work product doctrine in Iowa

2015The commissioner concluded section 85.27(2) applies to surveillance materials and waives the work product privilege except to the extent that requested materials contain “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” See Squealer Feeds v. Pickering, 530 N.W.2d 678, 689 (Iowa 1995) (internal quotation marks omitted), abrogated on other grounds by Wells Dairy, Inc. v. Am.

2015The commissioner concluded section 85.27(2) applies to surveillance materials and waives the work product privilege except to the extent that requested materials contain “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” See Squealer Feeds v. Pickering, 530 N.W.2d 678, 689 (Iowa 1995) (internal quotation marks omitted), abrogated on other grounds by Wells Dairy, Inc. v. Am.

2017In Iowa Insurance Institute v. Core 44 Group of Iowa Association for Justice, we held that a statute, which on its face required disclosure of “all information . . . concerning the employee’s physical or mental condition relative to the claim,” did not include information protected by the work-product doctrine. 867 N.W.2d 58, 69, 79 (Iowa 2015) (quoting Iowa Code § 85.27 (2) (2011)).

2017In Iowa Insurance Institute v. Core 44 Group of Iowa Association for Justice, we held that a statute, which on its face required disclosure of “all information . . . concerning the employee’s physical or mental condition relative to the claim,” did not include information protected by the work-product doctrine. 867 N.W.2d 58, 69, 79 (Iowa 2015) (quoting Iowa Code § 85.27 (2) (2011)).

2015See, e.g., Wells Dairy, 690 N.W.2d at 43 (“Iowa Rule of Civil Procedure 1.503(3) creates a qualified privilege . . . .”); Exotica Botanicals, Inc. v. Terra Int’l, Inc., 612 N.W.2d 801 , 804–05, 807 (Iowa 2000) (using “work product privilege” in three section headings and referring multiple times to the work product privilege).

2015See, e.g., Wells Dairy, 690 N.W.2d at 43 (“Iowa Rule of Civil Procedure 1.503(3) creates a qualified privilege.... ”); Exotica Botanicals, Inc. v. Terra Int’l, Inc., 612 N.W.2d 801, 804-05, 807 (Iowa 2000) (using “work product privilege” in three section headings and referring multiple times to the work product privilege).

2017Id. at 675-76 .

2015Keefe, 774 N.W.2d at 673 (alteration in original) (quoting Iowa R.

2015Cf. Bob McKiness Excavating & Grading, Inc. v. Morton Bldgs., Inc., 507 N.W.2d 405, 411 (Iowa 1993) (looking “beyond the labels to the actual nature of the action” to determine the applicable statute of limitations); Essex Ins.

2015Cf. Bob McKiness Excavating & Grading, Inc. v. Morton Bldgs., Inc., 507 N.W.2d 405, 411 (Iowa 1993) (looking “beyond the labels to the actual nature of the action” to determine the applicable statute of limitations); Essex Ins.

2015Ct. App. 2005) (“Clearly any documents, reports or video tapes prepared by the investigators are now protected by the work product privilege.”); Pioneer Lumber, Inc. v. Bartels, 673 N.E.2d 12, 17 (Ind. Ct. App. 1996) (“[I]t seems needless to record the activities of the claimant unless it is anticipated that those recordings will be used against the claimant during litigation.”); Cabral v. Arruda, 556 A.2d 47, 49 (R.I. 1989) (holding 21 that surveillance material is “work product” that is “qualifiedly immune from discovery”); In re Weeks Marine, 31 S.W.3d 389, 391 (Tex. Ct. App. 2000) (“[T]he

2015App.2005) (“Clearly any documents, reports or video tapes prepared by the investigators are now protected by the work product privilege.”); Pioneer Lumber, Inc. v. Bartels, 673 N.E.2d 12, 17 (Ind.Ct.App.1996) (“[I]t seems needless to record the activities of the claimant unless it is anticipated that those recordings will be used against the claimant during litigation.”); Cabral v. Arruda, 556 A.2d 47, 49 (R.T.1989) (holding that surveillance material is “work product” that is “qualifiedly immune from discovery”); In re Weeks Marine, 31 S.W.3d 389, 391 (Tex.Ct.App.2000) (“[T]he surveillance re

2015Ct. App. 2005) (“Clearly any documents, reports or video tapes prepared by the investigators are now protected by the work product privilege.”); Pioneer Lumber, Inc. v. Bartels, 673 N.E.2d 12, 17 (Ind. Ct. App. 1996) (“[I]t seems needless to record the activities of the claimant unless it is anticipated that those recordings will be used against the claimant during litigation.”); Cabral v. Arruda, 556 A.2d 47, 49 (R.I. 1989) (holding 21 that surveillance material is “work product” that is “qualifiedly immune from discovery”); In re Weeks Marine, 31 S.W.3d 389, 391 (Tex. Ct. App. 2000) (“[T]he

2015App.2005) (“Clearly any documents, reports or video tapes prepared by the investigators are now protected by the work product privilege.”); Pioneer Lumber, Inc. v. Bartels, 673 N.E.2d 12, 17 (Ind.Ct.App.1996) (“[I]t seems needless to record the activities of the claimant unless it is anticipated that those recordings will be used against the claimant during litigation.”); Cabral v. Arruda, 556 A.2d 47, 49 (R.T.1989) (holding that surveillance material is “work product” that is “qualifiedly immune from discovery”); In re Weeks Marine, 31 S.W.3d 389, 391 (Tex.Ct.App.2000) (“[T]he surveillance re

2015See Hanson v. U.S. Agency for Int’l Dev., 372 F.3d 286, 294 (4th Cir. 2004) (“[T]he ability to protect work product normally extends to both clients and attorneys, and the attorney or the client, expressly or by conduct, can waive or forfeit it, but only as to himself.” (Alteration in original.) (Internal quotation marks omitted.)); MapleWood 28 Partners, L.P. v. Indian Harbor Ins.

2015See Hanson v. U.S. Agency for Int’l Dev., 372 F.3d 286, 294 (4th Cir.2004) (“[T]he ability to protect work product normally extends to both clients and attorneys, and the attorney or the client, expressly or by conduct, can waive or forfeit it, but only as to himself.” (Al teration in original.) (Internal quotation marks omitted.)); MapleWood Partners, L.P. v. Indian Harbor Ins.

2015Ct. App. 2005) (“Clearly any documents, reports or video tapes prepared by the investigators are now protected by the work product privilege.”); Pioneer Lumber, Inc. v. Bartels, 673 N.E.2d 12, 17 (Ind. Ct. App. 1996) (“[I]t seems needless to record the activities of the claimant unless it is anticipated that those recordings will be used against the claimant during litigation.”); Cabral v. Arruda, 556 A.2d 47, 49 (R.I. 1989) (holding 21 that surveillance material is “work product” that is “qualifiedly immune from discovery”); In re Weeks Marine, 31 S.W.3d 389, 391 (Tex. Ct. App. 2000) (“[T]he

2015App.2005) (“Clearly any documents, reports or video tapes prepared by the investigators are now protected by the work product privilege.”); Pioneer Lumber, Inc. v. Bartels, 673 N.E.2d 12, 17 (Ind.Ct.App.1996) (“[I]t seems needless to record the activities of the claimant unless it is anticipated that those recordings will be used against the claimant during litigation.”); Cabral v. Arruda, 556 A.2d 47, 49 (R.T.1989) (holding that surveillance material is “work product” that is “qualifiedly immune from discovery”); In re Weeks Marine, 31 S.W.3d 389, 391 (Tex.Ct.App.2000) (“[T]he surveillance re

2015See, e.g., Wells Dairy, 690 N.W.2d at 43 (“Iowa Rule of Civil Procedure 1.503(3) creates a qualified privilege . . . .”); Exotica Botanicals, Inc. v. Terra Int’l, Inc., 612 N.W.2d 801 , 804–05, 807 (Iowa 2000) (using “work product privilege” in three section headings and referring multiple times to the work product privilege).

2015See, e.g., Wells Dairy, 690 N.W.2d at 43 (“Iowa Rule of Civil Procedure 1.503(3) creates a qualified privilege.... ”); Exotica Botanicals, Inc. v. Terra Int’l, Inc., 612 N.W.2d 801, 804-05, 807 (Iowa 2000) (using “work product privilege” in three section headings and referring multiple times to the work product privilege).

2016Inst. v. Core Grp. of Iowa Ass’n for Justice, 867 N.W.2d 58, 79 (Iowa 2015) (holding that statute requiring workers’ compensation carrier to release all information concerning the employee’s physical or mental condition does not affect the work product doctrine); In re Estate of Troester, 331 N.W.2d 123, 126 (Iowa 1983) (the words “all orders” in a statute proving that all orders in a probate court are final decrees was not intended “to provide finality and thus make appealable those procedural rulings” in probate hearings); Johnson v. Bd. of Adjustment, 239 N.W.2d 873 , 880–81 (Iowa 1976) (fi

2016Inst. v. Core Grp. of Iowa Ass’n for Justice, 867 N.W.2d 58, 79 (Iowa 2015) (holding that statute requiring workers’ compensation carrier to release all information concerning the employee’s physical or mental condition does not affect the work product doctrine); In re Estate of Troester, 881 N.W.2d 123 , 126 (Iowa 1983) (the words “all orders” in a statute proving that all orders in a probate court are final decrees was not intended “to provide finality and thus make appealable those procedural rulings” in probate hearings); Johnson v. Bd. of Adjustment, 239 N.W.2d 873, 880-81 (Iowa 1976) (fi

2015Ranft v. Lyons, 163 Wis.2d 282 , 471 N.W.2d 254, 261-62 (Ct.App.1991).

2015Ranft v. Lyons, 163 Wis.2d 282 , 471 N.W.2d 254, 261-62 (Ct.App.1991).

1996Id.; see also Schaffer, 362 N.W.2d at 555 , where the court held the work product privilege covered witness statements obtained by the internal affairs unit of the Des Moines police department.

1993Later in Schaffer v. Rogers, 362 N.W.2d 552 (Iowa 1985), this court, adhering to the primary purpose test stated in Ashmead , held that the work product privilege covered witness statements obtained by the internal affairs unit of the Des Moines police department.

2020See, e.g., In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180 , 184–85 (2d Cir. 2007) (“It is clear that the work product doctrine applies to grand jury proceedings, but arguably less clear what species of work product protection a court should apply.”); In re Green Grand Jury Proceedings, 492 F.3d at 981 (drawing a distinction between the discoverability of opinion work product and ordinary work product in grand jury proceedings); In re Grand Jury Subpoena, 220 F.R.D. 130, 142 (D.

2020“This is partly because of the unique significance of the grand jury in our system of government: ‘Nowhere is the public’s claim to 33 each person’s evidence stronger than in the context of a valid grand jury subpoena.’ ” In re Grand Jury Subpoena, 220 F.R.D. at 142 (quoting In re Sealed Case, 676 F.2d 793, 806 (D.C.

2020“This is partly because of the unique significance of the grand jury in our system of government: ‘Nowhere is the public’s claim to 33 each person’s evidence stronger than in the context of a valid grand jury subpoena.’ ” In re Grand Jury Subpoena, 220 F.R.D. at 142 (quoting In re Sealed Case, 676 F.2d 793, 806 (D.C.

2020See, e.g., In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180 , 184–85 (2d Cir. 2007) (“It is clear that the work product doctrine applies to grand jury proceedings, but arguably less clear what species of work product protection a court should apply.”); In re Green Grand Jury Proceedings, 492 F.3d at 981 (drawing a distinction between the discoverability of opinion work product and ordinary work product in grand jury proceedings); In re Grand Jury Subpoena, 220 F.R.D. 130, 142 (D.

2020Ct., 533 P.2d 32, 36 (Colo. 1975) (en banc) (“[A]n attorney- witness must, except in the most exceptional of circumstances, honor a properly issued subpoena by appearing before the grand jury.

2020Mass. 2004) (“The work product doctrine’s ‘scope and effect outside the civil discovery context is largely undefined,’ however, and its application in cases involving grand jury subpoenas is particularly unsettled.” (quoting In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1013 (1st Cir. 1988))).

2020Mass. 2004) (“The work product doctrine’s ‘scope and effect outside the civil discovery context is largely undefined,’ however, and its application in cases involving grand jury subpoenas is particularly unsettled.” (quoting In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1013 (1st Cir. 1988))).

2020See, e.g., In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180 , 184–85 (2d Cir. 2007) (“It is clear that the work product doctrine applies to grand jury proceedings, but arguably less clear what species of work product protection a court should apply.”); In re Green Grand Jury Proceedings, 492 F.3d at 981 (drawing a distinction between the discoverability of opinion work product and ordinary work product in grand jury proceedings); In re Grand Jury Subpoena, 220 F.R.D. 130, 142 (D.

2018Health Care Corp. , 204 F.R.D. 240 , 246 (E.D.N.Y. 2001) ("[W]hile the Court finds the waiver of some core work product difficult to sustain, it agrees that NHCC's invocation of the Faragher - Ellerth defense has waived the work product privilege under the facts of this case.

2018Health Care Corp. , 204 F.R.D. 240 , 244-45 (E.D.N.Y. 2001) (rejecting the argument "that employers put any post-harassment investigation conducted at issue simply by invoking the Faragher - Ellerth defense" because the proposition "would eviscerate both the attorney-client *252 privilege and the work product doctrine" while concluding that this employer did put the sufficiency of its investigation at issue); cf. EEOC v. Rose Casual Dining, L.P. , No. Civ.A. 02-7485, 2004 WL 231287 , at *3-4 (E.D.

2018This line of cases stems from the seminal case of Harding v. Dana Transport, Inc., 914 F. Supp. 1084, 1096 (D.N.J. 1996).

2018This line of cases stems from the seminal case of Harding v. Dana Transport, Inc. , 914 F.Supp. 1084 , 1096 (D.N.J. 1996).

2016Inst. v. Core Grp. of Iowa Ass’n for Justice, 867 N.W.2d 58, 79 (Iowa 2015) (holding that statute requiring workers’ compensation carrier to release all information concerning the employee’s physical or mental condition does not affect the work product doctrine); In re Estate of Troester, 331 N.W.2d 123, 126 (Iowa 1983) (the words “all orders” in a statute proving that all orders in a probate court are final decrees was not intended “to provide finality and thus make appealable those procedural rulings” in probate hearings); Johnson v. Bd. of Adjustment, 239 N.W.2d 873 , 880–81 (Iowa 1976) (fi

2014The commissioner’s ruling is legally erroneous because it conflates two separate legal doctrines—the attorney-client privilege and the work product doctrine—into something the commissioner called “the attorney client work product privilege[].” See In re Foster, 188 F.3d 1259, 1272 (10th Cir. 1999) (“[The plaintiff] also invoked the work-product doctrine, which is broader than and distinct from the attorney-client privilege.”); Robbins v. Iowa-Illinois Gas & Elec.

2014Co., 295 F.R.D. 550 (S.D.