44.3 Duration of the Protection

• Library: The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner's Guide (Virginia CLE) (2013 Ed.)

44.3 DURATION OF THE PROTECTION

44.301 Introduction. As explained in Chapter 2 of this book, the attorney-client privilege lasts forever, as does the parallel ethics duty of confidentiality. As in other areas, the work product doctrine presents a more subtle approach.

As a practical matter, this duration issue sometimes also involves the ability of a non-party to assert the work product protection, ¹¹ and standing to assert a protection. ¹²

44.302 Courts' Disagreement About the Protection's Duration. In one of the many examples where federal courts interpreting just one sentence in Fed. R. Civ. P. 26(b)(3)(A) take remarkably divergent views, courts disagree about how long the work product doctrine can last.

In 2009, a Connecticut state court recognized that "[s]ome Federal Courts have held that work product doctrine never shields material prepared for prior litigation from disclosure in the instant litigation.... Other courts have held that the doctrine extends to subsequent litigation which is closely related to the prior litigation." ¹³ Of course, numerous federal courts have also recognized this split. ¹⁴

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Because defendants generally will not know where they might face litigation, this uncertainty can be very troubling. In particular, a company will not know until it is sued whether the court handling the litigation (and applying its own work product rule as it interprets that rule) ¹⁵ will protect historic work product that the company or its lawyers have created in earlier litigation

44.303 Civil Work Product Sought in an Unrelated Civil Case. The Restatement takes the position that work product prepared in one civil case should be protected in all future civil cases. ¹⁶

Some courts also take this expansive position. In 2012, the Eastern District of Michigan explained that documents prepared "'in anticipation of litigation are protected from disclosure even in subsequent actions.'" ¹⁷ A number of federal ¹⁸ and state ¹⁹ courts have also taken this position. In 2010, the Eastern District of New York

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even held that work product created for litigation will deserve protection in later litigation, "even if previously ordered disclosed in a prior litigation." ²⁰

Such an expansive view seems consistent with the work product doctrine's basic principles. There is no reason for any future lawyer to "piggyback" on the efforts of a litigant or the litigant's lawyer, regardless of when such "piggybacking" becomes an issue. Of course, someone desiring to "piggyback" in that way can always try to overcome the fact work product protection (discussed in Chapter 45 of this book) or even the opinion work product protection (discussed in Chapter 46 of this book). But stripping away the work product doctrine entirely does not make sense.

44.304 Civil Work Product Sought in a Related Civil Case. Courts taking the more narrow view protect work product only in later cases somehow related to the case in which the work product doctrine was created.

Courts applying this restrictive view have articulated various standards for determining whether the case in which the work product is sought bears a close enough relationship to the earlier litigation in which the work product was created, so that the work product should be protected in the later case.

Courts have protected work product created in (or in anticipation of) one litigation when someone sought discovery of the work product in later litigation that:

• Was related to the earlier litigation; ²¹

• Was closely related to the earlier litigation; ²²

• Was closely related in parties or subject matter to the earlier litigation; ²³

• Had specific similarities to the earlier litigation. ²⁴

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Several courts have declined to establish a precise rule defining the relatedness required to protect work product in later litigation. ²⁵

In 2011, the Southern District of New York explained that some courts apply what could be seen as a "sliding scale" when analyzing work product from a previous litigation. ²⁶ The court noted that work product from a previous litigation would still be protected in later litigation, but that an adversary might have an easier time overcoming the protection. ²⁷ Chapter 45 of this book discusses that issue.

As explained above, it would make sense to provide work product protection in any future litigation, even litigation unrelated to that in which the litigant or the litigant's representative created the work product. However, requiring some relationship between the two cases normally should result in the same conclusion, and therefore might be an acceptable...