Brief in Support of Plaintiff’s Motion to Compel Discovery—Right of Publicity 
_________________________________________
IN THE UNITED STATES DISTRICT COURT 
FOR THE [ district]
[names of Plaintiffs],
Plaintiffs,
v.
[names of Defendants],
Defendants.
Case No.: [number]
[date].
_________________________________________
PLAINTIFFS’ BRIEF IN SUPPORT OF 
THEIR MOTION TO COMPEL
Plaintiffs, [names of Plaintiffs], by their attorneys, submit their brief in support of their Motion to Compel pursuant to Federal Rule of Civil Procedure 37(a)(1). As set forth below, counsel for Defendants [names of Defendants] improperly instructed three of their witnesses who had been produced for their depositions in [State] not to answer whether they had read the transcript of the deposition of Defendants’ 30(b)(6) witness and, if so, whether there was anything in the transcript with which they disagreed. Plaintiffs therefore request that the Court enter an order that Defendants reproduce the witnesses in [City], at Defendants’ expense, so that they can answer the questions that Defendants’ counsel improperly prevented them from answering when they were deposed in [State].
INTRODUCTION AND BACKGROUND
On [date], Plaintiffs’ counsel took the depositions of three Defendant’s Employees—[name of Employee 1], [name of Employee 2] and [name of Employee 3]—in [City, State]. All of these individuals had been identified by Defendants’ Rule 30(b)(6) witness, [name of witness], (Defendant’s Witness) as persons who were involved in the creation of the [name of magazine] ad that gives rise to this lawsuit. (Ex. A, Tr. of [date] Dep. of [name of witness] pursuant to Rule 30(b)(6) at 63:16-18, 83:5-9, 95:21-96:3.)
The first of these individuals to be deposed was [name of Employee 1] (Employee 1). During the deposition, Plaintiffs’ counsel asked Employee 1 whether she had read the transcript of [name of witness]’s deposition. (Ex. B, Tr. of [date] Dep. of Employee 1 at 25:23.) Defendants’ counsel objected and instructed Employee 1 as follows:
[I]n answering that question, I want you to exclude anything that your counsel showed you in preparing for the deposition. So if your counsel showed you something, I want you to assume you didn’t see it for purposes of answering this question.
(Id. at 26:13-18.) The witness then stated: “So the answer is no.” (Id. at 26:20.)
The question of whether Employee 1 had read Defendant’s Witness’s deposition transcript was the foundational predicate for counsel’s follow-up question to Employee 1, which was: “[W]as there anything in Defendant’s Witness’s transcript with which you disagreed?” (Id. at 28:23.) This question is a significant one because Defendant’s Witness, although designated to testify on behalf of both defendants, had no personal knowledge of the facts concerning the creation of the [name of magazine] ad. (Ex. A at 62:5-24.) Defendants’ counsel instructed Employee 1 not to answer the question. (Ex. B at 28:25-29:2.)
Plaintiffs’ counsel also attempted to learn from [name of Employee 2] (Employee 2) and [name of Employee 3] (Employee 3] whether either of them had read the transcript of Defendant’s Witness’s deposition. (Ex. C, Tr. of [date] Dep. of Employee 2 at 20:18-19; Ex. D, Tr. of 4[date] Dep. of Employee 3 at 17:2-3.) Defendants’ counsel objected and instructed the witnesses, in answering the question, to exclude anything that they had been shown by counsel. (Ex. C at 20:20-24; Ex. D at 17:4-6.) Both witnesses then answered the question in the negative—i.e., that apart from anything their counsel may have shown them, they had not reviewed Defendant’s Witness’s deposition transcript. (Ex. C at 21:2-10; Ex. D at 17:8-14.)
There are serious questions about the accuracy of the deposition testimony that was given by Defendant’s Witness. For example, Defendant’s Witness testified that Employee 3 was the “creative person that was assigned for” the [name of magazine] ad. (Ex. A at 83:5-9; see also id. at 85:9-12 (testifying that Employee 3 “suggested the creative contents” of the ad) and 94:14-21 (testifying about Employee 3’s work on the ad).) Employee 3 testified in his deposition, however, that he had not worked on the ad. (Ex. D at 16:20-21.) Plaintiffs’ counsel was prevented from fully exploring the accuracy of Defendant’s Witness’s testimony, however, by the instructions not to answer that Defendants’ counsel gave to Employee 1, Employee 2 and Employee 3.
ARGUMENT
I. The Information Sought By Plaintiffs’ Questions Is Discoverable.
As this Court knows, the scope of discovery is governed by Federal Rule of Civil Procedure 26(b), which provides that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of a party.” Fed. R. Civ. P. 26(b). Furthermore, “[r]elevant information need not be admissible at the trial if the discovery appears to be reasonably calculated to lead to the discovery of admissible evidence.” Id. The standard for discovery “is widely recognized as one that is necessarily broad in its scope in order to allow the parties essentially equal access to the operative facts.” Scott v. Edinburg, 101 F. Supp. 2d 1017, 1021 (N.D. Ill. 2000) (internal quotations omitted); see also Funds v. Hope Cartage, No. 02 C 8775, 2004 WL 221746, at *1 (N.D. Ill. Jan. 22, 2004) (stating that Rule 26(b) “permits a broad range of discovery” and that “a broad scope is required to allow the parties equal access to the operative facts.”). Therefore, a discovery request is relevant “if there is any possibility that the information sought may be relevant to the subject matter of the action.” Rubin v. Islamic Republic of Iran, No. 03 C 9370, 2008 WL 192321, at *4 (N.D. Ill. Jan. 18, 2008) (internal quotations omitted).
There are two questions at issue here: (1) whether the deponents have read the transcript of Defendants’ 30(b)(6) witness, Defendant’s Witness, and (2) if so, whether they disagreed with any of Defendant’s Witness’s testimony. The first question is merely the foundational predicate for the second, substantive question. That second question is clearly within the scope of discovery under Rule 26(b). Plaintiffs are entitled to inquire about the accuracy of Defendant’s Witness’s testimony, particularly given her lack of personal knowledge about the development of the ad.
II. The Instructions Given By Defendants’ Counsel Were Improper.
Federal Rule 30(c)(2) provides that an instruction to a witness not to answer a question may be given “only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” Fed. R. Civ. P. 30(c)(2); see also Specht v. Google, Inc., 268 F.R.D. 596, 598 (N.D. Ill. 2010) (stating that, under Rule 30, “a party who wishes to object to a question must do so concisely, and the deponent must still answer,” and that the “only exceptions are those stated in the last sentence of Rule 30(c)(2))”; Jockell v. Village of Lake Zurich, No. 01 C 5421, 2003 WL 736679, at *1 (N.D. Ill. Mar. 3, 2003) (“Absent a claim of privilege it is improper for counsel at a deposition to instruct a client not to answer.”) Defendants’ counsel here purported to base his instructions to Employee 1, Employee 2 and Employee 3 on both the work product doctrine and the attorney-client privilege. In fact, neither privilege applies and the instructions were therefore improper.
A. The Work Product Doctrine Does Not Protect 
The Information Sought By Plaintiffs.
The work product doctrine shields the “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation,” Fed. R. Civ. P. 26(b)(3); see also United States v. Nobles, 422 U.S. 225, 238 (1975) (“At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.”) (emphasis added); In re Atlantic Fin. Mgmt. Secs. Lit., 121 F.R.D. 141, 143 (D. Mass. 1988) (“The protection of attorney work product material is designed, above all, to protect the mental impressions and thought processes of attorneys.”). Thus, in a deposition, “the work product privilege is not implicated unless the inquiring party asks the deponent questions which improperly tend to elicit the mental impressions of the parties’ attorneys.” Pastrana v. Local 9509 Communications Workers of Am., AFL-CIO, No. 06cv1779, 2007 WL 2900477, at *4 (S.D. Cal. Sept. 28, 2007) (citing Protective Nat’l Ins. Co. of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267, 279 (D. Neb. 1989)). The work product doctrine does not protect against the disclosure of relevant factual information. See Hickman v. Taylor, 329 U.S. 495, 504, 506 (1947) (stating that “[a] party clearly cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of his attorney”); Clark Equip. Co. v. Lift Parts Mfg. Co., No. 82 C 4585, 1985 WL 2917, at *7 (N.D. Ill. Oct. 1, 1985) (“The attorney work product privilege does not preclude the disclosure of facts… simply because their existence was discovered by counsel.”) (emphasis in original); Southern Illinois Laborers’ and Employers Health and Welfare Fund v. Pfizer Inc., No. 06 C 1818, 2007 WL 4557100, at *2–*3 (N.D. Ill. Dec. 21, 2007) (discussing authorities and holding that information concerning who provided documents and under what circumstances would not “reveal the mental processes or litigation strategy” of counsel and was therefore not protected).
The purely factual information sought by Plaintiffs here—whether Defendants’ witnesses have read the deposition transcript of Defendants’ 30(b)(6) witness and, if so, whether there was anything in the transcript with which they disagreed—would not reveal the mental impressions, conclusions, opinions or legal theories of Defendants’ counsel. Accordingly, it is not protected by the work product doctrine, and the instructions of Defendants’ counsel that effectively precluded the witnesses from answering the questions of plaintiffs’ counsel were therefore improper.
Defendants’ counsel nevertheless asserted that his instructions were proper because a deposing attorney “cannot ask questions about what counsel showed a witness in preparing for a deposition because it discloses counsel’s mental theories and work product” and further that a deposing attorney cannot, through the back door, ask the witness, “Well, did you review this?” “Did you review this?” to get around the work product protection. So I’m instructing her not to disclose anything that her counsel showed her. And if that includes e-mails, depositions, what have you, then she should factor that into her answer. (Ex. B at 27:11-28:2.) The position taken by Defendants’ counsel grossly overstates the work product protection that is accorded to documents reviewed by a witness in preparation for a deposition.
A few courts have held that where an attorney has selected and compiled from a large universe of produced documents a small number to be reviewed by the witness in preparation for a deposition, that compilation may be entitled to work product protection. See, e.g., Sporck v. Peil, 759 F.2d 312, 317–19 (3d Cir. 1985). This extension of the work product doctrine has never been recognized or adopted by the Seventh Circuit, and several courts have held since the decision of the Third Circuit in Sporck that the mere selection and grouping of information by counsel for a deponent to review does not transform discoverable documents into work product. See, e.g., In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007, 1018 (1st Cir. 1988); Gould, Inc. v. Mitsui Mining & Smelting Co., 825 F.2d 676, 680 (2d Cir. 1987) (rule that compilation and selection of documents by counsel is narrow and applies only where there is real, not speculative, concern that thought processes of counsel in relation to anticipated litigation would be exposed); Audiotext Communications Network v. US Telecom, Inc., 164 F.R.D. 250, 252 (D. Kan. 1996) (“The selecting and grouping of information does not transform discoverable documents into work product.”).
Thus, in In re Seroquel Prods. Liability Litigation, No. 6:06-md-1769-Orl-22DAB, 2008 WL 215707 (M.D. Fla. Jan. 24, 2008), the plaintiffs sought to compel the identification by deponents of documents they reviewed in preparation for their depositions. The court granted the motion because the party resisting disclosure had not shown that disclosure of the documents created “a ‘real, non-speculative danger’ of revealing counsel’s thoughts.” 2008 WL 215707, at *5. Similarly, in In re Minebea Co., Ltd., 143 F.R.D. 494 (S.D.N.Y. 1992), the defendant moved for an order compelling the further oral examination of certain witnesses. The questions to which the defendant sought to compel answers included questions about the deponents’ preparation for their deposition. The court held that, in view of the opposing party’s failure to offer “anything more concrete than [the] conclusory statement that the deposition preparation questions might implicate the mental impressions of” the deponents’ attorneys, the deponents would be required to respond to questions “as to whether they reviewed documents in preparation for the deposition and questions as to the identity of those documents, if any.” 143 F.R.D. at 500. And in In re Atlantic Financial Management, supra, the plaintiffs sought to discover the deposition transcripts and documents that had been reviewed by the defendant in preparing for his deposition. 121 F.R.D. at 142–44. The court noted that the plaintiffs were not seeking “a litigation ‘binder’ or trial notebook” and concluded that
[t]he minimal exposure of the attorney’s mental process that would occur in this case if defendant Strong revealed the deposition transcripts and documents that he used to refresh his recollection does not justify withholding information which is essential to plaintiffs’ effective examination of the witness.
Id. at 143. The court accordingly ordered the defendant to “identify and produce the deposition transcripts and already-discovered documents he reviewed prior to testifying.” Id. at 144.
The information sought by Plaintiffs here is even more clearly outside the scope of the work product doctrine. Plaintiffs do not seek identification of a compilation of documents selected by Defendants’ counsel for review by Defendants’ witnesses in preparation for the depositions. Nor are Plaintiffs seeking the production of any documents reviewed by those witnesses. (Plaintiffs already have Defendant’s Witness’s deposition transcript.) They simply seek to know whether those witness have read the transcript of Defendant’s Witness’s deposition, and if so whether there is anything in the transcript with which they disagree. Disclosure of that information clearly does not create a “real, non-speculative danger” of revealing counsel’s thoughts. Defendants should be ordered to reproduce the witnesses in Chicago, at their expense, so that the witnesses can answer the questions that defendants’ counsel improperly prevented them from answering.
B. The Attorney-Client Privilege Does Not Protect 
The Information Sought By Plaintiffs.
The attorney-client privilege applies only to communications between a client and his or her attorney. United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997); see also United States v. Weger, 709 F.2d 1151, 1154 (7th Cir. 1983) (attorney-client privilege “only prohibits the disclosure of the substance of communications made in confidence by a client to his attorney”) (internal quotations omitted). The party seeking to invoke the privilege bears the burden of proving all of its essential elements. Evans, 113 F.3d at 1461. Further, “because the privilege is in derogation of the search for the truth, it is construed narrowly.” Id.
The protection of the privilege does not extend to facts. Upjohn Co. v. United States, 449 U.S. 383, 395 (1981). As the Supreme Court explained in Upjohn:
[T]he protection of the privilege extends only to communication and not to facts. A fact is one thing and a communication is an entirely different thing. The client cannot be compelled to answer the question “What did you say or write to the attorney?” but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.
Id. at 395–96. Similarly, “the privilege does not protect facts which an attorney obtains from independent sources and then conveys to his client.” Allen v. West Point-Pepperell, Inc., 848 F. Supp. 423, 427–28 (S.D.N.Y. 1994) (citing cases); see also Thurmond v. Compaq Computer Corp., 198 F.R.D. 475, 481 (E.D. Tex. 2000) (stating that “[a] fair number of cases hold that the attorney-client privilege does not reach facts within the client’s knowledge, even if the client learned those facts through communications with counsel” and citing cases). “A party’s knowledge of facts, from whatever source, is not privileged.” Standard Chartered Bank PLC v. Ayala Int’l Holdings, 111 F.R.D. 76, 83 (S.D.N.Y. 1986). Thus, in the West Point-Pepperell case the district court concluded:
Simply put, plaintiffs and [their attorney] must disclose to defendants all facts of which they were aware at all times relevant to this action, whether or not those facts were communicated by plaintiffs to [their attorney] and whether or not those facts were learned by plaintiffs from [their attorney].
848 F. Supp. at 428.
The two questions that Plaintiffs seek to have answered—whether the witnesses have read the transcript of Defendant’s Witness’s deposition and, if so, whether there is anything in her testimony with which they disagree—ask for facts, not for the substance of communications with defendants’ counsel. That the transcript of Defendant’s Witness’s deposition may have been provided to the witnesses by Defendants’ counsel does not cloak the factual information that Plaintiffs seek with the protection of the attorney-client privilege. See, e.g., Thurmond, 198 F.R.D. at 483 (overruling defendant’s privilege claim with respect to witness’s knowledge of plaintiffs’ allegations because, even assuming the allegations had been communicated to the witness by defendant’s counsel, the information was “nonconfidential” and the question “did not ask [the witness] what defense counsel though about the merits of the allegations…; they merely asked about the extent to which [the witness] was familiar” with them). The instructions by Defendants’ counsel to the witnesses not to answer those questions were therefore improper.
CONCLUSION
For the foregoing reasons, plaintiffs requests that this Court enter an order requiring defendants to reproduce Employee 1, Employee 2 and Employee 3 in [City], at Defendants’ expense, so that they can answer the questions that they were improperly instructed not to answer when they were deposed in [State], and that the Court award Plaintiffs their costs incurred in bringing this motion, including their reasonable attorneys’ fees.
Dated: [date]
[names and contact information for counsel for Plaintiffs]
Attorneys for Plaintiffs
[names of Plaintiffs]