Can The Work Product Doctrine Protect Intangible Work Product?

On its face, Fed. R. Civ. P 26(b)(3) refers to "documents and tangible things that are prepared in anticipation of litigation or for trial." However, most courts also protect intangible work product (such as deposition testimony) – either ignoring the rule's literal language or relying on a parallel federal common law work product doctrine.

In Baird v. Dolgencorp, L.L.C., No. 4:11 CV 1589 DDN, 2013 U.S. Dist. LEXIS 17269 (E.D. Mo. Feb. 5, 2013), the court dealt with an investigator's surveillance videotapes of a plaintiff. The court rejected defendants' motion to quash plaintiffs' subpoena to depose the investigator. The court noted that the subpoena sought "testimony rather than documents or tangible things" – and "[w]hat [the investigator] witnessed, that is relevant to the case, may be the subject of his deposition." Id. at *4.