Expanding the Federal Work Product Doctrine to Unrepresented Litigants
Written By: Jennifer A. Gundlach and Zeus Smith
Clerks’ offices in federal courthouses across the country designate individuals who do not have counsel as “pro se,” a term that comes from the Latin in propria persona meaning “for oneself.” The term is ambiguous as to the reasons why individuals appear without counsel. While some may purposefully choose not to hire a lawyer, for many it is not a choice.
Access to justice in federal courts requires not just entry into the courts for all litigants, but also fair treatment during the course of litigation. Unfortunately, all unrepresented individuals face disadvantages in federal courts. They are, for the most part, expected to abide by the same rules of civil procedure and substantive law as lawyers, without receiving all the benefits therein.
One example of this unequal treatment is Federal Rule of Civil Procedure 26(b)(3), which provides for qualified immunity from production of documents and tangible things that are prepared in anticipation of litigation or trial by or for another party or its representative unless the seeking party can show substantial need. However, even if the court orders discovery of such material, it must protect against disclosure the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation. Thus, an unrepresented litigant, unlike those with counsel, can be ordered to produce materials that contain their mental impressions, case strategy and the like.
This article begins with an overview of the experience of unrepresented litigants in the American legal system. It explores the origins of the right to not have counsel, the reasons why litigants might proceed without counsel in civil cases, and the impact this has on these litigants’ access to justice (or lack thereof) in the federal civil legal system. In addition, it examines the number and type of cases involving individuals who appear without counsel in federal civil proceedings. The next section explains the genesis of the work product rule and the purposes it serves, its inclusion in Rule 26 of the Federal Rules of Civil Procedure, and how unrepresented litigants cannot benefit from its coverage in the same ways as those who have lawyers. We survey federal decisions in which courts have considered the application of Rule 26(b)(3) to unrepresented litigants, and compare the approaches taken by state courts. The article concludes with a recommendation that Rule 26 be amended to expand work product protections to unrepresented litigants to equalize their experience in federal courts and improve access to justice.