Courts Issue Conflicting Work Product Doctrine Opinions: Part II

January 30, 2019

Last week’s Privilege Point discussed a New York federal court’s and a New York state court’s opposite positions on a key work product issue.

Courts also disagree about whether the work product doctrine can extend to non-substantive documents such as litigation-related transmittal memos, email message traffic about scheduling meetings, etc.  On its face, the rule should cover such documents.  See, e.g.Breneisen v. Motorola, Inc., No. 02 C 50509, 2003 U.S. Dist. LEXIS 11485, at *15-16 (N.D. Ill. July 3, 2003) (“While most of these documents are merely communications regarding deposition dates and schedules, they fit under the work-product privilege.”).  But most courts require substantive content.  In Chan v. Big Geyser, Inc., No. 17-CV-06473 (ALC) (SN), 2018 U.S. Dist. LEXIS 198776 (S.D.N.Y. Nov. 21, 2018), Judge Netburn rejected defendants’ work product claim for its COO’s litigation-related statements in weekly corporate reports.  The court found those statements “analogous to an internal public relations campaign” – acknowledging that “even though the statements may have been created ‘because of’ Plaintiffs’ lawsuit, they are not protected under work product immunity because they do not relate to Defendants’ legal strategy.”  Id. at *7, *9.

Lawyers must familiarize themselves with the pertinent courts’ and sometimes even presiding judges’ interpretation of applicable work product rules – remembering the enormous and often dispositive disagreements about the doctrine’s application.