October 26, 2021

Volume XI, Number 299

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October 26, 2021

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October 25, 2021

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What is Immune? – Application of Work Product Doctrine to Independent Client Research

Independent client research – NOT completed at the direction of an attorney – is protected as work product in Pennsylvania federal courts so long as it was prepared in anticipation of litigation.

The work product doctrine provides that “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent)).” Documents are prepared “in anticipation of litigation” when, “in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.” In re Grand Jury Proceedings (3rd Cir. 1979).

Although the work product doctrine is a tool most often utilized by attorneys, Pennsylvania federal precedent indicates that attorney involvement is not necessary for the work-product protection as the plain language of Federal Rule of Civil Procedure 26(b)(3) applies to materials prepared or obtained in anticipation of litigation by an attorney or non-attorney.

In particular to clients, the Western District of Pennsylvania has found that the work product doctrine applies to client research prepared or obtained in anticipation of litigation. In the 2012 SightSound Techs., LLC v. Apple, Inc. case, a managing member of party SightSound drafted emails that reflected the mental impressions, conclusions, and opinions of SightSound’s potential filing of legal claims. The defense argued that the work-product doctrine did not protect the member’s emails from discovery because the emails were made by the party without attorney input or direction. However, the Court held that the mental impressions, conclusions and opinions of the member, whether with or without attorney input, were still not subject to production because the e-mails were documents prepared in anticipation of litigation, by or for a party or its representatives.

SightSound is significant persuasive authority that a client’s independent research prepared with the prospect of litigation is protected from discovery under the work-product doctrine.

©2021 Strassburger McKenna Gutnick & GefskyNational Law Review, Volume XI, Number 232
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About this Author

Kathleen M. Mannard Attorney Litigation Nonprofit Strassburger McKenna Law Firm
Associate

Kathleen M. Mannard is an Associate Attorney at Strassburger McKenna Gutnick & Gefsky. Ms. Mannard works primarily in the areas of litigation and the public/non-profit sector, with a focus in municipal law and land use.

Ms. Mannard came onboard as a full-time member of the SMGG team after working as a summer associate with the firm in 2019. Prior to her summer position, Ms. Mannard worked in Washington, D.C. with the Department of Justice and the National Trust for Historic Preservation. She also did extensive work within Pennsylvania with...

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