Brown v. Northrop Grumman Corp.
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Magistrate Judge E. Thomas Boyle
Northrop Grumman's representative Cunningham attended Brown's deposition. It was anticipated that Brown's testimony would concern technical issues about which Cunningham could provide counsel with assistance and expertise. The magistrate judge denied Brown's motion to compel production of Cunningham's handwritten notes taken during her deposition. Although Cunningham confirmed he took the subject notes of his own violation, the magistrate judge deemed the notes privileged as attorney work product. Cunningham testified that he took the notes "to support counsel," "after discussing with counsel" for purposes of "sharing with counsel" and "being able to discuss with counsel during breaks" in Brown's deposition. Northrop Grumman's counsel's sworn affidavit confirmed she asked Cunningham to take notes during Brown's deposition so as to assist in her trial preparation and questioning of witnesses. Further, Cunningham's notes were shown to be opinion work product—shielded from disclosure even when a party has shown a substantial need for the documents at issue—because they contained his thoughts and impressions about Brown's deposition testimony.