Developments in Federal Court Practice: Rule 26(b)(3) and Attorney Work Product

• Publication year: 1998
• Pages: 9
• Citation: Vol. 11 No. 8 Pg. 9

Developments in Federal Court Practice: Rule 26(b)(3) and Attorney Work Product Vol. 11 No. 8 Pg. 9 Utah Bar Journal October, 1998

Robert S. Clark

The assistance of Michael Hoppe, a student at the University of Utah School of Law, is gratefully acknowledged.

1. INTRODUCTION TO THE ATTORNEY WORK PRODUCT DOCTRINE

Although sometimes erroneously referred to as a "privilege", attorney work product is a doctrine initially recognized by the judiciary and now written into Rule 26 of the Federal Rules of Civil Procedure. Rule 26(b) (3) provides that a party may obtain discovery of "documents and tangible things" otherwise discoverable which are "prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative" only by showing that the party has "substantial need" of the materials and "is unable without undue hardship to obtain the substantial equivalent of the materials by other means."^[1] "Unlike the attorney client privilege, the work product privilege is governed, even in diversity cases, by a uniform federal standard embodied in Fed. R. Civ. P. 26(b) (3)."^[2]

2. PREPARED IN ANTICIPATION OF LITIGATION

a. The Debate in the Circuits. The circuit courts that have directly addressed the issue have split as to the appropriate test to apply in determining whether materials have been "prepared in anticipation of litigation." The Second Circuit recently joined the Third, Fourth, Seventh, Eighth, and D.C. Circuits in adopting the more inclusive of the two tests. According to the Second Circuit, the proper test to apply in determining whether a document was "prepared in anticipation of litigation" is whether the document was prepared "because of litigation.^[3] In making its decision, the court discussed and considered the narrower test applied by the Fifth Circuit, which held that the work product privilege extends only to materials prepared "primarily or exclusively to aid in litigation."^[4] Rejecting the Fifth Circuit test, the Second Circuit stated that "a requirement that documents be produced primarily or exclusively to assist in litigation in order to be protected is at odds with the text and the policies of the [work product] Rule."^[5] The court found that by distinguishing documents "prepared in anticipation of litigation" from those prepared "for trial," the drafters of the rule had intended it to have a broader reach than the alternative test. Applying the more inclusive test to the case at hand, the Second Circuit held that a memorandum prepared by outside accountants at the request of counsel in order to determine the consequences of proposed reorganization upon expected litigation, was protected by the work product privilege although its primary purpose was to form a business decision. In so finding, the court stated that it saw "no basis for adopting a test under which an attorney's assessment of the likely outcome of litigation is freely available to his litigation adversary merely because the document was created for a business purpose rather than for litigation assistance."^[6]

b. The Tenth Circuit and the District of Utah.

Although the majority of the circuits follow the more inclusive work product test recently adopted by the Second Circuit, the Tenth Circuit has not ruled on the issue. In McEwen v. Digitran Systems, Inc. ,^[7] a Utah federal district court applied the narrower work product test, declaring its agreement with the Fifth Circuit. The decision recognized that the "Tenth Circuit Court of Appeals apparently ha[d] not adopted the 'primary motivating purpose' standard," 155 F. R.D. at 682 (n.5)(2n) but noted that several district courts within the Tenth Circuit had.^[8] More recently, however, a Kansas district court quoted the Fourth Circuit's more expansive view with approval in stating that to qualify for the work product privilege, a document "must be prepared because of the prospect of litigation."^[9] In light of this decision and the weight of circuit authority adopting the more inclusive test, it is unclear how the Tenth Circuit will rule. Until the Supreme Court or the Tenth Circuit speak to the issue, however, McEwen appears to be the standard in Utah.

3. THE SCOPE OF THE WORK PRODUCT DOCTRINE: DOCUMENTS AND BEYOND

a. Introduction. Rule 26(b)(3) expressly applies only to "documents and tangible things." "When applying the work product privilege to [n]ontangible information, the principles enunciated in Hickman apply, as opposed to Rule 26(b) (3) of the Federal Rules of Civil Procedure ... ."^[10]

b. Purpose of the Work Product Doctrine. In Resolution Trust Corp. v. Dabney, the Tenth Circuit emphasized that the work product doctrine "is intended only to guard...