Court Adopts a Narrow Definition of the Work Product Doctrine

April 21, 2004

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.