Are The Documents Of A Corporate Defendant Plaintiff's Work Product?

With the explosion of instant communication through the Internet and organizations like the Attorneys Information Exchange Group, Inc. (AIEG), plaintiffs' lawyers no longer "reinvent the wheel" or "work in a vacuum" when pursuing claims of defect that have been pursued by others in pattern or similar litigation. For example, as a member of AIEG, an attorney has access to newsletters and publications concerning legal, factual and technical developments, access to databases of pleadings, briefs, and research memoranda, access to a database of prior deposition and trial testimony, and access to manufacturers' internal documents.(1) The Internet and these computerized networks allow document exchange groups and repositories to provide easy access to a corporate defendant's internal documents, depositions of corporate employees, and form discovery to serve with a complaint. As a result, defendants now propound discovery to plaintiffs to discover which of its internal documents plaintiff will use to support plaintiff's claims.

With the increased access to the corporate defendant's documents without obtaining the documents from the defendant in the instant case, some controversy has arisen about whether a plaintiff must identify or produce the defendant's internal documents to the defendant in discovery. Plaintiffs argue that the corporate defendant's documents that they obtained from independent sources or from the defendant in prior litigation is protected from discovery by the work product doctrine because their counsel selected and organized a discreet set of corporate internal documents for use in their case. Defendants argue that their internal documents are not plaintiffs' counsel's work product because plaintiffs did not create the documents, nor were the documents prepared in anticipation of litigation. Additionally, they contend that identification or production of corporate defendants' documents will not reveal the plaintiff's attorneys' mental thought processes because defendants do not have access to the larger source of documents so they cannot discern plaintiffs' counsel's selection process.

Does the work product doctrine protect the defendant's documents and employee deposition transcripts, which plaintiff's counsel gathered through sources other than the defendant in that case? The better reasoned authorities that have addressed the issue have rejected plaintiffs' work product objection to production of the defendant's internal documents. Additionally, Federal Rule of Civil Procedure 26 and state rules of civil procedure that mandate disclosure of documents support the position that there is no work product protection for defendant's documents that plaintiff gathers from sources other than the defendant in that case.

In Bohannon v. Honda Motor Co.,(2) for example, plaintiff sued Honda Motor Company and alleged that the Honda all-terrain vehicle (ATV) was defective. Defendant moved to compel responses to document requests that sought copies of documents that plaintiff contended supported any allegation in the lawsuit.(3)

Plaintiff objected to the document request on work product grounds because the vast majority of the responsive documents were obtained through an ATV litigation group. Plaintiff argued that the documents were selected from a large number of documents at the litigation support group.(4) Relying on cases such as Sporck v. Peil(5) and Omaha Public Power Dist. v. Foster Wheeler Corp.(6) plaintiff argued that the disclosure of the documents would reveal counsel's opinions, mental processes, and legal theories.(7)

The Bohannon court noted that to qualify as work product under Rule 26(b)(3), Federal Rules of Civil Procedure, the material must be: 1) documents and tangible things; 2) prepared in anticipation of litigation; and 3) prepared by or for another party or by or for that other party's representative.(8) In Bohannon, the documents were not prepared by or on behalf of plaintiff.(9)

The Bohannon court then analyzed whether the documents were grouped, selected, and synthesized in anticipation of litigation.(10) Plaintiff contended that his counsel obtained the documents after he consulted with his counsel to prepare for litigation against Honda.(11) The court noted that the contention was unsupported by affidavit or specific explanation.(12) Additionally, the court said that the work product status does not apply to documents submitted to or received by a third party.(13)

The Bohannon court rejected plaintiff's argument that counsel's selection of documents constitutes opinion work product, which is immune from discovery in the absence of extreme need. The Bohannon court relied on cases such as San Juan Dupont Plaza Hotel Fire Litigation,(14) which held that the grouping of documents does not constitute opinion work product.(15) The San Juan court rejected cases like Sporck and explained:

In Sporck, the majority emphasized that "[i]n selecting and ordering a few documents out of thousands, counsel could not help but reveal important aspects of his understanding of the case." 759 F.2d at 316 (quoting James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982)). This reasoning, we suggest, is flawed because it assumes that the revelatory nature of the sought-after information is, in itself, sufficient to cloak the information with the heightened protection of opinion work product. That is simply not the case; much depends on whether the fruits of the screening would soon be revealed in any event . . ..

For these reasons, we rule that compelled disclosure of document lists under the district court's identification protocol does not implicate opinion work product and thus does not constitute an impermissible per se intrusion into the lawyer's protected zone of privacy.(16)

The Bohannon Court found the rationale of San Juan sounder than plaintiff's arguments and held that the disclosure of documents would not reveal the mental processes of counsel because none of the documents were created, grouped, or synthesized by plaintiff or his counsel.(17) The Bohannon court ordered plaintiff to produce documents obtained from the litigation support group that supported plaintiff's claims, including documents created by Honda, and deposition transcripts of Honda employees.(18)

In Bartley v. Isuzu Motors Ltd.,(19) plaintiff brought a product liability lawsuit against Isuzu Motors Ltd. (Isuzu), alleging that a defectively designed Isuzu vehicle caused plaintiff's injuries.(20) Isuzu filed a motion to compel plaintiff to produce all Isuzu documents that plaintiff obtained through various sources, including the litigation clearinghouse operated by the American Trial Lawyers Association (ATLA).(21) Plaintiff's counsel in that case acknowledged that they had received such documents, but argued that the work product doctrine protected them from production absent "substantial need" and "undue hardship" because the compilation and selection of documents were part of plaintiff's investigation.(22)

Like Bohannon, the Bartley court stated that the work product doctrine protects documents and other tangible materials that are prepared in anticipation of litigation by or for a party or his counsel.(23) The Bartley court ruled that the corporate defendant's documents, which were secured from other sources such as ATLA and were not prepared by plaintiff or his counsel, are not subject to the work product doctrine.(24) Because defendant's documents were in defendant's control, the Bartley court ordered plaintiff to initially provide a detailed list of the documents created by the defendant and depositions in plaintiff's possession.(25)

Statements of defendants' employees obtained by plaintiff's counsel from sources other than the defendants in the pending lawsuit were not protected by the work product doctrine in Hendrick v. Avis Rent-A-Car Systems, Inc.(26) In reaching this conclusion, the court recognized the ease with which similarly situated plaintiffs now share and exchange information, particularly in product liability litigation where formal and informal networks have been established by plaintiff's counsel pursuing similar claims.(27) The Hendrick court said: "The sharing of information among similarly situated plaintiffs does not, however, shield the information exchanged from disclosure pursuant to the discovery provisions of the Federal Rules of Civil Procedure."(28) Because the materials were not prepared by or on behalf of plaintiff, the court found that the documents were not plaintiff's counsel's work product.(29)

The Hendrick court also rejected plaintiff's contention that the mere identification of documents reviewed would reveal his lawyer's litigation strategy.(30) The court explained that plaintiff was not required to reveal every document counsel examined, nor required to disclose from where the documents were obtained and why.(31) Only the identity of statements made or attributable to an adverse party were requested.(32)

Relying on authority from the Second Circuit Court of Appeals, which cautioned over extending the work product doctrine to the sifting and selection of documents, the Hendrick court said that the extension of the work product doctrine depends upon "the existence of a real, rather than speculative concern that the thought process of . . . counsel in relation to pending or anticipated litigation would be exposed."(33) Absent more than conclusory statements that production would reveal counsel's strategy and mental thoughts, the Hendrick court was not persuaded that the work product doctrine protected the documents.(34) Plaintiff was ordered to produce a list of documents and, to the extent that defendant did not have a copy of the documents, plaintiff was ordered to produce the documents.(35)

One state court has reached the opposite conclusion and protected from discovery defendant's documents obtained by a plaintiff from sources other than the defendant. In Smith v. Florida Power & Light Co.,(36) the court considered whether an attorney's selection of documents, which by themselves are not work product, are as a discrete unit, immune from discovery. In Smith, Sam Smith was electrocuted while trimming trees located along a right of way dedicated to Florida Power and Light.(37) Smith's personnel representative sued the Florida Power and Light (FPL) and alleged FPL breached its duties to inspect and maintain its power lines, to remove encroaching tree limbs, and to adequately warn those who might come into contact with the power lines.(38)

After FPL learned that plaintiff's counsel obtained FPL's business documents from someone other than FPL, it propounded a request for production for all documents of FPL in plaintiff's possession, which were not produced by FPL in that case.(39) Plaintiff's counsel objected to the request on the basis of attorney work product because the grouping of FPL documents, collected outside the discovery process of that case, would reveal his mental impressions.(40) The trial court overruled the objections and ordered plaintiff to produce the documents.(41) On appeal, the Third District Court of Appeals of Florida reversed the trial court's ruling.(42)

The Smith court relied on Florida Rule of Civil Procedure 1.280(b)(3), which is Florida's counterpart to Federal Rule of Civil Procedure 26(b)(3).(43) The Smith court also relied on the United States Supreme Court's discussion of work product in Hickman v. Taylor.(44) In Hickman, the Court stated:

Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. Although "[w]hat constitutes 'work product' is incapable of concise definition adequate for all occasions," an attorney's evaluation of the relative importance of evidence falls squarely within the parameters of the privilege.(45)

The Smith court recognized that the FPL documents themselves were not the work product of the plaintiff's attorney.(46) Rather, relying on Sporck v. Peil,(47) and Shelton v. American Motors Corp.,(48) the Smith court found that the FPL documents "comprise a grouping that is the end result of counsel's selection process; identification of the group would reveal counsel's mental impressions."(49) The collection of documents was held to be "opinion work product," which is "absolutely or nearly absolutely privileged."(50)

The decisions that find no work product protection for defendant's documents that are gathered by a plaintiff from independent sources are better reasoned than Smith v. Florida Power & Light Co. for several reasons. First, Rule 26(b)(3), Federal Rules of Civil Procedure, protects as work product only documents and tangible things that are prepared by a plaintiff or his representative in anticipation of litigation. Defendant's internal documents, which are created in the ordinary course of business are not prepared by plaintiff or his or her counsel and they are not prepared in anticipation of litigation. Accordingly, by its terms Rule 26(b)(3) does not protect the defendant's documents as the plaintiff's work product.

Second, the work product privilege is designed to permanently protect, in the absence of extreme need, information that would reveal an attorney's mental thought processes.(51) Because the goal of the work product protection is defeated once plaintiff's counsel uses the defendant's documents in trial, there should be no work product protection for these documents before trial.

Third, the Smith court's rationale for its decision is flawed. Smith relied on Sporck and Shelton in reaching its decision to prohibit production of relevant documents because plaintiff's counsel selected them as relevant to the litigation. However, the Sporck and Shelton courts did not prevent discovery of relevant documents. In Sporck, no argument was made that relevant documents should be withheld from production.(52) Indeed, defendants produced hundreds of thousands of documents.(53) Defense counsel raised the work product objection to shield his selection of a few of the documents from the thousands already produced in the case.(54) The selected documents were shown to a deponent before his deposition.(55) In reaching its holding that defense counsel need not identify which documents counsel showed to a deponent, the Sporck court quoted from James Julian Inc. v. Raytheon Co.:(56)

In selecting and ordering a few documents out of thousands counsel could not help but reveal important aspects of his understanding of the case. Indeed, in a case such as this, involving extensive document discovery, the process of selection and distillation is often more critical than pure legal research. There can be no doubt that at least in the first instance the binders were entitled to protection as work product.

Additionally, the Sporck court recognized that Rule 612, Federal Rules of Evidence, allowed opposing counsel to ask a deponent to identify documents from which he learned the information to answer counsel's questions in deposition.(57)

Shelton also does not involve a party's refusal to produce relevant documents requested by opposing counsel.(58) Indeed, production of documents already had occurred in the litigation. Rather, plaintiff wanted to depose defense counsel to determine if the defendant responded truthfully to the discovery requests.(59)

The defendant in Shelton sought protection of defense counsel's knowledge of the existence of documents because her knowledge and memory about the existence of documents would reveal defense counsel's views about what is important.(60) Defendant argued that defense counsel was only likely to remember the documents she selected as important and significant to defense theories in the case.(61) The Shelton court agreed with defendant.(62) Accordingly, the court held that ". . . where, as here, the deponent is opposing counsel and opposing counsel has engaged in a process of selecting and compiling documents in preparation for litigation, the mere acknowledgment of the existence of those documents would reveal counsel's mental impressions, which are protected as work product."(63) The Shelton court did not prohibit the plaintiff from conducting discovery to obtain relevant documents through traditional discovery means such as document requests.

In short, neither Shelton nor Sporck supports the Smith court's conclusion that all relevant documents are immune from production because the gathering process would reveal the mental impressions of the attorney who gathered relevant documents. Rather, the courts in Shelton and Sporck protected counsel's selection or memory of a few documents from thousands already produced because the selection of a few documents might reveal the mental process of the attorney who selected them.(64)

Finally, the mandatory disclosure rule, Rule 26, Federal Rules of Civil Procedure, and automatic disclosure rules enacted by state courts also support the cases that hold that documents obtained by plaintiffs from third parties are not plaintiff's work product. Rule 26(a), Federal Rules of Civil Procedure "imposes on parties a duty to disclose, without waiting for formal discovery requests, certain basic information that is needed in most cases to prepare for trial or make an informed decision about settlement."(65) As explained by the comments to the 1993 amendment to Rule 26, all parties, early in the case, must exchange information regarding potential witnesses, documentary evidence, damages, and insurance.(66) Rule 26(a)(1) requires a party to voluntarily make disclosures of information timely, even though the party has not finished its investigation, the party challenges the sufficiency of another party's disclosures, or the other party has not made its disclosures. The purpose of the revisions to Rule 26 is to accelerate the exchange of basic information about the case and to eliminate the paperwork involved in requesting the information.(67) Rule 26 obligates both sides to a case to produce relevant documents.

State courts also have implemented voluntary disclosure rules. For example, in 1991, Arizona implemented a disclosure rule that requires all parties to voluntarily disclose nine categories of information forty days after defendants file an answer.(68) Indeed, Rule 26.1(a)(9), Arizona Rules of Civil Procedure, requires all parties to voluntarily provide:

[a] list of the documents or, in the case of voluminous documentary information, a list of the categories of documents, known by a party to exist whether or not in the party's possession, custody or control and which that party believes may be relevant to the subject matter of the action, and those which appear reasonably calculated to lead to the discovery of admissible evidence, and the date(s) upon which those documents will be made, or have been made, available for inspection and copying.

Arizona's rule was promulgated to require cooperation among parties and encourage early evaluation of a case.(69) Arizona's rule also was intended to make litigation more efficient, less expensive, and more accessible to people and to avoid "litigation by ambush."(70) Colorado, Alaska, and Nevada also have mandatory rules for voluntary disclosure of documents.(71)

Rule 26, Federal Rules of Civil Procedure, and automatic disclosure rules in state courts create an obligation on both sides to wade through documents and databases to identify and produce relevant documents. Thus, the fact that a corporate defense counsel has reviewed thousands of documents and concluded that some are relevant to the litigation does not cloak those internal documents with work product protection. For example, defendants cannot cloak internal memoranda from discovery simply because defense counsel selected them from a databank or file cabinet filled with internal memoranda on a variety of subjects. Likewise, Rule 26, Federal Rules of Civil Procedure, and automatic disclosure rules in state courts also require plaintiffs to wade through documents and databases to identify and produce relevant documents in their possession, custody, or control.(72) Accordingly, plaintiff's determination that certain documents are relevant does not transform the documents into plaintiff's work product. The disclosure rules require both sides to produce all relevant documents, not just the ones a party may designate as particularly significant to the success of one side. Because all relevant documents must be produced by both sides, neither side will likely be able to discern what is important or significant to the opposing counsel.

By requiring both sides to produce all relevant documents, regardless of the source from which they were obtained, the goals of automatic disclosure rules can be achieved. Parties will spend less time and money in discovery and on discovery gamesmanship and more time in case evaluation and trial preparation. Additionally, production of defendant's documents by plaintiffs and defendants avoids litigation by ambush, which also advances the goals of automatic disclosure rules.


Although one court has protected documents that plaintiff's counsel obtained from sources other than a defendant because it is work product, the better reasoned opinions find no work product protection for the documents. Moreover, the automatic disclosure rules that exist now in federal court and some state courts further support the position that plaintiffs cannot cloak defendants' documents with work product protection by obtaining them from a third party. Both sides have affirmative obligations under mandatory or voluntary disclosure rules to identify and produce relevant documents. In the absence of a mandatory disclosure rule, plaintiffs and defendants must identify relevant documents in response to document requests. While plaintiffs' access to defendant's documents from third parties via the Internet or other networks is relatively new and that access may have created some confusion about a plaintiff's obligation to produce the documents, the obligation is the same for plaintiffs and defendants.

  1. Bylaws of Attorney Information Exchange Group.
  2. 127 F.R.D. 536 (D. Kan. 1989).
  3. 127 F.R.D. at 538.
  4. 4 Id.
  5. 759 F.2d 312 (3d Cir. 1985). Sporck arose from securities fraud class action suit in which the court held that defense counsel's selection and compilation of a few documents out of more than 100,000 produced by defendant fell within the "highly-protected category of opinion work product" because identification of documents as a group would reveal counsel's selection process.
  6. 109 F.R.D. 615 (D. Neb. 1986) (holding that plaintiff's selection of a few documents from thousands produced in the case, which were given to plaintiff's employees in preparation for deposition, was opinion work product and protected from production).
  7. Id.
  8. 127 F.R.D. at 538-39.
  9. Id. at 539.
  10. Id.
  11. Id.
  12. Id.
  13. Id. (citing Jewish Hospital Ass'n of Louisville v. Struck Const. Co, 77 F.R.D. 59, 61 (W.D. Ky. 1978)).
  14. 859 F.2d 1007 (1st Cir. 1988).
  15. 127 F.R.D. at 539.
  16. Id.
  17. Id. The Bohannon court also distinguished Sporck on the basis that it involved a trial exhibit list, generated by counsel in preparation for trial. Id.
  18. Id. at 540-41.
  19. 158 F.R.D. 165 (D. Colo. 1994).
  20. Id. at 166.
  21. Id. at 166-67.
  22. Id. at 167.
  23. Id. (citing Fed. R. Civ. P. 26(b)(3)).
  24. Id.
  25. Id. The Bartley court, however, afforded work product protection to plaintiff's counsel's notes that may have been made on the documents. Id.
  26. 916 F. Supp. 256 (W.D.N.Y. 1996).
  27. Id. at 258.
  28. Id. The Hendrick court also held that the statements are discoverable under Rule 26(b)(3), Federal Rules of Civil Procedure. Id. at 259.
  29. Id. at 259.
  30. Id.
  31. Id.
  32. Id.
  33. Id. (citing Gould, Inc. v. Mitsui Mining & Smelting Co., Ltd., 825 F.2d 676, 680 (2d Cir. 1987)).
  34. Id. at 259.
  35. Id.
  36. 632 So. 2d 696 (Fla. Dist. Ct. App. 1994).
  37. Id. at 697.
  38. Id.
  39. Id.
  40. Id.
  41. Id.
  42. Id. at 699.
  43. Id. at 697-98.
  44. 329 U.S. 495, 510, 67 S. Ct. 385, 393 (1947).
  45. 632 So. 2d at 698 (citations omitted).
  46. Id.
  47. 759 F.2d 312 (3d Cir. 1985).
  48. 805 F.2d 1323 (8th Cir. 1986) (prohibiting plaintiffs from compelling defense counsel to even acknowledge the existence of a collection of defendant's documents that defense counsel had assembled).
  49. 632 So. 2d at 698.
  50. Id. at 699.
  51. See Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385 (1947).
  52. 759 F.2d 312, 315 (3d Cir. 1985).
  53. Id. at 313.
  54. Id.
  55. Id. at 313-14.
  56. 93 F.R.D. 138, 144 (D. Del. 1982). James Julian also did not involve objections to the production of documents. Rather, plaintiff in that case sought protection of a binder that was used to prepare witnesses for deposition, which contained documents in an organized fashion. Plaintiff claimed that the organized binder was protected as work product. Id.
  57. Id. at 318-19.
  58. 805 F.2d 1323, 1328 (8th Cir. 1986).
  59. Id. at 1327-28.
  60. Id. at 1328.
  61. Id.
  62. Id. at 1329.
  63. Id.
  64. See also Omaha Public Power Dist. v. Foster Wheeler Corp., 109 F.R.D. 615 (D. Neb. 1986), relied upon by plaintiff in Bohannon v. Honda Motor Co., 127 F.R.D. 536 (D. Kan. 1989). Although plaintiff's selection of a few documents for preparation of a witness for deposition was held to be work product in Omaha Public Power Dist., the documents were previously produced to defendant with a massive document production.
  65. Comments to 1993 amendment to Fed. R. Civ. P. 26.
  66. Rule 26(a)(1) provides: Initial Disclosures. Except to the extent otherwise stipulated or directed by order or local rule, a party shall, without awaiting a discovery request, provide to other parties: (A) the name and, if known, the address and telephone number of each individual likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings, identifying the subjects of the information; (B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings; (C) a computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and (D) for inspection and copying as under Rule 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.
  67. Comment to 1993 amendment to Fed. R. Civ. P. 26.
  68. Ariz. R. Civ. P. 26.1(a).
  69. State Bar Committee Notes.
  70. Court Comment to Rule 26.1.
  71. Colo. R. Civ. P. 26; Alaska R. Civ. P. 26; Nev. R. Civ. P. 16.1.
  72. Arizona Rule of Civil Procedure 26.1(a)(9) requires parties to provide a list of documents whether or not in the party's possession, custody or control.
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