concurring:
I agree with the majority that the work product doctrine1 applies in this case and requires that these OSHA citations be vacated. I am troubled, however, by the majority’s decision to base its holding solely on its construction of the Records Access Rule. Because I believe that rationale will allow regulatory agencies to achieve the very “end-run” that the majority apparently wishes to avoid, I write separately.
As a threshold matter, I agree with the majority that under the Records Access Rule, OSHA's version of the work product doctrine protects this consultant's report. But I am also convinced that the work product doctrine codified in Fed.R.Civ.P. 26(b)(3) applies of its own force, regardless of whether OSHA regulations provide some form of work product protection.
The majority correctly notes that if OSHA had attempted to enforce its subpoenas in district court under 29 U.S.C. § 657(b), Rule 26(b)(3) would have applied directly. Fed.R.Civ.P. 81(a)(3) provides that
[t]hese rules apply to proceedings to compel the giving of testimony or production of documents in accordance with a subpoena issued by an officer or agency of the United States under any statute of the United States except as otherwise provided by statute or by rules of the district court or by order of the court in the proceedings.
There is no statute altering the applicability of this rule in proceedings by OSHA to seek judicial enforcement of a subpoena. Indeed, 29 U.S.C. 661(g) expressly provides that proceedings before the Commission itself will be in accordance with the Federal Rules of Civil Procedure unless the Commission has adopted a different rule, which it has not.2 Thus, in an OSHA subpoena enforcement proceeding in district court, Rule 81(a)(3) would cause Rule 26(b)(3) to apply of its own force, which in my opinion the Supreme Court recognized in Upjohn Company v. United States, 449 U.S. 383, 398, 101 S.Ct. 677, 687, 66 L.Ed.2d 584 (1981).3
No doubt counsel for OSHA recognized this as well when he advised Phyllis Kyner that the agency preferred not to enforce the subpoena, but instead to issue Bally’s a citation for willfully violating the Records Access Rule. It was clear that if OSHA sought directly to enforce the subpoena, Bally’s claim of immunity under the work product doctrine was likely to succeed. Because enforcement “under the penalty” of an administrative fine is equally as compelling, OSHA simply had no good reason to move directly to enforce the subpoena.
The majority with good reason expresses concern about such “end-run” tactics, and *1265correctly points out that “treating] Bally’s claim of work product differently in a citation proceeding than in a subpoena enforcement proceeding would elevate form over substance, and would render OSHA’s administrative subpoena power superfluous^]” Maj. at 1259. Unfortunately, by grounding its holding upon the Records Access Rule rather than Fed.R.Civ.P. 81(a)(3), the majority opens the door for OSHA, or any other agency, to simply eliminate or curtail the work product doctrine by regulation. I think the work product doctrine is too important and too firmly rooted in our jurisprudence and our adversary system of adjudication to permit such a result.
A “strong public policy” underlies the work product doctrine, even outside its usual civil discovery context. See Upjohn, 449 U.S. at 398, 101 S.Ct. at 687. Its purpose is to “promote[ ] the adversary system ... by protecting the confidentiality of papers prepared by or on behalf of attorneys in anticipation of litigation.” Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414, 1428 (3d Cir.1991). It recognizes that “[o]ur adversary system cannot function properly unless an attorney is given a zone of privacy within which to prepare the client’s case and plan strategy, without undue interference.” In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007, 1014 (1st Cir.1988) (citing cases). I fear without the protection of the work product doctrine, the fruit of counsels’ investigations would automatically fall into the hands of their adversaries and could deter them from conducting thorough research at all. See Anderson et at, Special Project: The Work Product Doctrine, 68 Cornell L.Rev. 760, 785 (1983); cf. Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947) (“[m]uch of what is now put down in writing would remain unwritten”).
Although finally codified as Fed.R.Civ.P. 26(b)(3) in 1970, the work product doctrine traces its origin in the Supreme Court to Hickman v. Taylor, supra. Even before that, lower courts adopted various work product theories as a judicial gloss on the discovery provisions of the Federal Rules of Civil Procedure, which were adopted in 1938. 8 Wright & Miller, Federal Practice and Procedure, § 2021. Thus, while the work product doctrine does not have its genesis in the distant mists of the common law, it is sufficiently part of our adversarial jurisprudence not to be dispensed with lightly, and certainly not without a clear statement of Congressional intent. See Kennedy v. Rubin, 254 F.Supp. 190, 191-92 (N.D.Ill.1966). The drafters of Fed. R.Civ.P. 81(a)(3) recognized this presumption in favor of applying the Federal Rules of Civil Procedure to subpoena enforcement when they provided for the applicability of the Rules unless otherwise provided by statute or court rules.
Congressional intent to override the immunity provided by the work product doctrine is clearly lacking in the OSH Act. Not only does that statute fail to create an exception to Rules applicability, it expressly provides for the general applicability of the Federal Rules in commission proceedings. It would be anomalous indeed, then, for the Rules not to apply in a procedure that partakes of a subpoena enforcement proceeding in the way that OSHA’s administrative citations did in this case.
Accordingly, I believe, as does the majority, that when the use of a citation and subpoena represent merely two alternative “coercive means by which OSHA [seeks] to obtain the same document,” maj. at 1259, the citation procedure is properly equivalent to a subpoena enforcement proceeding. I, however, would hold as a matter of federal common law that Fed.R.Civ.P. 81(a)(3) applies of its own force in such a situation. Any other doctrinal basis for the holding invites OSHA to repromulgate the Records Access Rule without a work product immunity, giving rise to the very elevation of form over substance we all agree must be avoided.
If no work product rule applied to protect this report, Bally’s would have had little or no incentive to have its dishwasher emissions tested, because the results would have immediately become available to its adversaries: OSHA, the union and the employee who filed the lawsuit. Moreover, *1266Bally’s would have been without a key piece of information necessary to its defense in our adversary system, whether in an OSHA proceeding or an ordinary tort action. Finally, without this information Bally’s might have left the dishwasher in place, perhaps exposing workers to more noxious fumes.
I also point out that a firmly entrenched federal common law work product immunity would benefit OSHA as well as regulated parties. As one commentator has persuasively stated:
The zone of privacy also removes serious disincentives to thorough preparation. To maximize the facts available in a case, the [agency] must be committed to developing those facts. An [agency which] hopes to take advantage of [its] opponent’s diligence will lack this commitment. Absence of a work product doctrine would encourage laziness and a “wait and see” attitude. If an [agency] hopes to obtain crucial information at [its] opponent’s expense, [it] may feel no need to expend the effort or resources to do the research independently. This lack of preparation can have two negative effects. First, the [agency] may be so ill prepared that [it] is unable to make intelligent use of the discovery upon which [it] now depends. Second, [it] may be responsible for the loss of significant facts favorable to [its] side which were not developed by the opposition, and hence will never be unearthed.
Anderson et al, supra, at 786 (footnotes omitted). Without the work product doctrine, OSHA would be encouraged, as it in fact did here, to avoid testing the dishwasher itself and then simply get the report from its adversary. A strong work product rule gives a regulatory agency charged with protecting the public health and welfare an incentive to seek out information proactively.
A well-recognized concern in any adversary situation is that its champions may become too zealous in their quest for results. In law, we share that concern. As a consequence, we have developed strict rules to keep this zeal within acceptable limits. The work product doctrine has become such a rule. I am convinced that it is too beneficial to our system, too much a part of our legal tradition, and too fundamental to our notion of fairness to be exposed to an agency’s whim. Congress is certainly free to permit whatever regulatory exception it wishes. But with no express intent to the contrary, I believe that Fed.R.Civ.P. 81(a)(3) applies whenever an agency uses a citation as a surrogate for subpoena enforcement. I do, however, respectfully concur.
. In this circuit we have used the term "doctrine” because it "encompasses both a limited immunity from discovery and a qualified evi-dentiary privilege." Westinghouse v. Republic of the Philippines, 951 F.2d 1414, 1417 (3d Cir.1991).
. The Commission thus held that sec. 661(g) caused Rule 26(b)(3) to apply in this case. While this is a colorable rationale, the fact that no proceeding even existed before the Commission until OSHA decided to cite Bally’s makes the ground somewhat problematic. I therefore express no view on whether sec. 661(g) provides an independent basis for the applicability of the Federal Rules of Civil Procedure.
.In Upjohn the Court held that the work-product doctrine applies to an Internal Revenue Service summons, but the Court’s rationale was not limited to that context alone. See also United States v. Rockwell Int’l, 897 F.2d 1255, 1265 (3d Cir.1990).