During litigation, a party may attempt to claim some form of privilege as an avenue not to produce certain evidence. There are various types of privileges that may be asserted. One that is familiar to many is attorney-client privilege. One that is not as familiar is work-product privilege. Work-product privilege is claimed in civil cases and is used to keep materials that are created in anticipation of litigation from being discovered by opposing counsel. However, to assert work-product privilege the party claiming it must be an adverse party in the lawsuit. A non-party is not entitled to work-product privilege, as Louisiana State recently learned when the Louisiana Second Circuit Court of Appeal affirmed that work-product privilege can only be claimed by an adverse party.
In 2011, Ramanand Naik was in a car accident on highway 84 in De Soto Parish, Louisiana. Mr. Naik was driving a Ryder box truck when a semi-truck, driven by Nathaniel Anthony, hauling a flatbed trailer carrying a boom lift veered across the center line, jackknifed, and crashed into Mr. Naik’s truck. The impact of the crash caused the boom lift to fall off the trailer and onto the cab of the Ryder truck essentially crushing Mr. Naik and his passenger, Norman Latcha. Following the accident, Naik filed a lawsuit against various parties and their insurance company. Mr. Naik did not name Louisiana State as a defendant and the named defendants did not bring Louisiana State in as a third-party defendant.
Despite being a non-party to the lawsuit, ORM was brought into the case during discovery when Mr. Naik filed a notice to have ORM produce all the documents that they had pertaining to the accident. The named defendants in the case did not oppose Mr.Naik’s request. ORM did not produce the documents leading Mr. Naik to file a motion to compel: a request to have the court force ORM to produce the documents. ORM filed a motion to quash: a request to invalidate the motion to compel and avoid producing the documents asserting the documents were protected by the work-product privilege. The First Judicial District Court for the Parish of Caddo, Louisiana denied ORM’s motion, requiring the production of the documents based on ORM’s non-party status thus the lack of available work-product privilege.