Also known as: attorney work-product · attorneys' work product · attorney's work product · work product doctrine · work-product privilege · attorney work product privilege
Written by attorneys — see sources below.
Materials prepared by or for an attorney in anticipation of litigation. Such materials receive qualified protection from discovery. A party seeking them must demonstrate substantial need and inability to obtain their substantial equivalent without undue hardship.
After a warehouse fire, Garcia Manufacturing's counsel interviewed several employees and drafted memoranda summarizing their statements. Horizon Mutual later sought those memoranda in discovery. The court denied production because Garcia made no showing of substantial need or undue hardship in obtaining equivalent information from the employees directly.
After regulators opened a formal inquiry into Apex Capital Bank's trading practices, outside counsel directed the bank's internal risk committee to prepare minutes and loss-projection models. Investors later requested those documents. The court denied the motion to compel absent a showing of substantial need and lack of practical alternative sources.
Defense counsel in a product liability case interviewed the plaintiff's retained experts and left handwritten notes in a briefcase. The plaintiff's lawyer obtained the notes through inadvertence and used them at deposition. The court disqualified the plaintiff's lawyer because the notes constituted protected attorney work product.
Respondent Robert Nobles was tried and convicted in federal district court on charges arising from an armed robbery of a federally insured bank. The prosecution's principal evidence consisted of identification testimony from a bank teller and a salesman who had been present during the robbery. Nobles presented an alibi but centered his defense on efforts to discredit the two eyewitnesses. In preparing for trial, a defense investigator hired by Nobles' counsel interviewed both eyewitnesses and recorded the substance of those conversations in a written report. During cross-examination of the bank teller, defense counsel asked whether the teller had told the investigator he saw only the back of the man identified as Nobles; the teller did not recall making the statement. The prosecutor was permitted to see a portion of the report briefly, after which the teller testified that he had actually seen more than the back and continued to identify Nobles. Defense counsel similarly cross-examined the salesman about whether he had told the investigator that all blacks looked alike to him; the salesman denied making the statement. The district court declined to order immediate disclosure but ruled that production of portions of the report would be required if the investigator later testified about the interviews. The court stated it would conduct an in camera review and excise any references to matters not relevant to the precise statements at issue. After the prosecution rested, the defense called the investigator as a witness. The court reiterated that an inspected and edited copy of the report would have to be provided to the government at the conclusion of the investigator's testimony. When defense counsel refused to produce the report, the court ruled that the investigator could not testify about his interviews with the two witnesses. The Court of Appeals for the Ninth Circuit reversed the conviction. The Supreme Court granted certiorari.
View caseAfter a client discovered a missed filing deadline, the law firm of Carter & Diaz directed associates and its risk-management partner to draft internal emails and a chronology evaluating potential malpractice exposure. The former client later sought those materials in discovery. The court denied production because the documents were prepared in anticipation of litigation.
In July 1993 Vincent W. Foster, Jr., then Deputy White House Counsel, met with attorney James Hamilton of the firm Swidler & Berlin to seek legal representation concerning possible congressional or other investigations of the 1993 dismissal of employees from the White House Travel Office. During the two-hour meeting Hamilton took three pages of handwritten notes, one of the first entries of which was the word "Privileged." Nine days later Foster committed suicide. In December 1995 a federal grand jury at the request of the Office of the Independent Counsel issued subpoenas to Hamilton and Swidler & Berlin for Hamilton's handwritten notes of the meeting with Foster. Petitioners filed a motion to quash the subpoenas. After examining the notes in camera the District Court concluded they were protected by both the attorney-client privilege and the work-product privilege and denied enforcement. The Court of Appeals for the District of Columbia Circuit reversed. It recognized that most courts assume the privilege survives death but concluded that a balancing test should apply in the criminal context. The Court of Appeals also held that the notes were not protected by the work-product privilege. A dissenting judge would have affirmed the District Court's judgment protecting the notes under the attorney-client privilege. Petitioners sought review in the Supreme Court on both the attorney-client privilege and the work-product privilege. The Supreme Court granted certiorari in 1998.
View caseA target of a grand jury investigation received a subpoena for documents prepared by counsel summarizing interviews with lower-level employees. The target invoked the Fifth Amendment. The court held that the work product doctrine did not shield the documents from production once the underlying facts were compelled.
In August 1994, an Independent Counsel was appointed to investigate possible violations of federal law relating to the Whitewater Development Corporation. In December 1994, Webster Hubbell pleaded guilty to charges of mail fraud and tax evasion arising out of his billing practices as a member of an Arkansas law firm from 1989 to 1992. He was sentenced to 21 months in prison. As part of the plea agreement, Hubbell promised to provide the Independent Counsel with full, complete, accurate, and truthful information about matters relating to the Whitewater investigation. While Hubbell was incarcerated in October 1996, the Independent Counsel served him with a subpoena duces tecum calling for the production of 11 categories of documents before a grand jury sitting in Little Rock, Arkansas. Hubbell appeared before the grand jury and initially invoked his Fifth Amendment privilege. After being granted immunity pursuant to an order under 18 U.S.C. § 6003(a), he produced 13,120 pages of documents and records. The documents provided the Independent Counsel with information that led to a second prosecution. On April 30, 1998, a grand jury in the District of Columbia returned a 10-count indictment charging Hubbell with tax-related crimes and mail and wire fraud. The District Court dismissed the indictment on the ground that the Independent Counsel's use of the subpoenaed documents violated 18 U.S.C. § 6002. The Court of Appeals vacated the judgment and remanded for further proceedings to determine the extent of the Government's independent knowledge of the documents. On remand, the Independent Counsel acknowledged that he could not satisfy the reasonable particularity standard and entered into a conditional plea agreement with Hubbell. The Supreme Court granted certiorari to determine the precise scope of a grant of immunity with respect to the production of documents in response to a subpoena.
View caseNo. Protection extends to materials prepared by or for a party or its representative, including claims adjusters, risk-management personnel, and consultants acting at counsel's direction, provided the materials were created in anticipation of litigation.
Supporting sources
No. Relevance alone is insufficient. The requesting party must also demonstrate substantial need for the materials to prepare its case and inability to obtain their substantial equivalent without undue hardship.
Supporting sources
No. The key inquiry is whether the materials were prepared because of anticipated litigation rather than for ordinary business purposes. Documents created before suit is filed can qualify if litigation was reasonably anticipated.
Supporting sources
Yes. Ordinary fact work product may be discoverable upon a showing of substantial need and undue hardship. Opinion work product revealing an attorney's mental impressions receives heightened protection and is rarely ordered produced.
Supporting sources
…product revealing the attorney's mental processes. The Rule permits disclosure of documents and tangible things constituting attorney work product upon a showing of substantial need and inability to obtain the equivalent without undue hardship. This was the standard applied by the Magistrate, 78-1 USTC ¶ 9277, p. 83,604. Rule 26 goes…