The Validity of the 2010 Federal Rule of Civil Procedure 26 Amendment Governing the Waiver of Work Product Protection: Is the Work Product Doctrine an Evidentiary Privilege?

One of the most celebrated procedural developments in 2010 was the promulgation of an amendment to Federal Rule of Civil Procedure 26. Beginning in 1993, Rule 26 had generally provided that as part of mandatory prediscovery disclosure, the proponent of an expert witness had to submit a report outlining the expert’s proposed testimony in detail. As the years passed, the courts came to construe the provision very broadly. In particular, many courts interpreted the provision as requiring the proponent’s expert to disclose all prior drafts of the expert’s final report as well as virtually every communication between the proponent and the expert about the report’s subject-matter. This interpretation pressured counsel to hire two experts - one to testify and one to consult (without the fear of having to disclose all communications between the consultant and the attorney). This practice made the pretrial preparation of experts both awkward and very costly.In 2010, an amendment to Rule 26 purported to take effect. With specified exceptions, the amendment now shields prior drafts of the required expert report and the expert’s communications with counsel about the report from discovery. The Advisory Committee explained that the purpose of the amendment is to extend the protection of the work product doctrine to these drafts and communications. The amendment has been widely applauded as a sensible reform.The rub, though, is that the amendment may be invalid. Although the Supreme Court promulgated the amendment, the amendment was never submitted to Congress for approval. 28 U.S.C. section 2074(b) states that “[a]ny rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress.” Thus, although the 2010 amendment may be eminently sensible, the amendment is invalid if the work product doctrine is “an evidentiary privilege” within the intendment of section 2074(b).At first blush, there is a plausible case that the doctrine constitutes a privilege and that, consequently, the 2010 amendment is invalid. In its seminal work product decision, Hickman v. Taylor, 329 U.S. 495 (1947), the Court noted that the English courts refer to the doctrine as a “privilege.” In his lead opinion in United States v. Nobles, 422 U.S. 225 (1975), Justice Powell repeatedly described the doctrine as a “privilege.” Moreover, in 2008, Congress adopted Federal Rule of Evidence 502 prescribing some common waiver standards for the work product doctrine and the attorney-client privilege. In other words, Congress chose to insert work product waiver rules in the article of the Federal Rules of Evidence devoted to privileges.Nevertheless, the thesis of the enclosed article is that the work product production is a procedural immunity rather than an evidentiary privilege. While Part I of the article lists many of the common denominators between the privilege and work product, Part II identifies some of the most important doctrinal differences. More deeply, Part III contrasts the policy rationales for the privilege and the work product protection. Part III concludes that true communications privileges such as attorney-client are secondary rights granted persons as a means of securing their primary right to personal autonomy. The purpose of such privileges is to assist persons to make more intelligent, independent life preference choices. Part III then argues that in contrast, holders such as attorneys and clients enjoy work product protection in a representative capacity as functionaries in the adversary procedural system. Part III analogizes the work product doctrine to the immunities that functionaries in the litigation system enjoy from tort immunity under 42 U.S.C. section 1983. Given this rationale for the work product doctrine, the article concludes that the work product doctrine is not a privilege and that, hence, the 2010 amendment to Rule 26 is valid. More broadly, this conception of the work product doctrine can explicate the numerous differences between the doctrine and true communications privileges.