Why Is a D.C. Federal Court Analyzing a State "Control Group" Privilege Standard, but the Federal Work Product Rule?: Part II

May 4, 2022

Last week's Privilege Point addressed a D.C. federal court's application of the Illinois "control group" privilege standard in a transferred case. In South Capitol Bridgebuilders v. Lexington Insurance Co., Case No. 1:21-cv-1436-RCL, 2022 U.S. Dist. LEXIS 26146 (D.D.C. Feb. 14, 2022), the court: (1) explained that corporate employees were outside privilege protection if they only supplied facts to the decision-makers; and (2) surprisingly held that in-house lawyers were not automatically part of the protected "control group."

The court then turned to work product protection. That separate evidentiary protection comes from a federal rule, and thus does not require a choice of law analysis – so the D.C. court applied the D.C. Circuit's work product standard. Like most but not all courts, the court applied the broader "because of" work product standard – thus extending that protection beyond documents that would be used to "aid or assist in the litigation." But even under that generous standard, "if a document would have been created 'in substantially similar form' regardless of the litigation, work product protection is not available." Id. at *24-25. Among other things, the court pointed to that limitation in holding that the work product doctrine did not protect some of defendant's communications with its law firm Steptoe & Johnson, "because [defendant] nevertheless needed to determine whether the Policy covered [plaintiff]'s claim" – even without the prospect of litigation. Id. at *26-27.

Just as lawyers in Upjohn jurisdictions might have to wrestle with the "control group" privilege standard, lawyers everywhere must understand the forum court's approach to various work product principles.

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