Most courts hold that the work product doctrine can protect material prepared in an earlier case (although some courts require that the current litigation bear some relationship to the earlier case in which the litigant prepared the work product). However, several courts take what appears to be an inappropriately narrow view of the work product protection.
In Bryant v. Ferrellgas, Inc., Civ. A. Nos. 07-10447 & -13214, 2008 U.S. Dist. LEXIS 47148 (E.D. Mich. June 17, 2008), defendants sought work product prepared by an insurance company which was pursuing the same defendants in another case. Although the two cases had been consolidated, the defendants pointed to Fed. R. Civ. P. 26(b)(3) — which on its face limits work product protection to documents prepared “‘by or for another party or its representative.'” Id. at *3. The insurance company argued that “it need not be a party [in the case in which defendant sought discovery] because it is a party in the consolidated action and because these actions are closely related and rise out of the same tragic circumstances” involving a fatal accident. Id. Pointing to earlier Sixth and Ninth Circuit decisions, the court concluded that a non-party like the insurance company could not claim work product protection, and that even the cases’ consolidation did not make the insurance company a “party” to the action in which the defendants sought the discovery.
This is an astounding result, which could jeopardize work product protection in many situations. For instance, a defendant in one case could concoct a reason to file another lawsuit — and in that lawsuit seek work product prepared by the plaintiff in the underlying case (even if the two suits had been consolidated).