Essay Question 3.
D Airlines flight 107 crashed, severely injuring a number of passengers, including P, X and Y. P, X, and Y each hire private investigators to interview witnesses to the crash and to interview D Airline employees who serviced the plane prior to the accident. Before filing suit, X settles with D Airlines. P brings a state-law negligence suit (in diversity) against D Airlines in the Federal District Court for the Southern District of New York. When X hears about P’s suit, X gives P the notes from the witness interviews generated by X’s private detective. Y has not yet brought suit, but when she hears about P’s suit, she too gives to P the notes from witness interviews generated by Y’s private detective. In discovery, D Airlines asks for the material that X and Y gave to P. Is the material covered by the work product privilege and/or should it be?
First of all, some of you argued that even if the material created by X’s and Y’s private investigators is privileged work product, the privilege was waived by virtue of being delivered to a third party (P). You were rewarded for worrying about this, although, in fact, giving material to someone who is not a coparty in the same litigation has generally been held to not waive the privilege, provided that the two share a litigation adversary. E.g. BASF Aktiengesellschaft v. Reilly Industries, 224 F.R.D. 438 (S.D. Ind. 2004).
You were also rewarded for worrying about who controls the privilege if the material is work product. Is it controlled by P? By X and Y? By X’s and Y’s private investigators?
But the real issue here is that Fed. R. Civ. P. 26(b)(3) defines work product as documents and tangible things prepared “in anticipation of litigation or for trial by or for another party or by or for that other party's representative.” The material was clearly prepared in anticipation of litigation, but not for a party, since the only parties in the case are P and D. The fact that the material was given to P does not mean it was prepared for P or by or for a representative of P.
Of course, merely because the material does not fall under Rule 26(b)(3) does not mean it is not work product. The content of work product is not covered by 26(b)(3) (it is not a document or a tangible thing) and yet it has been considered to be work product because it falls under the common law work product privilege created in Hickman. The same might be said of the materials that X and Y gave to P.
Some courts, appealing to the language of 26(b)(3), have held such material not privileged. But, because the reasons for protecting the material are strong (as we shall see), many courts protect it though other means, for example by putting it under a protective order. See Wright & Miller, 8 Federal Practice and Procedure § 2024. Others have argued that the material should fall under the common law privilege in Hickman. See Special Project, The Work Product Doctrine, 68 Cornell L. Rev. 760, 862-64 (1983).
What are the reasons for protecting this material? To answer this question you need to look back to the underlying purposes of the work product privilege. One reason the privilege exists is to protect opinion work product (theories, strategies, and the like). If the material at issue contained these opinions, then there would be good reason to protect it. This is particularly true of Y’s material, since Y may yet enter into litigation with D. D would have an unfair advantage if he could get Y’s opinion work product in discovery in P v. D and then use it in Y v. D. But there is even reason to protect X’s opinion work product. After all, this opinion work product might be useful in connection with other disputes with X. If the material is not privileged, D could give it to the adversaries of X in these disputes.
But it is not that likely that the material contains opinion work product. It is probably solely fact work product. One reason there is a (qualified) privilege for fact work product is the free-rider problem. Without the privilege, each side will wait for the other to do investigation, hoping to get the fruits of this labor in discovery. Does that apply to non-party fact work product? It is hard to see why not. If X’s and Y’s material is freely discoverable in the case of P v. D, D might do no investigation, hoping to free-ride on X’s and Y’s efforts.
Some argued that P was already free-riding on X’s and Y’s efforts, so it is only fair that D should be able to do so as well. Although there is something to this point, P is not really free-riding, since X and Y willing chose to give their material to P (because they share a common adversary).
Another argument for the fact work product privilege is that, without it, parties and their representatives would refrain from committing their work product to paper. That would seem to apply to non-party work product as well. If X and Y are worried that their material will be discoverable in the case of P v. D, they might not commit it to paper.
The final argument is the worry that work product could be freely used to impeach the testimony of witnesses, by pointing to the discrepancy between the statements of those witnesses on the stand and in the work product. Furthermore, the creator of the work product might be required to take the stand to support the version in the work product. This puts the creator in an uncomfortable position, since he might be required to impeach the testimony of witnesses friendly to his client.
This scenario could clearly arise with respect to Y’s work product. Once D gets it in discovery in the case of P v. D, D could use it to impeach Y’s witnesses in the case of Y v. D. One might argue that this scenario is not as much of a problem with respect to X, since X’s action against D has already settled. But it would still be awkward for X’s private investigator to be required to aid X’s former adversary.
Many of you spent time discussing whether the work product privilege could be overcome in this case, through D’s showing a “substantial need of the materials” and that he is “unable without undue hardship to obtain the substantial equivalent of the materials by other means.” But question was whether the material was covered by the work product privilege, not whether the privilege could be overcome.
But the main problem with answers to this question was a failure to discuss the underlying purposes of the work product privilege. Many of you simply said that the material was not covered by 26(b)(3) and left it at that.