Despite some lawyers’ mistaken belief that the work product doctrine only protects materials created by lawyers, Fed. R. Civ. P. 26(b)(3) extends to litigation-related material prepared “by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnity, insurer, or agents.” (Emphasis added.) This non-exclusive list encompasses a broad array of folks.
In Kern v. Gandhi, Case No. 0:24-cv-00348 (KMM/SGE), 2025 U.S. Dist. LEXIS 209567 (D. Minn. Oct. 24, 2025), a civilly-committed plaintiff suffering from mental illness communicated with his parents, who in turn communicated with their son’s litigation lawyer. In a lengthy analysis, the court found that: (1) plaintiff’s parents could create protected work product as his “representatives — more specifically, his agents,” and (2) disclosure of work product to them did not waive that protection. Id. at *7-8. The court assessed, unnecessarily, whether the plaintiff and his parents shared a “common interest,” a privilege-related concept more demanding than the work product nonwaiver standard.
Any lawyer whose client is involved in ongoing or anticipated litigation should always assess the creation and waiver aspects of the work product doctrine. The only downside to that parallel protection is the possibility that it might be overcome by the adversary — but that rarely presents much of a risk.