Work Product Protection in DC
The work product doctrine, codified in Federal Rule of Civil Procedure 26(b)(3), provides that a party may not ordinarily discover “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3). However, subject to Rule 26(b)(4), such materials may be discovered if: (1) they are otherwise discoverable under Rule 26(b)(1); and (2) the party shows it has a substantial need for the materials and cannot obtain their substantial equivalent by other means without undue hardship. Fed. R. Civ. P. 26(b)(4). If the Court orders discovery of the sought after materials, Rule 26(b)(3)(B) requires it to “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B).
Under Rule 26, the party asserting work product protection must show it prepared the material “in anticipation of litigation.” Jones v. Carson, No. 15-310 (CKK/GMH), 2018 U.S. Dist. LEXIS 67400, at *7 (D.D.C. Mar. 30, 2018), citing Fed. R. Civ. P. 26(b)(3)(A). To answer this question, courts in this Circuit apply the “because of” test, “which asks whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” Id. at *7-8, quoting FTC v. Boehringer Ingelheim Pharms., Inc. (Boehringer I), 778 F.3d 142, 149 (D.C. Cir. 2015). The litigation need not be actual or imminent, but only “fairly foreseeable” at the time the materials were prepared. Hertzberg v. Veneman, 273 F. Supp. 2d 67, 78 (D.D.C. 2003), citing Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 865 (D.C. Cir. 1980). In other words, the protection “extends to documents prepared in anticipation of foreseeable litigation, even if no specific claim is [yet] contemplated.” Id. at 78-79, quoting Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C. Cir. 1992). Additionally, a party may use material generated in anticipation of litigation for an ordinary business purpose without sacrificing the material’s protected status. U.S. v. Deloitte L.L.P., 610 F.3d 129, 138 (D.C. Cir. 2010).
Once a party has established the protection applies, the burden shifts to the party seeking the documents to “show both (1) a substantial need for the materials, and (2) an inability to obtain the substantial equivalent of the information by other means without undue hardship.” Hertzberg, 273 F. Supp. 2d at 81, citing Fed. R. Civ. P. 26(b)(3).
Further, it does not matter that the communications do not involve an attorney. “By its own terms . . . the work product privilege covers materials prepared by or for a party or by or for its representative; they need not be prepared by an attorney or even for an attorney.” Hertzberg, 273 F. Supp. 2d at 76; see also Diversified Indus. v. Meredith, 572 F.2d 596, 603 (8th Cir. 1977) (“While the ‘work product’ may be, and often is, that of an attorney, the concept of ‘work product’ is not confined to information or materials gathered or assembled by a lawyer.”); Viacom, Inc. v. Sumitomo Corp. (In re Copper Mkt. Antitrust Litig.), 200 F.R.D. 213, 221 (S.D.N.Y. 2001) (“documents prepared in anticipation of litigation need not be created at the request of an attorney”); Bank of N.Y. v. Meridien Biao Tanz., No. 95 Civ. 4856 (SS), 1996 U.S. Dist. LEXIS 12377, *6 (S.D.N.Y. Aug. 27, 1996) (“the [work-product] doctrine encompasses documents prepared by the party, whether or not it is done for that party’s attorney”).
Sean Griffin litigates contract and fraud cases in Virginia, Maryland, and the District of Columbia. He may be reached by email at sgriffin@dykema.com or by phone at (202) 906-8703.