Also known as:attorney work product · attorneys work product · attorney work-product · work product · work-product doctrine · work product privilege
Written by attorneys · grounded in primary & secondary sources — see below
Materials prepared by an attorney in anticipation of litigation, including memoranda summarizing witness interviews and evaluations of trial strategy, that receive protection from discovery unless the opposing party demonstrates substantial need and undue hardship in obtaining equivalent information.
Sources & Authorities
How it applies
Common Examples
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Witness Interview Memos Withheld
Antonio Alvarado sued his former employer after termination. Defense counsel interviewed several mid-level employees at the direction of superiors and prepared memoranda summarizing those discussions two weeks after the complaint was filed. When the plaintiff moved to compel production, the court denied the motion because the memoranda reflected attorney preparations made in anticipation of litigation and the plaintiff failed to show substantial need or inability to obtain the facts elsewhere.
Corporate Employee Communications
Ava Adebayo, a line engineer at Aurora Biotech, sent internal reports on product testing to in-house counsel after superiors directed her to do so for the purpose of obtaining legal advice in an anticipated product-liability suit. When opposing counsel sought the documents, the court upheld work-product protection because the materials were prepared in anticipation of litigation and the requesting party could not demonstrate substantial need.
Select any source to read its text and confirm it supports the definition.
Cases
Dictionaries
Firm Defends Malpractice Claim
Aisha Ahmed sued her former law firm alleging overbilling and inadequate representation in a contract dispute. The firm obtained and used its own prior work-product memos summarizing client instructions and discovery responses to defend against the allegations. The court permitted the use because the client had placed the representation at issue, triggering the self-defense exception to work-product protection.
Arbitration Strategy Notes
Anika Anand, a shareholder, sued the corporation and its directors. Corporate counsel prepared annotated notes evaluating arbitration strategy and jury appeal after the complaint was filed. When the plaintiff sought the notes during discovery, the court sustained the work-product objection because the materials were created in anticipation of litigation and no substantial need was shown.
Due Diligence Work Product
Anchor Bank commissioned an outside advisor to prepare a financial model for a proposed acquisition. After the deal failed, a shareholder sued the directors. The bank withheld the model and related attorney notes prepared in anticipation of defending a duty-of-care claim. The court denied production because the materials constituted protected work product and the plaintiff offered no showing of necessity.
Internal Investigation Summaries
Austin Abbott, a public employee, prepared a required safety report that contained additional allegations. After reassignment, he sued for retaliation. Defense counsel created summaries of interviews with other employees conducted after the suit was filed. The court upheld work-product protection over the summaries because they were prepared in anticipation of litigation and the plaintiff made no showing of substantial need.
Common questions
Frequently Asked
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What showing must an opposing party make to overcome work-product protection?+
The opposing party must demonstrate substantial need for the materials and an inability to obtain their substantial equivalent without undue hardship. Mere relevance or convenience is insufficient.
Supporting sources
Does work-product protection apply to materials prepared by in-house counsel for a corporation?+
Yes. Communications and documents prepared by in-house counsel at the direction of superiors for the purpose of securing legal advice in anticipated litigation receive work-product protection, just as they would if prepared by outside counsel.
Supporting sources
When may a law firm use its own work product against a former client?+
A law firm may obtain and use client communications and work product necessary to defend itself when the client has placed the representation at issue by alleging malpractice or overbilling.
Supporting sources
Does inadvertent production of work-product materials always result in waiver?+
No. Under Federal Rule of Evidence 502(b), inadvertent disclosure does not waive protection if the holder took reasonable steps to prevent disclosure and promptly took reasonable steps to rectify the error after learning of it.
Supporting sources
478 U.S. 186 (1986)Constitutional Law
…is immoral and unacceptable. Unless the Court is prepared to conclude that such a law is constitutional, it may not rely on the work product of the Georgia Legislature to support its holding. For the Georgia statute does not single out homosexuals as a separate class meriting special disfavored treatment. Nor, indeed, does the…