United States District Court, N.D. California
ORDER GRANTING MOTION TO QUASH DOCKET NO.
M. CHEN, UNITED STATES DISTRICT JUDGE.
the December 16, 2016 call, Kenneth Worsham's counsel,
Jordan Ludwig and J. Jeffrey H. Rutherford
(“Worsham's Counsel”), spoke with the
Government regarding, inter alia, the prosecution of
Robert Worsham. Pending before this Court is Worsham's
Counsel's motion to quash Defendant's subpoenas
demanding their appearance and production of documents
related to this telephone conversation. For the reasons
discussed below, the motion to quash is
October 2, 2019, Defendant served Worsham's Counsel with
Rule 17 subpoenas demanding their appearance on November 4,
2019 at 8:30 a.m., with the following documents: “Any
notes, memoranda, or documents, memorializing or relating to
communications with representatives of the United States
Department of Justice on or about December 16, 2016, in
connection with your representation of Kenneth
Worsham.” Docket No. 442 (“Mot.”), at Ex.
October 18, 2019, Worsham's Counsel and Defendant
exchanged e-mails. Mot. at 5. Worsham's Counsel indicated
they would not waive attorney-work product protection.
Id. Defendant “indicated that he would like to
discuss with [Worsham's Counsel] their recollection of
what the prosecutors said to them on the December 16, 2016
phone call, as opposed to their mental impressions and work
product.” Id. Worsham's Counsel declined
and filed the instant motion. Id.
Counsel moved to quash the subpoenas on the grounds that (1)
they seek privileged attorney work product; (2) they seek
inadmissible material; and (3) they require document
production and testimony that is contrary to the
Worsham's Counsel's ethical obligations under the
California Rules of Professional Conduct. Id. at 6.
The Government joins Worsham's Counsel's motion on
the same grounds, adding that Defendant already has the
requested information in his possession. Docket No. 448 at 5.
In opposition, Defendant takes the position that he does not
seek Worsham's Counsel's mental impressions about the
conversations, or any legal advice provided to Mr. Worsham
thereafter. Docket No. 447 (“Opp.”), at 3.
Instead, he requests “what was communicated during a
phone call that clearly included exculpatory
information.” Id. This constitutes fact work
concedes the information he seeks is work product. Opp. at 3.
Worsham's Counsel make clear they do not waive the
work-product privilege. Mot. at 5; Declaration of Jordan L.
Ludwig (“Ludwig Decl.”), at ¶ 4. Thus, the
Court must determine whether Defendant has made an adequate
showing of substantial need for the evidence and an inability
to obtain its contents elsewhere without undue hardship.
See Admiral Ins. Co. v. U.S. Dist. Court for Dist. of
Arizona, 881 F.2d 1486, 1494 (9th Cir. 1989) (citing
Upjohn v. United States, 449 U.S. 383, 401 (1981)).
Counsel argue that their “mental impressions,
conclusions, and strategic thoughts about how to best
represent their client that they thought important enough to
write down” during the December 16, 2016 call are not
at issue in this case. Mot. at 8-9. But even if only fact
work product were at issue, fact work product may be
discoverable only upon a showing that the party seeking
discovery has substantial need of the materials in the
preparation of the party's case and that the party is
unable without undue hardship to obtain the substantial
equivalent of the materials by other means. Fed.R.Civ.P.
has not made a “substantial showing” that he is
unable to obtain needed information because he already has
the disclosures made by the Government as per the Court's
order. He has the Government notes of the December 16 call.
Additionally, Defendant possess a sworn declaration from a
DOJ attorney that stated the following, under penalty of
• The declarant participated in the phone call on
December 16, 2016;
• Prior to the December 16, 2016 call, the Government
and Kenneth Worsham reached a plea agreement in principle;
• During the call, the Government responded to Kenneth
Worsham's counsel's questions about the draft plea
agreement and the topics of his upcoming ...