What’s the Deal With “Intangible” Work Product? Part II

April 10, 2024

Last week’s Privilege Point explained that nearly every court extends work product protection beyond the “documents and tangible things” specified in Fed. R. Civ. P. 26(b)(3) and understandably mentioned in a recent Southern District of New York decision. Where do those courts find such an expansive and frequently important protection?

In MC Trilogy Texas, LLC v. City of Heath, Civ. A. No. 3:22-CV-2154-D, 2024 U.S. Dist. LEXIS 15031, at *26-27 (N.D. Tex. Jan. 29, 2024), the court pointed to the U.S. Supreme Court’s decision in Hickman v. Taylor, 329 U.S. 495 (1947) — which established a common law protection that the court explained was only “partially codified” in Fed. R. Civ. P. 26(b)(3) — so “work product may therefore be both tangible and intangible, like an attorney’s recollection of what a witness said.” Several courts have held essentially the same thing. FinancialApps, LLC v. Envestnet, Inc., Civ. A. No. 19-1337-GBW-CJB, 2023 U.S. Dist. LEXIS 16678, at *10 (D. Del. Jan. 31, 2023) (“work product protection also extends to intangible work product, such as information that may be sought through deposition questions”); Rickards v. Corizon Health, Inc., No. 2:18-cv-00384-LEW, 2019 U.S. Dist. LEXIS 92357, at *7 (D. Me. June 1, 2019) (noting that it is “incorrect” to say that “the work product doctrine does not extend to testimony”).

This odd amalgam of common law and rules-based protections raises several other issues, triggers differences from state to state, and even from court to court. Next week’s Privilege Point will identify some of those.