Litigation adversaries often trigger privilege and work product disputes when they seek each other’s documents. But what if your client’s adversary subpoenas a third party holding your client’s privileged documents — whose privilege survived disclosure to that third party? Such third-party discovery is governed by a totally different federal rule.
In Thompson v. Intermodal Cartage Co., a company whose employee was driving a car that injured two plaintiffs disclosed protected accident-related documents to “a third-party company which provides independent, adjusting and claim administration services.” Civ. A. No. 2:24-cv-34-KS-MTP, 2025 U.S. Dist. LEXIS 12748, at *2 (S.D. Miss. Jan. 24, 2025). Plaintiff sought discovery of those documents under Fed. R. Civ. P. 45. Defendants argued that they should not have to prepare a privilege log because plaintiff did not seek the documents from them. The court vigorously disagreed — finding that defendants had waived their privilege protection by failing to prepare a log — but giving them another chance to do so.
Clients whose adversary seeks their privileged or work product-protected documents in a third party’s possession must carefully cooperate with that third party in complying with Rule 45’s and the court’s requirements. In fact, they must be more vigilant than if the adversary sought such documents directly from them — because the third party often lacks the client’s incentive to strenuously resist such discovery.