Abrahami v. Meister Seelig & Fein LLP

Background

Avishai Abrahami moved to compel Meister Seelig & Fein LLP (MSF) and Daniel J. Dwyer to produce a document that the defendants withheld as protected work product. Dwyer prepared the document on February 1, 2021. It described a timeline of Abrahami’s retention of MSF and Dwyer and their representation of him in the loan transaction underlying the action, through January 30, 2021, when malpractice litigation was anticipated.

Abrahami argued that the document was created during the attorney-client relationship because he had not yet formally terminated Dwyer and MSF. He therefore contended that the document was created as part of the representation and belonged to him. Dwyer argued that he prepared it for the defendants’ benefit in anticipation of litigation.

Legal standard

Federal law governs the work product doctrine, which is set out in Federal Rule of Civil Procedure 26(b)(3). The doctrine protects documents and tangible things prepared by a party or the party’s attorney because of anticipated litigation. It does not protect materials prepared in the ordinary course of business that would have been created in substantially the same form regardless of litigation.

Opinion work product—an attorney’s mental impressions, conclusions, opinions, and legal theories—receives heightened protection. Fact work product, such as factual investigation materials, may be disclosed when the requesting party shows substantial need and cannot obtain equivalent information without undue hardship. The party withholding the document bears the burden of showing that the doctrine applies.

Court’s analysis

The court rejected the argument that work product protection depended on whether the attorney-client relationship was still in existence. Instead, the relevant questions were whether the document was prepared in anticipation of litigation and whether it would have been prepared in substantially the same form without the prospect of litigation. The court also noted that Rule 26(b)(3) contains no exception for documents created during an attorney-client relationship or for legal-malpractice cases.

The court distinguished the attorney-client privilege, which neither party claimed for this document and which the court said would be governed by New York law because the action was based on diversity jurisdiction. The court applied federal law to the work product issue.

After reviewing the document in camera, meaning privately and outside the parties’ presence, the court found that it was work product. The document was not prepared for Abrahami or for use in the underlying loan transaction. Instead, Dwyer had stopped working for the firm, the prospect of malpractice litigation was clear, and the document consisted of Dwyer’s notes and a timeline prepared as a reference for discussions with prospective malpractice counsel. The court found that it would not have been prepared without the prospect of litigation.

The court also found that Abrahami had not shown a substantial need for the document. It concluded that factual information such as key dates in the loan representation could be obtained from other sources.

Disposition

The court denied Abrahami’s motion to compel production of the document.