As litigators scurry through pre-trial discovery to amass documents and information they may use at trial, many reflexively claim that what they have collected is protected by the work product doctrine.
In Northup v. Acken, No. SC02-2435, 2004 Fla. LEXIS 105 (Fla. Jan 29, 2004), a malpractice defendant collected previous testimony by the plaintiff’s expert witness, and claimed the work product protection when the plaintiff sought to discover what defendant had collected. The Florida Supreme Court explained that the trial court (which had upheld the objection) had examined only the “academic question” of whether the gathering reflected work product. Id. at *13. The Supreme Court indicated that the work product doctrine cannot protect documents that a party intends to use at trial.
Lawyers putting their case together should remember that the work product doctrine does not protect what they ultimately will present as evidence at the upcoming trial. (Although no court seems to have done it, it would be interesting to see what would happen if the court upheld a party’s work product claim, and later refused to let the party use any of the “work product” at trial – leaving the party without a case.)