In one of the greatest mysteries involving the work product doctrine, some federal courts only protect documents created by or at the direction of lawyers — although Fed. R. Civ. P. 23(b)(3) cannot possibly be read to include such a requirement.
In Nichol v. City of Springfield, No. 6:14-cv-1983-AA, 2015 U.S. Dist. LEXIS 169901 (D. Or. Dec. 18, 2015), the court held that the plaintiff's friend could create protected work product. In analyzing the rule's language protecting documents prepared "'by or for another party or its representative,'" the court noted that "[t]he plain meaning of this broad provision encompasses four categories of materials: those prepared (1) by a party; (2) by a party's representative; (3) for a party; or (4) for a party's representative." Id. at *8-9. The court observed that most work product cases involve documents prepared by or for a party's representative, but properly concluded that the lack of such case law protecting documents created for a party (the third category) "does not authorize the court to ignore the plain meaning of Rule 26(b)(3)." Id. at *10. The court acknowledged that the "lack of attorney involvement in creating materials imposes a heightened burden on a party to prove they were prepared in anticipation of litigation." Id. at *11.
Fed. R. Civ. P. 26(b)(3) clearly states that the work product doctrine can protect documents created by or for a party — without a lawyer's involvement. It is remarkable that some federal courts do not apply the rule that way.
