Courts Apply The “Intensely Practical” Work Product Doctrine: Part I

September 28, 2022

The work product doctrine has been described by many courts as “intensely practical.” Several decisions highlight this understandable adjective, and explicitly provide useful guidance for lawyers representing litigants and clients who anticipate litigation.

In Dietzel v. Costco Wholesale, Civ. A. No. 22-cv-0035, 2022 U.S. Dist. LEXIS 122558 (E.D. Pa. July 12, 2022), the plaintiff suffered injuries when he fell on an uneven sidewalk near a Costco tire center. He sought the “warehouse incident report” Costco employees prepared after the accident. Costco claimed work product protection, noting that the report explicitly stated that it “is to be prepared for the company’s legal counsel.” Id. at *18. But the court rejected Costco’s work product claim, and ordered the incident report’s production. Among other things, the court noted that: (1) the incident report “is a preprinted form with blank spaces to enter information”; (2) “the form itself appears to have its own form number”; (3) despite the printed language explaining that the report was to be prepared for a lawyer, Costco does “not contend that any attorney ordered its preparation or that the employee who prepared it communicated with any attorney before doing so”; (4) Costco did not identify any lawyer who ever received a copy of the report; and (5) the report apparently did not “make any ‘reference to any claim of current or anticipated litigation.'” Id. at *18-19.

Courts applying the “intensely practical” work product doctrine examine the bona fides of withheld documents. Costco might have won its work product claim if employees working with Costco lawyers prepared a custom-made litigation-motivated post-accident report – in addition to the bare-bones “just the facts” required preprinted incident report. Next week’s Privilege Point will focus on courts’ “intensely practical” assessment of the “substantial need” standard.