Mitura v. Finco Services, Inc.

Background

Isabelle Mitura brought claims against Finco Services, Inc., doing business as Current, and Stuart Sopp and Alex Sergiyenko. The opinion states that Mitura alleged discrimination and retaliation under federal, state, and city law, including claims based on gender, age, race, and familial status, as well as retaliation after she complained about harassment and gender-pay disparities.

The discovery dispute concerned Isabelle Berner, a non-party witness who had worked as a Product Manager at Current from August 2015 through May 2016. Berner signed a declaration on July 18, 2024, and Mitura produced that executed declaration to the defendants. The defendants also sought communications and documents between Mitura, people acting for her, or her attorneys and Berner, including drafts of the declaration.

Parties’ Positions

The defendants sought production of the communications and draft materials. Mitura opposed production, arguing that the materials were protected by the work-product doctrine, which generally protects materials prepared for litigation. The court ordered Mitura to provide the materials for private judicial review.

Legal Standard

Federal Rule of Civil Procedure 26(b)(3) generally protects documents and tangible things prepared in anticipation of litigation or for trial by or for a party or its representative. A party seeking protected material may obtain it only by showing a substantial need to prepare its case and an inability to obtain the substantial equivalent without undue hardship. The party asserting work-product protection bears the burden of showing that the doctrine applies.

The court explained that attorney drafts of affidavits or declarations are classic work product. Drafts that a witness did not adopt or sign do not lose that protection merely because the witness later signed a final version that was used in the litigation. The protection generally also covers an attorney’s communications with a third-party witness about completing the declaration.

Analysis and Ruling

After reviewing the draft versions of Berner’s declaration and the communications between Mitura’s counsel and Berner, the court found that Mitura had shown that the materials were covered by the work-product doctrine. The court also found that the defendants had not shown a substantial need for the materials or that they could not obtain the equivalent information through other means without undue hardship.

The court therefore ruled that Mitura need not produce the communications with Berner or the drafts of Berner’s declaration because they were protected by the work-product doctrine. Stewart D. Aaron, United States Magistrate Judge, entered the order.