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David B. Alden is a litigation partner in the Cleveland office of Jones Day. The federal work product rule, Fed. R. Civ. P. 26(b)(3), protects documents “prepared in anticipation of litigation.” In light of Rule 26(b)(3)’s focus on why a document was “prepared,” courts have struggled in applying the work product protection to documents that contain litigation opinions and strategies, but that were not prepared for litigation. For example, in State of Maine v. U.S. D.O.I, 285 F.3d 126, 2002 U.S. App. Lexis 6230 (1st Cir.), amended and superseded, 298 F.3d 60 (1st Cir. 2002), a district court rejected work product claims as to nonlitigation documents because they were not prepared “primarily for” litigation and, therefore, did not satisfy Rule 26(b)(3)’s “prepared in anticipation of litigation” requirement. Initially, the 1st U.S. Circuit Court of Appeals agreed. 2002 U.S. App. Lexis 6230, at 17. On rehearing, the 1st Circuit reversed itself, adopting a “because of” or “but for” standard looking to whether, ” ‘in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’ ” 298 F.3d at 68. The “ because of” or “but for” standard permitted documents prepared for nonlitigation purposes to qualify as work product even though they were not prepared “primarily for” litigation. Both the “primarily for” and “because of” or “but for” standards start from the premise that any work product claims for documents must satisfy Rule 26(b)(3). The “primarily for” standard fits easily within Rule 26(b)(3)’s language, but fails to protect broad categories of litigation opinions and strategies that should be opinion work product. The “because of” or “but for” standard chafes at Rule 26(b)(3)’s language and may yield unpredictable results, but gives greater effect to the work product doctrine’s underlying policies. A possible solution to this quandary would be to discard the premise that Rule 26(b)(3) defines, and therefore limits, the scope of the opinion work product protection in documents and, instead, rely on the common law opinion work product doctrine. This avoids difficulties created by attempting to fit the universe of opinion work product claims into Rule 26(b)(3) and gives full effect to the doctrine’s underlying policies. The precedent of ‘U.S. v. Adlman’ U.S. v. Adlman, 134 F.3d 1194 (2d Cir. 1998), is the leading case addressing the work product protection as applied to documents not prepared for litigation but that reflect litigation-related opinions and strategies. There, an outside accountant prepared memoranda analyzing potential legal challenges to a then-proposed restructuring, as well as legal theories and strategies the client corporation might adopt in response. The corporation proceeded with the restructuring, and the Internal Revenue Service later sought the memoranda from its in-house tax attorney, who asserted work product objections. Initially, the district court rejected the work product claim because the event that could trigger the litigation-the restructuring-had not occurred at the time the accountant prepared the memoranda. U.S. v. Adlman, 94-2 U.S. Tax Cas. (CCH) � 50,389 (S.D.N.Y. May 16, 1994). The 2d Circuit reversed, finding that the nonoccurrence of the event that could give rise to litigation was not determinative, but merely was one factor to consider in applying the work product protection. 68 F.3d 1495 (2d Cir. 1995). On remand, the district court again rejected the work product claim, finding that, because the memoranda were prepared primarily to inform a business decision rather than for use in litigation, they did not fall within Rule 26(b)(3). U.S. v. Adlman, 96-2 U.S. Tax Cas. (CCH) � 50,493 (S.D.N.Y. Feb. 27, 1996). In a 2-1 decision, the 2d Circuit reversed a second time. U.S. v. Adlman, 134 F.3d 1194 (2d Cir. 1998). The Adlman majority began from the premise that it was “require[d] to determine the proper interpretation of Rule 26(b)(3)’s requirement that documents be prepared ‘in antici- pation of litigation,’ ” an issue on which it found a split in authority. On the one hand, the 5th Circuit applied a “primarily to assist in litigation” standard looking solely at the intended use of the challenged document. 134 F.3d at 1198. On the other hand, the 3d, 4th, 7th, 8th and D.C. circuits applied a “because of” standard borrowed from Wright, Miller & Marcus’ treatise that looks to whether, “in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” 134 F.3d at 1202. The Adlman court rejected the “primarily for” standard, finding that it failed to protect the contents of documents that reflect thoughts and opinions about litigation that deserved protection. Instead, it adopted the “because of” standard under which a document “created because of the prospect of litigation . . . does not lose its protection . . . merely because it is created in order to assist with a business decision.” Id. The result in Adlman-protecting opinions and strategies regarding litigation-was consistent with the work product doctrine, which “[a]t its core . . . shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare a client’s case.” U.S. v. Nobles, 422 U.S. 225, 238 (1975). A contrary rule would mean that otherwise protected opinion work product becomes discoverable when repeated in internal, nonlitigation documents, a result that, among other things, conflicts with the law governing work product waiver. See U.S. v. A.T.T. Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980). Yet, in permitting a document prepared for a nonlitigation purpose to be deemed to have been “prepared . . . in anticipation of litigation,” the Adlman “because of” or “but for” standard stretches the ordinary meaning of Rule 26(b)(3)’s language. Moreover, that standard turns heavily on why a document was prepared rather than on its contents and, thus, creates uncertainty about when a nonlitigation document is sufficiently litigation-related so that, “in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” 134 F.3d at 1202. For example, if the memoranda at issue in Adlman had been prepared to address a dozen concerns about the proposed restructuring other than litigation, yet had included the same discussion of the transaction’s possible litigation implications, they might fail a “because of” or “but for” litigation test yet have substantively identical discussions of litigation-related concerns. In short, while Adlman reached the correct result, its “because of” or “but for” standard is hard to reconcile with Rule 26(b)(3)’s language and could yield unpredictable results. An alternative approach for addressing litigation-related opinions and strategies in nonlitigation documents would be to discard the premise that opinion work product claims must satisfy Rule 26(b)(3) and its “prepared in anticipation of litigation” requirement and, instead, apply the common law opinion work product protection. This approach is consistent with the rule’s common law origins, language, legislative history and structure. The common law work product doctrine was recognized in Hickman v. Taylor, 329 U.S. 495 (1947), decades before Rule 26(b)(3)’s adoption in 1970, and remains the primary source of the protection in criminal matters. See Nobles, 422 U.S. at 238. Although Rule 26(b)(3) could have supplanted the common law opinion work product doctrine and, at least in part, “codifies” it, Rule 26(b)(3)’s drafters did not state that they were replacing the entirety of the common law opinion work product protection. Advisory Comm. Notes to Rule 26(b)(3) (1970). Rule only partially codifies opinion work product Rule 26(b)(3)’s language and structure suggest that the opinion “work product doctrine as articulated in Hickman is only partially codified in Rule 26(b)(3) and continues to have vitality outside the parameters of” Rule 26(b)(3). 6 Moore, Moore’s Federal Practice � 26.70[2][c], at 26-210 (3d ed. 2001). Rule 26(b)(3) first defines fact work product as “documents and tangible things . . . prepared in anticipation of litigation” and then sets forth the showings the discovering party must make to overcome the fact work product protection. Only then, and only in the context of stating that it should be excluded from compelled productions of fact work product, does Rule 26(b)(3) address opinion work product-”[i]n ordering discovery of such [fact work product] materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Thus, while Rule 26(b)(3) comprehensively addresses fact work product, it addresses only a slice of opinion work product-opinion work product that should be excluded from compelled productions of fact work product. Thus, its “prepared in anticipation of litigation” requirement, which appears only in the rule’s definition of fact work product, may limit the scope of the fact work product protection, yet not limit the scope of the opinion work product protection. Consistent with the notion that Rule 26(b)(3) “does not and was not intended to codify fully the work product protection afforded opinion work product” ( Koch v. Koch Indus., No. 85-1636-C, 1992 U.S. Dist. Lexis 14094, at 47 (D. Kan. Aug. 24, 1992)), courts often have sustained opinion work product claims for matters outside Rule 26(b)(3). In Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987), the 8th Circuit found that documents claimed to be opinion work product did not satisfy Rule 26(b)(3) and then considered separately whether they satisfied Hickman‘s common law opinion work product principles. Thus, the Simon court implicitly found that documents may be protected as opinion work product under common law principles even if they do not satisfy Rule 26(b)(3). This approach is consistent with the policies underlying the work product doctrine and yields more predictable results.

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