Ironically, courts across the country disagree more about the work product doctrine (articulated in a single sentence in one federal rule) than about the common law attorney-client privilege (which developed organically in every state). Among many other variations, courts differ on the work product doctrine’s application to documents that do not intrinsically involve legal strategy.
In Burke v. Lakin Law Firm, PC, Case No. 07-cv-0076-MJR, 2008 U.S. Dist. LEXIS 833, at *9 (S.D. Ill. Jan. 7, 2008), for instance, the court refused to protect e-mails to and from a client’s public relations firm, because “[n]one of the documents in question contemplate any legal strategy.” Two days later, another federal court refused to protect an adjusting company’s invoices, because “[t]hese documents . . . do not contain any strategy.” Kiln Underwriting Ltd. v. Jesuit High Sch. of New Orleans, Civ. A. No. 06-04350 c/w 06-05060, 06-05057 SECTION: “T” (4), 2008 U.S. Dist. LEXIS 1635, at *20 (E.D. La. Jan. 9, 2008). In contrast, another federal court protected as work product a party’s transcript of the adversary’s and non-parties’ remarks at a local city council’s public meeting – agreeing that the transcripts “were prepared specifically for this litigation” and that the adversary “can prepare their own transcripts from the publicly available recordings.” Padgett v. City of Monte Sereno, No. C 04-03946 JW, 2007 U.S. Dist. LEXIS 95396, at *4, *5 (N.D. Cal. Dec. 20, 2007).
The debate about the work product doctrine’s reach may be frustrating for those who want certainty, but should also prompt lawyers to analyze the pertinent court’s approach.