Also known as: attorney work-product · attorneys' work product · attorney's work product · work product doctrine · work-product privilege · attorney work product privilege
Written by attorneys · grounded in primary & secondary sources — see below
Materials prepared by or for an attorney in anticipation of litigation. Such materials receive qualified protection from discovery. A party seeking them must demonstrate substantial need and inability to obtain their substantial equivalent without undue hardship.
After a warehouse fire, Garcia Manufacturing's counsel interviewed several employees and drafted memoranda summarizing their statements. Horizon Mutual later sought those memoranda in discovery. The court denied production because Garcia made no showing of substantial need or undue hardship in obtaining equivalent information from the employees directly.
After regulators opened a formal inquiry into Apex Capital Bank's trading practices, outside counsel directed the bank's internal risk committee to prepare minutes and loss-projection models. Investors later requested those documents. The court denied the motion to compel absent a showing of substantial need and lack of practical alternative sources.
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Defense counsel in a product liability case interviewed the plaintiff's retained experts and left handwritten notes in a briefcase. The plaintiff's lawyer obtained the notes through inadvertence and used them at deposition. The court disqualified the plaintiff's lawyer because the notes constituted protected attorney work product.
After a client discovered a missed filing deadline, the law firm of Carter & Diaz directed associates and its risk-management partner to draft internal emails and a chronology evaluating potential malpractice exposure. The former client later sought those materials in discovery. The court denied production because the documents were prepared in anticipation of litigation.
A target of a grand jury investigation received a subpoena for documents prepared by counsel summarizing interviews with lower-level employees. The target invoked the Fifth Amendment. The court held that the work product doctrine did not shield the documents from production once the underlying facts were compelled.
No. Protection extends to materials prepared by or for a party or its representative, including claims adjusters, risk-management personnel, and consultants acting at counsel's direction, provided the materials were created in anticipation of litigation.
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No. Relevance alone is insufficient. The requesting party must also demonstrate substantial need for the materials to prepare its case and inability to obtain their substantial equivalent without undue hardship.
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No. The key inquiry is whether the materials were prepared because of anticipated litigation rather than for ordinary business purposes. Documents created before suit is filed can qualify if litigation was reasonably anticipated.
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Yes. Ordinary fact work product may be discoverable upon a showing of substantial need and undue hardship. Opinion work product revealing an attorney's mental impressions receives heightened protection and is rarely ordered produced.
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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…