(3), sp ecifically addressed the discovery of trial preparation materials and codified the work prod uct doctrine firs t recognized

in Hickman v. Taylor . Fed. R. Civ. P. 26(b)(3) attempted to strike a balance between the23 The same broad poli cy favoring t

he discovery of

relevant, n on-priv ileged m aterial is reflected in Tenn. R. Civ. P. 26.02 (1). Pettus v. Hurst , 882 S.W.2d 783, 786 ( Tenn. Ct. App . 1993); Duncan v. Duncan , 789 S.W.2d at 560.

24 While Tenn. R. Civ. P. 26.02(3) is identical to Fed. R. Civ. P. 26(b)(3), Tenn. R. Civ. P. 26 differs from its federal counterpart in sever al material r

espects. For example, Tennessee does did not adopt Fed. R. Civ. P. 26( b)(2) permitti ng the disc overy of the existenc e and contents of insuranc e polici es. Tenness

ee has also not adopted t he 2000 amendment to Fed. R. Civ. P. 26(b)(1) that alters the scope of discovery as a matter of right without court

authoriza

tion. While Tenn. R. Civ. P. 2 6.02(1) permits the discovery of any non-privi leged matter “which is r elevant to the s

ubject matter involved in the pending action,” Fed. R. Civ. P. 26(b)(1) now limits discovery without court approval to any nonprivileged

matter tha t is “relevant to the claim o r defense of any p arty.” As a result of the 2000 amendment to Fed. R. Civ. P. 26(b)( 1), discov ery of m atters relevan t to the subject matte r involved in the pending action can onl y be obtained by cou rt order up on the sh owing of good cause. Federal Practice and Procedure § 2008 , at 14-15 (Supp. 2 001).
-12- policy of full and open discovery 23 and the necessity of protecting an attorney’s preparation

for trial under the adversary system. Fletcher v. Union Pac. R.R. , 194 F.R.D. 666, 670 (S.D. Cal. 2 000); Zirn
v. VLI Corp

. , 621 A.2d 773, 782 (Del . 1993); Moore’s Federal Practice § 26.70[1]; Restatement (Third) of the Law Governing Lawyers § 87 cmt. b.

The promulgation of Fed. R. Civ. P. 26(b)(3) had a profound effect on the scope and appli cation of the work product doctrine in state courts. Thirty-four states, including Tennessee, eventually

adopted the 1970 ve

rsion of the rule v

erbatim, 24 while ten other states ado pted rule s containing substantially similar language. Federal Practice and Procedure § 2023, at 334-35.

The work product

doctrine now applies to both civil and criminal litigation. Coe v. State , 17 S.W.3d 193, 214 (Tenn. 2000); Tenn. R. Civ. P. 26.02(3); Tenn. R. Crim. P. 16(a)(2), 16(b)(2). It prevents litigants from taking a free ride on the research and thinking of their adversary’s lawyer. United States v. Frederick , 182 F.3d 496, 500 (7th Cir. 1999). The doctrine embodies the policy that attorneys,doing the sort of work that a ttorneys do to prep

are a case for

trial, should not be hampered by the prospect that they might be called upon at any time to hand ove

r the results of the

ir work to their adversaries. Duplan Corp. v. Moul inage et Retorder

ie de Chavanoz , 487 F.2d 480, 482-83 (4t h Cir. 1973); Downing v. Bowater, Inc. , 846 S.W.2d 265, 267 (Tenn. Ct. App. 1992) (quoting In re Murphy , 560 F.2d 326, 334 (8th Cir. 1977)). Lawyers preparing for litigation should be permitted to assemble information, to separate the relev ant facts fro m the irrelevant, and to use the relevant facts to plan and prepare

their strategy without undue and needless interference. Wells v. Liddy , No. 01-1266, 2002 U. S. App. LEXIS 3356, at *30 (4th Cir. Mar. 1, 2002).

B.

Like its federal counterpart, the standards and procedures for addressing a claim of work product are provided

in Tenn. R. Civ. P. 26.02(3). The rule suggests sequential steps with shifting burdens of proof that litigants and courts should follow when considering work product doctrine claims. Hendrick v. Avis

Rent A Car Sys. , 916 F. Supp. 256, 260 n.3 (W.D.N. Y. 1996); In re Air CrashDisaster at Detroit M etro. Airport

, 130 F.R.D. 641, 644 (E.D. Mich. 1989). The explanation of these steps in Toledo Edison Co. v. G A Techs., Inc. , 847 F.2d 335, 339-40 (6th Cir. 1988) reflec

ts the approach gener

ally taken by the c

ourts. Daisy

H. Floyd, A “Delicate and Diff icult Task”:25 Tenn. R. Civ. P.26.02(1) & 26.02(3 ). Relevan cy is extrem ely imp ortant at the d iscovery stage. Vythoulkas

v. Vanderbilt

Univ. Hosp. , 693 S.W.2d 350, 35 9 (Tenn . Ct. App . 1985); Federal Practice and Procedure § 2008, at 99. How ever, it is more loosely constr ued during discovery than it is at tr ial. The phrase “r

elevant to the s

ubject matter involved in the pen ding actio n” has be en cons trued “br oadly to encom pass any matter tha t bears on , or that reaso nably could lead to ot

her matter that coul

d bear on, any i ssue that is or may b e in the case .” Oppenheimer Fund, Inc. v. Sanders , 437 U .S. 340, 3 51, 98 S . Ct. 2380 , 2389 (1 978); Hickman v. Taylor , 329 U .S. at 501, 6 7 S. Ct. at 38 8.

26 Tenn. R. Civ. P. 26.02(1) & 26 .02(3).

27 Tenn. R. Civ. P. 26.02(3).

28 See also Resolution Trust Corp. v. Dabney , 73 F.3d 262, 266 (10th Cir. 1 995) (h olding th at the party assert ing work product protection has t he burden of establishi

ng that the doctrin e applies); Hodges, Grant & Kaufmann

v. United States , 768 F.2d 719, 721 (5th Cir. 1985); Taylor v. Temple & Cutler, 192 F.R.D. 552, 557 (E.D . Mich. 1999); Pina v. Espinoza , 2 9 P. 3d 1 062 , 1 069 (N. M. Ct. App. 2001); Moore’s Federal Practice § 26.70[5][a] ; Epstei n, at 491.
-13- Balancing the Competing Interests for Federal Rule of Evidence 612, the Work Product Doctrine, and the Attorney-Client Privilege , 44 Buffalo L. Rev. 101, 110-11 (1996).

In usual circumstan

ces, discovery w

ill begin when a pa

rty sends to an opposing party a request for discovery using one of the methods identified in Tenn. R. Civ. P. 26.0 1. If the party receiving the request for discovery believes that some or all of the requested documents are covered by the work product doctrine, that party need only notify the requesting party that it is declining to provide some or all of the requested documents based on the work product doctrine. At this point, if the party seeking discovery insists on obtaining the withheld documents, it may move for an order pursuant to Tenn. R. Civ. P. 37.01 to compel discovery. Federal Practice and Proc

edure§ 2023, at 344.

At th is juncture, the party seeking discovery, as the party seeking an order compel lin g discovery under Tenn. R. Civ. P. 37.01, has the burden of establishing that it is entitled to discover the documents or other materials withheld by its adversary. To carry its burden, theparty seeking discovery must establish (1) t hat the material b

eing sought is

relevant to

the subject matter involved in the pending action, 25 (2) that the material being sought is not otherwise privileged, 26 and(3) that the material being sou

ght consists of docu

ments or other

tangible things. 27 Toledo Edison Co. v. G A Techs., Inc. , 847 F.2d at 339. Infosystems, Inc . v. Ceridia

n Corp

. , 197 F.R.D. 303, 306 (E.D. Mich. 2000); Miller v. Federal Express Corp. , 186 F.R.D. 376, 387 (W.D. Tenn. 1999).

Once the party seeking

discovery makes a

prima facie showing that thematerials it seeks are discoverable, the burden shifts to the party opposing discovery to show that the materials arework product protected by Ten

n. R. Civ. P. 26.02(3). Hammock v. Sumn er County , No. 01A01-9710-CV00600, 1997 WL 749461, at *2 (Tenn. Ct. App. Dec. 5, 1997) (No Tenn. R. App. P. 11 application filed). 28 To invoke the work pr oduct doctrine suc

cessfully, a par

ty must, in the words o

f Tenn. R. Civ. P. 26.02(3), estab

lish (1) that the ma

terialssought are documents or tangible things, (2) that the documents

were prepared in anticipation of litigation or for trial, (3) that the documents were prepared by or for another party or by or for that other party’s representativ e. Caremark, Inc. v. Aff iliated Computer Servs., Inc. , 195 F.R.D. 610, 613 ( N.D. Ill. 2000); Kidwiler v. Pr ogressiv e Paloverde Ins. Co. , 192 F.R.D. 536, 542 (N.D.W. Va. 2000 ); Moore’s Federal

Practice § 26.70[5].29 Such documents include statements of witnes ses who are unavailabl e due to absence, seri

ous ill ness, or death. Restatement

(Third) of t

he Law Governing Lawyers § 88 cmt. b.
-14- Th e party a sserting the doctr ine must also demons

trate that it has no

t waived its protec

tion with regard to the documents being sought. Amgen, Inc. v. H oechest M

arion Rousel, Inc. , 190 F.R.D. 287, 289 (D. Mass. 2000). Parties asserting the work product doctrine are not required

to spell out (1) the names and positions of the authors of the documents, (2) their responsibility in connection withthe litigation, (3) the dates the documents were prepared, or (4) to whom the documents have been disclosed. Toledo-Edison Co. v. G A Techs., Inc. , 847 F.2d at 341. Once the party

opposing discover

y establishes that t

he requested mat

erial iswork product, the burden shifts back to the requesting party to establish that it is nonetheless entitled to the material. Epstein, at 492. The nature and extent of this

burden depends upon whether the material is “ordinary” or

“fact” work product or “opinion” work product. Ordinary or fact work product consists of documents prepared in anticipation of litigation or for trial that do not contain the mental impressions,conclusions, opinio ns, or legal theorie

s of an attorney or

other represen

tative of a party in the litigation. Pacamor Bearings, Inc. v. Minebea Co. , 918 F. Supp . 491, 512 (D.N.H. 1996); Moore’s Federal Practice § 26.70[5][b]. O pinion work produc

t includes documen

ts containing an attorney’s mental impressions, conclusions, opinions, or legal theories regarding the pending litigation. Pittman v. Frazer , 129 F.3d 983, 988 (8 th Cir. 1997); Resta

tement (Th ird) of the Law Governing Lawyers § 87(2).

To obtain ordinary or fact work product, t h e requesting party must establish (1) that it has
a substantial need for the materials and (2) that it is unable to obtain t hese mate

rials or their substantial equivalent by other means without undue hardship. Tenn. R. Civ. P. 26.02(3); In re Perrigo Co. , 128 F.3d 430, 437 (6th Cir. 1997) ; In re Grand J ury Proceedings , 33 F.3d 342, 348 (4th Cir. 1994); Miller v. Federal Express Corp. , 186 F.R.D. at 387; Beard v. Middle Tenn. Home Health Serv. , 144 F.R.D. 340, 342 (E.D. Tenn. 1992). The basis for the claim of “substantial need” must be articulated with specificity. In re Grand Jury I nvestigation (Sun O

il) , 599 F.2d 1224, 1232 (3dCir. 1979); Delco Wire & Cable, Inc. v. Weinberger, 109 F.R.D. 680, 689-90 (E.D. Pa. 1986); Epstein, at 550. As a general matter, the party seeking discovery must establish that the facts in

the requested documents are es sential elements o f its prima facie

ca se. Moore’s Federal Practice § 26.70[5][c]. 29

The burden of establishing a need for opinion work product is more onerous than that for ordinary or fact

work product. Holmgren v. State Farm Mut. Auto. Ins

. Co. , 976 F.2d 573, 577 (9 th Cir. 1992). The United

States Supreme

Court has emphasized that the essential purpose of the work product doctrine is to prote

ct an attorney’s

mental processe

s, Dep artment of Interior v. Klamath Water Users Protective Ass’n , 532 U.S. 1, 8, 121 S. Ct. 1060, 1065 (2001), and that work product revealing an attorney’s mental processes is “deserving of special protection.” Upjohn Co. v. United States , 449 U.S. 383 , 400, 1 01 S. Ct. 677, 688 (198 1). While the Cour t has, thus far, de

clined to hold that opinion work pr

oduct is never disc

overable, it has h

eld that parties seeking opinion work product must make a “far stronger showing of necessity and unavailability by other means” tha n is30 The Promissory Note and Debt Reduction Agreement was also executed on Ja nuary 15, 1998. Whil

e it plays an imp ortant role in this case, i ts role is not as pivotal as the ot

her two contr

acts si gned on January 15, 1 998 becau se there appears to be little argum ent that Fide lity Group and Sovryn defaul ted on the

promissory note by faili ng to reduce the debt as

agreed.
-15- required when seeking ordinary or fact work product. Upjohn Co. v. United States , 449 U.S. at 401- 02, 101 S. Ct. 688-89.

The courts have not defined precisely when revealing opinion work product is war ranted

. A majority of courts

have pointed out that it enjoys a nearly absolute immunity from disclosure, Baker v. General Motors Corp. , 209 F.3d 1051, 1054 (8th Cir. 2000); Chaudhry v. Gallerizzo , 174 F.3d 394, 403 (4th Cir. 19 99); Director, Office of Thrift Supervision v. Vinson & Elkins , LLP, 124 F.3d 1304, 1308 (D .C. Cir. 1997); P. & B. Marina, Ltd. P’ship v. Logrande , 136 F.R.D. 50, 57 (E.D.N.Y. 1991), and that it is subject to discovery only in rare, extr aordinary circ

umstances. Hickman v. Taylor , 329 U.S. at 513, 67 S. Ct. at395; Gundacker v. UnisysCorp. , 151 F.3d 842, 848 (8th Cir. 1998); In re Sealed Case , 856 F.2d 268, 273 (D.C. Cir. 1988); Restatement (Third) of the Law Governing Lawyers § 89. These circumstances include those in which the litigation itself or
one of the litigants puts the attorney’s work product at issue by asserting claims or defenses based
on the “advice of counsel,” by calling an attorney as an expert witness, or another

circumstance in which an attorney’s conduct is a central issue in a case. Epstein, at 574 & 589; Restatement (Third) of the Law Governing Lawyers § 92.
C.

We now turn to the discovery of the drafts of the Purchase Agreement executed on November 15, 1999, and the corr

espondence betw

een the lawye rs for Comdata and IPS relating to this agreement. We have determi ned that the trial court erred by order ing Comdata to provid

e these documents

to the Boyd parties for four reasons. First, the Boyd parties failed to establish that the requested documents contained information that is relevant to the sub ject matter involved in this action. Second, Comdata established that the requested do

cuments contain op

inion work product

. Third, Comdata

demonstratedthat it has not waived the confidentiality of these documents. Finally, the Boyd parties have failed to demonstra te tha t this case involves one of the rare circumstances warranting the d

iscovery of opinio

n work product.

1. The Relevance of the Requested Documents

Two agreements executed on January 15, 1998 are at the heart of this litigation – the Marketing Services Agree me nt and the Guaranty Agreement obligating the Boyd parties to pay Fidelity General’s and So

vryn’s debt in the e

vent of default. 30 Comdata and IPS claim that

the Boyd parties must honor their guaranty agreement because Fidelity Group and Sovryn defaulted on the Promissory Note and Debt Reduction Agreement. For their part, the Boyd parties assert

that they should be excused from their guaranty obligations because Comdata breached the Marketing-16-

Services Agree ment and made materia l misrepresentations regarding its intended performance under this agreement.

With the case in this posture, Tenn. R. Civ. P. 26.02(1) placed the initialburden on the Boyd parties to establish

that the requested documents contained information relevant to (1) Comdata’s obligations under the Marketing Services Agreement, (2) Comdata’s represen tatio ns that induced the Boyd parties to app

rove the assignme

nt of the contrac

ts to Comdata and to si

g n the Guaranty Agreement,

and (3) the Boydparties’ obligations under the Guaranty Agreement. The Boyd parties have not carried this burden.

The rights and obligations of the parties to a written contract are governed by the

terms of the contract, Hillsboro Plaza Ente rs. v. Moon , 860 S.W.2d 45, 47 (Tenn. Ct. App. 1993), not by the parties’ statements during their negotiations or drafts of the final contract. Faithful v. Gardner , 799 S.W.2d 232, 235 (Tenn. Ct. App. 1990) (holding that the existence of a written contrac

t gives rise to the presumption tha

t the parties have r educed their pri or agreements to

writing); GRW Enters., Inc. v. Davis , 797 S.W.2d 606, 610 n.2 (Tenn. Ct. App. 1990) (st ating that negotiations and agreements

are deemed to be integrated into a written contract when the parties intendthe contract to be a complete exp

ression of their a

greement). Thus , a

court’s role is to enforce an unambiguous contract as it is written unless the contract is being challenged based on fraud or

mistake. Wills & Wills, L.P. v. Gill , 5 4 S.W.3d 283, 286 (Tenn. Ct. App. 2001). When called upon to enforce a written contract, the court must avoid favoring either party, Marshall v. Jackson & Jones Oils, Inc. , 20 S.W.3d 678, 682 (Tenn. Ct. App. 1999), and must avoid relieving either party of their contractual obligations simply because these obligations haveturned out to be burdensome. Realty Shop, Inc. v. RR Westminster Holding, Inc. , 7 S.W.3d 581, 597-98 (Tenn. Ct. App. 1999).

Th e Boyd parties’ contractual rights and obligations with regard to Comdata a nd IPS ar e governed by the January 15,

1998 Consent to

Assignment and Release and the three other c

ontracts executed on January 15, 1998. Their b reach of con tract claim against Comdata hinges on the Marketing Services Agreement. The extent of their obligation to guar antee Fidelity Group’s and Sovryn’s debt is controlled by the Guaranty Agreement. Finally, their claims for rescission, restitution, unjust enrichment , and fraudulent

inducement to cont

ract all hin ge on Comdata’s representations prior

to mid-January 199

5 regarding its

anticipated performance obligations under the Marketing Services Agreement.

The instruments that provide the foundationfor all the claims and counterclaims in t

his case
wereexe cuted on or before January 17, 1998. The scope of the parties’ rights and obligations depends on the language of these contracts, not upon whether Comdata or IPS currently owns

these contracts. While Comdata and IPS executed a Purchase Agreemen t on November 15, 1999 transferring the contracts to IPS, neither of the Boy d parties we re parties to this c ontract. Accordingly, as a matter of law, the November 15, 1999 Purchase Agreement between Comdata and31 Comdata, p resu mably w ith IPS’s approv al, has provided a copy of the N ovemb er 15, 1999 Purchase

Agreement to the Boyd parties, and thus a copy of this contr act appears in t

he record as an exhibit

to thefirst amended comp laint. No provision i n this agr

eement purpor ts to modify any of t he provisi

ons in the i

nstruments executed on or before Januar

y 17, 1998.

32 In fact, P

aragraph 6 of the fi

nal Purchas e Agreement states that IPS is n ot assum ing any obligation or liability thatComdata may have, including those arising from the Marketing Services Agreement. Accordingly, as a matter of fact, the Purchase Agreement does not impair the Boyd parties ’ abilit y to proceed directl

y against Comdata.
-17- IPS could not modify the rights and obligations that had already been created by the three contract

s executed approximately one year earlier. 31

Even though the Purchas

e Agreement did n

ot modify the partie

s’ rights and obligation s under the Consent to Assignment and Release and the three January 15 , 199 8 contracts, it co uld conceivably

be argued that the

agreement aff

ected the Boyd par

ties’ ability to pur

sue their claims against either Comdata, IPS, or both. Any such argument, ho wever, must

necessarily be based on the terms of the Novem

ber 15, 1999 agre

ement, not on the pa

rties’ negotiations or the preliminary drafts of this agreement. Accordingly, the drafts of the November 15,1999 Purchase Agreement and the correspondence between the lawyers for Comdata

and IPS regarding the terms of this agreement could not, as a matter of law, affect the Boyd parties’ abil

ity to pursue their cl

aims or present the

ir defenses. 32

The Boyd parties have failed to demonstrate how the drafts of the Purchase Agreement and the correspondence between Comdata and IPS are relevan t to the subject matt

er involved in this action. Trial courts shoul d deny motions to compel the discovery of documents when the moving party has fail e d to demonstrate that the requested documents satisfy Tenn. R. Civ. P. 26.02(1)’s standards. American Tel. & Tel. Co. v. Cardwell , 798 S.W.2d 761, 762 (Tenn. 1990) (reversing an order compelling the discovery of irrelevant docu

ments); Price v. Mercury Supply Co. , 682 S.W.2d 924, 936 (Tenn. Ct. App. 1984) (affirming an order denying a motion to compel discovery of irrelevant documents). Accordingly, thetrial court incorrectly applied Tenn. R. Civ. P. 26.02(1)’s standards when it granted th e Boyd parties’ mo

tion to compe l the production of the disputed documents.

2.

The Requested Documents Contained Opinion Work Product

Hadthe Boyd parties made the threshol d showing that the dr

afts of the Purchase Agreement andthe correspondence relating to these drafts satisfied the discovera bili ty requirements in Tenn. R. Civ. P. 26.02(1), the

burden would

have shifted to

Comdata to establish that these materials were work product. Comdata c

arried its burde

n. It is undisputed th

at the request

ed materials were documents

– drafts of the Pur

chase Agreeme

nt and copies of the

correspondenc

e between Comdata andIPS relating to this agreement. It is al so undisputed that th

ese documents we

re prepared in33 The work product doct rine does not

protect docum ents prepared in th e regular course of busine ss. Simon
v. G.D. Searle & Co. , 816 F.2d 397, 401 (8th Cir. 1987); Colum bia/HC A Hea lthcare Co rp. v. Eigh th Judicia l Dist. Ct. , 936 P.2d 84 4, 526-2 7 (Nev . 1997); Cook v. W ake Coun ty Hosp. Sys. , 482 S.E.2d 546, 623 ( N.C. Ct. App. 1997 ); Federal Practice and Procedure § 2024, at 346. However, one of Comdata’s attorneys fi led an affidavit

stating t hat the drafts of the Purc

hase Agreement and the related corr espondence were prepared after this lawsuit was fi led and “with this particul

ar lawsui

t in mind.”

The record cont

ains absolutely no evidence t hat Comdata or IPS would have entered into the November 15, 1999 Purchase Agreement or some other similar agr eement had thi s suit not been fil ed. According ly, the Purchase A greemen t was not prepa red in the regular co urse of business.
-18- response to the litigation commenced by the Boyd p art ies 33 and that they were prepared by the attorneys for a party to the litigation and the attorneys for a company that was soon to be a party.

The drafts of the Purc

hase Agreement

sought by the Boyd pa

rties also contain

Comdata’s communications to its attorneys and handwritten notations and comments containing, in the words of one of Comdata’s attorneys, “[his] thought processes, menta

l impressions,

conclusions, opinio

ns, andlegal theories about this lawsuit.” According to Comdata’s attorney, the draft documents, even withhis handwritten no

tations r edacted, “wo uld, in all probability . . . disclose [my] mental impressions . . . including an identification of some issues to be involved in this case.”

The courts have not hesitated to give work product protection to an attorney’s handwritten notes or comments prepared in anticipation of, or in preparation for, litigation. These notations and commentsqualify as opinion w ork product if the

y reflect the att

orney’s “mental

impressions, conclusions,

opinions, or legal theories” even if they appear on documents

that would be other

wise discoverable. Lawrence v. Cohn , No. 90 Civ 2396 (CSH)(MHD), 2002 U. S. Dist. LEXIS 1222, at *2-3 (S.D.N.Y. Jan. 25. 2002) (determining that an attorney’s handwritten notations on an executed limited partnership agreement were work produ

ct); Snowden v. Connaught Labs., Inc. , 137 F.R.D. 325, 332 (D. Kan. 1991)

(determining that

an attorney’s ha

ndwritten notation

s on copies of public

ly filed court documents were work product).

Th e court s have likewise de termined that dra

ft documents prep

ared by attorney

s in anticipation of, or in preparation for, litigation are work product if th ey contain information or commentsnot included in the final version of the document. Andritz Sprout-Bauer, Inc. v. Beazer, Inc. , 174 F.R.D. 609, 633 (M .D. Pa. 1997); Union Carbide Corp. v. Dow Chem. Co. , 619 F. Supp. 1036, 1050-51 (D. Del. 1985). An intention to disclose the document in its final form to third persons does not undermine its status as work product prior to disclosure. In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983 , 731 F.2d 1032, 1037 ( 2d Cir. 1984); Muller

v. Walt Disney Prods. , 871 F. Supp. 678, 682 ( S.D.N.Y. 1994); see also In re Grand Jury Su bpoena f or Documents

in the Custody o

f Bekins Storage Co. , 460 N.Y.S.2d 684, 691 (N.Y. Sup. Ct. 1983) (determining that drafts

of partnership agreements and releases were protected by the attorney-c lient privilege). Thus, evendrafts of settlem ent agreements h

ave been found to

be work product b

ecause they involve the mental processes of the attorneys involved in their preparation. N.V. Organon v. Elan Pharmaceuticals, Inc. , No. 99 Civ

. 11674 (JGK)(RLE), 2000 U.S. Dist. Ct. LEXIS 5629, at *5-6 (S.D.N.Y. May 1, 20 00); In re Subpoena Duces Tecum Served on R osenman & Colin , No. M8- 85 (RLE), 3:92 CV.00301 (WWE), 1996 U.S. Dist. LEXIS 13590, at *14 (S.D.N.Y. Sept. 16, 1996).34 United States v. Henke , 222 F.3 d 633, 6 42-43 (9th Cir. 20 00); In re Steeg , 112 F.3d 173, 174 (5th Cir. 1997); McKinnon v. Smock , 445 S.E.2d 526, 52 8 (Ga. 19 94); Ocean S pray Cranb erries, Inc. v. Holt Cargo Sys. , 785 A.2d 955, 958 (N.J . S uper. Ct. L . Div. 200 0); Baliva v. State Farm Auto. Ins. Co. , 713 N.Y.S.2d 376, 377 (App. Div. 2000). However, the dec ision whetherto cond uct an in ca mera re view of docum ents claim ed to be w ork pro duct is discret ionary. United S tates v. Zolin , 491 U .S. 554, 5 72, 109 S. Ct. 2619, 2631 (1989) ; In re Colorado v. Martinez , 970 P.2d 469, 47 7 (Colo . 1998); State v. Vinson , 591 N .E.2d 33 7, 343 (O hio Ct. A pp. 199 0). Accordingly, a court does

not abuse its discretion b y declinin g to review docum ents in camera when other evide nce is suf

ficient to provide a

basis f or the court’s de cision. In re George , 28 S.W.3d511, 51 9 n.4 (T ex. 200 0); Enron Oil & Gas Co. v. Flores , 810 S.W.2d 408, 41 3 (Tex. A pp. 199 1); Barry v. USAA , 989 P.2d 1172, 1176 (Wash. Ct. App. 1999).

35 Work produc t protectio n can b e wa ived. Rest atement (Thi

rd) of the La

w Governing Lawyers § 91. However, unlike t

he attorne

y-client privil ege, the work pr

oduct doctri

ne is not wai

ved by mere disclosure but instead by making a testimon ial use of the protected material. United States v. Nobles, 422 U.S. 225,239 n.14, 95 S. Ct. 2160, 2171 n.14 (1975) ; Wells v. Liddy , 2002 U.S. App. LEXIS 3356, at *31; Federal Elec

tion Comm’n v. Chri

stian Coal

ition , 178 F.R .D. 61, 76 (E.D. V a. 1998 ).
-19- In cases of this sort,

it would be prefe

rable for the tri

al court to examin

e the conte ste d documents

in chambers rather than relying solely on the lawyers’ characterizations of the contents of the documents. 34 However, this ove rsight is not materia

l in this case. The affidavit submitted by Comdat a’s attorney provide s adequate suppor

t for the conclusi

on that the drafts

of the Purchase Agreement

containing the notations of counsel and the related correspondence contain opinion work product.
3.

Comdata Did Not Waive the Confidentiality of the Withheld Documents

Even if the contested documents contain opinion work product, they wou l d have been discoverable

if Comdata had wai

ved the confiden

tiality of the docum

ents by making some testimonial use of them. 35 Litigants may not use the work product doc trine as a sword and a shield. Arnold v. Ci ty of Chattanooga , 19 S.W.3d at 787. Th us, they may not sele

ctively disclo se a protected document to prov e a point and then invoke th e work product do

ctrine to preven

t their opponent from challenging their assertion. Frontier Ref., Inc. v. Gorman-Rupp Co. , 136 F.3d at704; GranitePartners, L.P. v. Bear, Stearns & Co. , 184 F.R.D. 49, 54 (S.D.N.Y. 1999); Moore’s Federal Practice § 26.70[6][c].

The draft documents and

handwritten notes and comments prepared by Comdata’s attorneys
are clearly work product to the extent that the y were circula

ted among only Comda

ta and its attorneys. However, Comdata’s attorn ey a ppears to have sh ared the drafts

of the Purchase Agreement,

and perhaps even his handwrit ten notes and comme

nts, with the attorneys representing IPS. He states in his affidavit that “I made these notes and revised and edited the text of the Agreement

and the proposed d e fense agreement in consultation with attorneys for IPS at a time when bothComdata

and IPS had a common interest in defending this lawsuit and did so with the intention that these communications remain confidential.”

We have determined

Comdata’s attorneys’ disclosure of their work product to the attorneys representing IPS was not a waiver of theconfidentiality of the shared docum

ents. These disclosures didnot amount to a testimonial use of the documents, and when the disclosures oc

curred, Comdata-20-

andIPS were pursuing a common interest in mounting a joint defense against the claims of the Boyd parties. Accordingly, the common interest privilege attached to their communications and permitted the attorneys for the parties to communicate on matters of common interest without waiving the confidentiality of

the communication

s.
The record contains no evidence that either Comdata or IPS shared the drafts of the Purc

hase Agreement or the

ir correspondence regarding this agreement with third parties. Neither

Comdata
nor IPS has undertake

n to use these docu

ments as a sword in this litigation. Therefore, there is no basis for concluding that Comdata or its attorneys have waived the work product protection of the

se documents.

4.

No Heightened Showing of Necessity or Unavailability

Once Comdata establishe d that the request

ed documents contained opini on work product, the burden shifted ba

ck to the Boy d parties to demonstrate that this case involves one of the rare circumstances warranting the d iscovery of opin

ion work product. To carry this burden, the Boyd parties were required

to make a heighten

ed showing that the

y have a substantia

l need for the documents

and that they are unable to obtain the same or comparable inf orm ation through other means without undue hardship. At no point in these proceedings have the Boyd parties explained how these documents are necessary.

The Boyd parties have never satisfactorily explained how the drafts of the Purchas e Agreement

and the related correspondence between Comdata and I PS are rele

vant to the subject matter of this litigation. In light of their inability to clear thi s most bas ic of hurdles, it is not surprising that they are una ble to articulate

how these documen

ts will materially a

ssist them in establishing the essential elements of their prima facie case. After all,irrelevant documents are, by definition, not essential to a party’s ability

to prove its claims or defenses. The work of Comdata’s attorneys has not become a central issue in this litigation. According ly, the tr ial court erred by ordering Comdata to produce these documents be

cause the Boyd pa

rties did not carry their burden of establishing that the documents were essential to their case.

V.

The Boyd parties have failed to demonstrate that they are entitled to discover either the draft jointdefense agreement, the drafts of the November 15, 199 9 Purchase Agreement, or the correspondence

between theat torneys for Comda ta and IPS regard

ing these agreem

ents. Accordingly, the trial court, either by erroneously assessing the evidence or by erroneously applying the correct legal principles, erred by ordering Comdata to provide these documents to the Boyd parties. Therefore, we

reverse the Apr

il 17, 2000 order c

ompelling Comdata

to produce the disputed documents

and remand the c

ase tothe trial court with directions to enter an order denying the Boyd parties’ motion tocompel the produc tion of these docum

ents. We tax the c

osts of this appeal

, jointly and severally, to Dudley E. Boyd and the Boyd Revocable Inter-Vivos Trust for which execution, if necessary, may issue.-21- _____________________________ WILLIAM C. KOCH, JR., JUDGE