United States District Court, D. Alaska
ORDER AND OPINION [Re: Motion at Docket 22]
JOHN
W. SEDWICK, Senior District Judge.
I.
MOTION PRESENTED
In this
medical malpractice case, plaintiff Melissa Kulik
("Kulik") moves at docket 22 for an order
compelling defendant United States of America ("United
States") to produce witness statements from eleven
healthcare providers pursuant to Federal Rule of Civil
Procedure 37. The United States opposes at docket 29. Kulik
replies at docket 36. Oral argument was not requested and
would not assist the court.
II.
BACKGROUND
According
to the complaint, while Kulik was 36 weeks pregnant and
receiving prenatal care from the Alaska Native Medical Center
("ANMC") she suffered a stroke that caused her
permanent brain damage and physical deficits.[1] The complaint
alleges that her stroke was caused by the malpractice of ANMC
medical providers. Kulik filed the complaint in state court,
and the United States removed it to this court pursuant to 28
U.S.C. § 1346(b)(1).
After
the complaint was filed, a number of Kulik's healthcare
providers wrote "practitioner
narratives"[2] at the request of the Office of the
General Counsel ("OGC") for the United States
Department of Health and Human Services.[3] The cover letter
that accompanied the request states that the narrative
statements would give the providers a chance to "answer
the allegation of negligence" by explaining their care
and would be used by the OGC attorney and the U.S. Attorney
in litigation.[4] The instant discovery dispute arose
when the United States withheld production of the
practitioner narratives, claiming they are protected by the
work-product privilege.[5]
III.
STANDARD OF REVIEW
If a
party fails to make disclosures or cooperate in discovery,
the requesting party may move to compel.[6] "The party who
resists discovery has the burden to show that discovery
should not be allowed, and has the burden of clarifying,
explaining, and supporting its
objections."[7]
IV.
DISCUSSION
A.
Work-Product Protection is Unavailable
The
federal work-product doctrine traces its origins to the
Supreme Court's 1947 decision in Hickman v.
Taylor .[8] The Hickman court struck a
balance between the liberal discovery rules that require
disclosure of "all the relevant facts gathered by both
parties, "[9] on one hand, and "unwarranted
inquiries into the files and the mental impressions of an
attorney, "[10] on the other. The rule that emerged
from Hickman is that discovery is proper where
"relevant and non-privileged facts remain
hidden in an attorney's file" and the party
requesting discovery shows that "production of those
facts is essential to the preparation of" his or her
case.[11]
The
work-product rules are now codified at Rule 26(b)(3) of the
Federal Rules of Civil Procedure, which sets out the general
rule that a party "may not discover documents and
tangible things that are prepared in anticipation of
litigation or for trial by or for another party or its
representative."[12] There is an exception to this
rule, however, where the requested materials are otherwise
discoverable under Rule 26(b)(1) and the party requesting
them shows that "it has substantial need for the
materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other
means."[13]
The
party asserting the work-product privilege bears the initial
burden of proving that the privilege applies. If it does so,
the burden shifts to the requesting party to show (1) the
substantial need for the materials and (2) the inability to
obtain their substantial equivalent without undue
hardship.[14]
1.
Qualified work-product protection applies
The
United States has established that qualified work-product
protection applies here because the witness statements are
documents that were prepared in anticipation of litigation by
or for the United States.[15] Kulik argues that the
statements cannot be covered by the work-product privilege
because they contain no mental impressions of counsel, but
this argument finds no support in the text of Rule 26(b)(3).
"Under Rule 26(b)(3), it is clear that all documents and
tangible things prepared by or for the attorney of the party
from whom discovery is sought are within the qualified
immunity given to work product, so long as they were prepared
in anticipation of litigation or preparation for
trial."[16] "Like other activities
necessary to ...