Variations Among States’ Work Product Rules

December 5, 2012

Most states have adopted the same or essentially the same language found in the federal work product rule, Fed. R. Civ. P. 26(b)(3)(A). Although federal courts have taken differing positions on some work product issues, at least federal courts and most state courts are dealing with the same language.

However, a small number of state courts have adopted their own unique work product rules. In Gama Aviation Inc. v. Sandton Capital Partners, L.P., 951 N.Y.S.2d 519, 521 (N.Y. App. Div. 2012), the court noted that the New York work product rule provides absolute protection to what is called “attorney work product,” which differs from the lower level of protection provided to what is called “trial preparation” material. California protects a lawyer’s work product even in the absence of litigation or anticipated litigation. Laguna Beach Cnty. Water Dist. v. Superior Court, 22 Cal. Rptr. 3d 387, 393 (Cal. Ct. App. 2004). Illinois extends protection only to opinion work product. Shields v. Burlington N. & Santa Fe Ry., 818 N.E.2d 851, 854 (Ill. App. Ct. 2004); Ill. S. Ct. R. 201(b)(2) (amended Nov. 28, 2012, effective Jan. 1, 2013). In Pennsylvania, an adversary does not have to prove substantial need before obtaining a non-lawyer’s work product. Adhesive Specialists Inc. v. Concept Scis. Inc., 59 Pa. D. & C.4th 244, 264 (C.P. Lehigh 2002).

Lawyers accustomed to litigating in federal court should remember that not all states have adopted the federal work product rule.