Ironically, federal courts interpreting the two-sentence work product rule in Fed. R. Civ. P. 26(b)(3)(A) take more varied views than when they apply the federal common law attorney-client privilege protection. Among other things, federal courts disagree about whether work product protection can apply only to materials created by a "party" to the litigation in which an adversary seeks those materials. Of course, the term "party" could either mean a formal litigant or a third party.

All or nearly all courts allow non-litigants who anticipate litigation to create protected work product, even if they are never sued. Most courts also extend work product protection to non-litigants who themselves may not anticipate litigation, but who act as a litigant's or would-be litigant's "representative" or otherwise have an interest in the litigation. But some courts take a narrower view. In Acceleration Bay LLC v. Activision Blizzard, Inc., Civ. A. Nos. 16-453 to -455-RGA, 2018 U.S. Dist. LEXIS 21506 (D. Del. Feb. 9, 2018), the court quoted a treatise and cited another case in concluding that "work product protection does not apply, even if the nonparty is a party to closely related litigation." Id. at *6. A few courts take this frighteningly narrow approach to the extreme. For instance, in Bryant v. Ferrellgas, Inc., Civ. A. Nos. 07-10447 & -13214, 2008 U.S. Dist. LEXIS 47148 (E.D. Mich. June 17, 2008), individual plaintiffs and an insurance company sued the same defendants in separate cases (which were later consolidated) arising from the same incident. The defendants issued a subpoena in the individual plaintiffs' case – seeking the insurance company's work product. Remarkably, although the cases had been consolidated, the court ordered production – because the insurance company was not a "party" to the individual plaintiffs' case in which the defendants issued their subpoena.

Fortunately, this illogical interpretation represents the minority, if not aberrational, view. But because courts apply their own work product approach without a choice of laws analysis, corporations may not know whether they will be sued in a court applying such a restrictive view. This highlights the wisdom of writing all documents very carefully. Next week's Privilege Point will explore another variable in courts' work product application.