Commercial Litigation and Arbitration

Privilege & Work Product — Choice of Law in Diversity Action — Privilege Governed by State Law, Work Product by Federal Law

From Randleman v. Fidelity Nat’l Title Ins. Co., 251 F.R.D. 281 (N.D. Ohio 2008):

Although questions of evidentiary privilege arising in the context of a state law claim are governed by state law, Fed. R. Evid. 501, the work product doctrine, Fed. R. Civ. P. 26(b)(3), is not an evidentiary privilege. Consequently, the scope of the work product doctrine is "unquestionably a matter of federal procedural law even in a diversity action." Scotts Co. LLC v. Liberty Mut. Ins. Co., 2007 U.S. Dist. LEXIS 39231, 2007 WL 1500899, at *3 (S.D. Ohio) (citing In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir. 2006)). See also Zigler v. Allstate Ins. Co., 2007 U.S. Dist. LEXIS 26117, 2007 WL 1087607, at *2-4 (N.D. Ohio) (applying the Boone exception to documents withheld under the attorney-client privilege and federal law to those withheld under the work product doctrine).

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