Which Proceedings Count

Which Proceedings Count

Rule 26(b)(3)(A) protects documents and tangible things “prepared in anticipation of litigation or for trial” by or for a party or its representative.¹ Evidence Rule 502(g)(2) uses the same trigger when it defines work-product protection as the protection applicable law gives tangible material, or its intangible equivalent, prepared in anticipation of litigation or for trial.² Everything therefore turns on what counts as litigation. Hickman had a lawsuit in mind: the lawyer there privately interviewed the survivors of an accident “with an eye toward the anticipated litigation,” after a public hearing had already taken and recorded their testimony.³ The doctrine nonetheless reaches further. The litigation a party must have anticipated can include any form of adversary process, including an investigatory subpoena from a grand jury or an administrative agency.⁴

That breadth tracks the reasons Hickman gave for the protection. If opposing counsel could obtain a lawyer’s interviews, statements, memoranda, and mental impressions on mere demand, the Court warned, much of what is now written would stay unwritten, and a lawyer’s thoughts would no longer be his own. Inefficiency, unfairness, and sharp practices would follow in the preparation of cases.⁵ Nothing in that reasoning depends on the caption of the proceeding. It applies wherever an adversary could reach counsel’s preparation. The subsections below follow the doctrine into criminal cases and grand juries, then into agency and tax controversies, and end at the limit the courts have drawn.

Criminal Cases and Grand Juries

In United States v. Nobles, a criminal case, the Supreme Court repeated Hickman’s description of a lawyer’s work as reflected in “interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways.” It then declined to delineate the doctrine’s scope at trial, because the defense had waived whatever protection it might have claimed.⁶ Two points follow. The Court treated the doctrine as one a criminal defense might invoke, and it resolved the case on waiver rather than scope, so a criminal litigant can still lose the protection by what it does.

The Eighth Circuit took the next step in re Grand Jury Proceedings, where a grand jury sought the personal recollections, summarizing notes, and memoranda of a lawyer named Duffy about his interviews with nonemployees of his client.⁷ The court called the threshold question, whether the doctrine has any application to grand jury proceedings, the preliminary and most difficult aspect of the case, and it held that the doctrine does apply.⁸

The court began from policies that courts had stated in civil litigation and found them even more strongly applicable in criminal proceedings. It relied on an annotation describing an especially strong tendency to protect attorney work product in criminal cases and reporting that, in the few relevant criminal cases, courts had consistently treated witness statements as work product. It also discussed State v. Montague, in which the state sought access to the defendant’s attorney’s notes of interviews with prospective witnesses.⁹ Those authorities involved criminal trials rather than grand jury proceedings, but the court saw no reason to distinguish them. The search for truth is no less compelling at a criminal trial than before a grand jury, so the interest in protecting work product should prevail in both for the same policy reasons.¹⁰ The court drew added support from analogous cases applying the attorney-client privilege where no arrest or indictment had yet occurred.¹¹

The holding was deliberately narrow. On the record before it, Duffy did not have to produce or testify about his personal recollections, or about the contents of the summaries he made and the conclusions he drew, from interviews with his client’s nonemployees.¹² The court limited its ruling to those facts and added that the policies behind the doctrine, and so its scope, may vary somewhat with the nature of the proceeding.¹³ The record also fixed what was at stake. Only the content of the interviews was in dispute, not their existence, time, or place, or the names of those contacted. Duffy held only his own recollections, notes, and memoranda, with no signed statements or verbatim quotations of what interviewees said.¹⁴ The decision therefore leaves the underlying facts for the later section on facts, and it raises a textual puzzle taken up in the section on intangible work product: Rule 26(b)(3)(A) speaks only of documents and tangible things, while a lawyer’s recollection is intangible.

Criminal practice also varies on the neighboring question of discovering witness statements. States divide over whether such statements are available as a matter of right, and the division follows in part their division over witness lists. A jurisdiction that does not grant witness lists as of right will not grant witness statements as of right, though some that grant lists still withhold statements.¹⁵ A criminal-case answer may therefore depend on the forum as well as on the doctrine.

Agency and Tax Controversies

Administrative process counts too. In Upjohn Co. v. United States, the court of appeals had remarked in a concluding footnote that the work-product doctrine “is not applicable to administrative summonses issued under 26 U.S.C. § 7602.”¹⁶ The Government did not defend that position in the Supreme Court. It conceded that the doctrine applied and argued instead that it had made a sufficient showing of necessity to overcome the protection.¹⁷ The dispute thus shifted from whether work product reaches an IRS summons to whether the summoning party’s need was strong enough.

The concession fits the general rule. A subpoena or summons from a grand jury or a regulatory agency is adversary process that can pull a lawyer’s files toward an opponent as readily as a discovery request can. Work product is accordingly available as an objection to a subpoena in grand jury and regulatory agency investigations, not only to requests in civil discovery.¹⁸ A document prepared before the subpoena arrives or the complaint is filed raises a harder question, because it is often unclear that the material was prepared in anticipation of litigation at all. Courts frequently require either or both of two types of proof in that situation, a subject for the competing anticipation tests.¹⁹

Tax disputes show the same pattern in a particular setting. Protection turns on a realistic prospect of dispute. If the possibility of a dispute is remote, or the information was prepared in the ordinary course of business or during the preparation of a client’s tax returns, it earns no work-product protection.²⁰

How tightly a document must connect to the anticipated dispute is a separate question, answered by the competing anticipation tests. Here it is enough to see that an IRS controversy, like a grand jury inquiry, is the kind of proceeding the doctrine contemplates.

The Adversarial-Proceeding Limit

Every extension above rests on one common element, and an Eighth Circuit decision shows what happens when it is missing. The White House claimed work-product immunity for attorney materials on the theory that its lawyers had been preparing for the independent counsel’s investigation.²¹ The court found the same essential element in each of the cases it reviewed: the attorney was preparing for or anticipating some sort of adversarial proceeding involving his or her client.²² The claim failed on that element. The independent counsel was not investigating the White House and could not. White House officials might be under investigation for their own acts, but the court knew of no authority letting a client claim work-product immunity for materials merely because they were prepared while some other person was anticipating litigation.²³

The White House also pointed to a congressional investigation. The court assumed, for argument’s sake, that the White House anticipated such an investigation of itself and that a congressional investigation is an adversarial proceeding. Even so, the only harm the White House could suffer was political harm, and the court declined to endorse the claim when it rested on nothing more than political concerns.²⁴

The line follows from what the doctrine protects. Hickman’s worry was that opposing counsel’s access to a lawyer’s preparation would leave much unwritten and breed sharp practices in preparing cases for trial.²⁵ That worry arises when an adversary in a contest involving the client could reach counsel’s work, and it does not arise merely because a client faces embarrassment. Comparing Duffy with the White House case sharpens the point. Duffy’s notes recorded his own interviews on behalf of his client, in a proceeding the court held the doctrine covers. The White House lawyers were working in the shadow of proceedings that targeted individuals or, at most, threatened political harm, so no adversarial proceeding involving the White House stood behind their notes.

Students often lose points by treating any inquiry that threatens a client as litigation. A short sequence keeps the analysis on the questions the cases actually ask.