Work Product Doctrine
What is the Work Product Doctrine?
The work product doctrine protects documents and tangible things prepared in anticipation of litigation or for trial from discovery, with a qualified protection for ordinary work product and near-absolute protection for opinion work product reflecting attorney mental impressions.
Definition
The work product doctrine, first recognized in Hickman v. Taylor (1947) and later codified in Federal Rule of Civil Procedure 26(b)(3), protects from discovery documents and tangible things prepared in anticipation of litigation or for trial by or for a party or its representative. The doctrine recognizes that the adversary system depends on each party's ability to prepare its case without fear that its efforts will be revealed to the opposing side, and that attorneys must be able to work with a certain degree of privacy.
Work product protection applies in two tiers. Ordinary or fact work product, which consists of factual information gathered and organized by an attorney, receives qualified protection. It may be discovered only if the requesting party shows substantial need for the materials and an inability to obtain their substantial equivalent without undue hardship. Even when this showing is made, the court must protect against disclosure of the attorney's mental impressions, conclusions, opinions, and legal theories. This second tier, known as opinion work product, receives near-absolute protection. Courts are extremely reluctant to order disclosure of opinion work product, and some courts treat it as absolutely privileged.
Unlike the attorney-client privilege, which protects communications between attorney and client, the work product doctrine protects materials prepared by or for the attorney in anticipation of litigation, regardless of whether they reflect confidential communications. The doctrine can be waived by voluntary disclosure to an adversary or in circumstances inconsistent with maintaining the protection, but inadvertent disclosure may be excused under Federal Rule of Evidence 502(b). Work product protection belongs to the attorney as well as the client.
Key Elements
- 1The materials must be documents or tangible things
- 2They must be prepared in anticipation of litigation or for trial
- 3They must be prepared by or for a party or its representative (including attorneys, consultants, and agents)
- 4Ordinary work product may be overcome by showing substantial need and inability to obtain substantial equivalent without undue hardship
- 5Opinion work product (mental impressions, conclusions, legal theories) receives near-absolute protection
Landmark Cases
Hickman v. Taylor
329 U.S. 495 (1947)
Created the work product doctrine, holding that an attorney's preparation materials are generally protected from discovery to preserve the adversary system's integrity.
Upjohn Co. v. United States
449 U.S. 383 (1981)
Applied work product protection to attorney notes of employee interviews conducted during an internal investigation in anticipation of litigation.
In re Cendant Corp. Securities Litigation
343 F.3d 658 (3d Cir. 2003)
Analyzed the distinction between ordinary and opinion work product and the circumstances under which each may be discoverable.
United States v. Adlman
134 F.3d 1194 (2d Cir. 1998)
Adopted the because of test for determining whether documents were prepared in anticipation of litigation, looking at whether litigation was a substantial motivating factor.
Exam Tips
- Distinguish work product from attorney-client privilege: work product covers materials prepared for litigation (regardless of whether they involve client communications), while privilege covers confidential attorney-client communications.
- Always identify whether the work product at issue is ordinary (factual) or opinion (mental impressions). The level of protection differs dramatically.
- The in anticipation of litigation requirement means that documents prepared in the ordinary course of business, even by attorneys, are not work product.
- Remember that work product protection can be overcome for ordinary work product with substantial need and undue hardship, but opinion work product is virtually never discoverable.
Common Mistakes to Avoid
- Conflating work product with attorney-client privilege; they are separate doctrines with different elements, scope, and waiver rules.
- Assuming that all documents prepared by lawyers are work product; the materials must be prepared in anticipation of litigation, not in the ordinary course of business.
- Treating all work product as absolutely protected; ordinary work product can be overcome with a showing of substantial need and undue hardship.
Memory Aid
Work Product = two tiers. Ordinary (facts): substantial need overcomes. Opinion (mental impressions): nearly absolute protection. Prepared BECAUSE OF litigation.