UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: April 6, 1989.
NATIONAL LABOR RELATIONS BOARD, PETITIONER
BUILDING AND CONSTRUCTION TRADES COUNCIL OF PHILADELPHIA AND VICINITY, AFL-CIO, RESPONDENT AND PATRICK GILLESPIE, ADDITIONAL RESPONDENT, IN CONTEMPT
PRESENT: P. Douglas Sisk, (Special Master)
Presented for consideration is the motion of Petitioner, National Labor Relations Board (N.L.R.B. or Board), for the issuance of a protective order pursuant to Rule 26(c)(1), Federal Rules of Civil Procedure, directing that the deposition of Regional Director Peter Hirsch not be taken and that certain documents sought in Respondent's second request for production of documents not be divulged. Respondents, Building and Construction Trades Council (B.C.T.C.) and Patrick Gillespie, have filed an answer in opposition. Additional argument was offered by the parties during a discovery hearing on March 31, 1989.
Deposition of Peter Hirsch
On or about February 15, 1989, counsel for Respondent served a notice to take the deposition of Regional Director Peter Hirsch. The Board seeks a protective order asserting, pertinently, that there is no legitimate reason to depose Mr. Hirsch, that the knowledge which the Director has is the result solely of his official capacity in the Board, that examination of his thought processes is improper, and that the deliberative processes of government agencies are privileged. Further, the Board asserts that to the extent that Respondents may wish to probe the substance of any interviews the Regional Director may have had with potential witnesses or investigators, that such communications are privileged absent a showing of substantial need, and that none has been shown here. At the discovery hearing the Board further stated that whatever information which Mr. Hirsch possesses has come to him by virtue of his official capacity. Counsel for the Board maintained that any and all information available to Mr. Hirsch has been given in discovery to the extent it is properly discoverable.
Through its answer and argument offered by counsel at the discovery hearing, B.C.T.C. argues that the protection motion is premature in that Mr. Hirsch should be deposed and any objections to specific questions should be interposed at that time. Respondent contends that the deposition of Mr. Hirsch is necessary to establish facts and circumstances critical to Respondent's defense. Respondent argues that the questioning would go not to the state of mind or legal conclusions of the Director, but rather his knowledge of certain facts. Respondents' position, as set forth at the discovery hearing, is that Mr. Hirsch is needed 1) to authenticate documents*fn1, 2) to state facts relating to Mr. Hirsch's initial decision to discharge a claim relating to the Ponderosa work site, a claim which the Board has pursued in these proceedings despite the Regional Director's initial determination, and 3) to recite names of witnesses relevant to the Marriott work site.*fn2 Respondents assert, in general, that the broad latitude normally accorded in discovery should obtain here and that Respondent is not seeking discovery of thought processes, but rather facts within the knowledge and control of the Regional Director.
I will grant the Board's motion for a protective order with regard to Mr. Hirsch. In view of the Board's stipulation of authenticity of any Board documents and its provision of the list of witnesses for the Marriott work site, footnotes 1 & 2, supra, the only question is the propriety of deposing Mr. Hirsch on factual information in his knowledge, and specifically, the facts he used in determining to dismiss charges on the Ponderosa work site. It is highly improbable that the proposed inquiry could be limited to only fact and exclude work product or deliberative processes. The information within the knowledge and control of Mr. Hirsch is so intertwined with the litigation processes of the Board as to be privileged absent a showing of substantial need and inability to obtain the information by other means. Hickman v. Taylor, 329 U.S. 495, 512-513 (1946); Bogosian v. Gulf Oil Corp., 738 F.2d 587, 592-593 (3d Cir. 1984.) It is clear that in his official capacity as Regional Director, Mr. Hirsch is the recipient of information distilled from the investigations of his agents and of analysis which is clearly the work product of his attorneys and investigators. (See discussion of production of documents, infra.) To the extent that the Regional Director has factual information (barring his actual presence at the job sites, and there is no such assertion here) relevant to the inquiries, it is the distillation of the reports and thought processes of the Board's attorneys and investigators, and therefore, privileged. Hickman, supra at 511; Bogosian, supra at 592; Upjohn v, United States, 449 U.S. 383, 400 (1981) To the extent that the Regional Director could offer his opinions with respect to his dismissal of the Ponderosa claim, though certainly highly useful for Respondents, they would be irrelevant and immaterial to these proceedings, which will turn on questions of fact, such as whether specific gates were tainted. N.L.R.B v. Whittier Mills Co., 123 F.2d 725, 728 (5th Cir. 1941)
Finally, B.C.T.C. has made no serious showing of substantial need or inability to obtain the information it seeks through any other means than deposing the Regional Director. The facts surrounding the Ponderosa incident, and all other incidents, can be developed through other depositions, and the relevance and materiality of those facts will abide the eventual hearing.
Production of Documents
Petitioner also requests a protective order with respect to specific documentation sought in Respondents' second request for production of documents. Respondents seek, inter alia, production of 1) inter-agency memoranda and notes relating to the investigation and evaluation of the merits of the incidents, and 2) production of witness statements, signed or unsigned, and (3) notes taken by Board investigators while interviewing witnesses, including B.C.T.C.'s agents and representatives.
The request for inter-agency memoranda and notes, which are clearly privileged, will be denied and the protective order granted. The documents sought relate to the investigation and the evaluation of the merits of the cases, and they are protected from disclosure by the well established privilege accorded to such memoranda. N.L.R.B. v. Sears Roebuck & Co., 421 U.S. 132, 150-154 (1975); N.L.R.B. v. Sun Drug Co., 359 F.2d 408, 413 (3d Cir. 1966).*fn3
With respect to the balance of the documents, Petitioner and Respondents properly assert that their production is governed by the doctrine of Hickman v. Taylor, 329 U.S. 495 (1946); Rule 26(b)(3), Federal Rules of Civil Procedure. Briefly, work product, trial preparation material, etc., is ordinarily privileged matter, except "upon a showing that the party seeking discovery has substantial need of the 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." Rule 26(b)(3). The Court of Appeals for the Third Circuit reviewed the Hickman doctrine in Bogosian v. Gulf Oil Corp., 738 F.2d 587, 592-593 (1984). Bogosian renders it clear that the documents sought by Respondents fall squarely within the privilege explained by the Hickman Court. Unless Respondents can proffer a very strong showing of substantial need for the documents, which they can not otherwise obtain without undue hardship, their request for documentation must be denied. Bogosian, 738 F.2d at 593. Moreover, the court of appeals' analysis of Upjohn v. United States, 449 U.S. 383, 400 (1981), underscores the very strong requirement of showing necessity and unavailability to overcome the protection. Id.
Specifically, Respondents seek 1) witness statements, signed and unsigned, of B.C.T.C.'s "own" witnesses/agents and those of third parties interviewed by the Board during initial investigations, and 2) the notes and impressions of agents who interviewed the witnesses. Respondents candidly admit that they need the notes of their own agents' statements to refresh their recollections, in view of failing memories and the absence of their own notes. Further, that notes may lead to discoverable matter which will substantially reduce the amount of discovery and obviate the need for certain depositions. The Board counters, in its moving papers and during the hearing, that no affidavits exist and that all notes taken by the Board's investigators and attorneys are privileged.*fn4
Respondents reasons do not qualify as an exception to the ordinary protection afforded work product. The identity of the witnesses is known, and therefore, the information sought can be developed through the normal, though time-consuming, processes of deposition. 8 Wright & Miller 215, commenting on Rule 26(b)(3); see, Hickman, 329 U.S. at 508-9. While the goal of controlling unnecessary discovery is laudable, the salutary purpose of depositions is to discover relevant information. The mere unavailability of one's own investigative notes does not warrant disclosure of one's opponents' investigative process. Finally, the possibility of discovering information which may be useful in impeaching witnesses is not a sufficient reason to permit discovery. In Re Grand Jury Investigation, 599 F.2d 1224, 1232-33 (3d Cir. 1979).
To the extent Respondents seek third party witness statements on the theory that they were not taken in anticipation of litigation and are, therefore, not privileged, the Board's motion for a protective order will be granted. It is clear that statements taken in anticipation of a contempt proceeding are in anticipation of litigation and are privileged. Kent Corp. v. N.L.R.B., 530 F.2d 612, 623 (5th Cir. 1976.)
In light of the above, I will grant the Board's motion to preclude the deposition of Regional Director Peter W. Hirsch and the motion to preclude production of the documents set forth in the Board's motion.*fn5