Showing 339 of 339 results

Chapter: 34.2

Case Name: Tucker Ellis LLP v. Superior Ct. of the City and County of San Francisco, A148956, 2017 Cal. App. LEXIS 571 (Cal. App. 3d June 21, 2017)
(analyzing ownership of work product prepared by a lawyer who worked with an expert, and then left the firm; explaining that the former firm received a subpoena and was able to produce the work product because the firm owned it; "In this writ proceeding, we are presented with a narrow question of law concerning the attorney work product privilege as codified in Code of Civil Procedure section 2018.030. Specifically, we are asked to determine, as between an employer law firm and a former attorney employee, who is the holder of the attorney work product privilege that attaches to documents created by the attorney employee during and in the scope of his employment? We conclude that under the circumstances of this case, the holder of the attorney work product privilege is the employer law firm, petitioner Tucker Ellis LLP (Tucker Ellis), and not the former attorney employee, real party in interest Evan C. Nelson (Nelson). As a corollary to our holding, we necessarily conclude that because Tucker Ellis is the holder of the attorney work product privilege, it had no legal duty to secure Nelson's permission before it disclosed to others documents he created during and in the scope of his employment. Because respondent court held to the contrary, finding that Tucker Ellis had a legal duty to take appropriate steps to ensure that the documents were not disclosed without Nelson's permission, we shall issue a peremptory writ of mandate directing respondent court to vacate its July 19, 2016, summary adjudication order, and enter a new order consistent with this decision."; "[A]n attorney can assert his work product privilege even though he is no longer in possession the document . . . and the contents of the documents may have been communicated to the client.")

Case Date Jurisidction State Cite Checked
2017-06-21 State CA

Chapter: 34.2

Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)
(holding that neither the work product protection nor the attorney-client privilege protected from discovery the one witness interview memoranda prepared by the Cadwalader law firm during its internal investigation of self-dealing at the Washington Metropolitan Area Transit Authority; concluding that the work product doctrine did not apply because the investigation was undertaken for business rather than litigation purposes, and that the privilege did not apply because WMATA disclosed the interview excerpts when it publicly revealed the Cadwalader report, and also relied on the report to defend itself in the litigation; "Work-product immunity is held by the lawyer, not the client, although either may assert the doctrine during discovery.")

Case Date Jurisidction State Cite Checked
2017-05-16 Federal DC

Chapter: 34.2

Case Name: Khan v. United States, Case No. 13-24366-CIV-ALTONAGA/O'SULLIVAN, 2015 U.S. Dist. LEXIS 88672 (S.D. Fla. July 8, 2015)
(holding that work product created by government lawyers remains protected in a later malicious prosecution lawsuit; "The attorney work product privilege applies in malicious prosecution cases. . . . In the present case, the work product privilege protects the thoughts and opinions of the attorneys in the USAO and DOJ regarding the plaintiff's prosecution.")

Case Date Jurisidction State Cite Checked
2015-07-08 Federal FL

Chapter: 34.2

Case Name: In re Fresh and Process Potatoes Antitrust Litigation, Case No. 4:10-md-2186-BLW-CWD, 4:13:cv-00251-BLW, 2015 U.S. Dist. LEXIS 33577 (D. Idaho March 17, 2015)
(analyzing privilege protection and the common interest doctrine in a trade association context; "[T]wo documents are internal communications about legal strategy between members of the Jones Waldo firm, and are thus attorney work product. The documents were properly withheld.")

Case Date Jurisidction State Cite Checked
2015-03-17 Federal ID

Chapter: 34.2

Case Name: Allstate Ins. Co. v. Warns, Civ. No. CCB-11-1846, 2013 U.S. Dist. LEXIS 44507, at *7-8 (D. Md. Mar. 28, 2014)
("The Fourth Circuit has determined that 'the ability to protect work product normally extends to both clients and attorneys.'. . . As a result, as the entity in privity with and furthering the interests of the policyholder, Allstate had standing to assert work-product protection with respect to the exhibits to the Barry affidavit.")

Case Date Jurisidction State Cite Checked
2014-03-28 Federal MD B 3/14

Chapter: 34.2

Case Name: Bahrami v. Maxie Price Chevrolet-Oldsmobile, Inc., Civ. A. File No. 1:11-CV-4483-SCJ-AJB, 2013 U.S. Dist. LEXIS 104040, at *17-18, *18, *20 (N.D. Ga. July 19, 2013)
(holding that a secret tape recording can be protected work product, after the ABA issued an opinion finding that such tape recording was not unethical; "Plaintiff has provided a declaration stating that after his termination on May 12, 2010, he decided to pursue legal action against Defendant."; "Defendant argues that because Plaintiff made the recordings before he filed an EEOC charge, the recordings could not have been made in anticipation of litigation."; "The Court concludes that the recordings by Plaintiff were made in anticipation of litigation, and thus are protected work product.")

Case Date Jurisidction State Cite Checked
2013-07-19 Federal GA B 4/14

Chapter: 34.2

Case Name: Bahrami v. Maxie Price Chevrolet-Oldsmobile, Inc., Civ. A. File No. 1:11-CV-4483-SCJ-AJB, 2013 U.S. Dist. LEXIS 104040, at *15 (N.D. Ga. July 19, 2013)
(holding that a secret tape recording can be protected work product, after the ABA issued an opinion finding that such tape recording was not unethical; "[T]he Court notes that documents and things prepared in anticipation of litigation by a party (or its representative) can be protected work product; in other words, Plaintiff's lack of an attorney at the time he made the recordings does not mean that the recordings cannot be protected work product.")

Case Date Jurisidction State Cite Checked
2013-07-19 Federal GA B 4/14

Chapter: 34.2

Case Name: Wells Fargo & Co. v. United States, Misc. Nos. 10-57 & 10-95 (JRT/JJG), 2013 U.S. Dist. LEXIS 79814, at *116 (D. Minn. June 4, 2013)
("[I]nformation closely related to an attorney's legal thinking about anticipated litigation is protected by the work product privilege even if it is disclosed within business documents drafted by non-lawyers.")

Case Date Jurisidction State Cite Checked
2013-06-04 Federal MN B 4/14

Chapter: 34.2

Case Name: Wells Fargo & Co. v. United States, Misc. Nos. 10-57 & 10-95 (JRT/JJG), 2013 U.S. Dist. LEXIS 79814, at *115 (D. Minn. June 4, 2013)
("The fact that Wells Fargo's Tax Accounting Group created many of the TAWs ["tax accrual work papers"] at issue does not alter the Court's decision. The recognition and measurement analysis in the TAWs reflects the legal thinking of Wells Fargo's attorneys on anticipated litigation and is therefore protected. . . . These attorneys' pre-existing thoughts, conclusions, and opinions about ongoing and likely litigation, later incorporated into the TAWs, are protected work product.")

Case Date Jurisidction State Cite Checked
2013-06-04 Federal MN B 4/14

Chapter: 34.2

Case Name: Vaher v. Town of Orangetown, No. 10 Civ. 1606 (KMK) (GAY), 2013 U.S. Dist. LEXIS 69559, at *2 (S.D.N.Y. May 15, 2013)
("The work product doctrine does not require the documents be prepared at the behest of counsel, but only that they be prepared 'because of the prospect of litigation.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-05-15 Federal NY B 3/14

Chapter: 34.2

Case Name: SGD Eng'g Ltd. v. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186, at *25 (D. Ariz. Apr. 17, 2013)
("The second redacted e-mail in document 111 is a communication by one Lockheed employee to other Lockheed employees. As a communication between non-lawyer employees, the e-mail is not protected by the attorney-client privilege. See Bickler [Bickler v. Senior Lifestyle Corp., 266 F.R.D. 379 (D. Ariz. 2010)]. But the e-mail does qualify for work-product protection. The e-mail concerns responding to SGD's e-mail threatening litigation and is in furtherance of preparing a response or approach to SGD's litigation threat on which Lockheed's employees had requested Mr. Hennegan's legal advice.")

Case Date Jurisidction State Cite Checked
2013-04-17 Federal AZ B 7/13

Chapter: 34.2

Case Name: In re Cardinal Fastener & Specialty Co., Ch. 7 Case No. 11-15719, 2013 Bankr. LEXIS 452, at *23 (N.D. Ohio Feb. 4, 2013)
("Both the attorney and the client may invoke the doctrine.")

Case Date Jurisidction State Cite Checked
2013-02-04 Federal OH B 2/14

Chapter: 34.2

Case Name: RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 220 (N.D. Ill. 2013)
("Documents that are written by or for attorneys or that include an attorney's legal advice are covered by the attorney-client privilege, and documents that are not prepared by or for attorneys but are created because of litigation fall into the work product doctrine.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal IL B 4/14

Chapter: 34.2

Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09 2051 MD ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *62 (S.D. Fla. Oct. 18, 2012)
("[T]he work product doctrine, as interpreted in case law, and explicitly set forth in Fed. R. Civ. P. 26 (b)(3), does not require that the withheld document be prepared by an attorney, or even reviewed by an attorney.")

Case Date Jurisidction State Cite Checked
2012-10-18 Federal FL B 12/13

Chapter: 34.2

Case Name: United States v. ISS Marine Servs., 905 F. Supp. 2d 121, 134-35 (D.D.C. 2012)
(analyzing privilege and work product protection for an audit; noting that the company had specifically indicated that it did not need the assistance of Arnold & Porter in connection with the audit; "[A]lthough the doctrine is known as the attorney work-product doctrine, work product created by non-attorneys can also be protected if it is 'so intertwined with the legal analysis as to warrant protection.'. . . This relationship can be thought of as a sliding scale, whereby a party's burden to demonstrate a document's litigious purpose increases -- all other things being equal -- as attorney involvement in creating the document decreases. This simple principle recognizes the reality that attorneys are the ones who actually litigate cases, and whether or not a company involves attorneys in creating a document is a telling indication about whether the document was prepared in anticipation of litigation.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 7/13

Chapter: 34.3

Case Name: In re NC Swine Farm Nuisance Litig.: Anderson v. Murphy-Brown, LLC, Master Case No. 5:15-CV-13-BR, 2017 U.S. Dist. LEXIS 81572 (E.D.N.C. May 26, 2017)
(finding that defendants had properly logged and withheld documents, and that no in camera review is necessary; "A document created by a non-attorney may still be entitled to protection as work product if it was prepared in anticipation of litigation.")

Case Date Jurisidction State Cite Checked
2017-05-26 Federal NC

Chapter: 34.3

Case Name: U.S. Home Corp. v. Settlers Crossing, L.L.C., No. 15-1254, 2017 U.S. App. 6272 (4th Cir. App. April 12, 2017)
(holding that an unlicensed lawyer could not engage in privileged communications in the lawyer role, but could create protected work product; "Lennar claimed that Steven Engel was its attorney, and that documents and communications with Engel were entitled to the attorney-client privilege. However, Engel was not licensed to practice law. The district court therefore sanctioned Lennar, and ordered it to turn over Engel documents and communications wrongfully withheld under the attorney-client privilege but allowed it to continue to withhold documents under the work-product doctrine if it submitted such documents for in camera review.")

Case Date Jurisidction State Cite Checked
2017-04-12 Federal

Chapter: 34.3

Case Name: Blake v. Harvest New England, LLC, HHDCV166065384S, 2017 Conn. Super. LEXIS 535 (Conn. Super. Ct. March 17, 2017)
(holding that a corporate parent's in-house lawyer also represented the parent's wholly-owned subsidiary; also holding that a lawyer with the title of Vice President of Government and Regulatory Affairs can create protected work product; "The plaintiff argues that Davis [] is not claimed to have had any attorney-client relationship with Harvest New England, LLC because he is employed as Vice President of Government and Regulatory Affairs for Harvest Power, Inc. Similar to Vittiglio, there is no reason why Davis could not or did not act in a professional legal capacity for the subsidiary in his investigation of potential liabilities to which the subsidiary, and consequentially the parent company, is exposed. Moreover, Davis' title as vice president of government and regulatory affairs does not foreclose his acting in a professional legal capacity in some other field of law. The court finds that the interview notes are the result of an attorney's activities when those activities have been conducted with a view to pending or anticipated litigation and are thus protected from discovery. . . . A review of the interview notes demonstrates that they are the type of product of an attorney's work that is particularly likely to reflect and reveal the attorney's impressions, areas of strategic interest and theories of a case. For these reasons the court finds that they are protected from disclosure.")

Case Date Jurisidction State Cite Checked
2017-03-17 Federal CT

Chapter: 34.3

Case Name: Behunin v. The Superior Court of L.A. County, B272225, 2017 Cal. App. 227 (Cal. App. March 14, 2017)
(finding that the privilege did not protect communications to and from an outside PR agency hired by plaintiff's lawyer; "'Although Behunin refers to the attorney work product doctrine in his petition and in his reply, he provides no legal argument or authorities to support the application of that doctrine to documents the court ordered produced. There is also no evidence in the record from which we might independently ascertain whether any of the communications to or from Behunin, Steiner, or Levick or any of the documents created by Levick would qualify as '[a] writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories' and thus work product.")

Case Date Jurisidction State Cite Checked
2017-03-14 Federal CA

Chapter: 34.3

Case Name: Lucken Revocable Trust v. Heritage Bancshares Group, Inc., No. 16-CV-4005-MWB, 2017 U.S. Dist. LEXIS 21299 (N.D. Iowa Feb. 15, 2017)
(finding that the privilege did not protect communications with an inactive lawyer, because the plaintiff did not establish that it reasonably believed the inactive lawyer to be an active lawyer; also inexplicably holding that the inactive lawyer could not create protected work product; "As no attorney client relationship existed, any documents prepared by Peterson cannot be claimed to fall under the work product doctrine as Plaintiffs had not formed a valid attorney client relationship with Peterson.")

Case Date Jurisidction State Cite Checked
2017-02-15 Federal IA

Chapter: 34.3

Case Name: In re Fairway Methanol LLC and Celanese Ltd., No. 14-16-00884-CV, 2017 Tex. App. LEXIS 830 (Tex. App. 14d Jan. 31, 2017)
("The work product privilege extends both to documents actually created by the attorney and to memoranda, reports, notes, or summaries prepared by other individuals for the attorney's use.")

Case Date Jurisidction State Cite Checked
2017-01-31 Federal TX

Chapter: 34.3

Case Name: EEOC v. Sterling Jewelers, Inc., 08-CV-0706-RJA-MJR, 2017 U.S. Dist. LEXIS 3011 (W.D.N.Y. Jan. 3, 2017)
("A party asserting the work-product doctrine must demonstrate that the document was prepared by or at the behest of counsel principally or exclusively to assist in anticipated or ongoing litigation.")

Case Date Jurisidction State Cite Checked
2017-01-03 Federal NY

Chapter: 34.3

Case Name: Lobel v. Woodland Golf Club of Auburndale, Civ. A. No. 15-13803-FDS, 2016 U.S. Dist. LEXIS 177423 (D. Mass. Dec. 22, 2016)
("The language of Rule 26(b)(3) protects documents prepared 'by or for another party or its representative.' Fed.R.Civ.P. 26(b)(3) (emphasis added). Consequently, work product protection extends 'to documents and things prepared for litigation or trial by or for the adverse party itself or its agent.' 8 Charles Alan Wright et al., Federal Practice and Procedure § 2024 (3rd ed. 2016).")

Case Date Jurisidction State Cite Checked
2016-12-22 Federal MA

Chapter: 34.3

Case Name: United States v. Frostman, Crim No. 4:16cr55, 2016 U.S. Dist. LEXIS 147899 (E.D. Va. Oct. 25, 2016)
(holding that a criminal defendant's lawyer waived opinion work product protection by presenting the criminal defendant in pleading guilty, while declining to acknowledge that the lawyer provided all the necessary warnings to the client before the guilty plea; "In re Doe, 662 F.2d 1073, 1079 (4th Cir. 1981). Attorney-created work product, therefore, constitutes a subset of protected work product.")

Case Date Jurisidction State Cite Checked
2016-10-25 Federal VA

Chapter: 34.3

Case Name: United States v. Frostman, Crim No. 4:16cr55, 2016 U.S. Dist. LEXIS 147899 (E.D. Va. Oct. 25, 2016)
(holding that a criminal defendant's lawyer waived opinion work product protection by presenting the criminal defendant in pleading guilty, while declining to acknowledge that the lawyer provided all the necessary warnings to the client before the guilty plea; "Our Court of Appeals has recognized that both attorneys and non-attorneys can create protected work product.")

Case Date Jurisidction State Cite Checked
2016-10-25 Federal VA

Chapter: 34.3

Case Name: Harrington v. Bergen Cty., A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727, at *11 (D.N.J. Sept. 13, 2016)
November 30, 2016 (PRIVILEGE POINT)

"Plaintiff's Live-In Boyfriend was Outside Privilege Protection, but Inside Work Product Protection: Part II"

Last week's Privilege Point described a court's acknowledgment that a mentally ill plaintiff's live-in boyfriend had provided "meaningful assistance" to the plaintiff in dealing with her lawyer, but was not "necessary or essential" for the plaintiff to obtain her lawyer's advice. Harrington v. Bergen Cty., A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727, at *11 (D.N.J. Sept. 13, 2016). This meant that communications in her boyfriend's presence were not privileged, and that any privileged communication later shared with her boyfriend lost privilege protection.

The court then turned to the work product analysis – and dealt with two related issues. First, the court correctly held that any work product that was "transmitted to or shared with" the boyfriend did not lose that separate protection. Id. at *15. As the court explained, "there is no indication of disclosure to adversaries," so work product protection remained. Id. Second, the court incorrectly held that "the work product doctrine does not protect documents, emails, or other items created by" the boyfriend – because "Plaintiff contends that [her boyfriend] served as her agent or representative, as opposed to" her lawyer's agent. Id. at *13, *15. It is impossible to square this conclusion with the work product rule itself – which on its face protects documents (motivated by litigation) created "'by or for another party or its representative.'" Id. at *7 (quoting Fed. R. Civ. P. 26(b)(3)(A)). The boyfriend's documents should have deserved work product protection either because (1) the documents were prepared "for" the plaintiff, or (2) "by" her "representative."

Lawyers and their clients should keep in mind the dramatic differences between the attorney-client privilege and the work product doctrine. In this case, the court correctly applied one privilege principle (under the majority approach) and one work product principle — but incorrectly applied another work product principle (which varied from the rule language itself). Perhaps the plaintiff can take solace in the words of Meatloaf's song: "Now don't be sad, cause two out of three ain't bad."

Case Date Jurisidction State Cite Checked
2016-09-13 Federal NJ
Comment:

key case


Chapter: 34.3

Case Name: Harrington v. Bergen County, A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727 (D.N.J. Sept. 13, 2016)
(finding that plaintiff's roommate's presence during plaintiff's communications with her lawyer prevented privilege protection; also inexplicably finding that the roommate could not prepare protected work product; "The Court also finds that the work product doctrine does not protect documents, emails, or other items created by Martin [Plaintiff's friend and colleague with whom she resided]. . . . Defendants emphasize that Attorney 'Muller's Declaration does not assert that documents claimed to be protected by the work-product privilege were prepared at his direction in anticipation of litigation.'. . . The Court agrees, as while Plaintiff contends that the documents at issue 'were prepared by Martin at Muller's request for Muller's use in Plaintiff's Administrative matter[,]'. . . Plaintiff's assertion relies on Attorney Muller's statement that when he 'had questions, needed information, documents or clarification, [he] had to request such information from Martin.'. . . Muller's Declaration, even when read in conjunction with that of Plaintiff, only describes an arrangement of sorts, provides no further basis for a finding of the requisite 'direction' or agency relationship, and, again, Martin's mere assistance without, for example, a memorialized relationship or particularized duties, is insufficient to garner work product protection. This reasoning applies in equal force insofar as Plaintiff contends that Martin served as her agent or representative, as opposed to Attorney Muller's. Thus, the Court therefore finds that Plaintiff has not demonstrated that work product privilege protects the items prepared, created, or otherwise authored by Martin."; "As for the remaining disputed items for which Plaintiff claims work product privilege, i.e., those created or otherwise authored by Plaintiff or Attorney Muller and transmitted to or shared with Martin, the Court finds that the work product privilege protects against disclosure. The privilege applies because it is plain that the items at issue were prepared primarily for the ongoing administrative litigation, there is no indication of disclosure to adversaries, and Defendants have not demonstrated waiver.")

Case Date Jurisidction State Cite Checked
2016-09-13 Federal NJ

Chapter: 34.3

Case Name: Harrington v. Bergen County, A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727 (D.N.J. Sept. 13, 2016)
(finding that plaintiff's roommate's presence during plaintiff's communications with her lawyer prevented privilege protection; also inexplicably finding that the roommate could not prepare protected work product; "The Court also finds that the work product doctrine does not protect documents, emails, or other items created by Martin [Plaintiff's friend and colleague with whom she resided]. . . . Defendants emphasize that Attorney 'Muller's Declaration does not assert that documents claimed to be protected by the work-product privilege were prepared at his direction in anticipation of litigation.'. . . The Court agrees, as while Plaintiff contends that the documents at issue 'were prepared by Martin at Muller's request for Muller's use in Plaintiff's Administrative matter[,]'. . . Plaintiff's assertion relies on Attorney Muller's statement that when he 'had questions, needed information, documents or clarification, [he] had to request such information from Martin.'. . . Muller's Declaration, even when read in conjunction with that of Plaintiff, only describes an arrangement of sorts, provides no further basis for a finding of the requisite 'direction' or agency relationship, and, again, Martin's mere assistance without, for example, a memorialized relationship or particularized duties, is insufficient to garner work product protection. This reasoning applies in equal force insofar as Plaintiff contends that Martin served as her agent or representative, as opposed to Attorney Muller's. Thus, the Court therefore finds that Plaintiff has not demonstrated that work product privilege protects the items prepared, created, or otherwise authored by Martin."; "As for the remaining disputed items for which Plaintiff claims work product privilege, i.e., those created or otherwise authored by Plaintiff or Attorney Muller and transmitted to or shared with Martin, the Court finds that the work product privilege protects against disclosure. The privilege applies because it is plain that the items at issue were prepared primarily for the ongoing administrative litigation, there is no indication of disclosure to adversaries, and Defendants have not demonstrated waiver.")

Case Date Jurisidction State Cite Checked
2016-09-13 Federal NJ

Chapter: 34.3

Case Name: Manitowoc Co., Inc. v. Kachmer, No. 14 C 09271, 2016 U.S. Dist. LEXIS 114553 (N.D. Ill. Aug. 26, 2016)
(analyzing privilege and work product protection for a spreadsheet created by a company's former employee, who the company has sued for taking confidential information; finding that the spreadsheet deserved work product protection, and that the defendant could not overcome the work product protection; "Manitowoc's limitation of the work product doctrine to attorneys only fatally undermines its position."; "Protection afforded by the work product doctrine extends to documents prepared by a party irrespective of the absence of counsel's involvement in the documents' generation. . . . Here, no doubt exists as to whether Reuther can meet this test. Reuther constructed the spreadsheet both at the specific instruction of counsel and in direct response to Manitowoc filing suit against him. . . . The Court's in camera review of the document's contents corroborates Reuther's briefing and attached deposition testimony.")

Case Date Jurisidction State Cite Checked
2016-08-26 Federal IL

Chapter: 34.3

Case Name: Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016)
September 14, 2016 (PRIVILEGE POINT)

"Court Points to Several Factors in Denying Work Product Protection: Part I"

Although some courts seem to misunderstand this, Fed. R. Civ. P. 26(b)(3) on its face allows nonlawyers to create protected work product. But lawyers' involvement can buttress work product claims even in courts applying the rule as written.

In Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016), the court rejected Phoenix's work product claim for emails it generated over a seven-day period. Phoenix claimed that it created the documents because it anticipated litigation with defendant, rather than because of a business dispute that had not yet ripened into anticipated litigation. Phoenix argued that "its in-house counsel provided 'continual' legal advice and direction" about the dispute, but the court emphasized that Phoenix's lawyer's "declaration does not identify a single document for which she provided instruction, review or comment." Id. at *23, *26. The court noted that "[l]ack of attorney involvement in documents" can be an important indication that the documents did not deserve work product protection. Id. at *26. After reviewing the withheld documents in camera, the court concluded that "the documents at issue would have been drafted or circulated for a business purpose even if this lawsuit never came to pass." Id. at *28.

Although lawyers need not be involved in creating work product, their involvement supports the argument that the documents were motivated by anticipated litigation rather than created in the ordinary course of business. Next week's Privilege Point will discuss three other factors that doomed Phoenix's work product claim.

Case Date Jurisidction State Cite Checked
2016-07-01 Federal CA B 9/16
Comment:

key case


Chapter: 34.3

Case Name: Johnston v. Dow Employees' Pension Plan, Case No. 14-cv-10427, 2016 U.S. Dist. LEXIS 36825 (E.D. Mich. March 22, 2016)
("The work-product doctrine also protects documents and materials prepared by clients at the direction of attorneys.")

Case Date Jurisidction State Cite Checked
2016-03-22 Federal MI

Chapter: 34.3

Case Name: Robinson v. Vineyard Vines, LLC, 15 Civ. 4972 (VB)(JCM), 2016 U.S. Dist. LEXIS 27948 (S.D.N.Y. March 4, 2016)
(holding that work product doctrine was prepared during a resources consulting group's investigation into a company employee's allegation that she was raped; noting that the defendant dropped an affirmative defense that arguably asserted a Faragher-Ellerth defense, and disclaimed relying on Faragher-Ellerth; "Documents may receive work-product protection even if they are not prepared at the direction of counsel. The text of Federal Rule of Civil Procedure 26(b)(3)(A) affords protection to material prepared 'by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)' -- not merely material prepared by or for an attorney -- and several courts, including courts in the Second Circuit, have interpreted this rule according to its plain meaning.")

Case Date Jurisidction State Cite Checked
2016-03-04 Federal NY

Chapter: 34.3

Case Name: United States v. Allen, 14 Cr. 272 (JSR), 2016 U.S. Dist. LEXIS 4329 (S.D.N.Y. Jan. 8, 2016)
(holding that the attorney-client privilege protected a government cooperator's notes made when he reviewed the defendant's testimony, even if the cooperator did not give his notes to a lawyer; "Furthermore, independent of the Court's determination that Mr. Robson's notes are protected by the attorney-client privilege, the Court holds that Mr. Robson's [Cooperator] notes are subject to work-product protection as well. Mr. Robson's notes were prepared 'at the behest of counsel in anticipation of litigation.'")

Case Date Jurisidction State Cite Checked
2016-01-08 Federal NY

Chapter: 34.3

Case Name: Nichol v. City of Springfield, No. 6:14-cv-1983-AA, 2015 U.S. Dist. LEXIS 169901 (D. Or. Dec. 18, 2015)
February 10, 2016 (PRIVILEGE POINT)

"Court Refreshingly Interprets the Work Product Rule as it is Written"

In one of the greatest mysteries involving the work product doctrine, some federal courts only protect documents created by or at the direction of lawyers — although Fed. R. Civ. P. 23(b)(3) cannot possibly be read to include such a requirement.

In Nichol v. City of Springfield, No. 6:14-cv-1983-AA, 2015 U.S. Dist. LEXIS 169901 (D. Or. Dec. 18, 2015), the court held that the plaintiff's friend could create protected work product. In analyzing the rule's language protecting documents prepared "'by or for another party or its representative,'" the court noted that "[t]he plain meaning of this broad provision encompasses four categories of materials: those prepared (1) by a party; (2) by a party's representative; (3) for a party; or (4) for a party's representative." Id. At *8-9. The court observed that most work product cases involve documents prepared by or for a party's representative, but properly concluded that the lack of such case law protecting documents created for a party (the third category) "does not authorize the court to ignore the plain meaning of Rule 26(b)(3)." Id. At *10. The court acknowledged that the "lack of attorney involvement in creating materials imposes a heightened burden on a party to prove they were prepared in anticipation of litigation." Id. At *11.

Fed. R. Civ. P. 26(b)(3) clearly states that the work product doctrine can protect documents created by or for a party — without a lawyer's involvement. It is remarkable that some federal courts do not apply the rule that way.

Case Date Jurisidction State Cite Checked
2015-12-18 Federal OR
Comment:

key case


Chapter: 34.3

Case Name: Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015)
December 2, 2015 (PRIVILEGE POINT)

"Decision Highlights a Key Difference Between Attorney-Client Privilege and Work Product Doctrine Protection"

The attorney-client privilege provides absolute but fragile protection. In contrast, work product doctrine protection can be overcome — but offers more robust safety than the privilege. This distinction affects the impact of third parties' participation, and disclosure of protected communications or documents to third parties.

In Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015), the court dealt with plaintiff's communications with his lawyer — in the plaintiff's father-in-law's presence. The court found that the father-in-law's participation rendered the privilege unavailable — holding that the father-in-law "was not necessary to Plaintiff's communications with his counsel and [therefore] does not fall within the privilege." Id. At *6. In addressing the work product doctrine, the court applied the universal rule that "unlike the more sensitive attorney-client privilege, waiver of work product protection does not occur simply because a document is shared with a third person." Id. At *10. Because the father-in-law's "interests are aligned with Plaintiff's," disclosing work product to the father-in-law did not waive that separate protection. Id. At *11. In fact, the court concluded that the plaintiff's father-in-law could himself prepare protected work product under Fed. R. Civ. P. Rule 26(b)(3)(A) — which can cover documents prepared in anticipation of litigation "for" a party (such as the plaintiff). Id. At *7.

The attorney-client privilege and the work product doctrine apply in dramatically different ways in the context of friendly third parties — who are generally outside privilege protection but inside work product protection, and who, even themselves, can create protected work product. Corporate lawyers should remember these rules when considering their corporate clients' friendly third parties such as accountants, consultants, or other agents.

Case Date Jurisidction State Cite Checked
2015-09-29 Federal AZ
Comment:

key case


Chapter: 34.3

Case Name: Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015)
Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015) (holding that the attorney-client did not protect communications between the plaintiff and his lawyer in which the plaintiff's father-in-law participated, but that disclosing work product to the father-in-law did not waive that protection, and that the father-in-law could create protected work product; "The protection also applies, however, to documents prepared 'for' a party or his representative. Id. The list of persons in Rule 26(b)(3)(A) -- attorney, consultant, surety, indemnitor, insurer, or agent -- defines 'representative,' and thus identifies the persons 'by or for' whom work product may be prepared. Id. It does not limit the persons who can prepare work product 'for' a party or its representative."; "The work product protection applies not only to emails written by Mr. Prussin [Plaintiff's father-in-law] to Plaintiff and his counsel, but also to emails written to Plaintiff alone, so long as they were written in anticipation of litigation."; "The Court concludes that emails written by Mr. Prussin satisfy the requirements for work product protection. They were written to a party in this litigation in anticipation of litigation."; "The Court also concludes that emails written by Plaintiff and his counsel in anticipation of litigation constitute work product, and that they retain this protection even though they were shared with Mr. Prussin. As many courts have recognized, unlike the more sensitive attorney-client privilege, waiver of work product protection does not occur simply because a document is shared with a third person."; "Mr. Prussin is closely allied with Plaintiff in this litigation. His interests are aligned with Plaintiff's. The Court cannot conclude that disclosure of work product to him substantially increased the opportunity for Defendants to obtain the information, or that it was otherwise inconsistent with the work product protection. The Court concludes, therefore, that the disclosure did not waive the protection.")

Case Date Jurisidction State Cite Checked
2015-09-29 Federal AZ
Comment:

key case


Chapter: 34.3

Case Name: Moore v. Plains All American GP, LLC, Civ. A. No. 14-4666, 2015 U.S. Dist. LEXIS 124794 (E.D. Pa. Sept. 18, 2015)
("I . . . agree that the plain language of Rule 26(b)(3) indicates that the work product doctrine may extend to documents prepared in anticipation of litigation by a party or its representative.").

Case Date Jurisidction State Cite Checked
2015-09-18 Federal PA

Chapter: 34.3

Case Name: Beachfront North Condominium Assoc., Inc. v. Lexington Ins. Co., Civ. No. 14-6706 (RBK/JS), 2015 U.S. Dist. LEXIS 102917 (D.N.J. Aug. 5, 2015)
(analyzing work product issues in a first party insurance context; "[A] document may be protected by the work-product doctrine even though it was not prepared by an attorney. The work-product doctrine may apply even if a document was prepared by a party's agent.")

Case Date Jurisidction State Cite Checked
2015-08-05 Federal NJ

Chapter: 34.3

Case Name: Barba v. Shire US, Inc., Case No. 13-21158-CIV-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 65859 (S.D. Fla. May 20, 2015)
("While the Court accepts Shire's position that scripts prepared by or with the advice of counsel may be attorney work product . . . Close review of the document at issue here finds only one specific reference to the advice of counsel. Shire states broadly that the non-attorney negotiator who prepared this script for use in negotiations was advised by counsel, but nothing more is offered to substantiate this.")

Case Date Jurisidction State Cite Checked
2015-05-20 Federal FL

Chapter: 34.3

Case Name: Karam v. County of Rensselaer, Civ. No. 1:13-CV-1018 (MAD/RFT), 2015 U.S. Dist. LEXIS 16011 (N.D.N.Y. Feb. 10, 2015)
("'There is a split of authority as to whether an attorney needs to be involved for the work product doctrine to be invoked.'")

Case Date Jurisidction State Cite Checked
2015-02-10 Federal NY

Chapter: 34.3

Case Name: BASF Corp. Man Diesel & Turbo N.A., Inc., Civ. A. No. 13-42-JWD-RLB, 2015 U.S. Dist. LEXIS 15615 (M.D. La. Feb. 10, 2015)
(holding that a disbarred lawyer can create work product; "Having reviewed the documents submitted for in camera inspection, the Court finds that they constitute protected work product. These contain emails made between August 22, 2012 and August 28, 2012 primarily involving executives of Man Diesel discussing their plans and strategies with regard to responding to the draft Petition and settlement demand letter send by counsel for BASF, including preparation for settlement negotiations and potential mediation. Although Mr. Porrier is a disbarred attorney, he is acting as point person in these communications with opposing counsel for the benefit of Man Diesel's counsel. These communications are in the context of having received a draft petition from counsel for BASF as well as having received BASF's offer to pursue settlement of this dispute through alternative dispute resolution.")

Case Date Jurisidction State Cite Checked
2015-02-10 Federal LA

Chapter: 34.3

Case Name: Wultz v. Bank of China Ltd., 11 Civ. 1266 (SAS) (GWG), 2015 U.S. Dist. LEXIS 8605 (S.D.N.Y. Jan. 21, 2015)
(in an opinion by Judge Gorenstein, finding that a compliance-initiated investigation into a defendant's possible tie with terrorists did not deserve privilege or work product protection; "Notwithstanding the common description of the doctrine as the 'attorney' work product doctrine, as a doctrine 'intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy,'. . . It is not in fact necessary that the material be prepared by or at the direction of an attorney.")

Case Date Jurisidction State Cite Checked
2015-01-21 Federal NY

Chapter: 34.3

Case Name: Largan Precision Co., Ltd. v. Genius Electronic Optical Co., Ltd., Case No. 13-cv-02502-JD, 2015 U.S. Dist. LEXIS 2072 (N.D. Cal. Jan. 8, 2015)
(in a patent case, finding that the absence of any lawyer involvement made it more difficult to claim work product; "[I]t is certainly true that a document need not be prepared personally by an attorney to qualify as work product. But attorney involvement -- or the lack thereof -- is far from irrelevant, as Genius [Defendant] suggests. The fact that the withheld documents do not involve any attorneys is a useful sign, in conjunction with other indicators, that they are not protected work product."; " [T]hat the involvement of attorneys should be considered as part of the 'anticipation of litigation' prong of the tests.")

Case Date Jurisidction State Cite Checked
2015-01-08 Federal CA

Chapter: 34.3

Case Name: In re Third Party Subpoenas Issued to Rambus, Inc. v. Acer Inc., Case No. 14-mc-80293 EJD (NC), 2014 U.S. Dist. LEXIS 164398 (N.D. Cal. Nov. 21, 2014)
("Documents prepared at the direction of counsel may qualify for work product protection, but unless a document consists of a 'confidential communication,' Rambus improperly asserts attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2014-11-21 Federal CA

Chapter: 34.3

Case Name: Szulik v. State Street Bank and Trust Co., Civ. A. No. 12-10018-NMG, 2014 U.S. Dist. LEXIS 110447 (D. Mass. Aug. 11, 2014)
("State Street argues that the chronology cannot be work product because it was not prepared under the direction of an attorney, or to assist the attorney -- rather, it was prepared to assist the party deponent. . . . This argument is not persuasive. By now, it is well-established that the doctrine protects writings made by a party, even without any involvement by counsel. . . . There is no separate requirement in the work product doctrine or in Fed. R. Civ. P. 26(b)(3) that the document actually be used by counsel.")

Case Date Jurisidction State Cite Checked
2014-08-11 Federal MA

Chapter: 34.3

Case Name: Hooke v. Foss Maritime Co., Case No. 13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. April 10, 2014)
(analyzing work product protection for documents created after separate work-related injuries; finding the work product doctrine inapplicable; "As to the EIS Report Witness Statements, all three witnesses testified that it was standard operating procedure to fill out the EIS Report Witness Statements, and that they were not specifically instructed to do so by the General Counsel.")

Case Date Jurisidction State Cite Checked
2014-04-10 Federal CA

Chapter: 34.3

Case Name: Shire LLC v. Amneal Pharmaceuticals LLC, Civ. A. No. 2:11-cv-03781 (SRC) (CLW) (Consolidated), 2014 U.S. Dist. LEXIS 45075 (D.N.J. April 1, 2014)
("This is not work product because it was not written by an attorney revealing the preparation of a client's case nor does the Court find it to be an informal evaluation of the case written by Defendant's agent.")

Case Date Jurisidction State Cite Checked
2014-04-01 Federal NJ

Chapter: 34.3

Case Name: Shire LLC v. Amneal Pharmaceuticals LLC, Civ. A. No. 2:11-cv-03781 (SRC) (CLW) (Consolidated), 2014 U.S. Dist. LEXIS 45075 (D.N.J. April 1, 2014)
("This is not work product because it is written by a non-attorney and does not provide an informal evaluation of the case that, under the circumstance, should be protected.")

Case Date Jurisidction State Cite Checked
2014-04-01 Federal NJ

Chapter: 34.3

Case Name: In the Matter of the Search of Advanced Pain Centers Poplar Bluff v. Ware, Case No. 4:13CV010408AG and Case No. 1:13CV00107 AGF, 2014 U.S. Dist. LEXIS 43177 (E.D. Mo. March 31, 2014)
(finding that a company's Incident Reports reports did not deserve work product protection; "Petitioners have not satisfied their burden to show that the documents were prepared by, or at the behest of, an attorney and in reasonable anticipation of litigation. Petitioners' practice of marking each incident report with the phrase 'Prepared in Anticipation of Litigation' does not magically convert the document to attorney work product. Indeed, many of the reports were completed many years ago, and Petitioners cannot show any reasonable basis for claiming any litigation is anticipated with respect to these matters."; "The record indicates that in the course of the operation of the APCs many different individuals including medical assistants, receptionists, compliance officers, and physicians filled out the forms in the wake of every day mishaps and incidents of many types. The very fact that the incident reports were used in so many different types of situations by personnel with varying qualifications strongly suggests that they were prepared as part of the day-to-day operation of the APCs and not in anticipation of litigation."; also finding the attorney-client privilege inapplicable)

Case Date Jurisidction State Cite Checked
2014-03-31 Federal MO

Chapter: 34.3

Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
(focusing on the content of work product rather than a supporting affidavit; "To establish the applicability of the work product doctrine to such documents, it is not sufficient for a party to show only that an attorney or the attorney's agent generated the document. Corporate in-house counsel are 'often called upon to perform tasks that go beyond the traditional tasks performed by lawyers.'. . . Accordingly, 'each document must be perused to see whether the attorney was involved in rendering legal advice or if the document contains work product information.'"; "In making this inquiry, a court need not simply accept the parties' declarations. . . . Additionally, a court may scrutinize the content of the subject documents for analysis that 'hints at a focus on litigation.'")

Case Date Jurisidction State Cite Checked
2014-03-28 Federal FL

Chapter: 34.3

Case Name: Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 U.S. Dist. LEXIS 28483, at *9 (N.D. Tex. Feb. 27, 2014)
("Defendants have failed to show that Trombetta's text messages with non-attorneys David Icenhower and Kelly Myers were prepared for an attorney in preparation for litigation. They also failed to demonstrate that the sought-after text messages were made to assist an attorney in preparation for litigation instead of in the ordinary course of business or for some other purpose."; "Instead, according to the evidence before the Court, the text messages are simply communications between three non-attorney employees of Borden Perlman who are discussing the lawsuit. As such, and unless and until Borden Perlman comes forward with evidence showing otherwise, the redacted text messages are not protected by the work product doctrine.")

Case Date Jurisidction State Cite Checked
2014-02-27 Federal TX B 8/14

Chapter: 34.3

Case Name: S.S. v. Leatt Corp., Case No. 1:12 CV 483, 2014 U.S. Dist. LEXIS 12192, at *19 (N.D. Ohio Jan. 31, 2014)
("[T]he 2009 version of the White Paper was created without the input of an attorney. Thus, this version is not covered by the work product doctrine. Defendant's arguments are rejected.")

Case Date Jurisidction State Cite Checked
2014-01-31 Federal OH B 6/14

Chapter: 34.3

Case Name: Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., 29 F.R.D. 611, 620 (D. Kan. 2014)
("In most instances the involvement of an attorney is required. The lack of attorney involvement, however, does not necessarily preclude a party from demonstrating the privilege's applicability.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal KS B 8/14

Chapter: 34.3

Case Name: Meighan v. Transguard Ins. Co. of Am., Inc., 298 F.R.D. 436, 445 (N.D. Iowa 2014)
(analyzing work product issues in a first party insurance bad faith context; "The reserves information here seems to relate to Meighan's particular claim. Although this information was documented by Sobus [insurance adjuster], who is not an attorney, it is still protected by the work product privilege.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal IA B 8/14

Chapter: 34.3

Case Name: Owens v. Stifel, Nicolaus & Co., Civ. A. No. 7:12-CV-144 (HL), 2013 U.S. Dist. LEXIS 171913, at *6 (M.D. Ga. Dec. 6, 2013)
("The document is an email string about Anthony Fisher [broker] and Plaintiffs' accounts. In-house counsel is involved in the email string, but the emails do not explicitly seek or contain legal advice. However, the emails are protected by the work product doctrine because the emails were prepared because of the prospect of litigation.")

Case Date Jurisidction State Cite Checked
2013-12-06 Federal GA B 5/14

Chapter: 34.3

Case Name: Toensing v. United States Dep't of Justice, Civ. A. No. 11-1215 (BAH), 2013 U.S. Dist. LEXIS 162158, at *14 (D.D.C. Nov. 14, 2013)
("The work product doctrine can apply to preparatory work performed not only by attorneys, but also, in some circumstances by nonlawyers.")

Case Date Jurisidction State Cite Checked
2013-11-14 Federal DC B 5/14

Chapter: 34.3

Case Name: Mastr Adjustable Rate Mortgs. Trust 2006-OA2 v. UBS Real Estate Sec. Inc., No. 12 Civ. 7322 (HB) (JCF), 2013 U.S. Dist. LEXIS 130606, at *16 (S.D.N.Y. Sept. 12, 2013)
(in an opinion by Magistrate Judge James Francis, analyzing privilege log issues; "[O]nly those documents authored by Williams & Connolly [defendant's lawyer] or its agents 'specifically directed to litigation strategy or possible litigation defenses' are covered by work product immunity." (citation omitted))

Case Date Jurisidction State Cite Checked
2013-09-12 Federal NY B 4/14

Chapter: 34.3

Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 92089, at *3-4 (S.D.N.Y. June 28, 2013)
(analyzing work product protection for materials created by a private investigator and communications with a public relations firm; "[I]t is important to bear in mind that the work product doctrine protects the confidentiality of documents and other materials prepared in anticipation of litigation except in limited circumstances. It rests in part on the premise that each party to a lawsuit should do its own work, including its own investigation of the facts, without intruding into and benefitting from the efforts of its adversary. And it extends to work prepared by a private investigator in anticipation of litigation, at least where the investigator is working at the direction of an attorney. Accordingly, in the absence of a more particular showing as to particular documents that the requisites of work product protection have not been made out by Chevron's privilege log -- and there is none -- the suggestion that none of the investigative materials have any protection to begin with fails. In particular, the suggestion that surveillance videos and photos taken by investigators in the context of a litigation such as this, and documents relating to such activities, 'are not protected to begin with' is frivolous. They quite obviously are materials prepared in anticipation of litigation and therefore protected by Fed. R. Civ. P. 26(b)(3)." (footnotes omitted))

Case Date Jurisidction State Cite Checked
2013-06-28 Federal NY B 4/14

Chapter: 34.3

Case Name: Warren v. Bastyr Univ., No. 2:11-cv-01800-RSL, 2013 U.S. Dist. LEXIS 71269, at *7 (W.D. Wash. May 17, 2013)
(inexplicably requiring a lawyer's involvement for work product protection; "[T]here is no indication that an attorney requested, created, or reviewed the withheld proposal for how to approach plaintiff regarding re entry into the clinical program at Bastyr.")

Case Date Jurisidction State Cite Checked
2013-05-17 Federal WA B 3/14

Chapter: 34.3

Case Name: Warren v. Bastyr University, No. 2:11-cv-01800-RSL, 2013 U.S. Dist. LEXIS 71269, at *7 (W.D. Wash. May 17, 2013)
July 10, 2013 (PRIVILEGE POINT)

"Does Work Product Protection Depend on a Lawyer's Involvement?"

Perhaps the most remarkable judicial disagreement about the work product doctrine involves the issue of a lawyer's involvement. The rule could not be any clearer. Federal Rule of Civil Procedure 26(b)(3)(A) protects documents prepared in anticipation of litigation or trial "by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." (Emphasis added).

Some courts apply the rule as written. In In re MI Windows & Doors, Inc., Prod. Liab. Litig., the court recognized that "even if no lawyer was involved, these notes would be protected by work product," because "[t]he work product immunity protects material prepared by non-lawyers in anticipation of litigation." MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *4 (D.S.C. May 1, 2013). About two weeks later, the Southern District of New York took the same approach. Vaher v. Town of Orangetown, No. 10 Civ. 1606 (KMK) (GAY), 2013 U.S. Dist. LEXIS 69559 (S.D.N.Y. May 15, 2013). However, two days after that, the Western District of Washington inexplicably took a different position. In Warren v. Bastyr University, No. 2:11-cv-01800-RSL, 2013 U.S. Dist. LEXIS 71269, at *7 (W.D. Wash. May 17, 2013), the court rejected defendant's work product argument – noting among other things that "there is no indication that an attorney requested, created, or reviewed the withheld" document. A few other courts have taken this puzzling approach. See, e.g., United States ex rel. Dye v. ATK Launch Sys. Inc., Case No. 1:06-CV-00039-CW, 2011 U.S. Dist. LEXIS 28536, at *15 (N.D. Utah Mar. 9, 2011) ("ATK agrees that the Wecker and Davidson Slides were not prepared at the direction of counsel, so the work product doctrine does not apply.")

Lawyers appearing in a court taking the narrow view face the awkward task of gently suggesting that the court actually read the rule.

Case Date Jurisidction State Cite Checked
2013-05-17 Federal WA
Comment:

key case


Chapter: 34.3

Case Name: Vaher v. Town of Orangetown, No. 10 Civ. 1606 (KMK) (GAY), 2013 U.S. Dist. LEXIS 69559 (S.D.N.Y. May 15, 2013)
July 10, 2013 (PRIVILEGE POINT)

"Does Work Product Protection Depend on a Lawyer's Involvement?"

Perhaps the most remarkable judicial disagreement about the work product doctrine involves the issue of a lawyer's involvement. The rule could not be any clearer. Federal Rule of Civil Procedure 26(b)(3)(A) protects documents prepared in anticipation of litigation or trial "by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." (Emphasis added).

Some courts apply the rule as written. In In re MI Windows & Doors, Inc., Prod. Liab. Litig., the court recognized that "even if no lawyer was involved, these notes would be protected by work product," because "[t]he work product immunity protects material prepared by non-lawyers in anticipation of litigation." MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *4 (D.S.C. May 1, 2013). About two weeks later, the Southern District of New York took the same approach. Vaher v. Town of Orangetown, No. 10 Civ. 1606 (KMK) (GAY), 2013 U.S. Dist. LEXIS 69559 (S.D.N.Y. May 15, 2013). However, two days after that, the Western District of Washington inexplicably took a different position. In Warren v. Bastyr University, No. 2:11-cv-01800-RSL, 2013 U.S. Dist. LEXIS 71269, at *7 (W.D. Wash. May 17, 2013), the court rejected defendant's work product argument – noting among other things that "there is no indication that an attorney requested, created, or reviewed the withheld" document. A few other courts have taken this puzzling approach. See, e.g., United States ex rel. Dye v. ATK Launch Sys. Inc., Case No. 1:06-CV-00039-CW, 2011 U.S. Dist. LEXIS 28536, at *15 (N.D. Utah Mar. 9, 2011) ("ATK agrees that the Wecker and Davidson Slides were not prepared at the direction of counsel, so the work product doctrine does not apply.")

Lawyers appearing in a court taking the narrow view face the awkward task of gently suggesting that the court actually read the rule.

Case Date Jurisidction State Cite Checked
2013-05-15 Federal NY
Comment:

key case


Chapter: 34.3

Case Name: In re MI Windows & Doors, Inc., Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *4 (D.S.C. May 1, 2013)
July 10, 2013 (PRIVILEGE POINT)

"Does Work Product Protection Depend on a Lawyer's Involvement?"

Perhaps the most remarkable judicial disagreement about the work product doctrine involves the issue of a lawyer's involvement. The rule could not be any clearer. Federal Rule of Civil Procedure 26(b)(3)(A) protects documents prepared in anticipation of litigation or trial "by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." (Emphasis added).

Some courts apply the rule as written. In In re MI Windows & Doors, Inc., Prod. Liab. Litig., the court recognized that "even if no lawyer was involved, these notes would be protected by work product," because "[t]he work product immunity protects material prepared by non-lawyers in anticipation of litigation." MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *4 (D.S.C. May 1, 2013). About two weeks later, the Southern District of New York took the same approach. Vaher v. Town of Orangetown, No. 10 Civ. 1606 (KMK) (GAY), 2013 U.S. Dist. LEXIS 69559 (S.D.N.Y. May 15, 2013). However, two days after that, the Western District of Washington inexplicably took a different position. In Warren v. Bastyr University, No. 2:11-cv-01800-RSL, 2013 U.S. Dist. LEXIS 71269, at *7 (W.D. Wash. May 17, 2013), the court rejected defendant's work product argument – noting among other things that "there is no indication that an attorney requested, created, or reviewed the withheld" document. A few other courts have taken this puzzling approach. See, e.g., United States ex rel. Dye v. ATK Launch Sys. Inc., Case No. 1:06-CV-00039-CW, 2011 U.S. Dist. LEXIS 28536, at *15 (N.D. Utah Mar. 9, 2011) ("ATK agrees that the Wecker and Davidson Slides were not prepared at the direction of counsel, so the work product doctrine does not apply.")

Lawyers appearing in a court taking the narrow view face the awkward task of gently suggesting that the court actually read the rule.

Case Date Jurisidction State Cite Checked
2013-05-01 Federal SC
Comment:

key case


Chapter: 34.3

Case Name: Global Oil Tools, Inc. v. Barnhill, Civ. A. No. 12-1507 SECTION "J" (4), 2013 U.S. Dist. LEXIS 48226, at *21 (E. D. La. Apr. 3, 2013)
("The work-product doctrine protects materials prepared by or for in [sic] attorney in preparation for litigation.")

Case Date Jurisidction State Cite Checked
2013-04-03 Federal LA B 3/14

Chapter: 34.3

Case Name: Cosentino v. Transcend Servs., Inc., No. 12 C 3627, 2013 U.S. Dist. LEXIS 37538, at *3, *4-5 (N.D. Ill. Mar. 19, 2013)
("Transcend moves to strike the declarations submitted by the plaintiffs in support of their motion for conditional certification on the ground that the plaintiffs failed to turn over the declarations despite document requests and interrogatories seeking their disclosure."; "The plaintiffs claim the declarations were not turned over because they are attorney work product. But the plaintiffs did not turn over a privilege log, thus giving Transcend the ability to challenge the assertion of the privilege. In any event, the plaintiffs fail to demonstrate that the declarations contain attorney impressions and are therefore subject to the work product privilege.")

Case Date Jurisidction State Cite Checked
2013-03-19 Federal IL B 3/14

Chapter: 34.3

Case Name: Laws v. Stevens Transp., Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159, at *5-6 (S.D. Ohio Feb. 19, 2013)
(holding that the work product doctrine protected photographs of an accident scene taken the day of an accident, and that plaintiff could not overcome the protection; inexplicably finding that the work product doctrine did not apply unless photographs were taken at the direction of a lawyer; "Their reply brief focuses on the fact that defendants, in their memorandum in opposition, did not produce any evidence showing that the photos were taken at the direction of any defendant and in anticipation of litigation. They were correct in that assertion when it was made, but the subsequently-filed affidavit from Mr. Buchbinder [defendant company's lawyer] cured that defect, and plaintiffs have not questioned its truthfulness.")

Case Date Jurisidction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 34.3

Case Name: Bryan Corp. v. Chemwerth, Inc., 296 F.R.D. 31, 38 (D. Mass. 2013)
(quoting successful affidavits supporting plaintiff's lawyer's contention that it needed the assistance of plaintiff's long-time FDA consultant in providing legal advice to plaintiff; "[T]he work product doctrine encompasses documents that are prepared in anticipation of litigation by a party's representative, including a party's consultant or agent. . . . Because Waldman [plaintiff's FDA consultant] was acting as Bryan's agent when the documents were created, its participation in the communications does not defeat application of the work product doctrine even though it was not represented by counsel. Moreover, Waldman's communications, made both in its capacity as Bryan's agent and in anticipation of litigation, are entitled to protection even in the absence of attorney involvement.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal MA B 5/14

Chapter: 34.3

Case Name: Popina v. Rice-Steward, 86 Va. Cir. 402, 403, 404 (Va. Cir. Ct. 2013)
("The statement at issue was taken by the agent of the Defendant's insurance company prior to the employment of counsel. No additional facts supporting the allegations of work product were presented. Defendant's counsel argues that the Defendant's statement is not discoverable under Rule 4:1(b)(3) because it was taken in anticipation of litigation. Without establishing that the statement is the work product of counsel, the argument that the statement was taken in anticipation of litigation is irrelevant. Rule 4:1(b)(3) is not engaged without the finding that the material collected is encompassed within the work product of an attorney."; "Any effort to expand the work-product doctrine to include the work of the insurance adjuster prior to retention of counsel requires a deliberative and participative process either by the General Assembly or amendment of the Rules of Court by the Virginia Supreme Court to assure a careful balance between advocacy and truthfulness. In the absence of a deliberate expansion of the work product doctrine, this court finds that the routine taking of statements by an auto insurance adjuster is work in the ordinary course of business which fails to qualify as work product.")

Case Date Jurisidction State Cite Checked
2013-01-01 State VA B 9/13, 3/14

Chapter: 34.3

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 647 (D. Nev. 2013)
("A review of Joint Selection 12 reveals that it consists of an e-mail which serves as a calendaring invitation for a 'liability meeting.' There is nothing privileged about the e-mail itself, but the document also contains handwritten notes regarding the meeting. Bard has not provided any information regarding the identity of the person who made the handwritten notes. The work product doctrine covers items prepared by a party, or its representative, in anticipation of litigation.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal NV B 3/14

Chapter: 34.3

Case Name: Popina v. Rice-Steward, 86 Va. Cir. 402, 403, 404 (Va. Cir. Ct. 2013)
("The statement at issue was taken by the agent of the Defendant's insurance company prior to the employment of counsel. No additional facts supporting the allegations of work product were presented. Defendant's counsel argues that the Defendant's statement is not discoverable under Rule 4:1(b)(3) because it was taken in anticipation of litigation. Without establishing that the statement is the work product of counsel, the argument that the statement was taken in anticipation of litigation is irrelevant. Rule 4:1(b)(3) is not engaged without the finding that the material collected is encompassed within the work product of an attorney."; "Any effort to expand the work-product doctrine to include the work of the insurance adjuster prior to retention of counsel requires a deliberative and participative process either by the General Assembly or amendment of the Rules of Court by the Virginia Supreme Court to assure a careful balance between advocacy and truthfulness. In the absence of a deliberate expansion of the work product doctrine, this court finds that the routine taking of statements by an auto insurance adjuster is work in the ordinary course of business which fails to qualify as work product.")

Case Date Jurisidction State Cite Checked
2013-01-01 State VA

Chapter: 34.3

Case Name: Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *4 (E.D. Va. July 12, 2012)
("The party asserting the work product doctrine must establish that the document at issue was prepared by, or at the direction of, an attorney in anticipation of litigation.")

Case Date Jurisidction State Cite Checked
2012-07-12 Federal VA B 3/16
Comment:

key case


Chapter: 34.3

Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("[T]he party asserting the work product doctrine must establish that the document at issue was prepared at the direction of an attorney in anticipation of litigation. Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947).")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal VA

Chapter: 34.3

Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("Lawson must meet its initial burden of showing that the documents are work product by establishing that they were prepared 'in anticipation of litigation' at the direction of an attorney. It has not done so.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal VA

Chapter: 34.3

Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 257 (E.D. Va. 2012)
("To establish that the work product privilege is applicable, a party has the burden of establishing that the document at issue was prepared at the direction of an attorney in anticipation of litigation. Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947).")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal VA B 3/16
Comment:

key case


Chapter: 34.3

Case Name: Yorktowne Shopping Center, LLC v. Nat'l Surety Corp., Civ. A. No. 1:10cv1333, 2011 U.S. Dist. LEXIS 52032, at *2-3 (E.D. Va. May 16, 2011)
("[T]he work product rule limits discovery of documents (1) prepared by, or under the direction of, an attorney or representative, and (2) in anticipation of litigation. Fed.R.Civ.P. 26(b)(3); E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530 at *10 (E.D. Va. April 13, 2010)." (footnote omitted))

Case Date Jurisidction State Cite Checked
2011-05-16 Federal VA B 3/16
Comment:

key case


Chapter: 34.3

Case Name: United States ex rel. Dye v. ATK Launch Sys. Inc., Case No. 1:06-CV-00039-CW, 2011 U.S. Dist. LEXIS 28536, at *15 (N.D. Utah Mar. 9, 2011)
July 10, 2013 (PRIVILEGE POINT)

"Does Work Product Protection Depend on a Lawyer's Involvement?"

Perhaps the most remarkable judicial disagreement about the work product doctrine involves the issue of a lawyer's involvement. The rule could not be any clearer. Federal Rule of Civil Procedure 26(b)(3)(A) protects documents prepared in anticipation of litigation or trial "by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." (Emphasis added).

Some courts apply the rule as written. In In re MI Windows & Doors, Inc., Prod. Liab. Litig., the court recognized that "even if no lawyer was involved, these notes would be protected by work product," because "[t]he work product immunity protects material prepared by non-lawyers in anticipation of litigation." MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *4 (D.S.C. May 1, 2013). About two weeks later, the Southern District of New York took the same approach. Vaher v. Town of Orangetown, No. 10 Civ. 1606 (KMK) (GAY), 2013 U.S. Dist. LEXIS 69559 (S.D.N.Y. May 15, 2013). However, two days after that, the Western District of Washington inexplicably took a different position. In Warren v. Bastyr University, No. 2:11-cv-01800-RSL, 2013 U.S. Dist. LEXIS 71269, at *7 (W.D. Wash. May 17, 2013), the court rejected defendant's work product argument – noting among other things that "there is no indication that an attorney requested, created, or reviewed the withheld" document. A few other courts have taken this puzzling approach. See, e.g., United States ex rel. Dye v. ATK Launch Sys. Inc., Case No. 1:06-CV-00039-CW, 2011 U.S. Dist. LEXIS 28536, at *15 (N.D. Utah Mar. 9, 2011) ("ATK agrees that the Wecker and Davidson Slides were not prepared at the direction of counsel, so the work product doctrine does not apply.")

Lawyers appearing in a court taking the narrow view face the awkward task of gently suggesting that the court actually read the rule.

Case Date Jurisidction State Cite Checked
2011-03-09 Federal UT
Comment:

key case


Chapter: 34.3

Case Name: Solis v. Food Emp'rs Labor Relations Ass'n, 644 F.3d 221, 231-32 (4th Cir. 2011)
("Distinct from the attorney-client privilege, the work product doctrine belongs to the attorney and confers a qualified privilege on documents prepared by an attorney in anticipation of litigation. Hickman v. Taylor, 329 U.S. 495, 509-14, 67 S. Ct. 385, 91 L. Ed. 451 (1947); In re Grand Jury Proceedings, Thur. Special Grand Jury Sept. Term, 1991, 33 F.3d 342, 348 (4th Cir. 1994); Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480, 483, n.12 (4th Cir. 1973).")

Case Date Jurisidction State Cite Checked
2011-01-01 Federal

Chapter: 34.3

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 503 (4th Cir. 2011)
("To the extent that the replies to Jill Slaughter's February 9, 2009 e-mails were written by non-lawyers, the work-product privilege might not apply. Similarly, if the e-mails failed any of the Jones [United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)] criteria, the attorney-client privilege might also be inapplicable. Because Interbake has not presented a document-by-document privilege analysis of the reply e-mails or offered a specific reason why the e-mail string should be treated as a group, see In re Universal Serv. Fund Litig., 232 F.R.D. at 673, we conclude that the district court must assess the privilege claim with respect to each e mail in the string to determine whether Interbake has carried its burden, see Jones, 696 F.2d at 1072."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

Case Date Jurisidction State Cite Checked
2011-01-01 Federal

Chapter: 34.3

Case Name: In re Outside Wall Tire Litig., Case No. 1:09cv1217, 2010 U.S. Dist. LEXIS 67578, at *6 (E.D. Va. July 6, 2010)
("Nor is the material protected by the attorney work-product doctrine, which 'protects an attorney's work done in preparation for litigation.' In re Grand Jury Proceedings # 5 Empanelled Jan. 28, 2004, 401 F.3d 247, 250 (4th Cir. 2005).")

Case Date Jurisidction State Cite Checked
2010-07-06 Federal VA

Chapter: 34.3

Case Name: E.I. DuPont De Nemours & Co. v. Kolon Indus., Inc., Civ. A. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530, at *10 (E.D. Va. Apr. 13, 2010)
(holding that DuPont had not waived the work product protection by providing work product to the government in an effort to cooperate with the government's criminal investigation of a former DuPont employee against whom DuPont was also planning to pursue a civil case; "It is the burden of the party asserting work product privilege to show that the privilege applies, and to meet this burden, the party asserting privilege must show, 'as to each document, that the work product in question was: (1) prepared by, or under the discretion of, an attorney and, (2) was prepared in anticipation of litigation.' Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 272 (E.D. Va. 2004) (citing Hickman, 329 U.S. at 495; In re Grand Jury Proceedings, 102 F.3d 748, 750 (4th Cir. 1996))")

Case Date Jurisidction State Cite Checked
2010-04-13 Federal VA B 3/16
Comment:

key case


Chapter: 34.3

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 604 (E.D. Va. 2010)
("Work product protection, as discussed at length in the Memorandum Opinion of April 13, 2010 (DuPont v. Kolon, 2010 U.S. Dist. LEXIS 36530, 2010 WL 1489966, at *3-5), shields from discovery work product prepared by an attorney, or at the direction of an attorney, in anticipation of litigation.")

Case Date Jurisidction State Cite Checked
2010-01-01 Federal VA

Chapter: 34.3

Case Name: Schwarz & Schwarz v. Certain Underwriters at Lloyd's, Civ. A. No. 6:07cv042, 2009 U.S. Dist. LEXIS 56912, at *6 (W.D. Va. July 1, 2009)
(analyzing protection for notes taken by in insured's corporate representative at depositions in a first party insurance case; finding that the notes deserve work product protection; "Although Underwriters asserts that Staley's [corporate representative for plaintiff] notes were not shared with counsel, counsel for Schwarz [insured] represented that they were taken at his direction. As the notes were created during the litigation process by a party representative, they are plainly subject to work product protection. The fact that Staley [insured's corporate representative] did not share them with counsel is not controlling. See Pete Rinaldi's Fast Foods, Inc. v. Great American Ins. Cos., 123 F.R.D. 198, 202 (M.D.N.C. 1988) (holding that the '[i]nvolvement of an attorney is a highly relevant but not necessarily controlling factor'). Underwriters made no showing of substantial need, indeed, it deposed Staley. As such, the notes are not subject to discovery.")

Case Date Jurisidction State Cite Checked
2009-07-01 Federal VA B 3/16
Comment:

key case


Chapter: 34.3

Case Name: Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234, 237 (Va. Cir. Ct. 2008)
("While document one is addressed to Cintas' [seller of real estate] counsel and labeled 'CONFIDENTIAL WORK PRODUCT', it appears to have been prepared by one of Cintas' administrators, there is absolutely nothing to indicate that it was prepared at the request of Cintas' counsel, and in addition to the attorney it is also addressed to two employees of Environ [Cintas' "environmental remediation contractor"]. The subject does not appear to be litigation, and Cintas has not addressed why they would be sharing litigation or trial preparation materials with another company. Document two is addressed to two of Cintas' attorneys, but it is also addressed to an Environ employee, and although it suggests litigation there is nothing to indicate that it was prepared in anticipation of litigation. Rather the subject appears to be the ongoing environmental remediation work, and when that work might be complete.")

Case Date Jurisidction State Cite Checked
2008-01-01 State VA B 3/16
Comment:

key case


Chapter: 34.3

Case Name: Sheets v. Insurance Co. of N. Am., No. 4:04CV00058, 2005 U.S. Dist LEXIS 27060, at *2 (W.D. Va. Nov. 8, 2005)
("The work-product privilege protects an attorney's work done in preparation for litigation. United States v. Under Seal (In re Grand Jury Proceedings), 33 F.3d 342, 348 (4th Cir. 1994).")

Case Date Jurisidction State Cite Checked
2005-11-08 Federal VA

Chapter: 34.3

Case Name: Brown v. Laboratory Corp. of Am., 67 Va. Cir. 232, 235 (Va. Cir. Ct. 2005)
(assessing work product protection for medical incident reports after an infant died; concluding that the work product doctrine did not apply;"The reports in question do not contain mental impressions or strategies of any attorney, but merely provide an immediate account of the facts giving rise to the claim.")

Case Date Jurisidction State Cite Checked
2005-01-01 State VA

Chapter: 34.3

Case Name: McDonald v. Sentara Medical Group, 64 Va. Cir. 30, 36-37 (Va. Cir. Ct. (2004)
(holding that the work product doctrine protected documents prepared by a hospital after the plaintiff slipped and fell on the premises; "The Court recognizes the danger of the outright exclusion of files of this nature from discovery based on the work product doctrine. As noted by the Rockingham Circuit Court, such a practice would make the exclusion too broad and effectively create an entire new category of material exempt from discovery. Estabrook v. Conley, 42 Va. Cir. 512, 513 (Rockingham County 1997). However, a rule that denies application of the work product doctrine where there is not some minimal involvement of counsel seems not to recognize the practical reality that, at some point before retention of counsel, a defendant may be faced with an actual or potential claim, such that the defendant anticipates litigation and acts accordingly. Thus, it is well reasoned to approach the issue by evaluating why the requested documents were prepared to determine if the work product doctrine is relevant. Prince v. Ponderosa Steakhouse, 40 Va. Cir. 466, 470 (Albemarle County 1996); Ring v. Mikris, Inc., 40 Va. Cir. 528, 532-33 (Newport News 1996).")

Case Date Jurisidction State Cite Checked
2004-01-01 State VA B 3/16
Comment:

key case


Chapter: 34.3

Case Name: Hanson v. United States Agency for Int'l Dev., 372 F.3d 286, 292-93 (4th Cir. 2004)
(explaining that under Exemption 5 of FOIA "[t]o be considered attorney work product, a document must have been 'prepared by an attorney in contemplation of litigation which sets forth the attorney's theory of the case and his litigation strategy.'. . . The attorney work product exemption includes factual information prepared by an attorney in anticipation of litigation." (citation omitted))

Case Date Jurisidction State Cite Checked
2004-01-01 Federal N 11/05

Chapter: 34.3

Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 200 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "The work product doctrine not only applies to material prepared by a party's attorney, but also to material prepared by a party's representative, including that party's insurer. See Virginia Rule 4:1(b)(3) (2000).")

Case Date Jurisidction State Cite Checked
2003-01-01 State VA B 3/16
Comment:

key case


Chapter: 34.3

Case Name: United States v. Ruhbayan, 201 F. Supp. 2d 682, 685 (E.D. Va. 2002)
("The work-product privilege protects the work an attorney does in anticipation of litigation. See, e.g., In re Grand Jury Proceedings, Thursday Special Grand Jury Sept. Term, 1991, 33 F.3d 342, 348 (4th Cir. 1994).")

Case Date Jurisidction State Cite Checked
2002-01-01 Federal VA

Chapter: 34.3

Case Name: Thompson v. Winn Dixie Raleigh, Inc., 49 Va. Cir. 115, 116 (Va. Cir. Ct. 1999)
(addressing work product protection for statements prepared after an accident in a grocery store; ultimately concluding that the work product doctrine did not protect any statements taken before the defendant retained a lawyer; "Numerous courts have found that routine investigatory reports made and prepared without some minimal involvement of counsel are not protected by the work protect doctrine. See North and South Lines v. U.S. F. & G. Co., 46 Va. Cir. 294 (Rockingham 1998); Whetzel & McKee, 44 Va. Cir. 315 (Rockingham County 1998); Estabrook V. Conley, 42 Va. Cir. 512 (Rockingham 1997); Overton v. Dise, 35 Va. Cir. 177 (Fairfax 1994); Whitehead v. Harris-Teeter, Inc., 28 Va. Cir. 367 (Amherst 1992); Brugh v. Norfolk & W. Ry., 4 Va. Cir. 477 (Botetourt 1979); but see Whitehurst v. Lloyd, 37 Va. Cir. 224 (Loudoun 1995); Green v. Oakwood Mobile Homes, Inc., 37 Va. Cir. 137 (Essex 1995); McCullough v. Standard Pressing Machines Co., 39 Va. Cir. 191 (Fairfax 1996); Ring v. Mikris, Inc., 40 Va. Cir. 528 (Newport News 1996)."; "The Court is of opinion that statements taken prior to litigation are not taken in 'anticipation of litigation' pursuant to Rule 4:1(b)(3). Therefore, any statement taken prior to the date defense counsel was retained is discoverable.")

Case Date Jurisidction State Cite Checked
1999-01-01 State VA

Chapter: 34.3

Case Name: Pipkin v. Pleasant Care, Inc., 43 Va. Cir. 443, 443-44 (Va. Cir. Ct. 1997)
("It appears to be undisputed that the 'statements' in question were done at the request of the superiors of the two people who gave them. The statements were prepared in response to a complaint made by a person identified as the decedent's daughter concerning the decedent's condition and a call from a family member of the decedent saying that Certified Nursing Assistant (CNA) Connie Davis did not know what she was doing. One statement was given on February 2, 1997, the day the decedent was transferred from Pleasant Care, Inc., to Chesapeake General Hospital, and the other was given the next day. There is no assertion that the statements were prepared in response to a request by the defendant's attorney or even its insurer."; declining to protect as work product statements made by employees after an incident)

Case Date Jurisidction State Cite Checked
1997-01-01 State VA

Chapter: 34.3

Case Name: Larry Bartee v. CSX Transp., Inc., No. LX-2976-1, slip op. at 2 (Va. Cir. Ct. (Richmond City) June 21, 1995)
(explaining that "I am not aware that the work product rule at common law extends beyond attorneys. To the extent the rule incorporates other persons--consultants, insurers, agents, etc.--it seems to prevent only discovery of documents and tangible things developed by such persons in anticipation of litigation or for trial."; apparently holding that some deposition questions (such as those asking who was present during reenactments of an accident, whether there were photographs taken, etc.) could not "be reasonably said to be in anticipation of litigation" and therefore were not covered by the work product doctrine)

Case Date Jurisidction State Cite Checked
1995-06-21 State VA B 3/16
Comment:

key case


Chapter: 34.3

Case Name: Economos v. K Mart Corp., 33 Va. Cir. 55, 55 (Va. Cir. Ct. 1993)
(analyzing work product protection for a post-accident incident report prepared by a retail store; ultimately finding that the incident report deserved work product protection, although the store's standard procedure required the report's preparation; "The fact that the incident report was prepared by a K Mart employee does not remove the document from the protection afforded by the rule.")

Case Date Jurisidction State Cite Checked
1993-01-01 State VA B 12/09
Comment:

key case


Chapter: 34.3

Case Name: Potter v. Hazel, 17 Va. Cir. 408, 409 (Va. Cir. Ct. 1989)
("Nothing before the Court supports the conclusion that the documents were requested or guided by an attorney, and the mere possibility that litigation would arise is insufficient to bar discovery of the documents requested in this case.")

Case Date Jurisidction State Cite Checked
1989-01-01 State VA

Chapter: 34.3

Case Name: Virginia Elec. & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D. 397, 402 (E.D. Va. 1975)
("It is elementary, of course, that in addition to the foregoing the work product of the lawyer must be presently a part of the work files of the lawyer to qualify for the protection of the rule.")

Case Date Jurisidction State Cite Checked
1975-01-01 Federal VA

Chapter: 34.4

Case Name: Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016)
September 14, 2016 (PRIVILEGE POINT)

"Court Points to Several Factors in Denying Work Product Protection: Part I"

Although some courts seem to misunderstand this, Fed. R. Civ. P. 26(b)(3) on its face allows nonlawyers to create protected work product. But lawyers' involvement can buttress work product claims even in courts applying the rule as written.

In Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016), the court rejected Phoenix's work product claim for emails it generated over a seven-day period. Phoenix claimed that it created the documents because it anticipated litigation with defendant, rather than because of a business dispute that had not yet ripened into anticipated litigation. Phoenix argued that "its in-house counsel provided 'continual' legal advice and direction" about the dispute, but the court emphasized that Phoenix's lawyer's "declaration does not identify a single document for which she provided instruction, review or comment." Id. at *23, *26. The court noted that "[l]ack of attorney involvement in documents" can be an important indication that the documents did not deserve work product protection. Id. at *26. After reviewing the withheld documents in camera, the court concluded that "the documents at issue would have been drafted or circulated for a business purpose even if this lawsuit never came to pass." Id. at *28.

Although lawyers need not be involved in creating work product, their involvement supports the argument that the documents were motivated by anticipated litigation rather than created in the ordinary course of business. Next week's Privilege Point will discuss three other factors that doomed Phoenix's work product claim.

Case Date Jurisidction State Cite Checked
2016-07-01 Federal CA B 9/16
Comment:

key case


Chapter: 34.4

Case Name: Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016)
September 21, 2016 (PRIVILEGE POINT)

"Court Points to Several Factors in Denying Work Product Protection: Part II"

Last week's Privilege Point described a court's rejection of a work product claim based, in part, on an in-house lawyer's lack of involvement in creating the withheld documents. Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016). The court also pointed to three other factors in denying Phoenix's work product claim.

First, two days before the date Phoenix claimed that it anticipated litigation, the company "was still internally referring to the dispute [with VMware] as employing the 'same process'" as used in another negotiation. Id. at *27. Second, one day later "Phoenix's Vice President of Sales communicated with VMware, seeking data and noting that VMware legal had agreed to 'move forward on resolving this licensing situation amicably.'" Id. Third, "Phoenix did not issue a litigation hold notice until February 17, 2015" — thirteen days after the company claimed it anticipated litigation. Id. The court pointed to these factors (and the lack of the in-house lawyers' involvement) as tending to show "that Phoenix did not reasonably anticipate that this matter would result in a lawsuit until after the date of the disputed documents." Id. at *27-28.

The Phoenix case provides several good lessons. Corporations anticipating litigation should (1) involve their lawyers, which tends to show that they were not acting in the ordinary course of business; (2) alert their business folks about the possible litigation, so that their internal communications do not undercut a later work product claim if the court reviews them in camera; and (3) quickly put a litigation hold in place. However, it seems wrong for courts to rely on external communications' laudable cordiality as evidence that the sender did not anticipate litigation.

Case Date Jurisidction State Cite Checked
2016-07-01 Federal CA B 9/16