Under Hickman v. Taylor, 329 U.S. 495 (1947), a third-party witness statement is prototypical work product. The defendant in 1100 West, LLC v. Red Spot Paint & Varnish Co., 2007 U.S. Dist. LEXIS 73621 (S.D. Ind. May 18, 2007), argued that, to the extent that a third-party witness was shown drafts of his own statement, and asked to execute the final, work product protection had been waived. The Court rejected the argument on two grounds. First, it relied on the case law holding that, unlike privilege, work product is not waived unless the person to whom the work product is disclosed is likely to reveal it to an adversity in the litigation. It is the second ground — its textual analysis of Rule 26(b)(3) (which gives a third party witness the absolute right to demand a copy of his or her statement) — that merits attention:

[O]ne need look no further than Federal Rule of Civil Procedure 26(b)(3) to confirm that a witness's statement does not lose its status as work product simply because the witness was shown the statement (or asked to read and sign it). The first paragraph of that rule sets forth the showing that must be made by a party seeking to obtain work product from its opponent; the second paragraph then provides that a party or other person may obtain without the required showing a statement previously made by that party or person, and defines a "statement" as, inter alia, a written statement signed by the person who made it. If the work product privilege was waived simply by showing the statement to the person who made it, there would be no need for the second paragraph at all, because no privilege would protect such statements and they would be fully discoverable.