Also known as: attorney's work product protection · work product protection · work-product protection · work product doctrine · work-product doctrine · attorney work product privilege
Written by attorneys · grounded in primary & secondary sources — see below
A qualified protection from discovery for tangible material or its intangible equivalent prepared by or for a party or its representative in anticipation of litigation or for trial. The doctrine shields an attorney's preparations and mental impressions from disclosure absent a showing of substantial need and inability to obtain the substantial equivalent without undue hardship.
After a collision involving one of its trucks, Azure Solutions retained counsel who immediately hired SafeRoad Consulting to prepare telematics summaries, driver scorecards, and reconstruction reports. When the injured plaintiff sought those materials in discovery, Azure Solutions objected on work product grounds. The court sustained the objection because the consultant prepared the documents at counsel's direction in anticipation of litigation.
Following a product liability incident, Apollo Energy's outside counsel interviewed several plant employees and prepared written memoranda summarizing their statements. When the plaintiff sought the memoranda, Apollo Energy withheld them. The court denied the motion to compel because the memoranda reflected counsel's preparations in anticipation of litigation and the plaintiff made no showing of necessity.
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After Astra Aerospace received notice of a potential patent suit, its in-house counsel directed lower-level engineers to provide information about internal processes and then prepared memos summarizing those interviews. When the opposing party sought the memos, Astra Aerospace asserted work product protection. The court upheld the protection because the memos were prepared in anticipation of litigation and the requesting party failed to demonstrate substantial need.
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. Opinion work product revealing mental impressions receives even stronger protection.
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Yes. The doctrine protects documents prepared by or for a party's representative, including consultants, risk managers, and other agents, when the materials are created in anticipation of litigation.
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Documents fall outside protection when they would have been created in substantially the same form regardless of anticipated litigation, such as when a pre-existing institutional policy or routine business practice requires their preparation.
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Work product protection is a qualified immunity focused on materials prepared in anticipation of litigation, whereas attorney-client privilege protects confidential communications made for the purpose of obtaining legal advice and is not limited to litigation preparation.
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…or applied by the Magistrate in this case would be necessary to compel disclosure. Since the Court of Appeals thought that the work-product protection was never applicable in an enforcement proceeding such as this, and since the Magistrate whose recommendations the District Court adopted applied too lenient a standard of protection, we…