Also known as: attorney work product privilege · attorney's work product privilege · work-product privilege · work product doctrine · work-product doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A qualified immunity from discovery for documents and tangible things prepared by or for a party or its representative in anticipation of litigation. Protection is overcome only upon a showing of substantial need and inability to obtain the substantial equivalent without undue hardship. Opinion work product containing mental impressions receives heightened protection.
Anita Ali retained counsel after her termination from Anchor Bank. Counsel prepared written memoranda summarizing interviews with former coworkers who might become witnesses. When the bank sought production in discovery, the court denied the request because the memoranda were created in anticipation of litigation and the bank made no showing of substantial need.
Andre Antoine, a mid-level compliance officer at Alpine Mining, was directed by superiors to provide information to outside counsel after regulators began an inquiry. Counsel prepared internal risk memoranda based on those communications. When investors later sued and sought the memoranda, the court sustained work-product protection absent a showing of substantial need and undue hardship.
Select any source to read its text and confirm it supports the definition.
The requesting party must demonstrate both substantial need for the materials to prepare its case and an inability to obtain the substantial equivalent without undue hardship. Factual work product may then be discoverable while opinion work product remains protected.
Supporting sources
Yes. Materials prepared by a party's representative, including consultants and risk managers acting at counsel's direction in anticipation of litigation, qualify for protection under the doctrine.
Supporting sources
Documents created because of anticipated litigation rather than in the ordinary course of business qualify for protection. Preparation after an adverse event or regulatory inquiry, especially when directed by counsel, supports work-product classification.
Supporting sources
Yes. When the requesting party shows substantial need and undue hardship, factual portions of work product may be ordered produced while mental impressions and legal theories remain shielded.
Supporting sources
…important questions concerning the scope of the attorney-client privilege in the corporate context and the applicability of the work-product doctrine in proceedings to enforce tax summonses. 445 U. S. 925. With respect to the privilege question the parties and various amici have described our task as one of choosing between two "tests"…