Polycast Tech. Corp. v. Uniroyal, Inc. - No. 87 Civ. 3297 (CSH), 1990 U.S. Dist. LEXIS 12444 (S.D.N.Y. Sep. 20, 1990)

Rule:

The work product rule has no application to a document prepared by and in the hands of a third person who is neither a party to nor interested in the action.

Facts:

In October, 1986, Uniroyal, Inc. ("Uniroyal") sold its wholly-owned subsidiary, Uniroyal Plastics Company, Inc. ("Plastics") to Polycast Technology Corporation ("Polycast"). In this action, Polycast alleges that it entered into this transaction on the basis of misleading financial information that Uniroyal provided about Plastics. The parties to this action have taken substantial discovery from a non-party, Deloitte & Touche ("Deloitte"). In its incarnation as Deloitte Haskins & Sells, Deloitte had performed auditing services for both Uniroyal and Polycast prior to the sale of Plastics. After the transaction was completed, Deloitte continued as Polycast's independent auditors, reviewing Plastics' operations. Deloitte sought to withhold certain documents from discovery on the grounds that they are subject to the attorney-client privilege and the work product doctrine. The documents, which were contained in the files of Deloitte employees Millard E. Smith and Nancy Held, were submitted for the court’s in camera inspection. In general terms, they consisted of notes concerning the instant litigation, including handwritten notations on copies of the pleadings in this case.

Issue:

Are the documents at issue subject to the work product doctrine?

Answer:

No.

Conclusion:

The work product doctrine creates a qualified immunity from discovery for: (1) documents or tangible things, (2) prepared in anticipation of litigation or for trial, (3) by or for a party or by or for the party's representative. Here, Deloitte does not meet the third requirement since it is not a party to the litigation. To avoid injustice, courts have sometimes construed broadly the definition of who is "interested" in the action. For example, an insurer to which a claim has been subrogated may assert the work product doctrine even if it has not itself been named as a party to the action. But in contrast to such situations, Deloitte is not legally aligned with any party to this action, and it has consistently maintained that it is a non-party witness with no interest in the outcome of the litigation. Disqualifying non-parties from asserting the work product doctrine does pose one danger. It is possible that a litigant could circumvent the rule by obtaining documents created in anticipation of litigation from a non-party witness and then impleading the witness as a party. However, speculation as to such tactics does not justify ignoring the explicit requirements of Rule 26(b)(3). Furthermore, Deloitte is entitled to seek a protective order placing appropriate limitations on the use and dissemination of the documents at issue.