Attorneys generally like to think of their work product as being
sacrosanct and immune from discovery. Although the work-product
doctrine, as codified in Mass. R. Civ. P. 26(b)(3), provides only
qualified protection for materials prepared in anticipation of
litigation or trial, there are relatively few decisions ordering
the disclosure of bona fide work product. That is, in
part, because courts have been instructed that protecting work
product "enhance[s] the vitality of an adversary system of
litigation by insulating counsel's work from intrusions,
interferences, or borrowings by other parties."1
The recent decision by the Supreme Judicial Court (SJC) in
McCarthy v. Slade Associates, Inc., 463 Mass. 181 (2012),
however, is a sobering reminder of the work-product doctrine's
limits. In this opinion, the SJC held that because plaintiff had
invoked the discovery rule in response to the defendants' statute
of limitations and other defenses, the defendants were entitled to
discover attorney and other work product concerning when the
plaintiff and one of her law firms first learned that plaintiff's
causes of action had accrued. As a result, not only was the law
firm ordered to produce its billing records and several categories
of written work product, one of the firm's lawyers was also ordered
to answer written questions under oath about the scope of his
firm's work for plaintiff.
This is an important decision that promises to be widely invoked
in discovery disputes over the production of work product.
Background Facts And Procedural History
In 1990, Regan McCarthy purchased a vacant, land-locked parcel
of land in Truro, on Cape Cod, at a foreclosure sale. Based on the
description in the foreclosure sale notice, McCarthy believed that
the parcel abutted a property that she had vacationed on for years.
She engaged an attorney to assist her with the acquisition, and the
attorney hired a title examiner to conduct a title search. McCarthy
also retained a surveyor to provide an opinion on the parcel's
boundaries.
To finance the purchase, McCarthy obtained a mortgage from the
bank that foreclosed on the property, and the bank issued a
foreclosure deed. McCarthy never built anything on the land that
she thought that she had acquired.
In 2003 and 2004, McCarthy retained a different attorney to
advise her about whether she could obtain access to a public way
from her land-locked parcel. This attorney also advised her in
connection with the refinancing of the mortgage on the parcel. The
attorney did not identify any discrepancies involving the location
of the property.
Later in 2004, McCarthy, now represented by a third counsel, the
law firm Burns & Levinson LLP (B&L), filed a Land Court
action against abutters to the parcel that she believed she had
owned since 1990. McCarthy asserted a trespass claim, requested a
declaratory judgment regarding the boundary line, and sought to
enjoin the abutters from obtaining access to what she believed was
her land.
On Jan. 27, 2005, the abutters in the Land Court action produced
a title report which established that McCarthy did not own the
property that she thought she had purchased in 1990. Rather, the
report showed that McCarthy had purchased a different parcel, which
was located entirely within the Cape Cod National Seashore, and
could not be developed. McCarthy alleged that this was the first
time that she learned that she did not own the property at
issue.2
Superior Court Litigations
McCarthy subsequently filed three separate Superior Court
actions against the bank that had sold her the parcel, and the
various lawyers and other professionals that she had retained
between 1990 and 2003. She asserted claims for breach of contract,
professional negligence, negligent misrepresentation, and
violations of G.L. c. 93A. In 2006, she sued the surveyor that had
issued an opinion in 1990 regarding the parcel's alleged
boundaries. Then, in January 2008, she sued the lawyer who
represented her in the 1990 transaction. Also in January 2008, she
sued the bank that had foreclosed on the property, as well as the
lawyer she engaged in 2003 to investigate obtaining access to a
public way. She did not sue B&L.
The three actions were ultimately consolidated. The various
defendants moved to dismiss the complaints on statute of
limitations grounds, contending that McCarthy was on notice of her
claims has accrued as early as 1990, but in any event beyond the
applicable three-year limitations period for tort claims and the
four-year limitations period for c. 93A claims. The trial court
denied the motions to dismiss, ruling that McCarthy had adequately
invoked the discovery rule by pleading facts that plausibly
suggested that her causes of action accrued in late January 2005,
when the defendants "'in the Land Court litigation furnished her
with a report evincing the defect.'"3
The Trial Court's Discovery Orders
The defendants sought to test McCarthy's invocation of the
discovery rule. They requested that B&L produce large amounts
of documentation from the Land Court action, including time sheets;
correspondence between McCarthy and her attorneys, land surveyors,
title abstractors, and title examiners; and any and all documents
concerning the property at issue. B&L produced some documents
relating to the Land Court action, and withheld other documents as
protected by the attorney-client privilege and work-product
doctrine. A B&L attorney was deposed, but declined to answer
certain questions on privilege and work-product grounds. Defendants
moved to compel B&L to produce the withheld documents and to
answer proposed written questions.
The trial court granted defendants' motions in part. It found
that the documents and information sought by defendants was
relevant to their statute of limitations and comparative fault
defenses. The trial court concluded that McCarthy had waived any
privilege or work-product protection by invoking the discovery
rule, and thereby putting at issue the date when she was first on
notice that her claims had accrued. It also ordered a B&L
attorney to answer seven questions in writing, including
identifying the date and substance of communications between
McCarthy and B&L regarding any concerns that she or B&L may
have expressed regarding the location of her property. McCarthy
appealed the orders, as did the defendants who had sought broader
relief. The SJC transferred the appeals on its own motion.
There Was No At-Issue
Waiver
The SJC first addressed whether McCarthy had implicitly waived
the attorney-client privilege by invoking the discovery rule.
Citing its decision in Darius v. Boston, 433 Mass. 274
(2001),4 the court re-affirmed that at an at-issue
waiver was theoretically possible where there has been an
"inject[ion] [of] certain claims or defenses into a case," and that
the waiver "might come into play where a statute of limitations
defense is met by the plaintiff's reliance on the discovery
rule."5 It emphasized, however, that a party claiming an
at-issue waiver must show that "'the privileged information sought
to be discovered is not available from any other [non-privileged]
source.'"6
The SJC held that the defendants had not established an at-issue
waiver because they had not exhausted discovery of potential
non-privileged sources of the information that they were seeking.
In particular, the court stated that defendants had not yet
"conducted discovery of documents and materials that are not
covered by the attorney-client privilege, but qualify as work
product protected under the work product doctrine."7 Put
another way, the SJC ruled that an at-issue waiver of the
attorney-client privilege will not be found where the information
sought can be obtained by piercing the qualified protection of the
work-product doctrine.
Piercing Work-Product Protection
In Commissioner of Revenue v. Comcast Corp., the SJC
stated that the purpose of the work-product doctrine is to
establish a "'zone of privacy for strategic litigation planning …
to prevent one party from piggybacking on the adversary's
preparation."8 Accordingly, the doctrine protects
"documents or tangible things"; (2) "by or for another party or for
that party's representative" and (3) "in anticipation of litigation
or for trial."9 But this protection is weaker than an
evidentiary privilege: "work product shielded by the doctrine is
not privileged, but instead 'is given qualified protection from
discovery as a concession to the necessities of the adversary
system.'"10
Under Rule 26(b)(3), a party may obtain discovery of its
adversary's work product upon a showing (1) of "substantial need of
the materials in the preparation of his case"; and (2) "that he is
unable without undue hardship to obtain the substantial equivalent
of the materials by other means." The rule also instructs courts to
afford greater protection to "opinion" work product, i.e., "the
mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the
litigation," than for ordinary or "fact" work
product.11
The SJC has never enunciated a precise definition of
"substantial need," and it did not do so in McCarthy. The
court did, however, cite with approval a case that held that
substantial need be established where the work product "at issue is
central to the substantive claims in litigation."12
Presumably applying that standard, the court held that defendants
had established a substantial need for the ordinary work product
they sought because McCarthy's "injection of the discovery rule …
put[] in play the state of her knowledge about the location of [the
property] purchased by her in 1990."13
The court reasoned that the materials being withheld may have
shown whether McCarthy and B&L knew or reasonably should have
known about the actual location of the property over three years
before she commenced her lawsuits, which would defeat the
application of the discovery rule.14 The court also
found that the defendants could not obtain a substantial equivalent
of the materials sought because only the withheld materials
potentially contained information about what McCarthy and B&L
actually knew about the location of the property, and when they
learned that information.15
McCarthy and B&L were ordered to produce several categories
of fact work product, including B&L's billing records and
documents relating to any title examination commissioned by
B&L. A B&L attorney was also ordered to identify in writing
(1) every deed, instrument, or other document B&L reviewed to
determine the ownership of McCarthy's property before filing the
Land Court action; (2) all documents that the title examiner
provided to B&L before a certain date; and (3) all documents
that B&L received from the title examiner and which it in turn
provided to McCarthy. The court held that the mere identity of
documents that are reviewed by an attorney, or provided to a client
or by consultant, do not constitute opinion work product so long as
there was no disclosure of any opinion or impressions formed based
on the documents.
The SJC also ordered the B&L attorney to identify in writing
the date when he became aware that McCarthy did not own or may not
have owned the property she thought she bought in 1990. The court,
however, shielded B&L from having to disclose any
communications with McCarthy, and permitted B&L to redact any
opinion work product contained in the documents that were ordered
produced. By permitting B&L to redact its opinion work product,
the SJC implicitly found that the defendants had not established
the "extremely unusual circumstances" necessary to warrant the
production of that material.
Ramifications Of McCarthy
Although it remains to be seen to what extent the
McCarthy decision will affect discovery practice in
Massachusetts, we can make some reasonable predictions. First, in
cases where the discovery rule has been invoked, defendants are
likely to more aggressively seek the production of work product to
attempt to prove that plaintiffs had actual or constructive notice
of the accrual of their claims outside the applicable limitations
period. This means that work product arising out of any
pre-litigation investigations into the existence of potential
causes of actions will be targeted.
Parties, their counsel, and other representatives need to be
aware that courts will afford privileged communications and opinion
work product markedly more protection than fact work product. Thus,
it would be advisable to incorporate fact work product into other
forms of protected materials and communications wherever
possible.
Second, courts will be called upon more often to define the term
"substantial need." In McCarthy, the SJC did not enunciate
a bright-line definition of that term, but instead appeared to
endorse a definition providing that substantial need may be
established where the work product "is central to the substantive
claims in litigation." Any lawyer worth his or her salt can almost
always make a plausible argument that an adversary's work product
is central to the substantive claims or defenses in a lawsuit. But
it is unlikely that courts will be overly indulgent in ordering a
party to turn over work product to an adversary, which would
undermine the central purpose of the work product doctrine. Without
a clear standard, the issue of what substantial need means will
have to be decided on a case-by-case basis.
Third, the cost of discovery will further increase if parties
were to file more motions to compel the production of work product.
With the proliferation of electronic documents and communications,
privilege and work-product logs are becoming ever longer, often
times listing hundreds, if not thousands, of entries. Litigants, in
response, are seeking to test overly broad and questionable claims
of privilege and work-product protection by filing motions to
compel the production of documents on such logs. The
McCarthy decision should only increase the incentive to
file such motions.
1Ward v. Peabody, 380 Mass. 805, 817
(1980).
2The abutters in the Land Court action prevailed after a
bench trial. McCarthy's appeal of that judgment remains pending in
the Appeals Court. SeeMcCarthy, 463 Mass. at 185
n.6.
3463 Mass. at 186 (quoting trial court's
decision).
4The SJC did not "formulate a precise definition of at issue
waiver" in Darius, and declined to do so as well in
McCarthy. 463 Mass. at 191.
5Id. at 191-92.
6Id. at 192.
7Id. at 193.
8453 Mass. 293, 311-12 (2009) (quoting United States v.
Adlman, 68 F.3d 1495, 1501 (2d Cir. 1995)).
9Mass. R. Civ. P. 26(b)(3).
10McCarthy, 463 Mass. at 194 (quoting Greenwald,
et al, Testimonial Privileges § 2:1, at 2-3 to 2-4
(2005).
11Mass. R. Civ. P. 26(b)(3). In Comcast, the SJC
declined to decide whether the protection for opinion work product
was absolute, or if opinion work product may be ordered disclosed
"in rare or 'extremely unusual circumstances.'" 453 Mass. at 214-15
(citing Reporter's Notes to Rule 26(b)(3)). There is lower-court
authority that opinion work product is discoverable in rare
circumstances. See Rhodes v. AIG Domestic Claims, Inc., 20
Mass. L. Rptr. 491, 2006 WL 307911, *8 (Mass. Super. Ct. Jan. 27,
2006) (Gants, J.) (holding that opinion work product created by
insurance company claims representatives because conduct of these
claims representatives is at issue and the need for work product
was compelling).
12McCarthy, 463 Mass. at 191 (citing Madanes v.
Madanes, 199 F.R.D. 135, 150 (S.D.N.Y. 2001)).
13Id.
14B&L's knowledge of the actual location of the property
was directly relevant to the application of the discovery rule
because an attorney's knowledge is generally imputed to the client.
Id. at 196 & n.30.
15Id. at 199-200.