State of Rhode Island v. Lead Industries Association, Inc.

Supreme Court of Rhode Island · Torts

TortsDiscoveryWork-product doctrinePrivilegeWaiverwork productfactual work productopinion work product

Facts

The state attached three PowerPoint slides from a 2004 Sherwin-Williams board presentation to support its argument that Sherwin-Williams had not suffered financial hardship because insurance had covered significant defense costs. The slides were prepared by or under the direction of Sherwin-Williams' associate general counsel for presentation to the board and senior management during the ongoing lead-paint litigation. Sherwin-Williams asserted that the slides had been kept confidential, were not disseminated outside the company except to counsel, and were obtained by the state outside the formal discovery process. After discovering the disclosure, Sherwin-Williams promptly sought to seal the materials and prevent further use or dissemination.

Issue

Whether the three PowerPoint slides were protected from disclosure under the work-product doctrine, and if so, whether Sherwin-Williams waived that protection by disclosures at the board meeting, by transmission of the state's memorandum to media-related recipients, or by failing to list the slides on a privilege log. Because the court resolved the case under work product, it did not reach attorney-client privilege.

Rule

Under Rule 26(b)(3), materials prepared in anticipation of litigation or for trial by or for a party or its representative are protected as work product. Opinion work product, containing an attorney's mental impressions, conclusions, opinions, or legal theories, receives absolute immunity; factual work product, consisting of material gathered in anticipation of litigation, receives qualified protection and is discoverable only upon a showing of substantial need and inability to obtain the substantial equivalent without undue hardship. Work-product protection is not automatically waived by disclosure to third parties; waiver occurs when disclosure substantially increases the likelihood that the material will reach an adverse party. A privilege log is required only for otherwise discoverable materials withheld from responsive discovery requests.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

During a toxic-exposure suit pending in Ohio, in-house counsel for Lakefront Minerals prepared a one-page chart for the company's board in Cleveland listing defense invoices paid, insurer reimbursements received, and remaining policy limits. The chart contains only figures, dates, and policy names, although counsel orally discussed strategy at the meeting.

If the plaintiff seeks the chart in discovery, how should a court most likely classify it?

Explanation. The majority distinguished opinion work product from factual work product by focusing on the face of the document itself. A document is opinion work product only if it contains an attorney's mental impressions, conclusions, opinions, or legal theories. A chart that merely lists numbers and categories, even if accompanied by oral legal advice at the meeting, is not opinion work product. But if prepared because of ongoing litigation, it is protected as factual work product. (Derived from State of Rhode Island v. Lead Industries Association, Inc. (n.d.).)