Most lawyers correctly look to Fed. R. Civ. P. 26(b)(3)(A) as defining the scope of work product protection in federal courts. However, the federal courts occasionally, and increasingly, point to lesser-known federal common law principles that can apply where the federal rule does not.
In In re McCray, Richardson, Santana, Wise & Salaam Litigation, No. 03 Civ. 9685 (DAB) (RLE), 2011 U.S. Dist. LEXIS 135258 (S.D.N.Y. Nov. 22, 2011), Judge Ronald Ellis found that the work product doctrine can protect intangible work product in some situations, despite Fed. R. Civ. P. 26(b)(3)’s explicit reference to “documents and tangible things.” The court referred to the 1947 United States Supreme Court decision in Hickman v. Taylor, 329 U.S. 495 (1947), noting that the federal rule “is narrower in scope than the work product doctrine developed in Hickman and its progeny.” Id. at *10. On the same day, Eastern District of New York Judge Joanna Seybert held that a non-party can create protected work product, despite the federal rule’s language limiting the protection to parties. The court agreed that in some situations the “broader common law work product doctrine . . . extends to nonparties.” Tankleff v. Cnty. of Suffolk, No. 09-CV-1207(JS)(WDW), 2011 U.S. Dist. LEXIS 135691, at *4 (E.D.N.Y. Nov. 22, 2011).
Some federal courts simply finesse Fed. R. Civ. 26(b)(3)(A)’s explicit limitation of work product protection to tangible work product created by parties. However, federal courts are increasingly calling upon a parallel common law protection that extends beyond the federal rule.