In Moore v. Plains All American GP, LLC, No. 14-4666 (E.D. Pa. Sept. 18, 2015), an employment discrimination case, the court considered a dispute regarding two emails written between the company’s Human Resources Director and a Regional Manager, neither of whom was an attorney. The emails were written after the company received the employee’s notice of charge of discrimination from the EEOC, and after a litigation hold had been put in place. The emails were not created at the direction of counsel. With respect to all but one sentence in one of the emails, the court held that the documents were not protected work product, because the email exchanges would have occurred in the ordinary course of business regardless of whether the employee had filed his complaint. However, the court held that one sentence was not only protected work product, but was opinion work product, which the court noted is “generally afforded near absolute protection from discovery.” The court noted that the Third Circuit has not yet addressed the issue of whether materials prepared by a party’s representative, absent the direction of counsel, may be withheld on work product grounds. The court held that the plain language of Rule 26(b)(3) provides that materials created “by a party or for another party or its representative” may be protected so long as they were prepared in anticipation of litigation. The rule’s language does not require the participation of an attorney. In addition, the court held that, because the sentence at issue reflected the opinions, impressions, conclusions, or legal theories of a party’s representative concerning the litigation, it should be treated as protected opinion work product.
Register now for your free, tailored, daily legal newsfeed service.
Questions? Please contact firstname.lastname@example.orgRegister
Mental Impressions May Be Protected Work Product Even Absent Attorney Involvement
Popular articles from this firm
If you would like to learn how Lexology can drive your content marketing strategy forward, please email email@example.com.
Related topic hubs
Senior Counsel Labor & Employment
AECOM Technology Corporation
"I find the newsfeeds to be extremely beneficial as a means of keeping up with changes in the law. I've made a regular practice of sharing a number of the items with members of our HR staff. Please keep up the good work."