Work Product in Subsequent Litigation: the Tenth Circuit Enters the Fray

• Publication year: 1998
• Pages: 79
• Citation: Vol. 27 No. 7 Pg. 79

27 Colo.Law. 79 Colorado Lawyer 1998.

1998, July, Pg. 79. Work Product in Subsequent Litigation: The Tenth Circuit Enters the Fray

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79

Vol. 27, No. 7, Pg. 79

The Colorado Lawyer
July 1998
Vol. 27, No. 7 [Page 79]

Specialty Law Columns
The Civil Litigator
Work Product in Subsequent Litigation: The Tenth Circuit Enters the Fray
by John M. Palmeri, Thomas B. Quinn

Since its recognition in the landmark case of Hickman v Taylor,1 the work product doctrine has generated a tremendous body of case law. From its scope to its application, courts have wrestled with the doctrine. In particular, federal courts have been split on how the doctrine applies in subsequent litigation. The Tenth Circuit Court of Appeals recently rendered an opinion that addresses this issue.2 This article discusses the origin of the work product doctrine its development in the federal courts, its application in subsequent litigation, and the recent Tenth Circuit decision

Origin of Work Product Doctrine

As mentioned above, the work product doctrine was recognized in the seminal case of Hickman.3 The Hickman case followed the drowning death of five sailors on a tugboat that capsized. Counsel for the widow of one of the deceased seamen served an interrogatory inquiring as to the existence and content of any witness statements taken in connection with the sinking of the tugboat. The defendants objected on the ground that the interrogatory called for privileged matters obtained in preparation for litigation.

The U.S. District Court for the Eastern District of Pennsylvania ordered production of the witness statements, but it indicated that it would protect any mental impressions by the defendants' lawyers.4 The Third Circuit Court of Appeals reversed, holding that the materials requested were "privileged" because they contained "work product of the lawyer."5 The U.S. Supreme Court affirmed, holding that the plaintiffs should not be allowed to discover the statements in the absence of a showing of necessity for the discovery:

Here is simply an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollection prepared or formed by an adverse party's counsel in the course of his legal duties. As such, it falls outside the arena of discovery and contravenes public policy underlying the orderly prosecution and defense of legal claims.6

The concurring opinion noted that "discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary."7

In 1970, the work product concept articulated in Hickman was codified in Rule 26 of the Federal Rules of Civil Procedure.8 Rule 26 provides that a party may obtain discovery of documents and tangible things "prepared in anticipation of litigation or for trial" either by or for a party or by or for that party's representative (including counsel) only on a showing that the party seeking discovery has a substantial need for the materials and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.9

The rule is silent, however, on the question of whether materials prepared in anticipation of one lawsuit are protected in a subsequent lawsuit.10 In federal courts, the work product doctrine is governed, even in diversity cases, by federal law.11 Because Rule 26 is silent on subsequent litigation, federal common law governs.

Survey of "Subsequent Litigation" Cases

Federal common law on the application of the work product doctrine in subsequent litigation developed slowly. One of the first cases to address the issue was a Second Circuit decision in 1967, Republic Gear Co. v. Borg-Warner Corp.,12 in which Republic claimed that Borg-Warner had tortiously interfered with a contractual relationship that Republic had had with two Brazilian corporations. During the course of litigation...