Although some courts seem to misunderstand this, Fed. R. Civ. P. 26(b)(3) on its face allows nonlawyers to create protected work product. But lawyers' involvement can buttress work product claims even in courts applying the rule as written.

In Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016), the court rejected Phoenix's work product claim for emails it generated over a seven-day period. Phoenix claimed that it created the documents because it anticipated litigation with defendant, rather than because of a business dispute that had not yet ripened into anticipated litigation. Phoenix argued that "its in-house counsel provided 'continual' legal advice and direction" about the dispute, but the court emphasized that Phoenix's lawyer's "declaration does not identify a single document for which she provided instruction, review or comment." Id. at *23, *26. The court noted that "[l]ack of attorney involvement in documents" can be an important indication that the documents did not deserve work product protection. Id. at *26. After reviewing the withheld documents in camera, the court concluded that "the documents at issue would have been drafted or circulated for a business purpose even if this lawsuit never came to pass." Id. at *28.

Although lawyers need not be involved in creating work product, their involvement supports the argument that the documents were motivated by anticipated litigation rather than created in the ordinary course of business. Next week's Privilege Point will discuss three other factors that doomed Phoenix's work product claim.