For the uninitiated, “Morris Inquiry” is the term often used to describe a discovery tactic that is being employed more and more frequently by manufacturers in defective products cases. This term refers to a discovery request (typically, but not necessarily, a request for production of documents) in which a manufacturer requests copies of documents that were originally business records of that manufacturer, but which Plaintiff now has in its possession.
This type of discovery request was dubbed a “Morris Inquiry” following the case of Morris v. Honda Motor Co., Case No. CV286-242 (S.D.Ga., unreported). In that case, Honda requested, and the trial court (the Brunswick Division of the U.S. District Court) ordered the plaintiff to produce, among other things, “[c]opies of any and all documents, writings, films, memoranda and/or correspondence, in your possession, originally created by any Honda corporation, agent or any Honda corporation or on behalf of any Honda corporation which has not been produced to plaintiff by the defendant in this action”. Aside from all of the reasons this type of discovery request is improper, as will be discussed below, these request are typically ridiculously overbroad. Nonetheless, a plenary panel of the U.S. District Court approved the trial court’s decision.
The manufacturers’ objective in propounding Morris Inquiries is to find out which of their potentially harmful documents the Plaintiff already has. If a manufacturer knows a Plaintiff has certain documents, for example, documents taken from the court record from a prior lawsuit, or received from other Plaintiffs’ firms throughout the country, then they know that they cannot deny that such documents exist. If they learn that a Plaintiff does not have a harmful document, then they know they can be more aggressive in interpreting Plaintiff’s discovery requests in such a way that the document would not be “within the scope of the request”.
Knowing what documents Plaintiff’s counsel has gives manufacturers an unfair advantage, it encourages them to “hide the ball”, and it gives them insight into the Plaintiff’s counsel’s theories, strategies and trial preparation. Further, a Plaintiff’s firm may have amassed volumes and volumes of documents about a particular defect over an extended period. Such firms should not be required to expend the resources required to search through their entire library to find copies of documents to produce to the very manufacture who created the documents and, presumably, has possession of the original and/or other copies. For these reasons, Plaintiffs’ attorneys should always oppose these requests, and should provide responses to these requests only to the extent required by the trial court after a full hearing of Plaintiffs’ objections to these requests.
What Does a Morris Inquiry Look Like?
The following are examples of Morris Inquiries propounded in real cases:
Example 1: Please produce copies of any and all [manufacturer’s name] documents in your possession or control other than documents produced by [manufacturer’s name] in this case.
Example 2: Please produce a copy of every [manufacturer’s name] document in your possession, custody or control which you believe is relevant to your allegations in this case.
Example 3: Please produce a copy of every index of [manufacturer’s name] documents received by your attorneys or agents from any of, but not limited to, the following entities: [request goes on to list various organizations that provide for exchange of documents among members, such as Trial Lawyers for Public Justice and the Association of Trial Lawyers of America].
Morris Inquiries are objectionable on a number of grounds. The first step in properly responding to a Morris Inquiry is to identify the request as such. By their very nature, these requests seek documents the manufacturer already has. In most instances, they are documents the manufacturer created in the ordinary course of its operations. If the only new information the manufacturer will gain from a Plaintiff’s response is which of its own records Plaintiff has or does not have, it is a Morris Inquiry.
The second step is to make clear to the trial court that this is not an ordinary discovery request that just happens to be overly broad. These requests are a deliberate attempt to thwart the discovery process by exposing what documents a plaintiff already has before producing any documents requested by the plaintiff. Morris inquiries, while they may differ slightly in their wording, are all of the same character, and should be reviewed in light of both the case law that has developed on the issue, and the improper motivation behind the requests.
The third step is to decide whether the Plaintiff’s objections will be made via objections or via a motion for a protective order. This is a strategic decision that will depend on a number of factors such as who your opponent is, whether judge resents having discovery issues brought to him or her (in which case, you might want to leave it to the defendant to involve the court by a motion to compel), or whether your own personal style is to take the offensive or wait and see if the defendant will take the issue to the court.
In any event, the burden of proof will be on the Plaintiff to prove that the requests are not proper. Therefore, it is important to fully and properly state the Plaintiff’s objections. Any briefs in support of a motion for protective order, or in opposition to a motion to compel should not just include argument and case law. They should be supported by affidavits of counsel that demonstrates that discovery of the requested information would reveal counsel’s strategy and mental processes. As will be discussed below, one of the primary reasons Morris Inquiries are objectionable is that they are an attempt to get the plaintiff’s work product.
Should you find yourself before your trial judge on this issue, you should ask the court to require the Defendant to make a threshold showing of why the defendant needs additional copies of documents already in its possession from the Plaintiff.The Florida case of Ashemimry v. BA NAFA, et. al., 847 So.2d 603 (Fla. 5th DCA 2003), held that a party who sought discovery of information that “had the character of work product” was required to make a threshold showing of the legal basis for the discovery in order to overcome work product immunity. See 19A Fla. Jur 2d Discovery and Depositions Sec. 43 for a discussion of the requirement that the party requesting discovery make a showing that work product is discoverable. Thus, if you are able to demonstrate that the information sought is work product, the burden will shift to the manufacturer to establish the legal basis for the discovery.
Another reason for requesting the court to require the manufacturer to make a threshold showing that the information sought is discoverable is that there is absolutely no legitimate reason for manufacturers to request this information. Because there is no legitimate purpose for these requests, upon hearing the manufacturer’s explanation of why the plaintiff should produce documents already in defendant’s possession, the court is likely to see through this ruse.
Specific Objections
The most important reason a Plaintiff should not be required to provide information or documents in response to a Morris Inquiry is that these documents are attorney work product. There are two kinds of work product: ordinary work product and opinion work product. Rule 1.280(b)(3) of the Florida Rules of Civil Procedure, the “work product” rule, states, in relevant part:
Subject to the provision of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative . . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
Otherwise stated, ordinary work product includes documents and tangible things prepared in anticipation of litigation by a party or, more likely, the party’s counsel. Opinion work product includes is ordinary work product that also reveals the “mental impressions, conclusions, opinion, or legal theories” of counsel.
According to Rule 1.280(b)(3), if the information sought by a Morris Inquiry is ordinary work product, then the Defendant should be entitled to those documents only upon showing that it is unable to obtain the substantial equivalent of the document. Since, the documents requested by a Morris Inquiry are documents the defendant already has, these requests should always be improper under the work product doctrine.
Further, the particular documents collected by Plaintiff’s counsel, the manner in which they are organized, etc. often reveal the mental impressions of the attorney who collected and organized those documents. A plaintiff’s attorney’s selection and collection of certain documents generated as business records of a defendant creates a discrete unit of documents that are protected work product. Smith v. Florida Power & Light Company, 632 So.2d 696 (Fla. App. 1994). In Smith, the court stated:
The attorney’s strategy in culling only those documents from a possibly infinite universe of corporate documents would be apparent to [the defendant] upon plaintiffs’ production of the collection. Production would focus on the lawyer’s discriminating eye, and would lay bare that lawyer’s protected thought processes. . . . [E]ven if the individual documents sought are not attorney work product, ‘the selection process itself represents defense counsel’s mental impressions and legal opinions as to how the evidence in the documents relates to the issues and defenses in the litigation.’
Smith, quoting Sporck v. Peil, 759 F.2d 312, 315 (3rd Cir. 1985), cert denied, 474 U.S. 903, 88 L.Ed. 230 (1985).
Opinion work product is subject to even greater protection than ordinary work product.
In the seminal case of Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 394 (1947), the U.S. Supreme Court stated: [T]he general policy against invading the privacy of an attorney’s course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order. Thus, if a plaintiff can establish facts to show that the collection of documents requested in a Morris Inquiry are opinion work product, the burden shifts to the defendant to justify its request.
The proper scope of discovery is set out in Rule 1.280(b)(1) of the Florida Rules of Civil Procedure, which provides, in relevant part:
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action . . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
While the documents requested by a defendant may be relevant, or may contain relevant information, it is clear that, in a Morris Inquiry, the defendant has no need to learn the relevant information contained in the documents sought. The defendant already possesses the information contained in those documents. In fact, the defendant has even more information about those documents than the plaintiff because the defendant can fully appreciate the culture, circumstances and historical context in which the document was created and stored.
A Morris Inquiry is not calculated to lead to discovery of admissible evidence. Any and all information in the documents requested from a plaintiff has already been “discovered” by the defendant. The only fact to be gleaned from such a request is which of the defendant’s documents a plaintiff possesses. This fact is not relevant to any issue at trial and is not calculated to lead to the discovery of admissible evidence. Therefore, it is not within the scope of discovery established by the Rules of Civil Procedure.
The Florida counterpart to Federal Rule 26(b)(2)(i) of the Federal Rules of Civil Procedure does not include the following provision, which provides an additional basis for objecting to Morris Inquiries:
The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive. (Emphasis added).
Thus, in a federal case, if the court finds that the discovery is duplicative or obtainable from a more convenient and less burdensome, the court must limit the discovery. Clearly, if a defendant manufacturer already has all of the documents it seeks from a Plaintiff, it would be duplicative for Plaintiff to provide additional copies of the documents to the defendant. Further, it is far more convenient and less burdensome for a defendant to obtain the originals or copies of documents it believes are relevant from its own files than to get the copy plaintiff has somehow obtained outside the discovery process.
Requiring a Plaintiff to Respond to a Morris Inquiry Creates an Unfair Advantage in the Defendant, Encourages Stonewalling and Impedes the Search for Truth
The sole purpose for a Morris Inquiry is to enable defendant manufacturers avoid producing relevant documents. If a defendant does not know whether a plaintiff has relevant documents of the defendant, that lack of knowledge will help keep the defendant honest. A defendant who decides to parse words and engage in semantic gymnastics in responding to discovery without knowing whether the plaintiff already has the information runs the risk of being sanctioned for hiding documents. It a defendant is permitted to find out the whole universe of documents a plaintiff has before unilaterally deciding what documents it will turn over, it will enjoy far more freedom to hide documents.
Not only is the policy of promoting truth thwarted, but the defendant is placed at a great advantage over the plaintiff. Should the court in any of your cases decide that the plaintiff must produce documents in response to a Morris Inquiry, you should request permission from the court to make the equivalent request to the defendant in order to “level the playing field”. The equivalent request from a plaintiff to a defendant would read something like this:
Please produce copies of all documents you have produced or provided copies of for use in each and every case involving [name of product], whether or not you were a party to that case.
Additionally, if your trial court orders you to respond to a Morris Inquiry, you should request that either the manufacturer be required to respond to plaintiffs discovery requests first or that discovery be exchanged simultaneously. Florida Rule 1.280(c)(8) provides that, upon motion for a protective order, the court may make an order that “parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.”
There Are Already Safeguards in Place To Assure Parties Are Not “Ambushed” at Trial
In January, 2004, the Florida Supreme Court decided the case of Northup v. Acken, 865 So.2d 1267 (Fla. 2004). Although Northup was a medical malpractice case rather than a products liability case, a discovery request at issue in that case was a Morris Inquiry type of request. In that case, a patient who had sued his wife’s doctor engaged an expert witness who had testified in previous cases. The doctor’s attorney collected transcripts of the plaintiff’s expert’s prior depositions. In discovery, the plaintiff requested copies of all transcripts of his own expert that were in defense counsel’s possession. The defendant objected on the basis that the transcripts collected were attorney work product. The trial court granted the plaintiff’s motion to compel production of the transcripts. The Second DCA reversed the trial court’s decision, holding that the transcripts were protected work product. The Florida Supreme Court agreed with the Second DCA that the transcripts were work product for purposes of discovery; however, it went on to hold that, because the defendant expected and intended to use the transcripts at trial, their status as work product was lost.
The Northup decision will probably be used by both plaintiffs and defendants to support their claims in Morris Inquiry disputes. From the plaintiffs’ point of view, the Northup decision affirmed earlier Florida decisions holding that such collections of documents gathered in litigation are protected attorney work product. It is also important to note a critical factual difference between Northup and a true Morris Inquiry situation. In Northup, documents sought by the Plaintiff, deposition transcripts were not the Plaintiff’s own documents that were being sought. The facts do not indicate whether or not the Plaintiff had copies of the transcripts requested (and therefore, was just attempting to find out which of the transcripts his opponent had) or whether Plaintiff did not have, and perhaps, did not have information about or access to the transcripts. For that reason, it was not clear in Northup, as it is in a true Morris Inquiry situation, that the sole purpose for the request is to determine what documents an opponent has access to.
Another potentially positive outcome of the Northup decision to the Morris Inquiry issue is that it eliminates the argument that denial of a motion to compel production of “Morris Inquiry documents” increases the risk of “trial by surprise” or “trial by ambush”. Under Northup, all documents, even documents that are clearly work product for Morris Inquiry purposes, lose their status as work product as soon as a litigant intends or expects to use them at trial.
One fact that was made clear by the Northup decision is that evidence a party “intends or expects” to use at trial must be produced in discovery and “prior to entry of a pretrial case management order”. Apparently, evidence that is not subject to a discovery request may be disclosed at any time prior to entry of the pretrial order, and evidence that is the subject of a discovery request must be disclosed in accordance with the deadlines provided by the discovery rules. The Florida Rules of Civil Procedure do not require supplementation of discovery responses that were accurate when made. Presumably, information that is work product and that an attorney does not expect or intend to use at trial at the time a discovery request is made need not be disclosed; however, if a party thereafter decides to use that information at trial, it must be disclosed prior to the entry of the pretrial management order.
Morris Inquiries do not require plaintiffs to produce work product that is just as available to defendants as it is to plaintiffs. They also distract plaintiffs’ attorneys from the important work of preparing cases for trial. Additionally, because of the overbroad scope of these requests, and the potentially vast amount of information in plaintiff’s possession that could be subject to these requests, they expose plaintiffs to the risk of either inadvertently failing to disclose documents, or being accused of withholding documents because the defendant interprets the scope of the request more broadly than the plaintiff did. For these reasons, you should vigorously oppose these requests each and every time you encounter them. Competent opposition to Morris Inquiries is not only important to your cases, but is also critical to avoiding the development of bad law on this issue.
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