Some courts seem to ignore the plain language of the federal work product rule or state parallels by requiring lawyers’ involvement.
In Rafferty v. KeyPoint Government Solutions, Inc., the court correctly quoted the federal work product rule indicating that “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.” Case No. 4:16-cv-00210-DCN, 2018 U.S. Dist. LEXIS 104369, at *19 (D. Idaho June 19, 2018). Without noting that the accurately quoted language does not even mention lawyers, the court nevertheless concluded that “[b]ecause [defendant] KeyPoint has not established that an attorney or an attorney’s agent prepared the document, the document is not protected by the work product doctrine.” Id. at *20-21.
Cases like this represent a remarkable phenomenon. On its face, the work product rule simply does not require lawyers’ involvement either in the creation or the direction of documents that can deserve protection. In fact, the rule explicitly indicates otherwise.