Split on Applicability of Rule 26(b)(3) to Subsequent Litigation

Per Universal City Development Partners, Ltd. v. Ride & Show Engineering, Inc., 230 F.R.D. 688 (M.D. Fla. Sep. 23, 2005):

Rule 26(b)(3) does not expressly address the temporal scope of the work-product immunity. The "literal language of the Rule," however, protects materials "prepared for any litigation or trial as long as they were prepared by or for a party to the subsequent litigation." F.T.C. v. Grolier Inc., 462 U.S. 19, 25, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983) (emphasis in original).

Although the United States Court of Appeals for the Eleventh Circuit has not addressed the issue, the Court finds that the above language from Grolier provides a strong basis to conclude that Rule 26(b)(3) applies to subsequent litigation. See Frontier Ref. Inc. v. Gorman-Rupp Co., 136 F.3d 695, 703 (10th Cir.1998); In re Grand Jury Proceedings, 43 F.3d 966, 971 (5th Cir.1994) ("Grolier provides a strong hint that Rule 26 and a fortiori, Hickman (which is the genesis of Rule 26), applies to subsequent litigation"): cf. Peterson v. BMI Refractories, 124 F.3d 1386, 1392 n. 4 (11th Cir.1997) ("dicta from the Supreme Court is not something to be lightly cast aside").

There is a split among the circuits, however, as to whether the subsequent litigation must involve issues that are closely related to the case for which the documents were prepared initially, or whether the protection extends to all subsequent litigation. See Frontier, 136 F.3d at 703 (discussing split among the circuits). At least one circuit, the Third, has suggested that the doctrine should only apply to closely related subsequent litigation, although it has declined to expressly so hold. See In re Grand Jury Proceedings, 604 F.2d 798, 803-04 (3d Cir.1979). At least two additional circuits, the Fourth and Eighth, extend the privilege to all subsequent litigation, related or not. See United States v. Pfizer, Inc. (In re Murphy), 560 F.2d 326, 335 (8th Cir.1977); Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480, 484-85 & n. 15 (4th Cir.1973). At least three circuits have declined to decide the issue, and analyze the privilege under both approaches. Id. See In re Grand Jury Proceedings, 43 F.3d 966, 971 (5th Cir.1994) (explicitly recognizing two approaches and refusing to choose between the two); United States v. Leggett & Platt, Inc., 542 F.2d 655, 660 (6th Cir.1976) (no discussion of issue in appeal where subsequent litigation is closely related to underlying litigation); Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 557 (2d Cir.1967) (same).