Discovery rules and court orders normally require litigants to list people with possible claims or potentially responsive information. But as in many other contexts, the “intensely practical” work product doctrine can apply in different ways to different lists.
In Civil Rights Dep’t v. Grimmway Enterprises, Inc., a California agency sued a “large agricultural employer” for discrimination. No. 2:21-cv-01552-DAD-AC, 2025 U.S. Dist. 34852, at *2 (E.D. Cal. Feb. 26, 2025). When the employer sought information about its employees’ claims, the court approved the agency’s reliance on Fed. R. Civ. P. 33(d), under which a litigant can point to business records as supplying the requested information. Here, the agency pointed to 600 of defendant’s own business files to identify employees affected by defendant’s alleged wrongdoing. And the court cited the agency’s work product protection in bluntly denying defendant’s request for more information “[t]o the extent [it] seeks a subjectively curated list of the individuals plaintiff [agency] deems to be important to its case.” Id. at *26.
The same distinction might arise when a litigant complies with a rule requirement or discovery request to list individuals with possibly pertinent knowledge — but declines to specify the subset of individuals who are more important than others or might provide testimony.
