Court Misanalyses the Work Product Doctrine

May 25, 2005

Unlike the attorney-client privilege, which must involve communications or intended communications to or from a lawyer, the work product doctrine does not depend on a lawyer’s involvement. Remarkably, many lawyers and even some courts still do not understand this.

In Minebea Co. v. Pabst, 355 F. Supp. 2d 526, 529 (D.D.C. 2005), the court flatly explained that “while protected work product can, sometimes, be generated by non-attorneys, it cannot be created by a client” (emphasis added). However, Fed. R. Civ. P. 26(b)(3) on its face describes protected work product as documents “prepared in anticipation of litigation or for trial by or for another party or by and for that other party’s representative [including lawyers and any other representatives]” (emphasis added). Thus, the work product doctrine can protect documents prepared “by . . . another party.”

While involving a lawyer in creating work product has several advantages (including bolstering the work product claim, and creating the possibility of also claiming privilege protection), parties can clearly prepare protected work product on their own.