Courts Disagree About Work Product Protection for Documents That Parties Have Obtained From Advocacy Groups

November 7, 2001

Generally speaking, the work product doctrine does not protect from disclosure information or documents that a lawyer or a client has obtained from third parties. Courts have debated the applicability of this general rule to materials circulated by such advocacy groups as the American Trial Lawyers Association.

A number of courts have held that such materials are not protected by the work product doctrine. Miller v. Ford Motor Co., 184 F.R.D. 581, 583 (S.D.W. Va. 1999), Hendrick v. Avis Rent A Car Sys., Inc., 916 F. Supp. 256, 259, 260 (W.D.N.Y. 1996), Bartley v. Isuzu, 158 F.R.D. 165, 167 (D. Colo. 1994), Bohannon v. Honda Motor Co., 127 F.R.D. 536, 539-40 (D. Kan. 1989). However, one recent decision took the opposite approach. McDaniel v. Freightliner Corp., No. 99 Civ. 4292 (RMB)(FM), 2000 U.S. Dist. LEXIS 3497, at *25 (S.D.N.Y. Mar. 22, 2000).

Product liability plaintiff and defense lawyers should familiarize themselves with this issue, and the varying judicial approaches.