In Deegan v. Nexstar Broadcasting, Inc., Case No. 14-1419-J-39 (M.D. Florida, Nov. 18, 2015), a TV meteorologist filed a defamation suit against a local television station, alleging that the station posted a photo of him in a story about a sex offender with the same name. During discovery, Plaintiff sought production of emails from certain employees and officers of Defendant but Defendant refused to produce the emails. Plaintiff moved to compel Defendant to produce the emails. Defendant claimed the work product protection applied, and submitted the withheld emails to the court for in camera review.
The court noted that FRCP 26 provides work product protection over documents prepared in anticipation of or during litigation unless the documents would otherwise be discoverable and the party requesting them shows “substantial need” of the materials to prepare its case and could not obtain the “substantial equivalent” by other means without undue hardship. The party withholding the documents has the burden to describe the documents in a way that will allow the other party to assess the claim without revealing privileged information. The court noted that this can be achieved with a detailed privilege log.
In this case, Defendant did not dispute the relevance of the emails, and the court found that Plaintiff had no basis for arguing that they were not work product. The court then had to decide whether Defendant had waived the work product protection and whether Plaintiff had shown that production was warranted. The court found that Defendant did not waive the privilege based upon the conduct of the parties throughout discovery and Plaintiff’s own imperfect actions in the case but concluded that Plaintiff had shown a substantial need for Defendant to produce emails and an inability to obtain the information elsewhere. Therefore, the court granted the motion to compel production of the emails.