THOMAS E. MORRIS, Magistrate Judge.
This case came before the Court on March 19, 2012 for a telephonic hearing on Plaintiff's Motion to Compel and Memorandum of Law in Support (Doc. #22, Motion to Compel) and Defendant Fifth Third Bank's Memorandum of Law in Opposition to Everbank's Motion to Compel Regarding the Repurchase Database (Doc. #28, Response).
Plaintiff seeks to compel production of the information contained within Defendant's "Repurchase Database" that pertains to the approximately eighty-two loans which form the basis for the instant litigation.
As in many discovery disputes, both sides have made valid arguments and have cited to persuasive authority for their respective positions. As an alternative to producing the information from the Repurchase Database, Defendant contends Plaintiff should accept a spreadsheet prepared by Defendant's personnel, which Defendant states summarizes the discoverable information from the Repurchase Database. Defendant's Response at 2. Fifth Third urges the Court to accept the spreadsheet as "substantially equivalent to the information contained in the Database." Id. Defendant's argument ignores that the parties are entitled to broad discovery and are not limited to acceptance of substitute information prepared by the opposing side. See, e.g., United States v. Wright Motor Co., 536 F.2d 1090, 1095 (5
Motions to compel disclosures and other discovery under Rule 37(a) are committed to the sound discretion of the trial court. Commercial Union Insurance Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984); Wu v. Thomas, 996 F.2d 271, 275 (11
The work product doctrine protects the work of an attorney from encroachment by opposing counsel. Hickman v. Taylor, 329 U.S. 495 (1947); Palmer v. Westfield Ins. Co., No. 5:05-CV-338-Oc-10GRJ, 2006 WL 2612168 (M.D. Fla. Jun. 30, 2006).
Work product immunity attaches to documents that are prepared by attorneys and their agents in anticipation of litigation. Hope for Families & Community Serv., Inc. v. Warren, No. 3:06-CV-1113-WKW, 2009 WL 1066525, at *8-9 (M.D. Ala. Apr. 21, 2009). Documents that would have been prepared in the normal course of business, irrespective of whether or not an attorney was sent a copy, are not privileged as attorney-client communications or work product. Freiermuth v. PPG Indus., Inc., 218 F.R.D. 694, 700 (N.D. Ala. 2003). Additionally, the fact a party retains an attorney, or initiates an investigation, or engages in negotiations over a claim is not determinative per se as to whether litigation was anticipated. Id. at 700. The Court will weigh all relevant facts in determining the proper application of privileges to documents sought in discovery. However, once established, the qualified privilege of work product can be rebutted only if the party can demonstrate both a substantial need for materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Fed. R. Civ. P. 26(b)(3).
Some courts have recognized documents may have a dual purpose, wherein the record generally may have been prepared in the normal course of business but in a particular instance was prepared in anticipation of litigation at the direction of legal counsel for counsel's use in the anticipated lawsuit. See Hope for Families, 2010 WL 1066525 at *8 (discussing Haugh v. Schroder Inv. Mgmt. North America, Inc., No. 02CIV7955DLC, 2003 WL 21998674 (S.D.N.Y. Aug. 25, 2003) for the proposition that a consultant-prepared press release held the "dual purpose" of developing both media and litigation strategies and therefore fell within the work product doctrine); In re Trasylol Prod. Liability Litigation, No. 08-1928-MDL, 2009 WL 2575659, at * 4 (S.D. Fla. Aug. 12, 2009) (stating "dual purpose" documents created because of the "prospect of litigation' may be entitled to work product protection even though the documents were also prepared for business reasons).
The record in this case reveals Defendant Fifth Third Bank has used the Repurchase Database in the normal course of its business for a number of years which predate the initiation of this lawsuit. See Motion to Compel at Docket Entry 22-10 (deposition excerpt of Ms. Jennifer Bryan, stating the Access database was also known as the Repurchase Database and had existed during her employment at Fifth Third since 2007); Defendant's Response at 1 (stating the Repurchase Database was revised in 2009 so Fifth Third employees could enter comments). The database is a dynamic depository of information related to specific loans, including those loans underlying this litigation.
While individual paper documents may be prepared solely in the normal course of business or solely in anticipation of litigation, the ongoing, dynamic nature of electronic databases creates the potential for hybrid documents. Hybrid documents may be created in the normal course of business initially, but through amendments, additions and changes become documents created in anticipation of litigation later, particularly if the documents are maintained in electronic format. A database containing both information entered in the normal course of business and information that was entered in the anticipation of litigation may be subject to limited work product privilege. Conceivably, the information entered at the direction of legal counsel would be subject to work product privilege if it would reveal the legal strategies or theory of the case upon which counsel intends to rely. See Regency of Palm Beach, Inc. v. QBE Ins., 259 F.R.D. 645, 649-50 (S.D. Fla. 2009) (citing to Hickman v. Taylor, 329 U.S. at 510-11).
Any database that contains an easily recognizable time line of data entry, may have discoverable information up to the date data was entered under direction of legal counsel for use in litigation by legal counsel. The Repurchase Database fits this description. The Court's in camera review of ten disputed loans reveals there are data entries made by Fifth Third employees that contain information subject to immunity from production to Everbank under the work product doctrine.
Although it does not appear the Eleventh Circuit has specifically defined the meaning of the phrase "prepared in anticipation of litigation," the former Fifth Circuit has stated that "litigation need not necessarily be imminent . . . as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation." In re Trasylol, 2009 WL 2575659 at *4 (quoting United States v. Davis, 636 F.2d 1028, 1040 (5
Here, the Court finds it was subjectively reasonable to anticipate litigation on the subject repurchase loans after December 1, 2008, the date on which Fifth Third's Director of Credit Risk Controls sent an email to personnel at Everbank advising, "yours (sic) and Fifth Third's legal teams are debating" the repurchase demands and "inquiries can be addressed through your legal department to ours." Defendant's Response at Docket Entry 28-1, p.1.
Thus, upon consideration of the instant motion, the response and the argument of the parties as stated in the memoranda and at the hearing, the Court finds Plaintiff's Motion to Compel is due to be
Accordingly, Defendant is directed to print the information from the Repurchase Database for each of the loans in dispute in this litigation. After producing this data in printed form, Defendant may redact from the "Repurchase Data: Comments Form" entries that were made on or after December 1, 2008