Also known as: work-product doctrine · work product rule · work product privilege · attorney work product
Written by attorneys · grounded in primary & secondary sources — see below
A qualified protection from discovery for documents and tangible things prepared in anticipation of litigation by or for a party or its representative. The protection yields to a showing of substantial need and undue hardship in obtaining the substantial equivalent by other means, but mental impressions and legal theories receive heightened protection.
After a tugboat sinking, defense counsel Winston West interviewed several survivors and prepared written memoranda summarizing their accounts. Plaintiff Willow West sought production of the memoranda during discovery. The court denied the request because the memoranda were prepared in anticipation of litigation and the plaintiff failed to demonstrate sufficient necessity for their production.
Winterhaven Logistics faced a regulatory inquiry into its shipping practices. Its in-house counsel directed mid-level compliance officers to prepare incident reports detailing internal procedures. When a later lawsuit arose, the opposing party sought the reports. The court upheld work product protection because the reports were prepared in anticipation of litigation and the requesting party did not show substantial need or undue hardship.
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After a warehouse fire, Wrightway Engineering's counsel retained an outside consultant to prepare reconstruction reports. The reports included field observations and preliminary conclusions. When the opposing party sought the reports in discovery, the court sustained the work product objection because the materials were created at counsel's direction in anticipation of litigation.
Following a product recall, Woodridge Manufacturing's legal team directed the compliance department to compile risk memoranda evaluating potential claims. The memoranda contained factual summaries and strategic notes. In subsequent litigation, the court denied a motion to compel because the requesting party had not demonstrated substantial need or inability to obtain equivalent information elsewhere.
Warren Woods's counsel hired an investigator to interview potential witnesses after a workplace accident. The investigator prepared written summaries of those interviews. At trial the defense called the investigator as a witness. The court held that work product protection was waived as to the matters covered by the investigator's testimony.
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. Even then, the court must protect opinion work product such as mental impressions and legal theories.
Supporting sources
Yes. The doctrine protects documents and tangible things prepared in anticipation of litigation by or for a party or its representative, which expressly includes attorneys and their agents such as consultants retained by counsel.
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Materials qualify when they are prepared because of anticipated litigation rather than in the regular course of business. Timing relative to the filing of suit is not dispositive. Involvement of counsel and the purpose of preparing for litigation are key indicators.
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Yes. Written statements and memoranda reflecting interviews with potential witnesses that are prepared in anticipation of litigation receive work product protection absent a showing of necessity. The protection applies even when the memos contain factual information obtained from third parties.
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…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"…