On its face, the Federal Rule governing work product, Fed. R. Civ. P. 26(b)(3), protects documents prepared in “anticipation of litigation or for trial” by a party or any representative of the party – not just lawyers. However, some courts continue to deny work product protection unless a lawyer played some role.
In Heavin v. Owens-Corning Fiberglass, No. 02-2572-KHV-DJW, 2004 U.S. Dist. LEXIS 2265 (D. Kan. Feb. 3, 2004), the Court found Owens-Corning’s first privilege log deficient, and ordered the company to prepare a second log. Among other things, the court ordered Owens-Corning to make “an evidentiary showing based on competent evidence supporting any assertion that the document was created under the supervision of an attorney.” Id. at *24. In requiring this showing, the court – obviously applying Federal Rules – inexplicably cited a Kansas state case refusing to extend work product protection to documents “which are not prepared under the supervision of an attorney in preparation for trial.” Id. at *16 (internal quotation and citation omitted).
Decisions like this may fly in the face of Federal Rules, but they highlight the advantages of having a lawyer involved in creating materials that the client hopes to protect.