Correctly Applying Work Product Protection Continues to Elude Some Courts

July 14, 2021

As Privilege Points have periodically mentioned, some courts inexplicably limit work product protection to documents lawyers prepare or order to be prepared – in the face of Fed. R Civ. P 26(b)(3)(A)'s requirement only that the documents were "prepared in anticipation of litigation or for trial by or for another party or its representative" (listing lawyers as only one of six such possible representatives). Emphasis added. But that type of mistake is not the only one that some courts make.

In American Insurance Co. v. Pine Terrace Homeowners Ass'n, Civ. A. No. 20-cv-00654-DDD-KMT, 2021 U.S. Dist. LEXIS 97203 (D. Colo. May 21, 2021), the court dealt with the next work product rule provision (Rule 26(b)(3)(B)) – which requires that courts ordering discovery of work product "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation." Emphasis added. The court inexplicably "stresse[d] that to be protected by the work product doctrine, even if documents were prepared in anticipation of litigation, the documents must also contain the mental processes of the attorney, or must divulge the attorney’s strategies or legal impressions." American Insurance, 2021 U.S. Dist. LEXIS 97203, at *20 (emphases added).

Lawyers may have to gently remind courts: (1) that Rule 26(b)(3)(A) protects non-lawyers' litigation-motivated documents; and (2) that Rule 26(b)(3)(B) extends heightened "opinion" work product protection to their client’s non-lawyer "other representative[s]."

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