On its face, the federal rule creating the work product doctrine protection only covers “documents and tangible things.” Fed. R. Civ. P. 26(b)(3). However, most courts also protect what is called “intangible” work product — such as the recollection of an investigator whose written report would clearly deserve work product protection.
In Bross v. Chevron U.S.A. Inc., No. Civ. A. 06-1523, 2009 U.S. Dist. LEXIS 25391 (W.D. La. Mar. 25, 2009), Chevron carefully created a root cause analysis report following a fatal industrial accident on an offshore production platform. Chevron appointed a nonlawyer supervisor to conduct the investigation, and assured that he did not keep a copy of his notes or even a copy of the report. In fact, “team members took no written or recorded statements from witnesses they interviewed, but instead took notes [of] the interviews which were turned over to [Chevron’s lawyer] at the conclusion of the investigation.” Id. at *4-5. The court agreed with Chevron that the report deserved attorney-client privilege protection, and therefore did not deal with a separate work product claim. However, at the very end of its opinion, the court indicated that plaintiffs could question Chevron’s investigator “about the facts of the investigation underlying the [report], including any statements made by witnesses and other team members involved in the investigation of the accident.” Id. at *18. The court rejected Chevron’s argument that this information deserved protection as “intangible work-product,” noting that Chevron “does not cite any Fifth Circuit authority for that argument, and in the absence of same, the undersigned is not willing to extend the work-product doctrine to intangible information held by non-attorneys.” Id. at *19.
Depending on the investigator’s memory, Chevron’s elaborate precautions and privilege-creation steps might have resulted in only a Pyrrhic victory.