Some States Do Not Follow the Federal Work Product Rule Approach

January 6, 2021

Attorney-client privilege protection started in Roman times, evolved in the common law, developed organically in each jurisdiction, and differs somewhat from state to state. But ironically, there is a greater variation in federal courts’ application of the single sentence work product doctrine articulated in Fed. R. Civ. P § 26(b)(3). Not surprisingly, the same level of variation exists in the vast majority of states that have essentially adopted verbatim the federal work product doctrine rule.

And to complicate matters further, several states’ work product rule differs dramatically from the federal rule. In Colton v. West Penn Power Co., No. 1791 WDA 2019, 2020 Pa. Super. Unpub. LEXIS 3238, at *11 (Pa. Super. Ct. Oct. 15, 2020), the court assessed a work product protection claim under Pa. R. Civ. P. 4003.3 for accident scene photographs taken by a utility claims rep, which he later gave to the utility’s in-house lawyer “for his use and for inclusion in the Legal Department’s file.” After concluding that the claims rep did not take the photographs “at the behest of the attorney,” the court rejected the work product claim. Id. at *20 (citation omitted). The court cited an earlier opinion emphasizing “the clear distinction that the [Pennsylvania] Rule makes between the work[ ] product of an attorney with that of a non-attorney representative.” Id. at *21 (second alteration in original) (citation omitted). The federal work product rule does not contain such as a distinction.

Lawyers representing clients in unfamiliar state courts should not automatically assume that those states follow federal work product doctrine standards (which themselves vary even among federal courts).