Normally a third party does not have standing to challenge a document subpoena. But what if the subpoena seeks discovery of the third party’s privileged or work product-protected documents in the subpoena target’s possession?

In Cook v. JM Smucker Co., Case No. 24-mc-00018, 2024 U.S. Dist. LEXIS 111822 (W.D. Wash. June 21, 2024), the plaintiff claiming she was sickened by Smucker’s peanut butter subpoenaed the entity that had been hired by Smucker’s lawyers at Hogan Lovells to test peanut butter from the same Smucker’s facility. The court seemed skeptical of Smucker’s claim that the testing entity possessed its attorney-client privileged documents, noting that there seemed to be no Hogan Lovells email addresses. But the court properly found that the testing entity’s documents deserved Smucker’s Fed. R. Civ. P. 26(b)(3) work product protection — which covers litigation-motivated documents prepared by a party or its “representative.” Acknowledging Smucker’s standing, the court quashed “in its entirety” the plaintiff’s subpoena to the testing entity. Id. at *6-7.

Clients whose privileged or work product-protected documents are in the possession of a third party should be on the lookout for such discovery efforts that they have standing to deter.