Are records kept in the course of ordinary business, but compiled at the request of counsel, considered privileged work product?

When does the Work Product Privilege Attach in the Ordinary Course of Business?

Case Citation: Graham v. San Antonio Zoological Soc’y, Civil Action No. SA-15-CV-1054-XR, 2017 U.S. Dist. LEXIS 58740 (W.D. Tex. Apr. 18, 2017)
Employer/Personnel Implicated: San Antonio Zoological Society (“the Zoo”)
eLesson Learned: The work product doctrine only applies to materials assembled and created in anticipation of litigation. Further, records compiled at the request of counsel are not protected unless the documents or contents reveal insights into the mental processes of the attorney in the preparation of the case.
Tweet This: The Zoo’s Privilege is Out of Luck

James Graham and other private citizens (“Plaintiffs”) filed this suit against San Antonio Zoological Society (“the Zoo”/ “Defendants”) seeking injunctive relief against the Zoo under the Endangered Species Act (“ESA”) for harming and harassing an endangered elephant named Lucky. On February 5, 2016, Plaintiff’s served the Zoo with discovery requests including “all documents and communications relating to Lucky’s health and care, including her medical records, testing records, records of daily care, and related materials.” Defendant produced medical records only dating back two years, claiming it was all Plaintiffs needed and that it would be too burdensome to produce records beyond that time. However, the production included a February 11, 2016 email between the Zoo’s Director of Veterinary Care and the Health Center Manager for the Zoo with a 550-page document attached that consisted of nearly thirty-seven years worth of Lucky’s medical records from an electronic database.

The Zoo argued that the production was created in direct response to counsel’s request made during a conference call and that counsel asked the Zoo to collect certain information relating to Lucky so that counsel could review the information with respect to the claims, defenses, and trial strategy. The Zoo adamantly believed the production to be privileged work product. Plaintiffs argued the production and e-mail attachment were not privileged because the records were kept in the ordinary course of business, tracked Lucky’s various injuries, ailments, results of veterinary checkups over the years, and were merely factual information. Plaintiff further argued that the production does not reveal any attorney thoughts or strategies.

The court determined that the work product doctrine does not protect “materials assembled in the ordinary course of business.” While the court acknowledged that an attorney’s compilation of various documents may constitute an attorney’s opinion work product subject to protection, the court ultimately held that the “crucial factor” in determining whether privilege attaches to compiled documents at the request of counsel is whether the attorney’s selection of the documents or contents could “reveal or provide insights into the mental processes of the attorney in the analysis and preparation of the client’s case.” The court further concluded that neither the email nor the records themselves revealed the mental process of the Zoo’s attorney, but were mere veterinary records related to Lucky’s health care during his time at the Zoo, the central issue of the lawsuit.  To bolster its rationale, the court pointed to the fact that there was nothing in the e-mail referencing litigation, representation, or the Zoo’s counsel. In fact, there was no text in the email to which the records were attached, and it was only sent between Zoo employees. In addition, Rule 26(b)(1) allows a party’s access to any nonprivileged matter that is relevant to any party’s claim and that is proportional to the needs of the case. Here, the court deemed the medical records proportional and also noted how Plaintiffs were not under any obligation to retroactively return the production or limit the use of the information to a specified time period.

Lastly, even if we were to assume the production was protected by the work product doctrine, the court determined the Zoo waived that privilege. The Zoo failed to show it took reasonable steps to prevent the disclosure of the report and, in turn, seek return of the production.

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