Federal and State Courts Wrestle with Work Production Doctrine Variations

McGuireWoods LLP

Ironically, federal courts interpreting a single sentence from a federal rule take dramatically differing approaches to the work product doctrine. And a handful of states have not adopted that federal work product rule.

In Marquette Transportation Co. Gulf Inland LLC, the court highlighted some of these federal variations -- holding that the work product doctrine:  (1) can apply even if “litigation is not imminent”; but (2) only protects documents whose primary purpose “was to aid in possible future litigation.”  Some federal courts take a narrower approach on the first issue – only protecting documents prepared when litigation is “imminent.” Case No. 6:18-CV-01222 LEAD, 2020 U.S. Dist. LEXIS 21399, at *7-8 (W.D. La. Feb. 3, 2020) (citation omitted).  Most federal courts take a broader approach on the second issue – not requiring that the documents’ primary purpose was to “aid” (use) in the upcoming litigation.  A few weeks later, a Pennsylvania state court in Ford-Bey v. Professional Anesthesia Services of North America, LLC, quoted Pennsylvania’s state court work product rule -- which recognizes only the narrow “opinion” work product doctrine (which is just a subset of the federal protection). No. 677 EDA 2019, 2020 Pa. Super. LEXIS 143, at *16-19 (Pa. Super. Ct. Feb. 20, 2020).

Because work product protection is based on a rule, there is no choice of laws analysis -- courts just apply their own rules.  And because defendants often do not know where they will be sued, they usually cannot know in advance what work product rule will apply.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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