Also known as: work-product protection · work product protections · work product doctrine · work-product doctrine
Written by attorneys — see sources below.
A qualified protection afforded to tangible material or its intangible equivalent prepared in anticipation of litigation or for trial by or for a party or its representative. The protection shields an attorney's preparatory materials from discovery absent a showing of substantial need and inability to obtain the substantial equivalent without undue hardship. Opinion work product reflecting mental impressions receives stronger protection than fact work product.
After a chemical spill on a cargo vessel, Coastal Marine's maritime counsel interviewed crew and dock workers and prepared notes summarizing those statements. Plaintiffs in the ensuing damages suit moved to compel production of the notes. The court denied the motion because the notes were prepared in anticipation of litigation and plaintiffs made no showing of substantial need.
Windham Technologies' outside counsel prepared written statements and memoranda after interviewing potential witnesses about a product defect. The opposing party sought the memoranda in discovery. The court held the materials protected because they reflected counsel's preparations in anticipation of litigation and no necessity was shown.
Westmont Healthcare's in-house counsel directed lower-level employees to provide information about internal protocols and prepared memos summarizing the interviews. An adversary sought the memos in litigation. The court denied discovery because the memos were prepared in anticipation of litigation and no substantial need was demonstrated.
White Events' outside counsel sent an email chain to executives discussing settlement ranges and evidentiary weaknesses in a copyright suit. The chain was inadvertently produced during discovery. The court ruled that work product protection was not waived because the disclosure was inadvertent and reasonable steps were taken to prevent it.
United States v. Nobles defense counsel hired an investigator who interviewed prospective witnesses and recorded inconsistent statements. The government sought the investigator's notes at trial. The court held the notes protected as work product prepared in anticipation of litigation absent a showing of necessity.
Respondent Robert Nobles was tried and convicted in federal district court on charges arising from an armed robbery of a federally insured bank. The prosecution's principal evidence consisted of identification testimony from a bank teller and a salesman who had been present during the robbery. Nobles presented an alibi but centered his defense on efforts to discredit the two eyewitnesses. In preparing for trial, a defense investigator hired by Nobles' counsel interviewed both eyewitnesses and recorded the substance of those conversations in a written report. During cross-examination of the bank teller, defense counsel asked whether the teller had told the investigator he saw only the back of the man identified as Nobles; the teller did not recall making the statement. The prosecutor was permitted to see a portion of the report briefly, after which the teller testified that he had actually seen more than the back and continued to identify Nobles. Defense counsel similarly cross-examined the salesman about whether he had told the investigator that all blacks looked alike to him; the salesman denied making the statement. The district court declined to order immediate disclosure but ruled that production of portions of the report would be required if the investigator later testified about the interviews. The court stated it would conduct an in camera review and excise any references to matters not relevant to the precise statements at issue. After the prosecution rested, the defense called the investigator as a witness. The court reiterated that an inspected and edited copy of the report would have to be provided to the government at the conclusion of the investigator's testimony. When defense counsel refused to produce the report, the court ruled that the investigator could not testify about his interviews with the two witnesses. The Court of Appeals for the Ninth Circuit reversed the conviction. The Supreme Court granted certiorari.
View caseA party must demonstrate substantial need for the materials to prepare its case and that it cannot obtain the substantial equivalent without undue hardship. Even if that showing is made, opinion work product reflecting mental impressions receives stronger protection.
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Yes. The protection extends to materials prepared by or for a party or its representative, including adjusters and investigators, when created in anticipation of litigation.
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Documents qualify when the primary motivating purpose is to assist in anticipated litigation rather than ordinary business or routine institutional requirements. Timing, counsel involvement, labeling, and storage location are relevant factors.
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No waiver occurs if the disclosure was inadvertent, the holder took reasonable steps to prevent disclosure, and the holder promptly took reasonable steps to rectify the error after learning of it.
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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…