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Bugs in the Office
Consider the following situation: An employee anticipates that his employment is about to be terminated, for what he believes to be discriminatory or otherwise unlawful reasons. After consulting with an attorney, he decides to tape-record conversations with his supervisors, in the hopes of recording a “smoking gun” comment. A short time later, the employee is terminated, and he later commences litigation in federal court against his employer. In that lawsuit, is the employer entitled to obtain copies of the tape recordings through discovery, or are the recordings protected as work product because they were made in anticipation of litigation? If the recordings are discoverable, is the employee nonetheless entitled to withhold producing them until after his supervisor has been deposed? Courts in New York and elsewhere have reached a consensus on the first question, but not the second.
Are the Recordings Discoverable?
The countervailing interests at issue in this situation are laid out in Rule 26 of the Federal Rules of Civil Procedure. On one hand, because the tape recordings were made in anticipation of litigation, they arguably constitute work product, and thus would be discoverable only upon a showing of substantial need and inability to obtain equivalent information by the employer, pursuant to Rule 26(b)(3). Given that the employer can simply speak with the supervisor to determine what was said to the former employee, it would be difficult for the employer to argue that it could not obtain the substantial equivalent of the tape-recorded statement. It should be noted that work product protection in this situation would not turn on whether the employee's attorney advised the employee to make the recordings. Indeed, Rule 26(b)(3) protects not only material prepared in anticipation of litigation by a party's attorney, but also material prepared by the party.
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