Can the Work Product Doctrine Protect Materials Prepared by a Non-Party?

August 24, 2011

Some of the most troubling work product cases focus on the rule’s language apparently protecting only documents prepared “by another party or by or for that other party’s representative.” Because the work product doctrine clearly can protect documents prepared in reasonable anticipation of litigation, what happens if the preparer never becomes a party in the later litigation?

In Zagklara v. Sprague Energy Corp., No. 2:10-cv-445-JAW, 2011 U.S. Dist. LEXIS 56782 (D. Me. May 26, 2011), plaintiff claimed that the work product doctrine could not protect a post-accident report prepared by a Greek company, because plaintiff had not sued that company after the accident – so it was not a “party” capable of creating protected work product. The court rejected plaintiff’s argument, noting that “[t]o interpret the work-product doctrine as the plaintiff urges would be to open a way around the rule that would essentially vitiate it.” Id. at *6. As the court explained, “[w]henever multiple individuals or entities might be liable for a plaintiff’s injury, the plaintiff could sue only one and immediately subpoena a report prepared for another potentially-liable party.” Id. at *6-7. The court even recognized that “[a]fter obtaining the report, the plaintiff could then amend his or her complaint to add that party as a defendant.” Id. at *7. Thus, the court concluded that “[u]nless and until it is clearly shown that [the Greek company] is not and cannot be made a party to this case, the plaintiff’s argument is premature.” Id.

Given some courts’ myopic focus on the “party” language in the work product rule, it is refreshing to see such a logical judicial analysis.