Also known as: work-product immunity · work product immunities · work product doctrine · attorney work product protection
Written by attorneys · grounded in primary & secondary sources — see below
A qualified protection under civil procedure rules that shields materials prepared by or for an attorney in anticipation of litigation from routine discovery. The doctrine covers both factual compilations and opinion work product reflecting mental impressions and strategy. An opposing party may overcome the protection only by demonstrating substantial need for the materials and an inability to obtain their substantial equivalent without undue hardship.
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After a cargo vessel fire, Woodridge Manufacturing's counsel interviewed crew members and dockworkers to prepare a defense. The attorney prepared written summaries of those interviews. When cargo owners later sued and sought the summaries in discovery, the court denied the motion because the summaries were prepared in anticipation of litigation and the owners made no showing of substantial need or undue hardship in obtaining the facts elsewhere.
Willowbrook Capital's in-house counsel directed project managers to have engineers and technicians participate in confidential interviews after a product failure that was expected to produce litigation. Counsel prepared a root-cause report and interview notes. When plaintiffs later moved to compel production, the court denied the motion because the materials were prepared in anticipation of litigation and the plaintiffs failed to show substantial need or inability to obtain equivalent facts through other discovery.
Winterhaven Logistics' outside counsel inadvertently produced a memorandum containing counsel's analysis of settlement strategy and anticipated deposition tactics during expedited document production. Upon discovering the error, counsel immediately notified opposing counsel and demanded return of the document. The court granted the protective order requiring sequestration and return because the memorandum constituted protected work product prepared in anticipation of litigation.
Work product immunity protects materials prepared by or for an attorney in anticipation of litigation regardless of whether they involve client communications. The attorney-client privilege applies only to confidential communications between attorney and client for the purpose of obtaining legal advice. Work product protection is qualified while the privilege is absolute.
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The requesting party must demonstrate substantial need for the materials and an inability to obtain their substantial equivalent without undue hardship. Even when that showing is made, opinion work product reflecting mental impressions and legal theories receives heightened protection and is rarely ordered produced.
…I disagree with the Court of Appeals’ notion that the context of an initial client interview affects the applicability of the work product doctrine, I do not believe that the doctrine applies where the material concerns a client who is no longer a potential party to adversarial litigation. Accordingly, I would affirm the judgment of…
…cert. den. 375 U.S. 929, 84 S.Ct. 330, 11 L.Ed.2d 262 (1963). Broadly stated, the issue presented by this case is whether the work product doctrine
…compelling Attorney to testify before the grand jury. C Intervenors assert that
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No. Materials must be prepared in anticipation of litigation. Documents created in the ordinary course of business retain no work product protection even if they later become relevant to anticipated litigation.
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Upon prompt notification of the claim, the receiving party must return, sequester, or destroy the material and refrain from further use until the claim is resolved. The rule requires reasonable steps to retrieve any copies already disseminated.
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