Case Summary
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Plew v. Limited Brands, Inc., 2009 U.S. Dist. LEXIS 39715 (S.D.N.Y. Apr. 23, 2009).
Under Fed. R. Civ. P. 26(b)(3), email between defendants and a non-party concerning plaintiff’s claims was protected from disclosure to plaintiff by the work product doctrine. The email from defendants to the non-party was prepared at the request of defendants’ counsel.
Plaintiff in a patent infringement action sought an order requiring defendants to produce email between defendants’ employees and a non-party that supplied the product that allegedly infringed upon plaintiff’s patent. Defendants claimed the email was protected by the work product doctrine because defendants’ attorney had instructed defendants’ employees to seek information from the non-party about claims in plaintiff’s lawsuit. Plaintiff countered that email from a non-party could not be work product under Fed. R. Civ. P. 26(b)(3) and that defendants had waived work product protection for email they sent by sending the email to a non-party with no interest in the litigation.
The court held that the email was protected by the work product doctrine. Defendants’ attorney by affidavit stated that the email from his clients was prepared at his request and for the specific purpose of obtaining information that might assist in defending against plaintiff’s claims. According to the court, in camera review of the email confirmed the attorney’s statement.
As to email from the non-party, the court pointed out that Rule 26(b)(3) protected documents prepared “for another party” as well as documents prepared by a party. The email from the non-party was prepared for defendants for their use in the litigation. The court also held that defendants did not waive work product protection for their email by sending it to a non-party because there was no suggestion that the non-party would reveal the email to others with interests adverse to defendants. Defendants and the non-party were all interested in a finding that there was no infringement of plaintiff’s patent.
<< Click here to go backPlaintiff in a patent infringement action sought an order requiring defendants to produce email between defendants’ employees and a non-party that supplied the product that allegedly infringed upon plaintiff’s patent. Defendants claimed the email was protected by the work product doctrine because defendants’ attorney had instructed defendants’ employees to seek information from the non-party about claims in plaintiff’s lawsuit. Plaintiff countered that email from a non-party could not be work product under Fed. R. Civ. P. 26(b)(3) and that defendants had waived work product protection for email they sent by sending the email to a non-party with no interest in the litigation.
The court held that the email was protected by the work product doctrine. Defendants’ attorney by affidavit stated that the email from his clients was prepared at his request and for the specific purpose of obtaining information that might assist in defending against plaintiff’s claims. According to the court, in camera review of the email confirmed the attorney’s statement.
As to email from the non-party, the court pointed out that Rule 26(b)(3) protected documents prepared “for another party” as well as documents prepared by a party. The email from the non-party was prepared for defendants for their use in the litigation. The court also held that defendants did not waive work product protection for their email by sending it to a non-party because there was no suggestion that the non-party would reveal the email to others with interests adverse to defendants. Defendants and the non-party were all interested in a finding that there was no infringement of plaintiff’s patent.
