Federal and State Courts Wrestle with Work Production Doctrine Variations

May 6, 2020

Ironically, federal courts interpreting a single sentence from a federal rule take dramatically differing approaches to the work product doctrine. And a handful of states have not adopted that federal work product rule.

In Marquette Transportation Co. Gulf Inland LLC, the court highlighted some of these federal variations — holding that the work product doctrine:  (1) can apply even if “litigation is not imminent”; but (2) only protects documents whose primary purpose “was to aid in possible future litigation.”  Some federal courts take a narrower approach on the first issue – only protecting documents prepared when litigation is “imminent.” Case No. 6:18-CV-01222 LEAD, 2020 U.S. Dist. LEXIS 21399, at *7-8 (W.D. La. Feb. 3, 2020) (citation omitted).  Most federal courts take a broader approach on the second issue – not requiring that the documents’ primary purpose was to “aid” (use) in the upcoming litigation.  A few weeks later, a Pennsylvania state court in Ford-Bey v. Professional Anesthesia Services of North America, LLC, quoted Pennsylvania’s state court work product rule — which recognizes only the narrow “opinion” work product doctrine (which is just a subset of the federal protection). No. 677 EDA 2019, 2020 Pa. Super. LEXIS 143, at *16-19 (Pa. Super. Ct. Feb. 20, 2020).

Because work product protection is based on a rule, there is no choice of laws analysis — courts just apply their own rules.  And because defendants often do not know where they will be sued, they usually cannot know in advance what work product rule will apply.