Also known as: mental impression · attorney mental impressions · work-product mental impressions · opinion work product
Written by attorneys — see sources below.
Materials reflecting an attorney's or other representative's evaluative thinking in connection with litigation. A court that orders discovery of work-product materials must still shield these from disclosure to preserve the integrity of trial preparation.
Monica Morgan's lawyer prepares notes evaluating the credibility of a key defense witness and the strengths of potential impeachment arguments. Metro Bank seeks production of the notes after showing substantial need for the underlying facts. The court orders production of any factual portions but requires redaction of the lawyer's credibility assessments and strategic conclusions.
Musa Mensah's in-house counsel interviews lower-level employees about internal compliance practices and prepares memos summarizing the interviews along with counsel's own assessments of potential liability theories. An opposing party moves to compel the memos. The court denies the motion because the memos contain protected mental impressions and legal theories even though the underlying facts might be obtainable elsewhere.
Upjohn Co. manufactures and sells pharmaceuticals in the United States and abroad. In January 1976, independent accountants conducting an audit of one of Upjohn's foreign subsidiaries discovered that the subsidiary had made payments to or for the benefit of foreign government officials in order to secure government business. The accountants informed Gerard Thomas, Upjohn's Vice President, Secretary, and General Counsel. Thomas is a member of the Michigan and New York Bars and had served as General Counsel for twenty years. Thomas consulted with outside counsel and R. T. Parfet, Jr., Upjohn's Chairman of the Board. It was decided that the company would conduct an internal investigation of what were termed questionable payments. As part of this investigation, the attorneys prepared a letter containing a questionnaire that was sent to all foreign general and area managers over the Chairman's signature. The letter noted recent disclosures that several American companies had made possibly illegal payments to foreign government officials. It stated that Thomas had been asked to conduct an investigation to determine the nature and magnitude of any such payments. Managers were instructed to treat the investigation as highly confidential and to send responses directly to Thomas. Thomas and outside counsel also interviewed the recipients of the questionnaire and thirty-three other Upjohn officers or employees. On March 26, 1976, Upjohn voluntarily submitted a preliminary report to the Securities and Exchange Commission on Form 8-K disclosing the questionable payments. A copy of the report was simultaneously submitted to the Internal Revenue Service. The IRS immediately began an investigation to determine the tax consequences of the payments. On November 23, 1976, the Service issued a summons pursuant to 26 U.S.C. § 7602 demanding production of the records described in the summons. The records included written questionnaires sent to managers of the Upjohn Company's foreign affiliates. They also included memorandums or notes of the interviews conducted in the United States and abroad with officers and employees of the Upjohn Company and its subsidiaries. Upjohn declined to produce the documents specified in the summons on the grounds that they were protected by the attorney-client privilege and constituted attorneys' work product prepared in anticipation of litigation. On August 31, 1977, the United States filed a petition in the United States District Court for the Western District of Michigan seeking enforcement of the summons under 26 U.S.C. §§ 7402(b) and 7604(a). The district court adopted a magistrate's recommendation that the summons should be enforced. Upjohn appealed to the Court of Appeals for the Sixth Circuit. The Sixth Circuit rejected the magistrate's finding of a waiver of the attorney-client privilege. However, it held that the privilege did not apply to the extent the communications were made by officers and agents not responsible for directing Upjohn's actions in response to legal advice. The court remanded to the district court for a determination of who was within the control group. In a footnote, the court stated that the work-product doctrine is not applicable to administrative summonses issued under 26 U.S.C. § 7602. The Supreme Court granted certiorari.
View caseEven when substantial need and undue hardship are shown, the court must protect against disclosure of mental impressions, conclusions, opinions, or legal theories. This heightened protection applies to opinion work product and often approaches absolute immunity.
Supporting sources
The rule expressly covers documents and tangible things. Courts extend the same protection to intangible work product such as an attorney's oral mental impressions to prevent disclosure of core trial strategy.
The two doctrines are distinct. Attorney-client privilege protects confidential communications for legal advice, while this protection shields evaluative thinking prepared in anticipation of litigation even when the communication itself might not be privileged.
Supporting sources
…Committee on 1970 Amendment to Rules, 28 U. S. C. App., p. 442 ("The subdivision . . . goes on to protect against disclosure the mental impressions, conclusions, opinions, or legal theories . . . of an attorney or other representative of a party. The Hickman opinion drew special attention to the need for protecting an attorney against discovery of memoranda prepared from…