Court Rules Work Product Doctrine Can Pre-Exist Attorney Client Relationship

By Alysia Solow and Alan Schwartz

Plaintiffs’ counsel and their clients can rely on the attorney work product doctrine to shield investigations conducted in anticipation of filing a lawsuit—even if the attorney conducted the investigation before being retained by any client.

That is the essence of the holding of Magistrate Judge Gabriel Fuentes in his recent decision In Re Turkey Antitrust Litigation, No. 19-cv-8318, (N.D. Ill. March 16, 2022).   The case re-affirms the long-standing common law principal from Hickman v. Taylor, 329 U.S. 495 (1947), that the attorney work product doctrine can apply to relevant investigatory materials created in anticipation of litigation, before the complaint is filed, and even before the attorney is hired by any client.

The litigation involves an alleged conspiracy to inflate prices by turkey producers (called “integrators”) through anti-competitive information exchanges in reports that were created by defendant Agri Stats.   The turkey integrator defendants include Butterball LLC, Cargill, Inc., Cooper Farms, Inc., Foster Farms, Hormel Foods, Perdue Farms, Hillshire Brands Company, Jennie-O Turkey Store and Prestage Farms, Inc.  Tyson Foods Inc. recently settled.

Plaintiffs’ counsel conceived of the antitrust case based on prior lawsuits they filed against the chicken and pork industries.  In doing so, they hired a couple of investigators to see if similar issues were occurring with the turkey integrators.  The investigators interviewed three confidential witnesses who provided them with enough facts to move forward with a lawsuit.

Plaintiffs moved to quash two  third-party subpoenas served by the defendants pursuant to Federal Rule of Civil Procedure 45 for the investigators’ materials.  The Plaintiffs argued that the information gathered during interviews and the ideas of the attorneys and investigators were protected work product.  Defendants argued that no work product protection exists before the formation of the attorney-client relationship, and thus the “pre-client” investigation materials were not protected under Federal Rule of Civil Procedure 26(b)(3).  Specifically, defendants asserted that the work “cannot have been performed by or for a party to the litigation and thus falls outside a literal reading of 26(b)(3)’s protections for work product.” In Re Turkey Antitrust Litigation at 4.

The court noted that nothing in the record precluded defendants from interviewing or deposing the three confidential witnesses and, thus, the information they really sought was the core mental impressions of the attorneys and investigators.

The court distinguished Castro v. Sanofi Pasteur Inc., No. 13 C 2086, 2013 WL 1707094 (N.D. Ill. April 19, 2013), where the “defendant sought to show that the plaintiffs’ claim that the defendant had foreclosed a competitor in the market, was manufactured by the competitor, in concert with plaintiffs’ law firm and investigator” and not to “piggy-back” off the work of opposing counsel.  In Re Turkey Antitrust Litigation at 12.  Here, the court said the materials sought have no legal significance independent of defense counsel knowing what questions plaintiffs’ counsel wanted asked of former employees and would result in defendants “piggy-backing” off the interview work of Plaintiffs’ counsel.   Id. at 13.

The subpoenas would give defendants a “direct, behind-the-scenes view of Plaintiffs’ counsel’s mental impressions formed in anticipation not just of any litigation, but of the litigation against the defendants in this action,” and were therefore directly “relevant” for purposes of Rule 26(b)(1).  Id. at 14.  The 2015 amendments to the Federal Rules of Civil Procedure require a claim to be “relevant to a claim or defense” in the case and proportional to the needs of the case.  Fed. R. Civ. P. 26(b)(1).

The court also cited Hickman v. Taylor, 329 U.S. 495, 507 (1947) in its ruling to quash the subpoenas noting that “enough is left of Hickman to protect against one party discovering opposing counsel’s mental impressions formed in anticipation of the very litigation in which the discovery is sought.”  Id. at 15.  The Supreme Court in Hickman held that work-product materials are shielded from discovery when efforts to obtain them are “simply an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party’s counsel in the course of his legal duties.”  329 U.S. at 510.

Judge Fuentes also reasoned that class counsel’s ability to investigate and build cases would be “severely hampered” if they were unable to use investigators without the risk of disclosure of investigative materials.

As the court recognized, counsel needs to be able to receive frank assessments of their cases to assess whether to bring a matter.  The costs and risks of bringing such cases would increase substantially and those that would “pay the greatest price would likely be individual class members whose claims are of such value that they are not incentivized to bring individual actions ….”  In Re Turkey Antitrust Litigation at 26.

Written by Alysia Solow and Alan Schwartz

Edited by Gary J. Malone