Concept
Work Product Versus Privilege
Is the material protected work product?
Work Product Versus Privilege
Discovery under the Federal Rules is extremely broad, reaching a wide range of issues and a wide range of information.1 Each protection in this unit works as a limit on that breadth, so the working question is which limit, if any, fits the document or statement in front of you. Federal Rule of Evidence 502(g) sets the two definitions side by side. Work-product protection is the protection that applicable law gives to tangible material, or its intangible equivalent, prepared in anticipation of litigation or for trial.2 The attorney-client privilege is the protection that applicable law gives to confidential attorney-client communications.3 The two triggers differ. The privilege definition asks who communicated with whom and whether the exchange was confidential, and it never mentions a lawsuit. The work-product definition asks why the material was created, and it never mentions a client or a confidence. Behind both stands a third rule, the lawyer's ethical duty of confidentiality, which reaches further than either. This unit takes the contrast between the two protections first, then the zone where they overlap, then that broader duty.
Different Triggers, Different Strength
The privilege protects a communication, so its elements describe an exchange: a confidential communication between lawyer and client, made for the purpose of obtaining legal assistance.4 The same elements mark its limits. The privilege excludes information learned in communications with non-clients such as witnesses, observations or facts that do not reveal the content of a confidential communication, communications not made in confidence, and communications about matters other than the client's legal interests.5 A nonprofit's president who asks the corporation's lawyer which of two fundraising proposals will work better is seeking the lawyer's judgment and not legal assistance, so the exchange is not privileged.6 Nothing in these elements requires a pending or expected lawsuit. A client who consults a lawyer about a lease or a will is protected on the same terms as one who consults about a suit.7
Work product asks a different question. Ordinarily a party may not discover documents and tangible things prepared in anticipation of litigation or for trial by or for another party or its representative, a phrase that includes the party's attorney, consultant, surety, indemnitor, insurer, or agent.8 The inquiry follows the purpose behind the material and not the source of its information. That is why the doctrine reaches what the privilege cannot: a lawyer's notes of witness interviews, and the impressions, observations, and opinions of a person the lawyer hired and supervised in preparing for litigation. It can also reach material the client prepared.9 The same trigger sets the doctrine's outer edge. Because work product rests on the adversary system, it extends only to material prepared for litigation or in anticipation of it, and documents prepared in the ordinary course of business are not work product.10
The shape of the doctrine follows the harms it prevents. If trial-preparation materials were open to discovery, opposing counsel could psych out an adversary's strategy by learning who was interviewed and which issues were pursued. Factual information in those materials is hard to separate from the lawyer's thought processes, so discovery would expose legal theories, evaluations of witnesses, and plans for trial and settlement. And if such discovery were routine, lawyers would become reluctant to keep written records.11 Underneath lies a fairness idea: adversaries in litigation should not free-ride on the other side's investigation, and invading the zone around the attorney's mental impressions would be particularly troublesome.12 A free-riding adversary exists only in litigation, which is why the protection is conditioned on anticipated litigation.
The protections also differ in strength. Strictly speaking, work product is an immunity against discovery and not a privilege. It can be pierced when the opposing party shows sufficient need, while the attorney-client privilege cannot be breached simply because someone asserts a compelling need.13 How much the opponent must show depends on what the document contains. Ordinary work product, mostly factual information from witness interviews or other investigation, can sometimes be discovered on a showing of substantial need and inability to obtain the equivalent without undue hardship.14 The death or disappearance of the only person who saw an incident is an example of strong need. The portions that reflect the lawyer's own thinking, known as opinion work product, receive almost total protection, and courts order them produced only on an extremely compelling showing.15 Even the privilege has a limit, however. The crime-fraud exception applies to both protections, so otherwise protected communications or information may be discovered if the client's purpose in retaining the lawyer was to obtain help in committing a crime or fraud.16
What work product lacks in strength it makes up in breadth. The privilege protects all communications, written or oral, but only communications. Work-product immunity protects documents and tangible things such as memoranda, letters, and emails, and the doctrine as a whole covers a broader range of material than the privilege.17 The privilege is narrower but harder to overcome, and work product is wider but can yield.
Where the Protections Overlap
The two protections often cover the same item. In many cases work-product protection and the attorney-client privilege give overlapping protection against involuntary disclosure of information to third parties.19 The duty of confidentiality draws the largest circle, because it is broader than both the privilege and the work-product doctrine, and an attorney may have to keep confidential information that the law of evidence and procedure does not shield from discovery.20 The privilege sits inside that circle, and work product will almost certainly fall within it too. Work product and the privilege overlap only in part. Some documents are protected work product that also memorialize privileged communications, while other work product, such as material containing information learned from third parties, is not privileged.21 Sorting a single item therefore gives one of four results:
- Both protections apply to a lawyer's memorandum, written after a demand letter arrives, that records what the client confided about the accident, because the memorandum was prepared because of anticipated litigation and it memorializes a confidential communication made for legal advice.22
- Work product alone protects a lawyer's summary of what an eyewitness said, because the summary was prepared for the dispute but records no communication with the client.23
- The privilege alone protects a client's confidential estate-planning conversation with a lawyer, because the conversation sought legal advice but no litigation was anticipated.24
- Neither protection applies to a routine business record or to a conversation held where others could overhear, because the first was not prepared for litigation and the second was not confidential.25
The second result is the cleanest example of work product without privilege. A lawyer who interviews someone who saw an incident may take a statement from that person or write a summary of what the person knows. Neither document is covered by the privilege, because neither involves a communication between attorney and client. The work-product doctrine shields both, however, unless the opponent shows that it would be very difficult to get the information any other way.26 The anticipation condition supplies the protection, and it is met when the lawyer prepared the document because of the dispute.
The common mistake is to treat everything in a lawyer's file as work product. The anticipation requirement says otherwise. A lawyer who prepares a client's estate documents or reviews a lease is not preparing for a lawsuit, so that work is not work product, yet a confidential communication with the client for the purpose of legal advice can still be privileged. The difference is that work product requires anticipated litigation, while the privilege requires only that the client be seeking legal advice, whether or not litigation is anticipated.27
The two scenes share a lawyer, a client, and a subject. The only fact that changed the work-product answer is the threatened suit, which is the condition Rule 502(g)(2) writes into its definition.28
The Duty of Confidentiality
The third zone is the lawyer's professional duty, and it differs in kind from the two discovery protections. Its breadth is remarkable. The comments to Model Rule 1.6 say that the confidentiality label attaches whatever the source of the information, whether or not the client asked the lawyer to keep it private, and whether or not disclosure would harm the client. Comment 3 adds that the rule covers not only matters the client communicated in confidence but all information relating to the representation, whatever its source.30
The duty reaches further than the privilege or work product because it answers a different question. The privilege and the work-product doctrine are rules of evidence and procedure, and they work as shields when an official demand arrives, such as a subpoena, a request for production of documents, or a question at trial or a deposition.31 The duty of confidentiality comes from agency law and the rules of professional conduct. It limits the lawyer's disclosure of confidential information and the lawyer's use of it against the client's interests.32
Two consequences follow. First, only protections rooted in evidence or procedure can resist an official demand, so a lawyer facing a subpoena cannot rest on the confidentiality rule alone.33 Second, the ethics rules enforce themselves through discipline and not through exclusion of evidence. A violation can lead to disciplinary action by the appropriate authorities, but a disclosure that violates a professional code is not barred from evidentiary use unless it also falls within a privilege.34
McClure v. Thompson shows the duty operating on its own. The case was purely a matter of the duties a lawyer owes a client: a disclosure in violation of the state confidentiality rule would potentially have meant ineffective assistance of counsel. Because the district court found that the lawyer reasonably believed the children might still be alive, the Ninth Circuit concluded that the disclosure fell within the bodily-harm exception to the duty.35
The same remark looks different when an opposing party asks about it at a deposition. The lawyer then needs a protection rooted in evidence or procedure to resist, and a casual remark from a supplier is neither a lawyer-client communication nor a product of litigation preparation, so Rule 1.6 by itself gives no ground to refuse the question.36