Recent legislation significantly expands the scope of Louisiana’s work product privilege to include digital photographs, digital video and audio recordings, and other electronically stored information created by an attorney. Act 140 of the 2007 Regular Legislative Session (H.B. 203) (“the Act”) became effective earlier this month. Among other provisions, the Act expands the scope of Louisiana’s work product privilege to include “electronically stored information.” (For a general discussion of the Act, click here.
Louisiana’s work product privilege is codified at Article 1424 of the Louisiana Code of Civil Procedure. Article 1424(A) previously protected from discovery a “writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation. . .,” subject to certain conditions. The Louisiana Supreme Court interpreted that language to protect only a “writing,” and to provide no protection to other tangible things, in an attorney’s file, such as audio tapes, video tapes, or photographs. See, e.g., Landis v. Morreau, 2000-1157, p. 9 (La. 2/21/01), 779 So.2d 691, 697.
Act 140 amends Article 1424(A) to provide work product protection over, “any writing, or electronically stored information.” The term “electronically stored information,” is not defined in the Act or in other new legislation. The comments to other sections of Article 1424 and other Articles amended by the Act indicate that Louisiana courts should look to the Federal Rules of Civil Procedure to interpret the phrase. Federal Rule of Civil Procedure 34(a) and its comments define “electronically stored information” broadly, including, “photographs, sound recordings, images and other data compilations,” that exist in electronic rather than paper form.
Assuming that Article 1424 means what it says, and that “electronically stored information” will be interpreted by Louisiana courts to mean what it means in federal courts, a lawyer’s pre-lawsuit investigation and fact-gathering work will enjoy work product protection — provided the work product is created and stored electronically. For example, a witness interview conducted by a lawyer that is recorded and stored electronically should be covered by the work product privilege of new Article 1424. The same interview recorded and stored on audio tapes would not be covered by the privilege. Similarly, a video taken by a lawyer and recorded to a hard drive or other electronic medium is protected by the work product privilege, but a video recorded on non-digital VHS tape would not be protected.
Louisiana’s work product privilege still provides less protection than the federal work product privilege, but the Act represents an important change in current law. Of course, the work product privilege is not absolute. The requesting party can overcome the work product privilege by showing that the denial of production or inspection of the requested material will unfairly prejudice the requesting party in preparing its claim or defense, or will cause the requesting party undue hardship or injustice. The protection afforded to the “mental impressions, conclusions, opinions, or theories of an attorney,” however, is absolute. See La.C.C.P. art. 1424(A). To the extent that electronically stored information reflects the mental impressions, conclusions, opinions, or theories of an attorney, a court “shall not,” order that information to be produced to an opposing party in litigation.
So what’s the bottom line? Pick up a digital video recorder, digital camera, and MP3 voice recorder before starting your next investigation of an actual or potential claim.