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. Case 9:08-cv-80736-KAM Document 93-1 
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24 
perhaps one of the most important roles of a criminal defense attorney. Today, the lawyer's "ability 
to persuade the judge or the jury is ... far less important than his ability to persuade the prosecutor" 
during plea negotiations. United States'. Fernandez, 2000 WL 534449 (S.D.N.Y. May 3, 2000) 
at *1 . 
Counsel's failure to discharge his duties during plea negotiations is malpractice: "[l]t is 
malpractice for a lawyer to fail to give his client timely advice concerning" pleas. Id. It also 
constitutes ineffective assistance of counsel, and violates the Constitution. Thus, counsel has a duty 
to advise clients fully on whether a particular plea is desirable, since "[e]ffective assistance of 
counsel includes counsel's informed opinion as to what pleas should be entered." United States'. 
Villar, 416 F. Supp. 887, 889 (S.D.N.Y. 1976); Borial. Keane, 99 F.3d 492, 497 (2d Cir. 1996), 
citing ABA Model Code of Professional Responsibility, Ethical Consideration 7-7 (1992). 
Counsel also has a constitutional obligation to seek out information from the government, 
especially information that the government intends to use against the client. Failure to do so 
constitutes ineffective assistance of counsel. Rompillal. Beard, 545 U.S. 374 (2005). "The notion 
that defense counsel must obtain information that the state has and will use against the defendant is 
not simply a matter of common sense, . . it is the duty of the lawyer .. . ." Rompillal. Beard, 545 
U.S. 374, 386 (2005), citing 1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp).2
The constitution also requires that criminal defense lawyers conduct "a prompt investigation 
of the circumstances of the case," and this includes making every effort to secure information 
directly from the prosecutors: 
2 The Supreme Court has "long ... rgferred [to these ABA Standards] as 'guides in 
determining what is reasonable."' Rompilial. Beard, 545 U.S. 374, 387 (2005). 
21 
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Case 9:08-cv-80736-KAM Document 93-1 Entered on FLSD Docket 09/02/2011 Page 22 of 
24 
It is the duty of the lawyer to conduct a prompt investigation of the circumstances of 
the case. The investigation should always include efforts to secure information in the 
possession of the prosecution and law enforcement authorities. The duty to 
investigate exists regardless of the accused's admissions or statements to the lawyer 
of facts constituting guilt or the accused's stated desire to plead guilty. 
Rompillal. Beard, 545 U.S. 374, 386 (2005), citing 1 ABA Standards for Criminal Justice 4-4.1 (2d 
ed. 1982 Supp)• 
The lawyer's duty to investigate and obtain information from the prosecutor goes hand-in-
hand with the lawyer's additional duty to "make suitable inquiry" to determine whether valid 
defenses exist. Jones'. Cunningham, 313 F.2d 347 (4th Cir.I 963) ("Of course, it is not for a lawyer 
to fabricate defenses, but he does have an affirmative obligation to make suitable inquiry to 
determine whether valid ones exist"). 
And regardless of whether valid defenses exist, counsel has a duty to initiate plea 
negotiations if he is to discharge his duty to faithfully represent the client's interests. Hawlanant 
Parratt, 661 F.2d 1161, 1171 (8th Cir. 1981) (counsel's "failure to initiate plea negotiations 
concerning the duplicitous felony counts constituted ineffective assistance of counsel which 
prejudiced I lawkman"). 
3. 
The Court Should Recognize A Plea Negotiations Privilege To Avoid A 
Meaningful And Irreparable Chill In Plea Negotiations 
Reason and experience tell us that the system we have in place of sentencing laws, ethical 
rules, federal court dockets, and constitutional considerations, will not function if plea negotiations 
are not privileged. After all, "it is immediately apparent that no defendant or his counsel [would] 
pursue [plea negotiations] if the remarks uttered during the course of it are to be admitted in evidence 
as proof of guilt." Herman, 544 F.2d at 797. Plea negotiations are "rooted in the imperative need 
22 
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Case 9 :08-cv-80736-KAM Document 93-1 
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24 
for confidence and trust," Jaffee, 518 U.S. at 10, and maintaining their confidentiality advances 
significant public and private cnds. Discovery and use of plea negotiations will cause "a meaningful 
and irreparable chill" to the "frank and complete disclosures" that result in negotiated resolution of 
criminal matters. In re Air Crash Near Cali, Colombia, 957 F.2d at 1533. 
For these reasons, plea negotiations are properly subject to a common law privilege under 
Federal Rule of Evidence 501. The Court should hold that the plea negotiation letters and emai Is 
between Mr. Epstein's lawyers and the government are privileged and not subject to discovery or 
evidentiary use by the plaintiffs. 
PART III 
MR. EPSTEIN HAS STANDING TO INVOKE RULE 6(E) 
During the August 12 hearing, the Court asked whether only the government has standing 
under Rule 6(e) to object to disclosure of grand jury materials. [Trans. at 27]. The answer is no. Mr. 
Epstein, too, has standing to raise these issues. The grand jury was created to protect the citizens, not 
to protect the government. Rule 6(e) implements those protections by requiring secrecy of matters 
occurring before the grand jury. The rule protects citizens against disclosure of information that is 
damaging to them, and in particular "protects the reputation of an accused who is not indicted." 
United States  Malatesta, 583 F.2d 748, 753 (5th Cir. 1978). Mr. Epstein therefore has standing 
under Rule 6(e) to object to disclosure of matters occurring before the grand jury. 
23 
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Entered on FLSD Docket 09/02/2011 Page 24 of 
24 
We certify that on September 2, 2011, the foregoing document was filed electronically with 
the Clerk of the Court using the CM/ECF system. 
Respectfully submitted, 
BLACK, SREBNICK, KORNSPAN 
& STUMPF, P.A. 
201 South Biscayne Boulevard 
Suite 1300 
Miami, Florida 33131 
Office: (305) 371-6421 
Fax: (305) 358-2006 
By  
/S/
ROY BLACK, ESQ. 
Florida Bar No. 126088 
JACKIE PERCZEK, ESQ. 
Florida Bar No. 0042201 
On Behalf ofJeflkey Epstein 
24 
EFTA00177910

Page 1 of 25 
Westlaw 
Page 1 
183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 
(Cite as: 183 F.R.D. 458) 
United States District Court, 
D. Maryland?
Baltimore Division. 
NUTRAMAX LABORATORIES, INC., 
Plaiitiff, 
TWIN LABORATO,IES INC., et. al., De-
fendants. 
No. Civ.AB-97-787. 
Dec. 7, 1998. 
In six patent infringement suits consol-
idated for discovery, defendants moved to 
compel the production of various docu-
ments used by counsel for the plaintiff to 
prepare a number of witnesses, including 
management officials of plaintiff, for their 
depositions. The District Court, Grimm, 
United States Magistrate Judge, held that: 
(1) documents supplied by plaintiffs coun-
sel to prepare two management officials for 
deposition were subject to disclosure under 
evidence rule allowing discovery of docu-
ments reviewed by a witness to prepare for 
deposition, based on implied waiver of 
work product protection, and (2) supplied 
by plaintiffs counsel to prepare other wit-
nesses for deposition were not subject to 
disclosure under evidence rule, absent 
proof that witnesses used documents to re-
fresh their memory for the purpose of testi-
fying. 
Motion granted in part and denied in 
part. 
West Headnotes 
[1] C=01381 
170A Federal Civil Procedure 
170AX Depositions and Discovery 
170AX(C) Depositions of Parties 
and Others Pending Action 
170AX(C)3 Examination in Gen-
eral 
170Ak1381 
k. 
In 
General. 
Most Cited Cases 
(Formerly 170Ak1414.1) 
While instructions not to answer ques-
tions during depositions are generally im-
proper, a witness may be instructed not to 
answer a question if the answer would re-
veal 
privileged 
information. 
Fed.Rules 
Civ.Proc.Rule 30(dX1), 28 U.S.C.A. 
1214e
1604(2) 
170A Federal Civil Procedure 
170AX Depositions and Discovery 
170AX(E) Discovery and Production 
of Documents and Other Tangible Things 
170AX(E)3 
Particular 
Subject 
Matters 
170Ak1604 
Work 
Product 
Privilege; Trial Preparation Materials 
170Ak1604(2) k. Waiver. 
Most Cited Cases 
(Formerly 170Ak1600(5)) 
If otherwise discoverable documents, 
which do not contain pure expressions of 
legal theories, mental impressions, conclu-
sions or opinions of counsel, are assembled 
by counsel, and are put to a testimonial use 
in the litigation, then an implied limited 
waiver of the work product doctrine takes 
place, and the documents themselves, not 
their broad subject matter, are discover-
able. Fed.Rules Civ.Proc.Rule 26(b)(3), 28 
U.S.C.A.; Fed.Rules Evid.Rule 612, 28 
U.S.C.A. 
(3] Federal Civil Procedure 170A C=. 
1381 
170A Federal Civil Procedure 
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183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 
(Cite as: 183 F.R.D. 458) 
whether the documents previously have 
been disclosed to the party taking the de-
position; and (9) whether nere are credible 
concerns regarding manipulation, conceal-
ment or destruction of evidence. Fed.Rules 
Evid.Rule 612, 28 U.S.C.A. 
[6] Federal Civil Procedure 170A €=. 
1381 
170A Federal Civil Procedure 
170AX Depositions and Discovery 
170AX(C) Depositions of Parties 
and Others Pending Action 
170AX(C)3 Examination in Gen-
eral 
170Ak1381 
k. In 
General. 
Most Cited Cases 
€=01417 
170A Federal Civil Procedure 
170AX Depositions and Discovery 
170AX(C) Depositions of Parties 
and Others Pending Action 
170AX(C)4 Scope of Examina-
tion 
170Ak1417 k. Work Product 
Privilege; 
Trial 
Preparation 
Materials. 
Most Cited Cases 
(Formerly 170Ak1415) 
Testimonial use of documents supplied 
by plaintiffs counsel to prepare witnesses 
for deposition resulted in a limited, implied 
waiver of the attorney work product doc-
trine; witnesses used documents to refresh 
their memory prior to their depositions, for 
the pFpose of testifying, and it was neces-
sary in the interest of justice that the docu-
ments be disclosed to the defendants. 
Fed.Rules 
Civ.Proc.Rule 
26(bX3), 
28 
U.S.C.A.; Fed.Rules Evid.Rule 612, 28 
U.S.C.A. 
[7J Federal Civil Procedure 170A €=. 
Page 3 of 25 
Page 3 
1381 
170A Federal Civil Procedure 
170AX Depositions and Discovery 
170AX(C) Depositions of Parties 
and Others Pending Action 
170AX(C)3 Examination in Gen-
eral 
170Ak1381 
k. In 
General. 
Most Cited Cases 
With respect to evidence rule allowing 
discovery of-documents reviewed by a wit-
ness to prepare for a deposition, establish-
ing that a witness used a writing to refresh 
his or her memory for the purpose of testi-
fying may be accomplished by direct proof 
(an admission by the deponent that review 
of documents aided memory) or circum-
stantial proof, from which an inference 
may he drawn whether such assistance was 
received. Fed.Rules Evid.Rule 612, 28 
U.S.C.A. 
[8] Federal Civil Procedure 170A 4>=. 
1381 
170A Federal Civil Procedure 
170AX Depositions and Discovery 
170AX(C) Depositions of Parties 
and Others Pending Action 
170AX(C)3 Examination in Gen-
eral 
170Ak1381 
k. In General. 
Most Cited Cases 
€1417 
170A Federal Civil Procedure 
170AX Depositions and Discovery 
170AX(C) Depositions of Parties 
and Others Pending Action 
170AX(C)4 Scope of Examina-
tion 
170Ak1417 k. Work Product 
Privilege; 
Trial 
Preparation 
Materials. 
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183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 
(Cite as: 183 F.R.D. 458) 
than what the defendants expected. To test 
the accuracy of their memones, counsel for 
the defendants asked whether the witnesses 
had reviewed any documents before their 
depositions to assist them in recalling the 
events relating to the first sale of Cosamin. 
Although it was acknowledged that docu-
ments had been reviewed with counsel for 
Nutramax during deposition preparation, 
the witnesses were instructed not to answer 
all questions designed to discover their 
identity. The basis *461 for the instruction 
not to answer was Nutramax's assertion of 
the work product rule. ni4 Contending 
that Fed.R.Evid. 612 entitles them to the 
production of documents used to refresh 
the recollection of a witness prior to a de-
position, the defendants filed pa motion to 
compel the production of the documents 
used to prepare the Nutramax witnesses. 
(Paper no. 145). Nutramax has filed an op-
position and the Defendants a reply. (Paper 
nos. 150 and 155, respectively). The docu-
ments which are the subject of this dispute 
were reviewed by me in camera, and a 
hearing was conducted on December 4, 
1998. For the reasons cited below, the mo-
tion will be granted, in part, and denied, in 
part. 
F143. In July, 1998, the defendants 
deposed the following witnesses, 
who are the subject of-this motion: 
Edgar J. Sharbaugh, Dr. Robert 
Henderson, Robert Picard, Todd 
Henderson, and Jeffrey Fara. 
FN4. While instructions not to an-
swer questions during depositions 
are generally improper, a witness 
may be instructed not to answer a 
question if the answer would reveal 
privileged 
information. 
See 
Fed.R.Civ.P. 30(d 1); Local Dis-
covery Guideline 5(d) 
(D.Md.1997); Boyd'. 
Maryland Med. SYs., 
143, 144 (D.Md.1997). 
Page 5 of 25 
Page 5 
University of 
173 F.R.D. 
DISCUSSION 
[2] The issue presented in this case, 
whether Fed.R.Evid. 612 requires the pro-
duction of work product materials used to 
prepare a witness for a deposition, but not 
used during the deposition itself to refresh 
the witnesses' recollection, is an important 
one. It is a rare case today which does not 
involve the production of documents dur-
ing discovery, and these documents can be 
of enormous importance in questioning 
witnesses about events which may have oc-
curred years earlier. Recognizing the im-
portance of documents in conducting ef-
fective deposition discovery, counsel fre-
quently postpone, as was done in this case, 
deposition discovery until document pro-
duction has taken plac) pursuant to 
Fed.R.Civ.P. 34. See Lee . Flagstaff In-
dus., 173 F.R.D. 651, 654-5 (D.Md.1997). 
In preparing to defend depositions in 
cases where substantial document produc-
tion has taken place, no competent counsel 
can afford to ignore reviewing with wit-
nesses the documents which relate to critic-
al issues. During a deposition, counsel 
questioning a witness will seldom fail to 
ask the witness about what he or she did to 
prepare for the deposition, and the identity 
of any documents reviewed for this pur-
pose. Most often, this inquiry is not res-
isted by counsel defending the deposition, 
because the documents have already been 
produced 
to 
the 
opposing 
counsel. 
However, where, as here, many thousands 
of pages of documents have been produced 
and counsel have analyzed them and selec-
ted a population of "critical documents" 
relevant to case dispositive issues, a depos-
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183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 
(Cite as: 183 F.R.D. 458) 
8A Wright, Miller & Marcus, Fed-
eral Practice and Procedure § 2113 
(2d ed.1994). There is contrary 
(
au-
thority, however. 
ee, e.g. Omaha 
Pub. Power Dist. . Foster Wheeler 
Corp., 109 F.R. . 615, 616-17 
(D.Neb.1986) ( Rule 30(c) does not 
incorporate Fed.R.Evid. 61; be-
cause that rule implies testimony 
before a judicial officer). However, 
because depositions are so fre-
quently used at trial in place of live 
testimony, see 
Fed.R.Civ.P. 
32; 
Fed.R.Evid. 804(b)(1)? the better 
reasoned conclusion is that Rule 
612 does apply at depositions. 
1. The Work Product Doctrine 
In the now famous case of Hickman 11. 
Taylor, 329 U.S. 495, 67 S.Ct. 385, 
1 
L.Ed. 451 (1947), the Supreme Court re-
cognized the work product doctrine. The 
doctrine creates a "protected zone" sur-
rounding an attorney's preparation of a cli-
ent's case which extends to information the 
attorney, or her agent, assembles in anticip-
ation of litigation, as well as the deliberat-
ive process she uses to separate relevant 
from irrelevant facts, determine strategy 
and legal theories. Id at 510-11, 67 S.Ct. 
385. Despite its recognition of the import-
ance of the work product doctrine for "an 
orderly working of our system of legal pro-
cedure," the • Court acknowledged that the 
protection it afforded was not absolute, and 
could be "invaded" upon a showing of ad-
equate reasons to justify production. Id. at 
512, 67 S.Ct. 383. Fed.R.Civ.P. 26(bX3) 
which, as noted above, codifies the work 
product doctrine, fleshes it out, and 
provides, relevantly: 
a party may obtain discovery of docu-
ments and tangible things otherwise dis-
coverable ... and prepared in anticipation 
Page 7 of 25 
Page 7 
of litigation or for trial by or for another 
party or by or for that other party's rep-
resentative (including the other party's at-
torney, consultant, surety, indemnitor, in-
surer, or agent) only upon a showing that 
the party seeking discovery has substan-
tial need of the materials in the prepara-
tion of the party's case and that the party 
is unable without undue hardship to ob-
tain the substantial equivalent of the ma-
terials by other means. In ordering dis-
covery of such materials when the re-
quirea showing has been made, the court 
shall protect against disclosure of the 
mental impressions? conclusions, opin-
ions, or legal theories of an attorney or 
other representative of a party concerning 
the litigation. 
The Fourth Circuit has explained that 
this formulation of the doctrine divides 
work product into two categories, "fact 
work product," which may be discovered 
upon a showing of substantial need and in-
ability, without undue hardship, to obtain 
the substantial equivalent of the materials 
by other means, and "opinion work 
product" which it has characterized vari-
ously as "absolutely immune" or "nearly 
absolutely immune" from discovery. See In 
re Allen, 106 F.3d 582, 607 (4th Cir.1997) 
(opinion work product enjoys "nearly abso-
lute" immunity); In Re Grand Jury Pro-
ceedings, 33 F.3d 342, 348 (4th Cir.1994) 
(opinion work product even more scrupu-
lously protected" than fact work' product); 
National Union Fire Ins. Co. R. Murray 
Sheet Metal Co., 967 F.2d 980, 984 (4th 
Cir.1992) 
(opinion 
work 
product 
"absolutely immune" from discovery); In 
re Martin Marietta Corp., 856 F.2d 619, 
625 (4th Cir.1988); In re John Doe, 662 F. 
2d 1073, 1080 ( 4th Cir. 1981), cert. 
denied 455 U.S. 1000, 102 *463 S.Ct. 
1632, 71 L.Ed.2d 867 (1982) (opinion 
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183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 
(Cite as: 183 F.R.D. 458) 
guage of Fed.R.Civ.P. 26(6)(3) suggests 
especial protection for opinion work 
product. 
Martin Marietta, 856 F.2d at 626 
(internal citations omitted). In sum, a care-
ful reading of Martin Marietta permits the 
conclusion that if testimonial use has been 
made of work product information, a lim-
ited, non-subject matter implied waiver has 
occurred as to the materials put to that use, 
provided the disclosure of those materials 
would not reveal "core" opinion work 
product, namely pure expressions of attor-
ney mental impressions, opinions or legal 
theory. 
The final Fourth Circuit opinion which 
must be considered with respect to the 
work product doctrine is In re Allen, 106 
F.3d 582 (4th Cir.1997). In Allen, the 
Fourth Circuit, in a lengthy opinion, ad-
dressed whether information covered by 
the attorney client privilege and the work 
product doctrine was subject to discovery 
in a civil case. The most significant part of 
this case, for purposes of the present dis-
pute, came at the very end of *466 the 
opinion, when the court considered wheth-
er an attorney's selection and collection of 
certain records of her client, which were 
themselves discoverable, constituted work 
product. The court stated: 
Yet, just as Allen prepared the interview 
notes and summaries in anticipation of 
litigation, she also chose and arranged 
these records in anticipation of litigation. 
This choice and arrangement constitutes 
opinion work product because Allen's se-
lection and compilation of these particu-
lar documents reveals her thought pro-
cesses and theories regarding this litiga-
tion. 
Page 12 
that, although Allen did not address the is-
sue presented in, this case,F,m2 it did cite 
as authority for its conclusion that docu-
ments selected and compiled by counsel 
constitute opinion work product two cases 
which addressed the very issue raised in 
this case, the applicability of Fed.R.Evid. 
612 to depositions. n.', More tellingly, 
the Allen court did not cite Martin Wri-
elk', which contains the most detailed dis-
cussion by the Fourth Circuit of the dis-
tinction between fact and opinion work 
product. 
FN12. The First Circuit has con-
sidered the issue of whether an at-
torney's selection of certain docu-
ments from a larger population of 
discoverable documents is opinion 
work product, and, therefore, shiel-
ded from disclosure, even if used to 
prepare witnesses for depositions. 
In an opinion which is critical of the 
reasoning used in Sporck one of the 
cases relied on in Allen, the First 
Circuit concluded "[the reasoning 
used in Sporck ], we suggest, is 
flawed because it assumes that the 
relevatory nature of the sought-after 
information is, in itself, sufficient to 
cloak the 
information with the 
heightened protection of opinion 
work product. That is simply not 
the case; much depends on whether 
the fruits of the screening would 
soon be revealed in any event." In 
re San Juan Dupont Plaza Hotel 
Fire Litig., 859 F.2d 1007, 1018, 
(1st Cir.1988). 
FN1.0 These cases are: James Juli-
an 
Raytheon Co., 93 F. r
. 138 
(D. 1.1982) and Sporck 
Peil, 
759 F.2d 312 (3d Cir.l 
5). In 
neither case did the court hold that 
Allen, 106 F.3d at 608. It is noteworthy 
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Page 10 of 25 
183 F.R.D. 458,51 Fed. R. Evid. Serv. 35 
(Cite as: 183 F.R.D. 458) 
L
. way that the attorney client priv-
ilege can. 
Whether the information involved is 
fact, as opposed to opinion, work product 
also affects how easily it can be waived. In 
Martin Modena, the Fourth Circuit ex-
plained in considerable detail the rationale 
underlying the distinction between fact and 
opinion work product, and the reason why 
the latter is entitled to such expansive pro-
tection. Because of the importance of the 
Martin Marietta opinion to the resolution 
of the issue presented in this dispute, it 
merits discussion at more length. 
In Martin Marietta, a former employee 
of that company was charged with mail 
fraud in connection with a government 
contract with the Department of Defense 
("DOD"). Martin Marietta, 856 F.2d at 
620. To assist in his defense, he sought to 
compel production of correspondence and 
notes from Martin Marietta relating to an 
administrative 
settlement 
agreement 
between that company and the DOD in-
volving events which were the subject of 
the charges against the employee. Id. at 
622. The employee sought the records to 
make out a defense that he was being made 
a scapegoat. Id. The records included the 
results of an internal audit, interview notes, 
transcripts, electronic recordings and cor-
respondence relevant to the settlement 
agreement. Id. The company resisted the 
disclosure of the documents, asserting the 
attorney client and work product priv-
ileges. Id. The district court ordered the 
production of certain of the requested doc-
uments, but not others. On appeal, the 
Fourth Circuit addressed the issue of 
whether the production of work product 
materials to the DOD and U.S. Attorney's 
office during the negotiation of the admin-
istrative settlement agreement constituted 
Page 10 
an "implied waiver" of this privilege. Id at 
622-26. 
The court began its analysis with a con-
sideration of the Supreme Court's decision 
in Nobles, noting that that decision held 
that an attempt to make testimonial use of 
work product resulted in an implied waiver 
of the privilege. Id. at 624. The Fourth Cir-
cuit then considered whether the scope of 
this waiver constituted broad subject matter 
waiver, or a more narrow waiver, applic-
able only to the work product materials a - 
tually produced. Citing Duplan Corp. ■ 
Deering Milliken, Inc., 540 F.2d 1215 (4 
Cir.1976), the court stated that Nobles es-
tablished a rule that non-opinion work 
product put to a testimonial use resulted in 
subject matter waiver of those materials, 
and that, accordingly, Martin Marietta had 
impliedly waived its work product protec-
tion for the non-opinion work product mat-
ter disclosed to the government. Id at 625. 
In so doing, the court conceded that even if 
the production was limited to non-opinion 
work product, this information "necessarily 
will be reflective of a counsel's approach," 
but added "a distinction can be made 
between non-opinion work product, which 
may nevertheless be ordered produced if 
counsel has waived work product protec-
tion, and pure mental impressions sever-
able from the underlying data and arguably 
not subject to subject matter waiver." Id. 
This distinction is of vital importance to 
the present case, for it illustrates the essen-
tial difference between non-opinion and 
opinion work product. 
The court recognized that "the line 
between opinion and non-opinion work 
product can be a fine one." Id. at 626. 
However, it emphasized that the essence of 
what the *465 work product doctrine is in-
tended to protect is "pure expressions of 
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Page 13 of 25 
183 F.R.D. 458,51 Fed. R. Evid. Serv. 35 
(Cite as: 183 F.R.D. 458) 
the work product doctrine abso-
lutely shielded documents selected 
and compiled by an attorney from 
disclosure if Fed.R.Evid. 612 was 
otherwise applicable. Indeed, in Ju-
lian, the court ordered the produc-
fion of the notebook of records se-
lected and compiled by counsel. See 
Julian, 93 F.R.D. at 146. In Sporck 
the court did not order disclosure of 
such documents, not because it con-
cluded they were absolutely im-
mune from discovery, but instead, 
because it concluded that the party 
seeking disclosure of these docu-
ments had failed to lay a proper 
foundation to trigger application of 
Evidence Rule 612. See Sporck 759 
F.2d at 317-18. 
At first blush, reading Allen and Martin 
Marietta together could lead to the conclu-
sion that if documents otherwise discover-
able in litigation are selected and compiled 
by an attorney in anticipation of litigation, 
they constitute opinion work product and, 
therefore, are protected from disclosure, 
even if put to a testimonial use, because of 
the court's ruling in Martin Marietta that 
testimonial use of work product informa-
tion only results in implied waiver of non-
opinion work product. However, to reach 
such a result would exalt form over sub-
stance for several important reasons. First, 
as stated in Martin Marietta, the dividing 
line between fact and opinion work product 
is not always easily discernable, see Martin 
Marietta, 856 F.2d at 626, and the mere se-
lection of otherwise discoverable docu-
ments by counsel falls closer to fact work 
product on the continuum than it does to 
core opinion work product. Second, the 
disclosure of even "pure" fact work 
product will necessarily disclose informa-
tion about an attorney's approach to the lit-
Page 13 
igation of the case, so it is never possible to 
completely insulate an attorneys' thought 
process from discovery when any form of 
work product is disclosed. See id. at 625. 
Third, what the work product doctrine is 
fundamentally designed to protect against 
is disclosure of "pure" mental impressions 
or opinions of counsel. See id. Disclosure 
of opinion work product consisting of re-
cords of a party to the litigation which are 
themselves subject to discovery, and which 
do not contain "pure" expressions of coun-
sel's mental impressions or theories, does 
not do violence to the policy underlying the 
work product doctrine, particularly if those 
documents already have been put to a testi-
monial use by the party whose attorney se-
lected and compiled them. Fourth, neither 
Martin Marietta, Allen, nor any other 
Fourth Circuit opinion, has addressed the 
exact question presented in this case, and 
therefore, did not have to reconcile the 
conflict which exists between the important 
policies which underlie the work product 
doctrine*467 and Evidence Rule 612. And, 
finally, neither the Martin Marietta nor the 
Allen court held that the protection af-
forded to opinion work product was abso-
lute. See Martin Marietta, 856 F.2d at 
625-26; Allen, 106 F.3d at 607 ("opinion 
work product `enjoys a nearly absolute im-
munity and can be discovered only in very 
rare and extraordinary circumstances' "). n414
FNI4. In Berkey Photo, Inc. A
Eastman Kodak Co., 74 F.R.D. 6 
(S.D.N.Y.1977), one of the first, 
and most often cited, cases to ad-
dress the issue presented here, the 
court was faced with reconciling 
decisions, such as Martin Marietta 
and Allen, which held that opinion 
work product was entitled to a 
nearly "absolute 
immunity 
from 
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Page 15 of 25 
183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 
(Cite as: 183 F.R.D. 458) 
has been noted that the legislative history 
of Rule 612 is somewhat ambiguous, be-
cause the rule itself is silent with respect to 
whether it applies to work product materi-
als used to refresh recollection. See James 
Julian,' 93 F.R.D. at 145, Bank Hapoalim, 
1994 WL 119575, at *5. It does appear, 
however as though the House Committee 
on the Judiciary did not intend the rule to 
operate in such a way that it would allow a 
"fishing expedition" into the documents a 
witness may have referred to in preparing 
for trial, nor did that committee intend for 
it to bar "the assertion of a privilege with 
respect to writings used by a witness to re-
fresh his memory." H.Rep. No. 650, 93rd 
Cong., 1st Sess. (1973), reprinted in 1974 
U.S.C.C.A.N. 7075, 7086. 
Because of the 
apparent 
conflict 
between Evidence Rule 612 and the work 
product 
doctrine, 
as 
codified 
in 
Fed.R.Civ.P. 26(bX3), *468 courts have 
looked for various ways to harmonize the 
two rules. See Joint Eastern and Southern 
Dist. Asbros Litig., 119 F.R.D. 4 at 5, 
Redvanly . NYNEX Corp., 152 F.R.D. 460, 
470 (S.D. .Y.1993). The process has pro-
duced inconsistent results, with some 
courts concluding that work product mater-
ials which were reviewed by a witness pri-
or to being deposed were subject to dis-
closure under Rule 612,m16 and others 
concluding that they were notitm 
FN16. 
See, 
e.g. 
Wheel-
ing—Pittsburgh 
Steel I. 
Under-
writers Labs., Inc., 81 F.R.D. 
(N.D.I11.1978); 
James 
Julian 
Raytheon 
Co., 
93 
F.R.D. 
1 
(D.Dek 1982); Omaha Public Power 
Dist. I. Foster Wheeler Corp., 109 
F.R.D. 
615 (D.Neb.1986); Joint 
Eastern and Southern Dist. Asbes-
toslitig., 119 F.R.D. 4 
Page 15 
i
(E.&S.D.N.Y.1988); 
Redvanly
EX Corp., 152 F.R.D. 4 
(S.D.N.Y.1993); Bank Hapoalim . 
American Home Assurance Co., 
o. 
92 CV 3561, 1994 WITI 119575 
(S.D.N.Y.1994); Ehrlich I. Howe, 
848 F.Supp. 482 (S.D. .Y.1994); 
Audiotext 
U.S.
fommunications 
Net-
work Inc. . 
Telecom, Inc., 
164 F.R.D. 2 0 (D.Kan.1996). 
FN17. See, e.g. Sporck A Peg 759 
F.2d1 
1. 
1.2 (3d :..lir.19 ); Berkey 
Photo 
Eastman Kodak Co., '74 
F.R.D. 
IlD3, 
(S.D.N.Y.197 
Derderian . Polaroid corp.. 1 
F.R.D. 13 
.Mass.1988); Baker 
CNA Insurance, 123 F.k.D. 3 
(D.Mont.I988); 
Timm
. 
Mead 
Corp., No. 91 CV 5648 
992 WL 
32280 (y.111.19921 Butler Mfg. 
Co. Inc. . Americold Corp., 148 
F.R.D. 
2 5 (D.Kan.1 3); Ark-
wright Mut. Ins. Co. 
National 
Union Fire Ins. Co., 
o. 90 CV 
7811, 
1994 
WL 
510043 
(S.D.N.Y.1994). 
[3] As a threshold matter, three founda-
tional elements must be met before Rule 
612 is applicable with respect to docu-
ments reviewed by a witness to prepare for 
a deposition: (1) a witness must use a writ-
ing to refresh his or her memory; (2) for 
the purpose of testifying; and (3) the court 
must determine that, in the interest of 
justice, the adverse party is entitled to scp 
the writing. Fed.R.Evid. 612; see Sporck l. 
Peil, 759 F.2d 312 317 (3d Cir.1985); But-
ler Mfg. Co., Inc. . Americold Corp., 148 
D.
F.R. 
275, 278 
.Kan.1993); 4 Jack B. 
Weinstein and Margaret A. Berger, Wein-
stein's federal Evidence § 612.07[1] (2d 
ed.I997). The first element insures that the 
writing is relevant to an attempt to test the 
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Page 17 of 25 
183 F.R.A. 458, 51 Fed. R. Evid. Serv. 35 
(Cite as: 183 F.R.D. 458) 
Fed.R.Evid. 602. Others, however, are not 
so restricted. Expert witnesses, for ex-
ample, may base their opinions on informa-
tion supplied 
by 
others, if reliable. 
Fed.R.Evid. 703. Similarly, Fed.R.Civ.P. 
30(b)(6) allows a party to designate a wit-
ness to testify on its behalf with respect to 
specified subjects. The testimony of such 
witnesses also is not limited to matters 
within their personal knowledge, but ex-
tends to "matters known or reasonably 
available to" the party designating the wit-
ness. Rule 30(b)(6). There is a greater need 
to know what materials were reviewed by 
expert and designee witnesses in prepara-
tion for deposition since the substance of 
their testimony may be based on sources 
beyond personal kuowledge.Fm9_(2) The 
nature of the issue in dispute. Whether a 
witness is testifying generally about the 
transactions which are the subject of the 
litigation, or more precisely about a subset 
of facts which relate to a case dispositive 
issue (such as a statute of limitations de-
fense, or, as in this case, the on sale bar de-
fense) may affect the need to know what 
materials were reviewed to prepare for de-
sition. (3) When the events took place. 
Whether the events about which the wit-
ness will testify took place recently, or 
years ago, affects the need to know what 
materials were reviewed. The ability of a 
witness to perceive, remember, and relate 
events is fair game for cross examination, 
and a deposing attorney has a legitimate 
need to know whether the witness is testi-
fying from present memory, unaided by 
any 
review of extrinsic 
information, 
present memory "refreshed" by reference 
to other materials, or really has no present 
memory at all, and can only "testify" as to 
what is memorialized in writings prepared 
by the witness or others. The greater the 
passage of time since the events about 
which the witness will testify, the more 
Page 17 
likely that the witness needed to refresh his 
or her recollection to prepare for testimony. 
(4) When the documents were reviewed. 
As noted, Fed.R.Evid. 612 only applies to 
use of documents to refresh recollection for 
purposes of providing testimony. Thus, re-
view of documents for purposes other than 
deposition or trial testimony is exempt 
from the rule. In complex cases, or cases 
involving many documents, counsel may 
have many occasions to review with clients 
documents which relate to the issues in the 
litigation, such as preparation of pleadings 
or motions, responding to Fed.R.Civ.P. 34 
document production requests, and devel-
opment of case strategy. Such review is not 
for purposes of providing testimony. Ac-
cordingly, if a witness reviewed documents 
months before a deposition, for a purpose 
other than to prepare to testify, disclosure 
of the documents reviewed should not be 
required in response to a Rule 612 demand. 
The nearer the review of documents to the 
date of the deposition may affect whether 
the court concludes that the purpose was to 
prepare for testimony. (5) The number of 
documents reviewed. Whether a witness re-
viewed hundreds of documents, as opposed 
to a few critical ones, *470 may affect the 
decision whether to order the disclosure of 
work product materials in response to a 
Rule 612 demand. If an attorney has culled 
through thousands of documents to identify 
a population of several hundred which are 
most relevant to the litigation, and the wit-
ness reviews these documents to prepare 
for the deposition, a court may be less in-
clined to order the production of such work 
product than if the witness reviewed a 
single document, or very few documents, 
selected by the attorney which relate to a 
critical issue in the case /tap (6) Whether 
the witness prepared the document(s) re-
viewed. If the witness prepared the docu-
ment (s) reviewed in preparation for the de-
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Page 19 of 25 
183 F.R.D. 458, 51 Fed. R. Evid. Sew. 35 
(Cite as: 183 F.R.D. 458) 
3. Analysis 
Five witnesses are implicated by the 
pending motion: Edgar J. Sharbaugh, Dr. 
Robert Henderson, Robert Picard Todd 
Henderson, and Jeffrey Fara. reflendants 
motion to compel, Paper no. 145, at 2-7). 
Sharbaugh is co-owner of Nutramax, and 
vice-president of marketing. He was de-
posed as a designee of Nutramax, pursuant 
to Fed.R.Civ.P. 30(b)(6) regarding a num-
ber of subjects, including the creation, re-
tention and destruction of documents, the 
existence of records regarding purchase 
and sales transactions of the plaintiff, as 
well as product identification and sales in-
formation of the company between 1991 
and 1993. Id. at 2-3. Dr. Henderson is a 
co-owner and the president of Nutramax. 
He is the inventor of the two patents which 
are the subject of this litigation, and was 
*471 deposed as a rule 30(6)(6) designee 
regarding the first combination of ingredi-
ents of Cosamin, the subject of the patents, 
as well as the first purchase dates of the in-
gredients for Cosamin, and its first sale and 
use. Id. at 3. Picard is a shipping clerk for 
the plaintiff, and apparently was not de-
posed as a designee witness. Id. at 4. Todd 
Henderson Dr. Henderson's son, is a co-
owner of Nutramax, and a vice-president, 
in charge of its veterinary science division. 
He signed the plaintiffs interrogatory an-
swers, and testified as a fact witness, not as 
a Rule 30(b)(6) designee. Id. The final wit-
ness, Jeffrey Fara, is a longstanding friend 
of Dr. Henderson, who assertedly pur-
chased Cosamin on March 27, 1992, just 
days before the critical date of March 31, 
1992. Id. at 6-7. Excerpts from the depos-
itions of Sharbaugh, Dr. Henderson, and 
Picard were provided as attachments to the 
plaintiffs motion. None were provided 
with respect to Todd Henderson and Jef-
frey Fara. 
Page 19 
Pursuant to my order dated October 22, 
1998, (Paper no. 158), the plaintiffs 
provided me with a notebook containing 
the documents used to prepare the forego-
ing witnesses for their depositions. I re-
viewed these documents in camera. They 
remain under seal, and the defendants have 
not seen them. The notebook contains 41 
documents. Plaintiffs further provided a 
helpful chart listing the documents used to 
prepare each of the witnesses. Eleven were 
used to prepare Sharbaugh 32 to prepare 
Dr. Henderson, five for Picard, two for 
Todd Henderson, and nine for Fara. With 
the exception of document no. 23, for 
which the attorney client privilege was as-
serted, plaintiffs state that all of the docu-
ments contained in the notebook have been 
produced to the defendants during discov-
ery/am) (Paper no. 150, at p. 7). 
FN23. During the hearing held on 
December 4, 1998, counsel for the 
defendants acknowledged that the 
defendants do, at present, have all 
of the disputed documents, except 
no. 23, but asserted that some of 
these documents, relating to Dr. 
Bucci, a non-party witness, were 
not provided to the defendants until 
after the Sharbaugh and Dr. Hende-
rson depositions. Because I am or-
dering the production of the docu-
ments used to prepare both of these 
witnesses, (except for document no. 
23), as well as the limited reopening 
of their depositions, it is not neces-
sary for me to separately consider 
the significance of the fact that 
some of the "Bucci documents" 
were not produced until after Dr. 
Henderson's deposition. However, 
to the extent that documents were 
produced by the defendants after 
Dr. Henderson's deposition which 
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183 F.R.D. 458,51 Fed. R. Evid. Serv. 35 
(Cite as: 183 F.R.D. 458) 
accordingly, demonstrated the first two ele-
ments of Rule 612, and, concomitantly, for 
purposes of work product doctrine analys-
is, 
that 
the 
documents 
selected 
by 
plaintiffs attorneys for him to review were 
used by Sharbaugh for a testimonial pur-
pose. Whether they must be disclosed, as 
demanded by the defendants, turns on the 
third element of Rule 612, the balancing 
test, and an evaluation of the factors identi-
fied above. 
Sharbaugh was a Rule 30(b)(6) design-
ee, and therefore his testimony was not 
limited to facts personally known to him, 
but also to those reasonably available to the 
plaintiff. Fed.R.Civ.P. 30(bX6). Because of 
this, the defendants had a heightened need 
to discover the factual basis for his testi-
mony. This was underscored by the fact 
that he testified as to issues which are po-
tentially case determinative
and events 
which took place more than Avefi  years ago. 
Sharbaugh's ability to perceive, remember 
and relate these events, which are highly 
relevant to his credibility, are legitimate 
areas for inquiry by the defendants, partic-
ularly in light of his direct involvement in 
the destruction of documents in 1994 and 
1998 r' 
FN25. From the limited information 
provided to me, I am unable to draw 
any conclusions about whether the 
destruction of documents was inno-
cent, as plaintiff asserts, or sinister, 
as the defendants contend. See 
supra note 24. 
Sharbaugh only reviewed eleven docu-
ments, some selected by him, and others by 
plaintiffs attorneys,' and all of them 
are apparently now m the defendants' pos-
session. In other circumstances, this factor 
would 
militate 
against 
disclosure. 
However, given the fact that thousands, 
Page 21 of 25 
Page 21 
perhaps hundreds of thousands, of docu-
ments have been produced for inspection 
during discovery, it would be difficult for 
the defendants to easily determine a popu-
lation of documents which likely would be 
relevant to Sharbaugh's testimony. From 
my review of the documents in cornett'? it 
is clear that none contain "pure" opinion 
attorney work product, such as discussion 
of case strategy, litigation theories or men-
tal impressions. Finally, as noted above, 
there is no dispute that documents have 
been destroyed, both before and after the 
commencement of this litigation, which re-
late to important issues in the case. Shar-
baugh is at the center of the dispute regard-
ing these documents, and much will hinge 
on his credibility. While the outcome of 
this controversy cannot now be predicted, 
it is undeniably significant. In light of all 
of these circumstances, I conclude that use 
of the documents selected by counsel to 
prepare Sharbaugh for his deposition con-
stituted a testimonial use oft hese docu-
ments which resulted in a limited, implied 
waiver of the attorney work product doc-
trine as to them. I further fmd that the first 
two elements of Rule 612 have been met as 
to him, and that, having considered the bal-
ancing factors discussed above, it is neces-
sary in the interest of justice for the eleven 
documents used to prepare Sharbaugh be 
produced to the defendants."427 
FN26. Assuming those eleven docu-
ments had been selected by Shar-
baugh, with plaintiffs attorneys talc-
ing no part in that selection, such a 
situation would not implicate the 
work product doctrine, and there-
fore, disclosure would be warranted 
based solely on Fed.R.Evid. 612. 
FN27. Plaintiff also asserted the at-
torney client privilege as an inde-
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183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 
(Cite as: 183 F.R.D. 458) 
the inventor of this product and, presum-
ably, a significant actor in the events sur-
rounding the first use and sale, is of great 
importance, his testimony as a designee re-
quired him to provide information based on 
information reasonably available to the 
plaintiff. Fed.R.Civ.P. 30(bX6). Dr. Hende-
rson admitted that it was possible that the 
first use and sale of Cosamin occurred be-
fore March 311 1992, and that he "flat out" 
did not know if it was offered for sale be-
fore that date. In such circumstances, the 
ability to have questioned him in more de-
tail about the events of that time using doc-
uments prepared in the ordinary course of 
business was of unquestionable importance 
to defendants. Combined with the fact that 
the 
overwhelming 
majority 
of 
the 
plaintiffs own records relating to that time 
apparently have been destroyed by Nut-
ramax, the defendant's need for access to 
the documents which Dr. Henderson re-
viewed for purposes of testing his memory 
cannot be understated. It is all too easy for 
a witness to testify that his recollection is 
vague, as did Dr. Henderson, and to give 
the appearance of candor by acknow-
ledging the possibility of the occurrence of 
an important event, all the while maintain-
ing that it cannot be conceded that it actu-
ally did. Rigorous cross examination is 
needed to test such self-serving statements 
by focused, analytical questioning, using 
contemporaneously prepared documents, if 
available, to test the witness's assertions. 
Without the use of such documents, or oth-
ers which might have assisted if they had 
not been destroyed by the plaintiff, the de-
fendants were at a clear *474 disadvantage. 
Additionally, from my review of the docu-
ments in camera? it is clear that none con-
tain "pure" opinion attorney work product, 
such as discussion of case strategy, litiga-
tion theories or mental impressions. There-
fore, the first four, seventh and ninth 
Page 23 of 25 
Page 23 
factors overwhelmingly militate in favor of 
disclosure. 
The remaining factors are either neut-
ral, or do not sufficiently undermine the ar-
gument for disclosure to change the out-
come of the analysis. With the exception of 
document 23, which clearly is exempt from 
disclosure under the attorney client priv-
ilege, none of the documents reviewed by 
Dr. Henderson contain "pure" opinion 
work product. Accordingly, I conclude that 
with respect to the 32 documents used to 
prepare Dr. Henderson for his deposition, 
all except no. 23 are discoverable. Having 
been put to a testimonial use, a limited, im-
plied waiver of work product immunity has 
occurred, and the first two elements of 
Rule 612 have been met. The third element 
of that rule, the balancing of factors, also 
strongly supports disclosure of these docu-
ments in the interests of justice. 
[8] Robert Picard testified, apparently 
as a fact witness, and not a rule 30(b)(6) 
designee Nu He admitted meeting with 
counsel for the plaintiff within weeks of his 
deposition to prepare for it, and reviewing 
documents, although the details regarding 
this review were not disclosed because 
counsel for Nutramax instructed him not to 
answer 
these 
questions. 
When 
asked 
whether his review of the documents re-
freshed his recollection with respect to the 
events surrounding them, he stated that it 
did not. (Paper No. 145, Ex. E at 89-93, 
159-60, Picard deposition, July 29, 1998). 
Having read the five documents which Pi-
card did review, it is understandable why 
he denied that they assisted in his recollec-
tion of the events surrounding the first sale 
of Cosamin. Accordingly, I conclude that 
the first element of Rule 612 has not been 
established, making the documents not sub-
ject to discovery. -Nevertheless, were I to 
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Page 25 of 25 
Page 25 
183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 
(Cite as: 183 F.R.D. 458) 
ments used to prepare the depos-
ition witnesses who are •the subject 
of this dispute, or the identification 
of the documents used to prepare 
each of those witnesses. 
CONCLUSION 
In conclusion, the eleven documents *e-
1 
viewed by Sharbaugh, and the documents 
reviewed by Dr. Henderson, except for no. 
23, shall be disclosed. The motion to com-
pel as to Picard, Todd Henderson and Fara 
is denied. Plaintiffs will make the ordered 
disclosures within 14 days of this order. In 
addition, I will permit a limited reopening 
of the depositions of Sharbaugh and Dr. 
Henderson to permit defendants to examine 
them further regarding their use of the doc-
uments I have ordered disclosed, and to 
further test their memories in light of these 
documents. Counsel will, within 14 days of 
this order, contact my chambers to sched-
ule a telephone conference call to discuss 
the limits of these depositions. 
D.Md.,1998. 
Nutramax Laboratories, Inc. I. Twin 
Laboratories Inc. 
183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 
END OF DOCUMENT 
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Page 1 of 16 
Westlaw 
Page 1 
537 F.Supp.2d 761 
(Cite as: 537 F.Supp.2d 761) 
United States District Court, 
D. Maryland. 
CONTINENTAL CASUALTY COM-
PANY, et l, Plaintiffs, 
UNDER ARMOR , INC., Defendant. 
No. 06 CV 3224 CCB. 
Feb. 13, 2008. 
Background: In declaratory judgment ac-
tion, three insurance companies sued their 
insured, seeking a determination that they 
were not obligated to defend or indemnify 
it in connection with litigation brought 
against insured by two Nevada corpora-
tions. Insured filed motion for a ruling re-
garding what use, if any, it could make of a 
file it received from its independent insur-
ance broker, containing copies of claims 
notes allegedly containing attorney client 
privileged and work product protected 
communications from insurers' counsel, 
which erroneously had been posted in the 
wrong location by insurers' el-aims special-
ist on insurers' website. 
Holdings: The District Court, Paul W. 
Grimm, United States Magistrate Judge, 
held that: 
(1) attorney-client privilege was waived by 
insurers' claims specialist's inadvertent 
posting of insurers' privileged communica-
tions on insurers' website, and 
(2) insurers' inadvertent posting of work 
product, prior to the filing of lawsuit, on a 
website to which insurers' adversary had 
been given access, waived work product 
protection. 
Order in accordance with opinion. 
West Headnotes 
111 Federal Courts 170B €=416 
170B Federal Courts 
170BVI State Laws as Rules of De-
cision 
170BVI(C) Application to Particular 
Matters 
170Bk416 k. Evidence law. Most 
Cited Cases 
In declaratory judgment action bot-
tomed on diversity of citizenship, state law 
governed issue as to whether attorney-cli-
ent privilege was waived by insurers' 
claims specialist's inadvertent posting of 
insurers' privileged communications on in-
surers' website. Fed.Rules Evid.Rule 501, 
28 U.S.C.A. 
121 Privileged Communications and Con-
fidentiality 311H €168 
31111 
Privileged 
Communications and 
Confidentiality 
311HIII Attorney-Client Privilege 
311Hk168 k. Waiver of privilege. 
Most Cited Cases 
(Formerly 410k219(3)) 
In declaratory judgment action seeking 
determinations of insurers' obligation to 
defend or indemnify insured, attorney-cli-
ent privilege was waived under Maryland 
law by insurers' claims specialist's inad-
vertent posting of insurers' privileged com-
munications on insurers' website; the dis-
closure to insured and its insurance broker 
was a result of the voluntary, albeit inad-
vertent, acts by claims specialist, and not 
because of any wrongdoing by insured, or 
its insurance broker. 
13] Federal Civil Procedure 170A €=, 
1604(2) 
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Page 2 of 16 
Page 2 
537 F.Supp.2d 761 
(Cite as: 537 F.Supp.2d 761) 
170A Federal Civil Procedure 
170AX Depositions and Discovery 
170AX(E) Discovery and Production 
of Documents and Other Tangible Things 
170AX(E)3 
Particular 
Subject 
Matters 
170Ak1604 
Work 
Product 
Privilege; Trial Preparation Materials 
170Ak1604(2) k. Waiver. 
Most Cited Cases 
(Formerly 170Ak1600(5)) 
Waiver of the attorney-client privilege 
for a communication does not automatic-
ally waive whatever work-product im-
munity that communication may also en-
joy. 
[4] Federal Courts 1708 C416 
170B Federal Courts 
170BVI State Laws as Rules of De-
cision 
170BVI(C) Application to Particular 
Matters 
170Bk416 k. Evidence law. Most 
Cited Cases 
In a diversity case, court applies federal 
law to resolve work product claims. 
Fed.Rules 
Civ.Proc.Rule 
26(b)(3), 
28 
U.S.C.A. 
[5j 
04( 
Federal Civil Procedure 170A €=+ 
16
2) 
170A Federal Civil Procedure 
170AX Depositions and Discovery 
170AX(E) Discovery and Production 
of Documents and Other Tangible Things 
170AX(E)3 
Particular 
Subject 
Matters 
170M1604 
Work 
Product 
Privilege; Trial Preparation Materials 
170Ak1604(2) k. Waiver. 
Most Cited Cases 
(Formerly 170AJc1600(5)) 
Disclosing party's work product priv-
ilege will be deemed waived only if such 
disclosure substantially increases the pos-
sibility that an opposing party could obtain 
the 
information 
disclosed. 
Fed.Rules 
Civ.Proc.Rule 26(bX3), 28 U.S.C.A. 
161 Federal Civil Procedure 170A C
1604(2) 
170A Federal Civil Procedure 
170AX Depositions and Discovery 
170AX(E) Discovery and Production 
of Documents and Other Tangible Things 
170AX(E)3 
Particular 
Subject 
Matters 
170Ak1604 
Work 
Product 
Privilege; Trial Preparation Materials 
170Mc1604(2) k. Waiver. 
Most Cited Cases 
(Formerly 170Ak1600(5)) 
Insurers' inadvertent posting of work 
product, prior to the filing of lawsuit, on a 
website to which insurers' adversary had 
been given access, waived work product 
protection. 
Fed.Rules 
Civ.Proc.Rule 
26(b)(3), 28 U.S.C.A. 
[7] Federal Civil Procedure 170A €=, 
1604(2) 
170A Federal Civil Procedure 
170AX Depositions and Discovery 
170AX(E) Discovery and Production 
of Documents and Other Tangible Things 
170AX(E)3 
Particular 
Subject 
Matters 
170Ak1604 
Work 
Product 
Privilege; Trial Preparation Materials 
170Ak1604(2) k. Waiver. 
Most Cited Cases 
(Formerly 170Ak1600(5)) 
Disclosure of work product to an agent 
0 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 
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537 F.Supp.2d 761 
(Cite as: 537 F.Supp.2d 761) 
is tantamount to disclosure to the principal, 
for purpose of waiver of the privilege. 
*762 David P. Durbin, D. Stephenson 
Schwinn, Jordan Coyne and Savits LLP, 
Washington, DC, Arthur J. Mccolgan, II, 
Ryan M. Henderson, Walker Wilcox Mat-
ousek LLP, Chicago, IL, for Plaintiffs. 
Michael Thomas Sharkey, Andrew M. 
Weiner, Dickstein Shapiro LLP, Washing-
ton, DC, for Defendant. 
MEMORANDUM AND OPINION 
PAUL W. GRIMM, United States Magis-
trate Judge. 
In this declaratory judgment action, 
three insurance companies, Continental 
Casualty Company, Transcontinental Insur-
ance Company, and Valley Forge Insur-
ance*763 Company, collectively referred 
to as "CNA", sued their insured, tinder Ar-
mour, Inc., seeking a determination that, 
under a series of insurance policies issued 
to Under Armour, they are obligated 
neither to defend nor indemnify it in con-
nection with litigation brought against Un-
der Armour by two other companies, To-
polewski America Inc., and Metal Jeans, 
Inc. The case has been assigned to me to 
resolve all discovery disputes. Paper No. 
33. The pending dispute involves Under 
Armour's motion for a ruling regarding 
what use, if any, it may make of a .pdf file 
it received from its independent insurance 
broker, Frenkel and Company, ("Frenkel") 
containing copies of claims notes allegedly 
containing attorney client privileged and 
work product protected communications 
from CNA's counsel, which erroneously 
had been posted in the wrong location by 
the CNA claims specialist assigned to the 
Under Armour claim on a CNA website, 
cnacentral.com. Frenkel was authorized by 
CNA to access and read the claims notes 
Page 3 
for "its own individual use" by a Terms of 
Service Agreement it entered into with 
CNA. As to these allegedly privileged and 
protected materials, Under Armour con-
tends that neither the attorney client priv-
ilege nor work product doctrine is applic-
able, or, if applicable, that they have been 
waived. CNA asserts that the claims notes 
at issue are privileged and protected, and 
that there has been no waiver. 
The motion has been fully briefed in 
Papers No. 27, 28, 29, 39, and 40 and the 
parties have stipulated that Maryland law 
governs, Paper No. 37. On January 14, 
2008, a hearing was held in court during 
which I assumed? without deciding, that the 
claims notes at issue were both privileged 
and work product protected, but ruled that 
both the privilege and protection had been 
waived, Paper No. 41. Although I fully ex-
plained the basis for my ruling during the 
hearing, I reserved the right to supplement 
the ruling with a written memorandum and 
opinion, to provide guidance to counsel in 
other cases regarding the recurring difficult 
issues raised by this dispute. This memor-
andum and order serves this purpose. 
Background 
CNA issued four insurance policies to 
Under 
Armour-two 
general 
liability 
policies and two umbrella policies. Compl., 
Paper No. 1,1 19. In February 2006, Under 
Armour was sued by two Nevada corpora-
tions, Topolewski America, Inc., and Metal 
Jeans, Inc., in the United States District 
Court for the Central District of California. 
Compl., Paper No. 1, 11 9-10. The lawsuit 
asserted multiple causes of action, includ-
ing allegations that Under Armour had in-
fringed trademarks held by Topolewski and 
Metal,, and was selling clothing and ac-
cessories under a logo that was confusingly 
similar to their own. Id at 1 11. The law-
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