Just about the time that extensive pre-trial discovery started, the Supreme Court recognized a new evidentiary protection – extending beyond the attorney-client privilege, and motivated by the understandable requirement that each litigant should do its own discovery work. Hickman v. Taylor, 329 U.S. 495 (1947). Most lawyers now assess work product protection under the later-adopted Fed. R. Civ. P. 26(b)(3), but Hickman's shadow remains.
In John Gross & Co., Inc. v. Agri Stats, Inc., Case No. 19 C 8318, 2022 U.S. Dist. LEXIS 46510 (N.D. Ill. March 16, 2022), the court recognized work product protection for documents prepared by a law firm that had not yet been retained to handle the litigation it ultimately filed. The defendant correctly noted that Rule 26(b)(3) only protects documents prepared by or for a "party." The court rejected defendant's technical rule-based argument, holding that "enough is left of Hickman to protect against one party discovering opposing counsel's mental impressions" – even if counsel formed those before representing a "party." Id. at *26-27. The court analogized this expanded protection to another Hickman-related doctrine, under which most courts protect "intangible" work product such as oral conversations, despite Rule 26(b)(3)'s application on its face only to "documents and tangible things."
Lawyers analyzing possible work product protection in federal court should understandably look first to Fed R. Civ. P. 26(b)(3). But they must also remember to assess possible protection continuing to emanate from the seventy-five year old Hickman decision.
Published August 19, 2022.
