Showing 30 of 30 results

Chapter: 36.2

Case Name: Beverly v. Watson, No. 14 C 4970, 2015 U.S. Dist. LEXIS 114146 (N.D. Ill. Aug. 28, 2015)
("[I]t is well-established that the work product doctrine may apply to documents created before litigation commences, or even where no litigation ultimately ensues.")

Case Date Jurisidction State Cite Checked
2015-08-28 Federal IL

Chapter: 36.3

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 the criminal context, the work product doctrine, as applied in federal courts, rests on federal common law.")

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

Chapter: 36.3

Case Name: ACLU Found. v. United States DOJ, No. 12 Civ. 7412 (WHP), 2014 U.S. Dist. LEXIS 32615, at *15-17 (S.D.N.Y. Mar. 11, 2014)
("The ACLU argues that because the memoranda at issue were written for prosecutors and discuss criminal investigations, the specific claim requirement applies. But it is the function of the documents that is critical, not their intended audience. . . . The memoranda were prepared for the benefit of prosecutors, but they are the functional equivalent of the memoranda in Delaney [Delaney, Migdail & Young, Chartered v. IRS, 826 F.2d 124 (D.C. Cir. 1987)]. They discuss not how prosecutors should interpret and apply the laws they are charged with enforcing -- the criminal code -- but how to defend the Government against accusations of unlawful searches or seizures. It is immaterial that these claims often arise in the context of suppression motions by criminal defendants instead of lawsuits filed against the Government. The memoranda discuss the legal arguments prosecutors should make when criminal defendants claim the Government violated the Fourth Amendment and the potential weaknesses of those arguments. As in Delaney, they 'advise the agency of the types of legal challenges likely to be mounted against a proposed program, potential defenses available to the agency, and the likely outcome. . . . This is precisely the type of discovery the [Supreme] Court refused to permit in Hickman v. Taylor, 329 U.S. 495, 513, 67 S. Ct. 385, 91 L. Ed. 451 (1947).' . . . The memoranda are privileged 'because they relate to foreseeable litigation arising out of the government's criminal investigations.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2014-03-11 Federal NY B 8/14

Chapter: 36.3

Case Name: United States v. Nosal, No. CR-08-0237 EMC, 2013 U.S. Dist. LEXIS 49745, at *4 n.1 (N.D. Cal. Apr. 5, 2013)
("Defendant argues that the work product doctrine in criminal cases is limited to the materials discussed in Fed. R. Crim. P. 16(a)(2): 'reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case' or 'statements made by prospective government witnesses.'. . . He cites no case so limiting the doctrine in criminal cases, and in fact recognizes that the Supreme Court has applied the privilege more broadly in criminal cases.")

Case Date Jurisidction State Cite Checked
2013-04-05 Federal CA B 3/14

Chapter: 36.3

Case Name: United States v. Watts, 934 F. Supp. 2d 451, 496 (E.D.N.Y. 2013)
("'Although the work-product doctrine most frequently is asserted as a bar to discovery in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital.'" (citation omitted))

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

Chapter: 36.3

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 332-33 (M.D. Pa. 2013)
(analyzing issues in connection with a student's criminal prosecution for an alleged sexual assault, which apparently was dropped; concluding that the student's parents were within the privilege as the student's lawyer's agent and as joint clients, but that the student adviser was outside the privilege and the work product protection; "Document No. 36 is an annotated transcript of a September 9, 2010, interview between a University public safety officer and K.S., with her attorney in attendance. According to the privilege log, the transcript was annotated by Dempsey's mother at the direction of Attorney Becker. . . . [I]t is clear that the document itself constitutes opinion work product, prepared by Dempsey's mother acting as an agent of his attorneys to assist in the defense of Dempsey against criminal charges, which unquestionably constitutes litigation.")

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

Chapter: 36.3

Case Name: State ex rel. Toledo Blade Co. v. City of Toledo, 2013-Ohio-3094, at ¶ 12 (Ohio Ct. App. 2013)
("To be considered work product, however, a record must have been assembled in connection with an actual pending or highly probable criminal prosecution. . . . A criminal proceeding is considered probable or highly probable 'even where the police have not yet identified a suspect, as long as it is clear that a crime has in fact been committed.'" (citation omitted))

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

Chapter: 36.3

Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *9-10 (E.D. Va. Dec. 14, 2012)
("[A]ny document that was prepared in anticipation of the contempt proceeding could reasonably be seen as being entitled to work product protection. Lawson has failed to establish that any of the documents were prepared in anticipation of litigation prior to the filing of ePlus' MOTION FOR ORDER TO SHOW CAUSE . . . on September 9, 2011. However, documents prepared after that date and prepared in anticipation of those proceedings are entitled to work product protection, even where their subject matter falls within the subject matter waiver of attorney-client privilege, as long as they have been properly claimed as such in the privilege log.")

Case Date Jurisidction State Cite Checked
2012-12-14 Federal VA b 9/13

Chapter: 36.3

Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *9-10 (E.D. Va. Dec. 14, 2012)
("[A]ny document that was prepared in anticipation of the contempt proceeding could reasonably be seen as being entitled to work product protection. Lawson has failed to establish that any of the documents were prepared in anticipation of litigation prior to the filing of ePlus' MOTION FOR ORDER TO SHOW CAUSE . . . on September 9, 2011. However, documents prepared after that date and prepared in anticipation of those proceedings are entitled to work product protection, even where their subject matter falls within the subject matter waiver of attorney-client privilege, as long as they have been properly claimed as such in the privilege log.")

Case Date Jurisidction State Cite Checked
2012-12-14 Federal VA b 9/13

Chapter: 36.3

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376, 382 (W.D. Va. 2012)
("Those facts must establish a 'nexus between the preparation of the document and . . . specific litigation.' Burton [v. R.J. Reynolds Tobacco Co.,], 175 F.R.D. [321,] 328 [(D. Kan. 1997)].")

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

key case


Chapter: 36.3

Case Name: In re Grand Jury Subpoena, 463 F. Supp. 2d 573, 575 n.1 (W.D. Va. 2006)
("Although there is no equivalent description of the work product doctrine in the Federal Rules of Criminal Procedure, the doctrine also applies to criminal trials and grand jury matters . In re: Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994) (citing In re John Doe, 662 F.2d 1073, 1078 (4th Cir. 1981)).")

Case Date Jurisidction State Cite Checked
2006-01-01 Federal VA

Chapter: 36.3

Case Name: United States v. Ruhbayan, 201 F. Supp. 2d 682, 685 (E.D. Va. 2002)
("The work-product privilege applies to information sought in criminal trials. United States v. Nobles, 422 U.S. 225, 238, 45 L. Ed. 2d 141, 95 S. Ct. 2160 (1975).")

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

Chapter: 36.4

Case Name: In re Superior Nat'l Ins. GR v. JP Morgan Chase, Chapter 11, Case No.: 1:00-bk-14099-GM, Adv No: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885, at *8 (C.D. Cal. Sept. 11, 2014)
("Bankruptcy is considered 'litigation' for Rule 26(b) purposes.")

Case Date Jurisidction State Cite Checked
2014-09-11 Federal CA

Chapter: 36.4

Case Name: In re McDowell, 483 B.R. 472, 494 (Bankr. S.D. Tex. 2012)
("[T]his Court concludes that the filing of a bankruptcy petition constitutes the filing of a lawsuit; and, therefore, this Court concludes that documents prepared in anticipation of a bankruptcy filing are prepared for litigation.")

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

Chapter: 36.6

Case Name: Wells Fargo & Co. v. United States, Misc. Nos. 10-57 & 10-95 (JRT/JJG), 2013 U.S. Dist. LEXIS 79814, at *113 n.50 (D. Minn. June 4, 2013)
("[T]he IRS examination process is not, in and of itself, litigation and will not necessarily lead to litigation.")

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

Chapter: 36.501

Case Name: COMPTEL v. FCC, 910 F. Supp. 2d 100, 120 (D.D.C. 2012)
("The privilege is not limited to civil litigation but includes administrative proceedings as well.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 9/13

Chapter: 36.502

Case Name: United States v. Acquest Transit LLC, 09-CV-555(F), 2017 U.S. Dist. LEXIS 24080 (W.D.N.Y. Feb. 21, 2017)
("[A]nticipated litigation over the question of the EPA's authority under the Act with respect to protection of wetlands on the property is nevertheless a form of 'anticipated litigation' within the scope of Rule 26(b)(3)(A).")

Case Date Jurisidction State Cite Checked
2017-02-21 Federal NY

Chapter: 36.502

Case Name: Ellingson v. Piercy, Case No. 2:14-cv-04316-NKL, 2016 U.S. Dist. LEXIS 78803 (W.D. Miss. June 16, 2016)
(holding that a coroner's inquest constituted "litigation" for work product purposes; "[T]he coroner's inquest was a quasi-judicial proceeding. It follows that materials assembled and prepared in advance of an inquest, as with those prepared in advance of other quasi-judicial proceedings, are subject to the work product privilege.")

Case Date Jurisidction State Cite Checked
2016-06-16 Federal MS

Chapter: 36.502

Case Name: Ellingson v. Piercy, Case No. 2:14-cv-04316-NKL, 2016 U.S. Dist. LEXIS 78803, at *12 (W.D. Mo. June 16, 2016)
August 24, 2016 (PRIVILEGE POINT)

"What Is 'Litigation' for Work Product Protection Purposes?'"

Fed. R. Civ. P. 26(b)(3) and its state counterparts protect from discovery "documents and tangible things that are prepared in anticipation of litigation." This obviously includes civil litigation. But what about other forms of adversarial dispute resolution?

In Ellingson v. Piercy, Case No. 2:14-cv-04316-NKL, 2016 U.S. Dist. LEXIS 78803, at *12 (W.D. Mo. June 16, 2016), the court held that the work product doctrine extended to emails related to a "coroner's inquest [which] was a quasi-judicial proceeding." Other courts have extended work product protection to documents motivated by adversarial regulatory proceedings, arbitrations (rather than mediations), and other public and private processes analogous to side-versus-side litigation.

Of course, the attorney-client privilege protection can protect communications in any setting, regardless of litigation or anticipated litigation. As in so many other ways, the work product doctrine involves more subtle and varied issues than the attorney-client privilege.

Case Date Jurisidction State Cite Checked
2016-06-16 Federal MO B 8/16
Comment:

key case


Chapter: 36.502

Case Name: Tracy v. Telemetrix, Inc., No. 8:12CV359, 2015 U.S. Dist. LEXIS 153852, at *18-19 (D. Neb. Nov. 13, 2015)
December 30, 2015 (PRIVILEGE POINT)

"Courts Analyze Work Product Doctrine Variations: Part I"

Although the Federal Rules of Civil Procedure describe the work product doctrine in a single sentence, federal courts interpret that sentence in wildly varied ways. Four federal court decisions issued in just a nine-day stretch of November 2015 highlight a few of these enormous variations.

First, Fed. R. Civ. P. 26(b)(3) protects certain documents prepared in anticipation of "litigation." Regular civil or criminal litigation clearly meets that standard, but courts disagree about the doctrine's application in other settings – such as administrative hearings. In Tracy v. Telemetrix, Inc., No. 8:12CV359, 2015 U.S. Dist. LEXIS 153852, at *18-19 (D. Neb. Nov. 13, 2015), the court implicitly held that arbitration met this "litigation" standard. Courts disagree about the doctrine's applicability to less directly adverse events such as mediations. Second, courts disagree about whether the work product doctrine only applies when a specific identifiable claim might result in litigation. In Thompson v. U.S. Department of Justice, Civ. A. No. 14-1786 (JEB), 2015 U.S. Dist. LEXIS 156267, at *25 (D.D.C. Nov. 19, 2015), the court protected as work product government documents because the government prepared them "in anticipation of a specific criminal prosecution" – and because they were "not generic agency records maintained for some conceivable future litigation." Courts requiring a "specific claim" sometimes deny work product protection for corporations' process-related documents outlining how the corporation will respond to some future claim, etc. Other courts protect such logistical documents.

In addition to courts' disagreement about the initial "litigation" work product element, previous Privilege Points have noted the even wider gap in courts' application of the second work product element – the "anticipation" requirement. That variation ranges from requiring "imminent" litigation to merely "some possibility" of litigation. Next week's Privilege Point addresses two more variations.

Case Date Jurisidction State Cite Checked
2015-11-13 Federal NE
Comment:

key case


Chapter: 36.502

Case Name: Tracy v. Telemetrix, Inc., 8:12CV359, 2015 U.S. Dist. LEXIS 153852 (D. Neb. Nov. 13, 2015)
(finding an arbitration counts as "litigation" for work product purposes; "Document 29 in the Telemetrix Defendants' privilege log is identified as handwritten notes generated by Telemetrix employee 'KCC' and affixed documents served by Tracy in a separate arbitration proceeding between Tracy and Telemetrix. The Telemetrix Defendants assert these handwritten notes summarized communications by a Telemetrix employee or representative and counsel for Telemetrix in relation to the production of documents in an arbitration held between the parties. Such information is protected from disclosure in discovery by the work product doctrine.").

Case Date Jurisidction State Cite Checked
2015-11-13 Federal NE

Chapter: 36.502

Case Name: Broadband iTV, Inc. v. Hawaiian Telecom, No. 15-mc-80053 HRL, 2015 U.S. Dist. LEXIS 51131 (N.D. Cal. April 17, 2015)
(holding that administrative proceedings amounted to "litigation" for work product purposes; "In addition, both work product and attorney-client privilege apply to Unified and Jakel's communications, strategies, and actions in the IPR proceeding. An IPR proceeding is an adversarial, administrative trial in front of the PTAB (formerly known as the Board of Patent Appeals and Interferences). See H.R. Rep. No. 112-98, pt. 1, 46-47 (June 11, 2011) ('The Act converts inter partes reexamination from an examinational to an adjudicative proceeding, and renames the proceeding 'inter partes review.'").")

Case Date Jurisidction State Cite Checked
2015-04-17 Federal CA

Chapter: 36.502

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 330 (M.D. Pa. 2013)
("[T]he question is whether the University's student conduct hearing process is adversarial in nature, and thus 'litigation' to which work-product protection may attach. Based upon the record before the Court, it is clear that the student conduct hearing process was adversarial in nature, involving a neutral tribunal empowered to adjudicate serious student conduct charges against Dempsey, the opportunity for both sides to present evidence and witnesses, and the opportunity for both sides to present opening and closing statements to the tribunal. Whether it was a governmental proceeding or an internal one provided by a private university is immaterial.")

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

Chapter: 36.502

Case Name: Am. Immigration Council v. United States Dep't of Homeland Sec., 905 F Supp. 2d 206, 221 (D.D.C. 2012)
("The 'litigation' anticipated by the work product can 'include proceedings before administrative tribunals if they are of an adversarial nature.' 8 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2024, at 502-03 (3d ed. 2010).")

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

Chapter: 36.503

Case Name: Cave Consulting Group, Inc. v. OptumInsight, Inc., Case No. 15-cv-03424-JCS, 2016 U.S. Dist. LEXIS 179966 (N.D. Cal. Dec. 29, 2016)
(holding that a merged company faced the consequences of its predecessor's waiver of privilege; "'Where the issue has been addressed directly, there is a general consensus among courts that the work product doctrine does not apply to patent prosecution work because patent prosecution is not an adversarial, litigation-type proceeding, but a wholly ex parte proceeding before the PTO.'"; "Certain types of patent proceedings can themselves trigger work product protection. Several courts have held that interferences, for example, sufficiently approximate adversarial litigation to warrant such protection. . . . This Court is aware of only a handful of decisions addressing whether materials prepared for patent reexaminations are subject to work product protection, and those tend to turn on context-specific factors."; "In light of the deluge of infringement litigation that commenced soon after Symmetry successfully obtained the '897 patent and continued through and beyond Symmetry's successful reexamination, the Court concludes that both the application and the reexamination were conducted with an eye towards litigation, and thus fall within the scope of work product protection.")

Case Date Jurisidction State Cite Checked
2016-12-29 Federal CA

Chapter: 36.503

Case Name: In re Method of Processing Ethanol Byproducts and Related Subsystems ('858) Patent Litig., Master Case: 1:10-ml-02181-LJM-DML, Related Case: 1:13-mc-00058-LJM-DML, 2014 U.S. Dist. LEXIS 88512, at *22-23 (S.D. Ind. June 30, 2014)
("Where the issue has been addressed directly, there is a general consensus among courts that the work product doctrine does not apply to patent prosecution work because patent prosecution is not an adversarial, litigation-type proceeding, but a wholly ex parte proceeding before the PTO.")

Case Date Jurisidction State Cite Checked
2014-06-30 Federal IN

Chapter: 36.503

Case Name: In re Method of Processing Ethanol Byproducts and Related Subsystems ('858) Patent Litig., Master Case: 1:10-ml-02181-LJM-DML, Related Case: 1:13-mc-00058-LJM-DML, 2014 U.S. Dist. LEXIS 88512, at *28-29 (S.D. Ind. June 30, 2014)
("In this court's view, making the date litigation was anticipated the only touchstone threatens to eviscerate the general principle that an attorney's work in preparing and prosecuting a patent application is not work product at all because the work is for a non-adversarial ex parte proceeding. That mechanical test supplants the substantive inquiry of the primary motivating purpose test. That test is required in many circumstances precisely because litigation (or anticipated litigation) coincides with non-litigation reasons for the creation of a document or the generation of legal theories. Just as where the primacy of an ordinary business purpose for a lawyer's work defeats a work product claim, so should it where the primary purpose is the ex parte prosecution of the patent application, even when a litigation-related purpose may also be served.")

Case Date Jurisidction State Cite Checked
2014-06-30 Federal IN

Chapter: 36.503

Case Name: Games2U, Inc. v. Game Truck Licensing, LLC, No. MC-13-00053-PHX-GMS, 2013 U.S. Dist. LEXIS 114907, at *13 (D. Ariz. Aug. 9, 2013)
("Courts have generally held that 'work performed by an attorney to prepare and prosecute a patent does not fall within the parameters of the work product protection . . . since the prosecution of [a] patent is a non-adversarial, ex-parte proceeding.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-08-09 Federal AZ B 4/14

Chapter: 36.503

Case Name: Adair v. EQT Prod. Co., 294 F.R.D. 1, 5, 6 (W.D. Va. 2013)
(finding that an administrative hearing did not count as "litigation" for work product purposes; "The Virginia Gas and Oil Act, VA. CODE ANN. § 45.1-361.1, et seq., (2013 Repl. Vol.) ('Act'), requires gas operators, like EQT, to appear before the Board to apply for permission to engage in numerous activities, including establishing new drilling units, pooling interests in a drilling unit, establishing escrow accounts and distributing royalty proceeds out of escrow."; "Thus, the procedures that govern hearings before the Board allow for cross-examination of witnesses by any person to whom notice of the hearing was required to be given."; "The parties cite numerous cases in which the determination of whether a proceeding was considered 'adversarial' turned on the issue of whether cross-examination was allowed. . . . After reviewing the cases cited, the court is of the opinion that these decisions do not, and that this court should not, find that an administrative proceeding is 'adversarial' simply because cross-examination is allowed."; "Perhaps it is stating the obvious, but I believe the better rule is that a proceeding, including an administrative proceeding, should be considered 'adversarial' only if the proceeding has adversaries, i.e., opposing parties. Thus, a proceeding should be considered 'adversarial' only if it is a proceeding in which one party has a claim against another party. Each of the cases cited above hold that an administrative proceeding should be considered 'adversarial' when an 'opposing party' has a right of cross-examination or to present proof. . . . Under such a rule, an administrative proceeding held by a regulatory board would not be considered 'adversarial' unless the proceeding involved a claim prosecuted by one party against another or a decision between multiple parties with opposing claims to the particular permit or license."; "In these cases, EQT has provided no evidence that the Board proceedings for which the withheld documents were prepared were adversarial.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal VA B 5/14
Comment:

key case


Chapter: 36.801

Case Name: Waite, Schneider, Bayless & Chesley Co., L.P.A. v. Davis, Case No. 1:11CV00851, 2013 U.S. Dist. LEXIS 123936, at *46 (S.D. Ohio July 12, 2013)
(holding that a law firm sued by a former client can seek discovery from the malpractice plaintiff's other law firms; "The Waite firm can only defend against Davis's multiple claims of misconduct by having access to Davis's "other-attorney communications" in the related cases.")

Case Date Jurisidction State Cite Checked
2013-07-12 Federal OH B 4/14