Also known as: work-product privilege · work product doctrine · attorney work product · work-product doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A qualified protection shielding materials prepared by or for an attorney in anticipation of litigation from discovery. The protection preserves the attorney's mental impressions, litigation strategy, and preparations. It yields only upon a showing of substantial need and inability to obtain equivalent information without undue hardship.
Westbrook Dynamics faces a contamination suit from neighboring landowners. Its counsel conducts interviews with seasonal workers after the complaint is filed and records summaries in field notes. The landowners move to compel the notes. The court denies the motion because the notes were prepared in anticipation of litigation.
Windham Technologies' in-house counsel directs mid-level engineers to supply information about internal processes after a copyright complaint arrives. Counsel prepares memos summarizing those interviews. The opposing party seeks the memos in discovery. The court withholds the memos absent a showing of substantial need.
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Wade Watson is charged with a federal offense and seeks internal prosecution memoranda evaluating charging criteria. The government prepared the memoranda after the investigation began. Watson moves to compel the documents. The court denies production because the materials constitute protected work product.
William Williams is prosecuted for obstruction. His counsel retains an investigator who interviews witnesses and prepares a report containing strategic assessments. The government subpoenas the report after trial begins. The court quashes the subpoena because the report reflects work product prepared in anticipation of litigation.
Yes. Materials prepared by counsel in anticipation of litigation, such as notes reflecting interviews with potential witnesses, receive qualified protection even when the interviewees are not clients. Production requires a showing of substantial need and undue hardship.
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Work product protection is qualified and covers materials prepared in anticipation of litigation regardless of whether they involve client communications. Attorney-client privilege is absolute but limited to confidential communications between attorney and client for legal advice.
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The requesting party must demonstrate substantial need for the materials and inability to obtain substantially equivalent information without undue hardship. Mental impressions of counsel remain protected even when that showing is made.
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No, provided the disclosure was inadvertent, reasonable steps were taken to prevent disclosure, and prompt steps were taken to rectify the error. The producing party may still assert protection after notification.
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…product revealing the attorney's mental processes. The Rule permits disclosure of documents and tangible things constituting attorney work product upon a showing of substantial need and inability to obtain the equivalent without undue hardship. This was the standard applied by the Magistrate, 78-1 USTC ¶ 9277, p. 83,604. Rule 26 goes…