Kulik v. United States

          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 ...