Work Product Protection — Non-Party’s Standing to Assert

Plaintiff One sues defendant. Plaintiff One then subpoenas the litigation consultant retained by Plaintiff Two, who also has a claim against the same defendant. As observed by Magistrate Judge Mikel Williams, “The literal language of the Rule [26(b)(3)] protects materials prepared for any litigation or trial only if they were prepared by or for a party to the subsequent litigation.” Fed.R.Civ.P. 26(b)(3) provides:

Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

According to Judge Williams, there is a split in the Circuit as to whether work product protection may be asserted by non-parties to the litigation:

[O]ne emerging trend has been to extend the work product privilege to subsequent litigation if that litigation is "closely related." In re Grand Jury Proceedings, 43 F.3d 966, 971 (5th Cir. 1994). The Ninth Circuit has adopted a contrary view, limiting Rule 26(b)(3) to its literal terms and declining to extend work product protection to non parties. In re Cal. Pub. Util. Corp. v. Westinghouse Elec. Corp., 892 F.2d 778, 781 (9th Cir. 1989) (concluding that the rule, on its face, limits protection to one who is a party to the litigation in which discovery is sought). Complicating the choice between the two approaches, the Supreme Court in Grolier [Fed. Trade Comm'n v. Grolier Inc., 462 U.S. 19 (1983)] stated in dicta that it "did not necessarily agree" with the "related litigation test" under Fed. R. Civ. P. 26(b)(3), but did not decide the issue because the Freedom of Information Act provided sufficient grounds to decide that case.

But does this matter? The Court found it unnecessary to resolve this issue because a subpoenaed party may assert work product as grounds for a protective order pursuant to Fed. R. Civ. P. 45(c)(3)(A)(iii), (iv) ("On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it ... (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or (iv) subjects a person to undue burden.") or Rule 26(c) (Court may issue a protective order "for good cause shown" to protect "a party or person from annoyance, embarrassment, oppression or undue burden or expense.").

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