Publicly Available Documents Obtained in Pre-Litigation Investigation ≠ Work Product

The defendant in Kartman v. State Farm Mut. Auto. Ins. Co., 2007 U.S. Dist. LEXIS 94699 (S.D. Ind. Dec. 21, 2007), served discovery demands on plaintiffs requesting the documents obtained by plaintiffs' counsel in their investigation. In that investigation, counsel gathered numerous documents from publicly available sources, including from Defendant State Farm's own website. Plaintiffs admitted that the documents were relevant to the issues in the case and that they intended to use the documents at deposition and trial. Held, the documents may not be withheld “based upon a temporary invocation of work product protection that Plaintiffs will waive at tactically opportune times."

It really matters how these documents were intended to be used, and the opinion does not address the issue (presumably because the issue was not raised). True, under Rule 26(a)(1), documents of this sort generally must be disclosed and are subject to discovery (one of the aspects of the civil rules impinging on work product). If, however, the documents are intended solely to impeach, they are not disclosable and should not be discoverable (in addition to Rule 26(a)(1), see Rule 26(a)(3)). The Court does note a split on the issue, citing Am. Soc'y for the Prevention of Cruelty to Animals v. Ringling Bros. and Barnum & Bailey Circus, 233 F.R.D. 209 (D.D.C. 2006), a case which the court distinguished on the ground that “the plaintiffs (who were seeking discovery) did not argue that the documents were not work product. Id. at 213. Thus, the work product issue was not squarely presented to the court.”

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