Privilege Versus Work Product

Protecting Material From Discovery

Privilege Versus Work Product

Discovery reaches only matter that is not privileged, so the first question about any document a party wants to withhold is which shield applies.¹ Two shields matter most. The attorney-client privilege comes from the law of evidence, and the discovery rules leave privileged matter outside their reach.² Work product comes from the discovery rules themselves. Under Rule 26(b)(3)(A), a party ordinarily may not discover documents and tangible things prepared in anticipation of litigation or for trial by or for another party or its representative, including the party's attorney, consultant, surety, indemnitor, insurer, or agent.³ The two doctrines are related but distinct: they protect different things, with different strength, and waiver of one does not necessarily waive the other.⁴

The attorney-client privilege typically requires four things: a communication, made in confidence, between a lawyer and a client, in the course of providing professional legal services.⁵ The law protects such communications because it regards encouraging confidence in relationships like lawyer and client as more important than discovering what the participants said to each other.⁶

The elements limit the privilege in practical ways. The president of a nonprofit corporation who asks the corporation's attorney which of two fund-raising proposals will be more effective wants the attorney's judgment about effectiveness, not legal assistance, so the communication is not privileged. A client who brings her best friend to a lawyer meeting for moral support destroys confidentiality, because the communication is no longer solely between lawyer and client. Third parties whose presence is necessary to facilitate the communication, such as translators, are the exception.⁷

A lawyer's investigation produces much that the privilege does not reach. A memorandum recording what witnesses told counsel, for example, is no communication between lawyer and client, so it fails the privilege's elements.⁸ The work-product rule of Hickman fills that gap, and Rule 26(b)(3) now incorporates it into the federal rules. Documents and tangible things prepared in anticipation of litigation or trial become discoverable only on a showing of substantial need and inability, without undue hardship, to obtain the substantial equivalent by other means.⁹ The doctrine encourages attorneys to write down their thoughts and opinions, knowing that opponents will not rob them of the fruits of their labor. Justice Jackson observed in his Hickman concurrence that discovery was hardly intended to let a learned profession perform its functions without wits or on wits borrowed from the adversary.¹⁰

A party that invokes work product must also support the claim. In one dispute, the party resisting discovery called its accident investigation work product, its opponent called the investigation a routine business report, and the court held that the claimant had not met its Rule 26(b)(5) burden to enable other parties to assess the protection.¹¹ Later sections take up both that burden and the anticipation-of-litigation requirement.

The two shields also differ in strength. A valid privilege usually prevails even when the withheld information is crucial, absent some constitutional issue, because creating a privilege reflects a judgment that protecting the communication matters more than giving litigants access to it.¹² Work product protection is qualified. Materials within Rule 26(b)(3)(A) may be discovered if they are otherwise discoverable under Rule 26(b)(1) and the requesting party shows substantial need for them to prepare its case and inability, without undue hardship, to obtain their substantial equivalent by other means.¹³ The rule thus creates two tiers. Ordinary work product yields to a showing of need and hardship, while opinion work product, which encompasses the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative concerning the litigation, generally receives near-absolute protection.¹⁴ Even when a court orders discovery of work product, it must protect those mental impressions.¹⁵

What work product lacks in strength, it makes up in breadth. The privilege protects communications, whether written or oral, while work-product immunity protects documents and tangible things, such as memoranda, letters, and e-mails.¹⁶ Rule 26(b)(3)(A) also reaches materials prepared by or for a party's consultant, insurer, or agent, not just its attorney.¹⁷

Because the doctrines are distinct, one document can raise both claims, and parties often preserve both at once. A court order in one case provided that any use or filing of the Protected Documents would not waive the attorney-client privilege or work-product protection, and that making them available did not waive the right to assert either.¹⁸ How work-product waiver operates, and how far it reaches, is developed later in this chapter.

Work product does not protect facts from discovery, even facts counsel learned while preparing for litigation, and most facts reach counsel that way.¹⁹ A lawyer who interviewed employees to learn who knows about a contract must still answer an interrogatory asking for the names of all persons with relevant information. The privilege has a parallel limit. It protects the substance of a confidential communication, not the fact that the communication occurred, and it excludes the client's observable physical characteristics, such as demeanor, bearing, sobriety, and dress.²⁰

The lawyer's duty of confidentiality is a third concept, and it is broader than either doctrine. An attorney may have to keep confidential information that the law of evidence and procedure does not protect from discovery, and only protections rooted in evidence or procedure can be used to resist an official demand such as a subpoena, a request for production of documents, or a question at trial or a deposition.²¹ An objection resting on the duty alone therefore gives no ground for withholding.