Is Work Product Protection Limited to “Documents and Tangible Things”?

August 12, 2020

On its face, Fed. R. Civ. P. 26(b)(3)(A)’s work product doctrine only protects “documents and tangible things.” But do courts apply the work product doctrine in that limited fashion?

In Kleiman v. Wright, No. 2:20-cv-00593-BJR, 2020 U.S. Dist. LEXIS 84556 (W.D. Wash. May 13, 2020), a non-party deposition witness claimed to have acted as defendant’s “litigation liaison” and declined to answer deposition questions based on the attorney-client privilege. The court rejected that protection. And in a troubling footnote, the court also noted that “in numerous places in his response to the motion to compel [the witness] claims his communications are protected by the work product doctrine.” Id. at *3 n.3. The court also rejected his work product claim – noting that “this doctrine only protects ‘documents or tangible things.’” Id. Because “Plaintiffs do not seek to compel further document production, but, rather, [the witness’s] continued deposition testimony . . . . [T]he work product doctrine does not reach such testimony.” Id.

Most courts extend work product protection to “intangible” work product such as oral communications, deposition testimony, etc. Those courts either ignore the Rule’s limited language, or rely on a shadowy common law work product protection based on Hickman v. Taylor, 329 U.S. 495 (1947). Restricting work product protection to “documents and tangible things” can create great mischief. Take the example of a defendant who relied on a private investigator to uncover facts and write up an opinion-laden report with strategic recommendations. Narrowly construing the work product doctrine presumably would allow plaintiff to depose the investigator — asking what she found, what conclusions she reached, what strategic recommendations she made to the defendant, etc. Those would clearly deserve work product protection if they were in written form, and most courts logically also protect them in testimonial form.